The Victorian Ombudsman investigates complaints about administrative actions taken by government authorities, with several exemptions, and other matters referred by the Parliament or by the Anti-corruption Commission.
The Victorian Ombudsman is a constitutionally entrenched independent officer of the Victorian Parliament (ss 18(1B)(o), 94E Constitution Act 1975 (Vic)). The Victorian Ombudsman’s functions are primarily established by the Ombudsman Act 1973 (Vic) (“OA (Vic)”).
“Ombudsman” in this section refers to the Victorian Ombudsman unless stated otherwise. The Commonwealth Ombudsman is described in a previous section.
The Victorian Ombudsman has three primary functions:
•OA (Vic) investigations and enquiries into administrative actions taken by authorities (s 13(1)).
•Parliamentary referrals: to investigate matters referred by a parliamentary house or committee (s 16). The only matters that cannot be referred to the Victorian Ombudsman are matters “concerning a judicial proceeding”. However, as a result of an amendment made in 2012, parliamentary referrals cannot oblige or empower the Victorian Ombudsman to investigate “exempt persons or bodies” (s 13AA(3)).
•Protected disclosure complaints: to investigate protected disclosure complaints under the Protected Disclosure Act 2012 (Vic) (“PDA”) that have been referred by the Independent Broad-based Anti-corruption Commission (IBAC) (ss 15C–15F). These referrals relate to “authorities” or “protected disclosure entities”.
•state government departments and administrative offices;
•Court Services Victoria;
•public statutory bodies;
•municipal council staff; and
•certain private entities (e.g. WorkSafe insurers and operators of private prisons).
However, “authorities” does not include “exempt persons or bodies”, which are listed in schedule 2 of the OA (Vic). They include:
•police personnel (sworn and unsworn members);
•a court of law, or a judge or magistrate;
•a judicial employee or registrar;
•a person acting as a legal adviser to the Crown or as counsel for the Crown in any proceedings;
•a person acting in the capacity as a trustee under the Trustee Act 1958 (Vic). However, section 13(2A) of the OA (Vic) allows the Victorian Ombudsman to investigate any administrative action taken by State Trustees;
•the Electoral Commissioner;
•Royal Commissions and Boards of Inquiry; and
•boards, tribunals and commissions that are, by virtue of statute, presided over by a judge, magistrate or Australian lawyer.
“Protected disclosure entities” include:
•members of the teaching service; and
•state-funded residential care services.
Ministerial advisers are only within the Victorian Ombudsman’s jurisdiction if they are subject of a referral made by a parliamentary house or committee.
Victorian Ombudsman Act investigations and enquiries
The Victorian Ombudsman conducts enquiries or formal investigations in response to complaints, or on her “own motion” (without having received a complaint). The distinction between an enquiry and an investigation lies in the powers available to the Ombudsman (investigations carry coercive powers) and outcomes (investigations are formally reported; for example, to the head of the authority/agency and to the minister concerned).
The bulk of the work of the Victorian Ombudsman involves the conduct of enquiries. These are conducted for the purpose of determining whether an OA investigation is needed or whether the issue can be resolved informally (s 13A).
In investigations and enquiries, the Ombudsman is not an advocate for either the complainant or the agency complained about.
An “administrative action” is defined in section 2 of the OA (Vic) to mean any action relating to a matter of administration, and includes:
•a decision and an act;
•the refusal or failure to make a decision or to perform an act;
•the formulation of a proposal or intention; and
•the making of a recommendation – this includes recommendations made to a minister.
However, actions that were not part of or in the course of employment are not “administrative actions” (see Booth v Dillon (No 2) VR 434).
Departments and administrative offices are within the Victorian Ombudsman’s jurisdiction. They are defined (s 2 OA (Vic)) as having the meaning given by section 4(1) of the Public Administration Act 2004 (Vic).
Administrative offices were specifically added to the Victorian Ombudsman’s jurisdiction by the 2012 amendments to the OA (Vic). This was necessary as administrative offices do not form part of departments, but exist “in relation to a department” (s 11(a) Public Administration Act 2004 (Vic)).
