Commonwealth Ombudsman

 

The Commonwealth Ombudsman is an independent and impartial statutory official who can investigate government actions generally as well as the specific areas of immigration, some taxation, law enforcement, postal industry and overseas students. The Ombudsman is answerable only to Parliament and can only be removed by both houses of Parliament.

Functions and roles

The office of Commonwealth Ombudsman was established by the Ombudsman Act 1976 (Cth) (“OA (Cth)”) and began operation in July 1977. Under the OA (Cth), the Commonwealth Ombudsman can, when performing relevant functions, be referred to as the:

Immigration Ombudsman;

Law Enforcement Ombudsman.

The Commonwealth Ombudsman is also the:

Defence Force Ombudsman (pt IIA);

Postal Industry Ombudsman (pt IIB);

Overseas Students Ombudsman (pt IIC); and

Private Health Insurance Ombudsman (pt IID).

All references in this section to the “Ombudsman” are to the Commonwealth Ombudsman, in their various roles, unless stated otherwise. The Victorian Ombudsman is discussed in a later section.

The Commonwealth Ombudsman is independent and impartial. They are appointed for a renewable term by the Governor-General and are subject to removal only following a vote of both Houses of parliament. This impartiality contributes to the Ombudsman’s approach to investigation. The office is an advocate for neither complainants nor the agencies about which they complain. The Commonwealth Ombudsman’s responsibility is to parliament, and through it, to the public interest.

The Commonwealth Ombudsman’s investigations are free to complainants and agencies (other than in the Postal Industry Ombudsman role where Australia Post and private postal providers are required to pay for investigations, and the Private Health Insurance Ombudsman role where insurers pay a levy).

The Commonwealth Ombudsman must investigate following a complaint (unless it is outside their jurisdiction or a decision is made to decline or cease an investigation for one of the reasons set out in section 6 of the OA (Cth); seeComplaints to the Commonwealth Ombudsman”). The Ombudsman may investigate on their “own motion” (i.e. without having received a complaint) typically where there is a systemic issue or where the Ombudsman wishes to check the effectiveness of an agency’s complaint system.

Immigration Ombudsman

The Immigration Ombudsman can investigate action taken by the Australian Government’s Department of Immigration and Border Protection (DIBP) in relation to visa, citizenship, immigration and detention issues. This includes DIBP’s processing of visa and citizenship applications, and DIBP’s decisions to refuse or cancel visas.

The Immigration Ombudsman has a compliance role and undertakes file inspections, site visits and observations of DIBP’s field operations. They monitor DIBP’s functions concerning the location, identification, detention and removal of unlawful non-citizens.

The Immigration Ombudsman regularly visits immigration detention centres and other facilities that are used to accommodate detainees.

In the Immigration Ombudsman’s complaint role, detention-related complaints generally concern internal complaint handling procedures, access to health services, access to internal and external activities and property related matters. One of the Ombudsman’s roles is to ensure that the refugee assessment process for unlawful non-citizens is conducted in a timely and reasonable manner.

Under part 8C of the Migration Act 1958 (Cth), the Ombudsman assesses, reports on and makes recommendations in relation to people held in immigration detention for more than two years.

Taxation complaints

The Commonwealth Ombudsman no longer handles complaints about tax administration. These matters are now dealt with by the Inspector-General of Taxation (www.igt.gov.au).

Defence Force Ombudsman

The Defence Force Ombudsman can investigate action taken in relation to members and former members of the Australian Defence Force (ADF) arising out of their ADF employment (other than some disciplinary actions and certain actions taken in relation to honours and awards).

Before the Defence Force Ombudsman conducts an investigation of the complaint, the ADF member must use the ADF’s internal redress system and give it at least 28 days to reach a decision.

However, there are reasons the Defence Force Ombudsman may investigate a complaint, whether or not the internal redress system has been accessed. Current and former members of the ADF, their spouses and dependents can complain to the Ombudsman about service-related actions of Commonwealth agencies (e.g. repatriation benefits, defence service home loans, military superannuation, compensation, and service/campaign medals). Defence force complaints are dealt with in a similar way to other complaints under the OA (Cth).

Postal Industry Ombudsman

The Postal Industry Ombudsman can investigate the actions of Australia Post and those of its commercial peers that register to be part of the Ombudsman scheme created under the OA (Cth). The intent is that the Postal Industry Ombudsman acts in a similar manner to other industry ombudsmen, but with the capacity to exercise set statutory investigation and reporting powers and to use their Ombudsman powers in relation to Australia Post if warranted.

