Where the OEP carries out an investigation this amendment seeks to ensure that it is made public.
This is another “may” and “must” amendment, which draws attention to an interesting passage of “mays” and “musts” in this clause that culminates in letting the OEP off. Subsection (1) states:
“The OEP may carry out an investigation under this section if it receives a complaint” made under the previous section. Subsection (2) states that it
“may carry out an investigation under this section without having received such a complaint if it has information that, in its view, indicates that…a public authority may have failed to comply with environmental law, and…if…the failure would be a serious failure.”
So it can carry out an investigation.
However, subsection (4) states:
“The OEP must notify the public authority of the commencement of the investigation.”
So there is a requirement and a duty on the OEP to tell the public authority what it is doing about the investigation. Not only must it tell the public authority, but under subsection (5) it must
“prepare a report on the investigation and provide it to the public authority.”
Then, subsection (8) states that the report should set out
“whether the OEP considers that the public authority has failed to comply with environmental law…the reasons the OEP came to that conclusion, and…any recommendations the OEP may have”.
So there is quite a powerful set of instructions to the OEP as to what it may do when it carries out an investigation into a public authority and how it is supposed to prepare a report. It must set out the things that I have just cited.
After all that, subsection (9) states:
“The OEP may publish the report or parts of it.”
Or it may not; it may keep it to itself and put it in a cupboard. Having done all that, the OEP is not required to do anything about it. However, subsection (10) states:
“If the public authority is not a Minister of the Crown, the OEP must also…notify the…Minister of the commencement of the investigation, and…provide the relevant Minister with the report prepared under subsection (5).”
So the OEP must provide the Minister with something if the public authority is not a Minister of the Crown, but it does not have to publish the report. It is not clear whether the Minister has to do anything if the OEP does not, although the OEP, instead of leaving the report in the cupboard, might send it across the Minister’s desk.
We therefore have a circularity that ends in a dead end, if it is possible to conceive of such a thing. That concerns me, because if I were the interim chair of the OEP and I was not completely au fait with everything that it ought to do or not do, I would take that passage to mean that the OEP does not actually have to do very much. I do not think that is good enough; the OEP should be bound by what it is required to do in the case of these investigations.