The Ombudsman has jurisdiction over the specified entities listed in the OA (Vic) (col 1 sch 1), including public statutory bodies, defined (in s 2) as:
a body of persons, whether corporate or unincorporate, constituted or established under an Act for a public purpose or a body whose members are appointed by the Governor in Council or a minister or a complaint all the shares or a majority of the shares in which are held by the state or an authority.
If unsure as to whether a particular body is within the Victorian Ombudsman’s jurisdiction, the Ombudsman’s office can assist (see “Contacting the Victorian Ombudsman”).
The Victorian Ombudsman’s jurisdiction does not include Commonwealth Government departments and private organisations. For Commonwealth departments, contact the Commonwealth Ombudsman (see “Commonwealth Ombudsman”).
The Victorian Ombudsman has, arguably, a broad discretion to not investigate, derived from section 15B of the OA (Vic). She also does not conduct investigations where the aggrieved person:
•has a right of appeal;
•has referral to or review by a tribunal;
•has or had a remedy by way of initiating proceedings in a court of law,
unless the Ombudsman considers that it would be unreasonable to expect the aggrieved person to resort to that right or remedy, or that the matter merits investigation to avoid injustice (s 15(5), 15(6)).
The Victorian Ombudsman also does not investigate matters relating to the terms and conditions of employment of people employed by an authority unless she considers that the matter merits investigation to avoid some injustice (s 15(4)).
The Victorian Ombudsman also can decide to not enquire into or investigate a complaint where:
•the complainant made the complaint more than 12 months after becoming aware of the administrative action and fails to give a satisfactory explanation for the delay in making the complaint (s 15A(2));
•the complaint is trivial, frivolous, vexatious, not made in good faith, or the subject matter of the complaint has already been investigated or otherwise dealt with by another agency (s 15A(1)); or
•the complaint is made by a person who is not affected by the administrative action that is the subject of the complaint, and is not a suitable representative for the aggrieved person (s 14(1)).
Under section 14(1), the Victorian Ombudsman can accept complaints made on behalf of another person when the complaint is made by:
•a member of parliament acting on behalf of an aggrieved person;
•a person who is considered suitable to represent the interests of an aggrieved person who has died or who is unable to act for themselves; or
•any other person, where considering all the circumstances, the Ombudsman considers it proper to entertain the complaint.
However, under section 14(4), the Victorian Ombudsman cannot refuse to entertain a complaint on behalf of the complainant where:
•the member of public is a member of parliament acting on behalf of an aggrieved person;
•the member of public is a person who is considered suitable to represent the interests of an aggrieved person who has died or who is unable to act for themselves; or
•after considering all the circumstances, the Ombudsman considers it proper to entertain the complaint.
Making a complaint to the Victorian Ombudsman
Under section 14(2), all complaints must be in writing unless the complainant is under 18, has poor English language skills or has a mental or physical impairment that prevents the making of a written complaint.
You can download a complaint form from the Victorian Ombudsman’s website at www.ombudsman.vic.gov.au. People may telephone the Victorian Ombudsman’s office to discuss their concerns. If a complainant has difficulty writing, the Ombudsman’s staff can turn the complainant’s verbal complaint into a written statement, which they send to the complainant to sign.
Where a complaint lacks details or is unclear, the Victorian Ombudsman may seek further relevant information or documentation from the complainant. This is usually done via telephone.
Letters to the Victorian Ombudsman written by people in custody, in prison, in a residential care service, or by patients in a mental health service must be immediately forwarded, unopened, to the Victorian Ombudsman by the person in charge of the institution (s 28).
Useful information to include in a letter of complaint includes:
•the complainant’s name and contact details, including telephone numbers;
•a precise statement of the administrative action complained of;
•the approximate date the administrative action occurred;
•brief background details leading to the complaint;
•any steps taken to raise the administrative action with the relevant agency; and
•any evidence of the complaint (e.g. a letter from the relevant department stating their decision about the complaint).
When a written complaint is received, it is assessed and the Victorian Ombudsman may conduct enquiries to determine if a matter should be investigated or if it can be resolved informally (s 13A(1)). The majority of complaints are resolved informally.
If the matter is not resolved informally and the complaint merits formal investigation (s 15B), then the complainant, the relevant department head (e.g. a CEO of a municipal council or a departmental secretary), the mayor (in a matter involving a local council) or the minister will be formally advised of the investigation.