Law Enforcement Ombudsman and inspections

The Law Enforcement Ombudsman’s role has an emphasis on the inspection and oversight of critical activities; the Ombudsman’s role in relation to the Australian Federal Police (AFP) is to monitor and react to the AFP’s management of its professional standards issues (pt V Australian Federal Police Act 1979 (Cth)).

Complaints about allegations of corruption within the AFP and the Australian Crime Commission (ACC) are referred to the Australian Commission for Law Enforcement Integrity.

The Ombudsman also has a role relating to the inspection of, and reporting on, sensitive or intrusive law enforcement activities undertaken by the AFP, the ACC and other bodies including state police, as well as a new role oversighting data retention. These roles are provided by:

the Telecommunications (Interception and Access) Act 1979 (Cth), in relation to the interception of telecommunications, access to stored communications, and the retention of data;

the Surveillance Devices Act 2004 (Cth), in relation to the use of technology such as listening devices; and

the Crimes Act 1914 (Cth), in relation to law enforcement controlled operations.

Under these Acts, the Ombudsman reports to the responsible federal minister, who reports to parliament.

Building industry inspectorate

Under the Fair Work (Building Industry) Act 2012 (Cth), the Ombudsman also oversees the Fair Work Building Industry Inspectorate and its use of examination powers to obtain information.

Overseas Students Ombudsman

The Overseas Students Ombudsman investigates complaints from overseas students about the actions of private education providers on the Commonwealth Register of Institutions and Courses for Overseas Students (www.cricos.deewr.gov.au). This register is administered by the Australian Government’s Department of Education and includes education providers, and services (e.g. accommodation, student support and information services) that assist overseas students to adjust to life in Australia.

Private Health Insurance Ombudsman

The Private Health Insurance Ombudsman (PHIO) deals with complaints about private health insurance and related matters. A complaint can be made about a private health fund, a broker, a hospital, a medical practitioner or other health practitioner so long as it relates to private health insurance arrangements.

The PHIO also publishes information that compares health funds and reports on individual funds.

The PHIO can investigate a complaint or refer a matter to mediation.

The PHIO does not deal with complaints about the service or treatment provided by a health professional or hospital. These should be directed to the Victorian Health Services Commissioner, or the equivalent state or territory body.

Other roles of the Commonwealth Ombudsman

The Commonwealth Ombudsman also acts as the Australian Capital Territory (ACT) Ombudsman. The ACT Ombudsman relies on the Ombudsman Act 1989 (ACT) to fulfil this role.

The Public Interest Disclosure Act 2013 (Cth) establishes a whistleblower protection scheme for public officials at the federal level. Under this Act, the Ombudsman:

promotes awareness and understanding of the scheme;

provides information, resources and guidance to agencies and disclosers;

monitors the operation of the scheme; and

reports annually to parliament.

Individuals who meet the definition of a public official – which includes most staff of Australian government agencies, contractors, and employees of contracted service providers providing goods and services under contract to the Commonwealth – can use the scheme to report wrongdoing. More information is available at www.PID.ombudsman.gov.au.

International role

The Commonwealth Ombudsman is a member of international and regional ombudsmen forums. The Commonwealth Ombudsman receives government aid funding to provide a range of support and consultative services (e.g. staff development) to ombudsmen in the Pacific and Asian regions.

Complaints to the Commonwealth Ombudsman

Who can make a complaint

Complaints can be made to the Commonwealth Ombudsman by individuals, companies or organisations. Complaints can be made in person, by telephone, in writing, or via the online complaint form on the Ombudsman’s website at www.ombudsman.gov.au.

A person can ask someone else (e.g. a friend, relative or solicitor) to complain to the Ombudsman on their behalf. The Ombudsman’s office can arrange for a translator to assist a person to make a complaint. People in custody are entitled to communicate with the Ombudsman via sealed envelopes to preserve the privacy of their complaints.

Where people with any kind of disability – physical, intellectual or psychiatric – are concerned, help with making complaints may be available through the Victorian Office of the Public Advocate (or a corresponding body in other states or territories). For more information, seeThe Public Advocate” in Disability: asserting your rights.

What the Commonwealth Ombudsman can and cannot investigate

The Commonwealth Ombudsman can investigate the “administrative actions” of:

Commonwealth departments (such as the Department of Human Services, which includes Centrelink and Medicare);

most Commonwealth agencies; and

Commonwealth contractors that provide services to the public.

For this purpose, an “administrative action” is considered to be an action that is taken by or on behalf of government, but which is neither legislative nor judicial (although it may relate to legislative or judicial actions).

There are some matters that may be technically within the Commonwealth Ombudsman’s jurisdiction (e.g. decisions of specialist tribunals, complaint and regulatory agencies and prosecutors) where the Ombudsman takes a restrained approach to exercising jurisdiction.

The Commonwealth Ombudsman cannot investigate:

state, territory or local government actions (except in their capacity as ACT Ombudsman);

the actions of private sector bodies (unless they are Commonwealth service providers, or their actions are otherwise deemed to have been taken by a Commonwealth agency, or they are bodies that come under the Ombudsman’s jurisdiction in their capacity as the Postal Industry Ombudsman, Overseas Students Ombudsman, or Private Health Insurance Ombudsman);

the actions of ministers (although the Ombudsman can investigate the advice given to them), other parliamentarians, or proceedings in parliament;

the actions of judges, and court officials when exercising powers of a judicial nature;

actions taken in relation to employment by Commonwealth agencies (although the Ombudsman can investigate some pre- and post-employment matters not impacted by employment; and the Ombudsman has a specialist role as the Defence Force Ombudsman in relation to the Australian Defence Force); or

actions that are or have been the subject of court or tribunal review initiated by a complainant, unless the Ombudsman considers there are special reasons to investigate.

Discretion not to investigate

The Commonwealth Ombudsman may decide to not investigate a matter or to discontinue an investigation in a range of circumstances, including where:

there has been a delay of 12 months or more between the complainant becoming aware of the action and lodging the complaint;

the complaint is vexatious or frivolous or not made in good faith;

the person making the complaint does not have a sufficient “interest” in the matter;

the agency concerned has not been given a reasonable opportunity to resolve the matter;

the action relates to a commercial activity of an agency;

more appropriate alternative review or appeal processes are available and it is reasonable that they be used; or

in the Ombudsman’s investigation is not warranted. This can occur when, for example, a matter is insubstantial or not susceptible to investigation or because it relates to a matter already considered by an expert external body.

The Ombudsman will not generally investigate a complaint unless the complainant has first raised the matter with the agency concerned.

This is because most agencies with substantial client bases now have dedicated internal complaint handling systems that operate as part of their client service charters. These systems can offer quick and fair resolutions to many complaints. The Ombudsman periodically reviews the effectiveness of these systems to ensure, for example, that agencies tell complainants whose problems are not resolved about how to contact the Ombudsman. However, if people with complaints are uncertain about who to contact, they can contact the Ombudsman’s office for further information (seeContacting the Commonwealth Ombudsman”).

For matters outside the Ombudsman’s jurisdiction, complainants may be advised to take their complaint to an industry ombudsman (if this is a more appropriate body to deal with the matter) or to a consumer affairs agency. In some cases, especially where a time limit applies, they may be advised to take the matter to a review tribunal.

Investigations by the Commonwealth Ombudsman

Investigations are conducted on a confidential basis, in private and as informally as possible. The complainant’s name is only given to the agency for the purposes of investigating the complaint.

The Commonwealth Ombudsman accepts anonymous complaints, but these can be difficult to investigate; for example, the complaint may need to be clarified or further information provided before an investigation can commence. Also, with anonymous complaints the Ombudsman is less able to communicate the outcome of an investigation.

The Commonwealth Ombudsman has extensive powers to access documents and information, and they can require people to answer questions (including appearing to give evidence under oath). The Ombudsman’s strong preference is to exercise these coercive powers only when a person or agency is unwilling or unable to cooperate and provide information voluntarily. Before coercive powers are used, the relevant minister must first be informed of the investigation. However, in most cases, the Ombudsman requests information and an agency provides it voluntarily; in doing so in good faith, the agency’s disclosures do not breach laws or privacy and do not compromise legal professional privilege.

During an investigation, the relevant agency may be asked to comment on the complaint and to give reasons for its actions or decisions, or to provide material from its files that can explain the action that was taken. The Commonwealth Ombudsman must inform the agency of the commencement of an investigation and its conclusion, although in many cases this is achieved by regular reporting rather than on a case by case basis. The Ombudsman must inform the relevant minister of the investigation before formally inviting a person or agency to make submissions in relation to an action. The Ombudsman may not make a disclosure that contains express or implied critical opinion unless the person or agency criticised has been provided with an opportunity to appear and make submissions.

Usually the Commonwealth Ombudsman will not publicly disclose information obtained during an investigation, but has the power to make public statements in the public interest. This includes publishing reports under section 15 of the OA (Cth), which are available (sometimes as edited versions) on the Ombudsman’s website at www.ombudsman.gov.au.