The Victorian Ombudsman can also conduct enquiries or start an investigation without a complaint being made, using her “own motion” powers (ss 13A(2), 16A(1)).
Corruption disclosures and the Victorian Ombudsman
Disclosures made under the PDA can be made by “natural persons” (a real person, not an organisation or company) and can be made orally and anonymously (s 12PDA). Such disclosures must comprise:
•information that shows or tends to show that; or
•information that the persons believes on reasonable grounds shows or tends to show that:
– a person, public officer or public body has, is engaging or will engage in “improper conduct”; or
– a public officer or public body has, is or will take “detrimental action” (s 9 PDA).
“Improper conduct” is a broad term that covers:
•“corrupt conduct” as defined in section 4 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic);
•“specified conduct”, which covers a number of types of conduct, including:
– conduct that adversely affects the honest performance by a public officer or body of their functions;
– dishonest performance of functions;
– breaching the public trust;
– misuse of information;
– substantial mismanagement of public resources; or
– substantial risk to public heal or safety or to the environment,
and which constitutes a criminal offence or reasonable grounds for dismissing the person who engaged in the conduct (s 4 PDA).
Disclosures under the PDA can be made to a number of bodies including IBAC and Ombudsman. The Victorian Ombudsman can, however, only receive disclosures if:
•the disclosure concerns a local councillor, the Freedom of Information Commissioner, the Commissioner for Privacy and Data Collection or the Health Services Commissioner (s 16 PDA); or
•the Ombudsman would be authorised to investigate the disclosure if IBAC determined it to be a protected disclosure complaint (s 13 PDA). The Ombudsman’s jurisdiction to investigate protected disclosure complaints is broader than her normal jurisdiction, as she can investigate protected disclosure complaints regarding certain persons or bodies that are not authorities, including members of Parliament and local councillors. The Ombudsman does not, however, have jurisdiction to investigate ministerial advisers (s 2 OA).
If the Victorian Ombudsman considers that she has received a protected disclosure, she notifies IBAC, which determines whether the disclosure is a protected disclosure complaint (ss 21, 26 PDA).
If IBAC determines that a disclosure is a protected disclosure complaint, IBAC may refer the complaint to the Victorian Ombudsman for investigation (s 73(3) Independent Broad-based Anti-corruption Commission Act 2011 (Vic)). However, the Ombudsman must refuse to investigate protected disclosure complaints referred by IBAC unless she is reasonably satisfied that the disclosure shows or tends to show that:
•improper conduct has occurred, is occurring or will occur; or
•detrimental action has occurred, is occurring or will occur (s 15C, 15D(2)).
The Victorian Ombudsman may also refuse to investigate protected disclosure complaints if the complaint is trivial, frivolous, vexatious, not made in good faith, or the subject matter of the complaint has already been investigated or otherwise dealt with (s 15E(1)).
Victorian Ombudsman: investigations and powers
The investigation procedure for each form of investigation is identical. Under section 17 all investigations are conducted in private.
When a formal investigation is conducted (under ss 15B, 15C, 16A, 16 OA (Vic)), the Victorian Ombudsman can use coercive powers. For example, she may summons people to attend an interview, take evidence under oath, enter premises and obtain confidential documents. These powers are provided for in the OA (Vic) and in sections 17–20A of the Evidence (Miscellaneous Provisions) Act 1958 (Vic). In short, an investigation is conducted by the Victorian Ombudsman as if the Victorian Ombudsman had most of the powers and functions of a Royal Commission (s 18(1)).
There are also a number of penalty provisions. For example, it is an offence to obstruct the Victorian Ombudsman (s 22), or to disclose any information contrary to a confidentiality notice if one has been issued (s 26C).
If, at any time during the course of an investigation, the Victorian Ombudsman thinks that there are grounds for making a report that is critical of an agency, before making the report, the Ombudsman must give the agency’s principal officer the opportunity to comment on the subject matter of the investigation (s 17(4)).
If the Victorian Ombudsman intends to include in a report any adverse comment about a person, she is obliged to give that person a reasonable opportunity to respond to that adverse comment and to fairly set out that response in the report (s 25A(2)).