The Commonwealth Ombudsman has the power to provide an agency with evidence of an official’s misconduct. The Ombudsman and their officers are not compellable by courts or tribunals to provide information, documents or evidence about an investigation. However, the Ombudsman can disclose information about an investigation if it is in the public interest to do so, and if the person or agency that may be adversely affected by the disclosure has been consulted.

The OA (Cth) imposes strict confidentiality obligations upon Commonwealth Ombudsman employees. An employee must not disclose any information that they obtain as a result an investigation at the Ombudsman’s office. Serious penalties apply if confidentiality is breached.

Commonwealth Ombudsman findings, reports and reviews

Investigation outcomes and recommendations

The Commonwealth Ombudsman may conclude an investigation by deciding no further action is needed. This occurs when, for example, an agency acknowledges its mistake and provides a remedy, or when the Ombudsman is satisfied that an agency’s action was reasonable.

In other cases, the Commonwealth Ombudsman may decide to advise an agency that an action should not have been taken, or to suggest another action or practice that would promote better administration. This ensures that an agency is made aware of a problem without the Ombudsman submitting a formal report.

Section 15(1) of the OA (Cth) contains a list of possible defects; namely that an action was:

apparently contrary to law;

unreasonable, unjust or oppressive;

in accordance with a law or practice that was unreasonable, unjust or oppressive;

improperly discriminatory;

based on a mistake of law or fact;

based on irrelevant factors, or did not take into account relevant factors; and/or

in all the circumstances, wrong.

Recommendations that can be made by the Ombudsman are unlimited in scope, but can include:

reconsideration by the department, agency or authority to change its action or decision;

change in a law, rule or procedure used by the agency; and

any other action considered appropriate in the circumstances; for example, an apology or, in limited circumstances, compensation for any financial loss.

Commonwealth Ombudsman reports

The Commonwealth Ombudsman’s reporting power arises where the Commonwealth Ombudsman has formed an opinion relating to one or more of the matters mentioned in section 15(1) of the OA (Cth) and considers that a recommendation should be made in terms of section 15(2). The formal report process is not the usual mechanism to finalise an investigation as more commonly, the Commonwealth Ombudsman’s office will express a preliminary view that there has been some agency error and suggest a remedy. In most cases, agencies will accept this and act on the recommendation.

The Commonwealth Ombudsman cannot overturn an agency’s decision. Should the Commonwealth Ombudsman consider remedial action to be necessary, but an agency does not agree to provide a remedy, the Commonwealth Ombudsman can (s 15 OA (Cth)) submit a formal report to the agency that states their recommendations, providing a copy of the report to the relevant minister.

If the agency fails to comply with the formal recommendation in a section 15 report, the Ombudsman may inform the Prime Minister and report to the Commonwealth Parliament. This last step has only been taken on two occasions. The Commonwealth Ombudsman may also decide to make public information about the investigation (usually without any identifying details).

Regardless of the outcome of an investigation, the Commonwealth Ombudsman will tell the complainant the results of the investigation and give reasons for a recommendation or opinion.

Review of Commonwealth Ombudsman decisions

The Commonwealth Ombudsman’s actions are not subject to external merits review, and judicial review mechanisms have very limited practical application. (For an explanation of reviews, see Appealing government and administrative decisions.)

Freedom of information

The Commonwealth Ombudsman’s office is subject to the requirements of the Freedom of Information Act 1982 (Cth) (“FOI Act (Cth)”). Similarly to other Commonwealth agencies, the Commonwealth Ombudsman processes freedom of information requests in accordance with the FOI Act (Cth), and with regard to the confidentiality and privacy provisions in the OA (Cth). If a freedom of information request relates to a document originating in another agency, the request is generally transferred to that agency and the person advised accordingly.

Complaints and reviews of FOI decisions are now handled by the Office of the Australian Information Commissioner. For further information, see Freedom of information law.

Contacting the Commonwealth Ombudsman

The Commonwealth Ombudsman has offices in most states and territories. The national office is in Canberra. A list of all offices and their addresses can be found at www.ombudsman.gov.au.

This website also has detailed information about what the Commonwealth Ombudsman does (including the specialist defence, postal, overseas students, and private health insurance roles); how to make a complaint (including an online complaints service); how to make a public interest disclosure; details of legislation relating to the Commonwealth Ombudsman; a history of the Commonwealth Ombudsman’s role; and copies of the Commonwealth Ombudsman’s reports and publications, including the Commonwealth Ombudsman’s Service Charter.

Commonwealth Ombudsman

Level 1, 441 St Kilda Road, Melbourne Vic 3004

Tel: 1300 362 072

Email: ombudsman@ombudsman.gov.au

Web: www.ombudsman.gov.au