Where, in the course of an investigation, a question arises as to whether the Victorian Ombudsman has jurisdiction to conduct the investigation, the Ombudsman or the party subject to the investigation may apply to the Supreme Court for a determination of that question (s 27(1)).
A person may seek legal advice and be represented by a legal practitioner in relation to an enquiry or investigation conducted by the Victorian Ombudsman. However, if the Ombudsman considers that the use of a specific legal practitioner may prejudice the enquiry or investigation, she can direct a person to not seek advice from that legal practitioner for particular purposes, including a compulsory appearance (s 18C).
Victorian Ombudsman: reporting
On completion of the investigation, if the Victorian Ombudsman thinks that the administrative action to which the investigation relates:
•appears to be contrary to the law;
•was unreasonable, unjust, oppressive or improperly discriminatory;
•was in accordance with a rule of law, an enactment, or a practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory;
•was taken in the exercise of a power or discretion for an improper purpose or on irrelevant grounds;
•was a decision for which reasons should have been given, but were not;
•was based wholly or partly on a mistake of law or fact; or
The Ombudsman shall report her opinion to the principal officer of the appropriate authority with any recommendations. Such a report is also sent to the responsible minister, and the Ombudsman may send copies to the Victorian Premier (s 23).
The Victorian Ombudsman’s recommendations may be that:
•the subject matter be referred to an appropriate authority for further consideration;
•action should be or could be taken to rectify/mitigate/alter the effects of the administrative action;
•certain practices should be varied;
•certain laws should be reconsidered;
•reasons should be given for the action; or
•any other steps should be taken.
On the completion of a PDA investigation, the Victorian Ombudsman must report to the principal officer of the appropriate authority (if any) and the responsible minister. The Ombudsman may also send a copy to the Victorian Premier (s 23(2A), (3)).
On the completion of a report of a parliamentary referral under section 16, the Victorian Ombudsman must report to the relevant presiding officer or officers (s 25AB).
The Victorian Ombudsman also has a discretion to report to parliament on any matter arising in connection with the performance of her functions (s 25(2)).
The Victorian Ombudsman cannot include in her parliamentary or non-parliamentary reports:
•any information that she considers would prejudice any criminal proceeding or investigation, or Ombudsman, IBAC or Victorian Inspectorate investigations;
•information that would reveal Cabinet matters;
•any finding or opinion that a specified person has committed, or is guilty of, an offence or should be prosecuted for an offence;
•most information that would be likely to lead to the identification of a person who has made a protected disclosure;
•information that would identify a person who is not the subject of an adverse comment in the report unless the Ombudsman is satisfied that:
– including the information is necessary and in the public interest; and
– including that information will not cause unreasonable damage to the person’s reputation, safety or well being,
and the report states that the person is not subject to any adverse opinion (s 25A).
Victorian Ombudsman: oversight, freedom of information and the Charter Act
The Victorian Ombudsman is now subject to two forms of oversight:
•by a Parliamentary Committee (the Accountability and Oversight Committee); and
•by the Victorian Inspectorate.
However, the oversight is relatively restricted, as:
•the inspectorate’s function in relation to the Victorian Ombudsman is largely limited to the exercise of the Ombudsman’s coercive powers and her compliance with procedural fairness requirements (s 43(5) Victorian Inspectorate Act 2011 (Vic)); and
•the committee cannot investigate a matter relating to particular complaints or review any decision to investigate or not investigate, or review any of the Ombudsman’s findings (s 26H).
The Freedom of Information Act 1982 (Vic) does not apply to any document held by any person or body that relates to a complaint, enquiry, investigation, recommendation, report or draft report are not subject to release under the Freedom of Information Act 1982 (Vic) (s 29A).
The Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter Act”) is legislation that protects the human rights of all people in Victoria. The Charter Act ensures that when the government makes laws and delivers services, it does so with civil and political rights in mind. The Charter Act also places an obligation on public authorities to act in a way that is compatible with the human rights set out in the Charter Act.
Since 1 January 2008, all public authorities have been required to act compatibly with the human rights set out in the Charter Act. Under the OA (Vic), the Victorian Ombudsman has the power to enquire into or investigate whether any administrative action is incompatible with any of the rights set out in the Charter Act.