Taking a problem to an ombudsman

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)’).

The Victorian Ombudsman has three primary functions:

• OA (Vic) investigations and enquiries:to enquire into or formally investigate administrative actions of authorities (s 13(1) OA (Vic));
• parliamentary referrals: to investigate matters referred by a House of Parliament or parliamentary committee (s 16 OA (Vic)). In Glass v President of the Legislative Council and the Attorney-General for Victoria [2016] VSCA 306, the Supreme Court held that a House of Parliament or a parliamentary committee can refer ‘any matter’ to the Victorian Ombudsman – the matter does not have to fall within the Victorian Ombudsman’s jurisdiction, as outlined in the OA (Vic);
• protected disclosure complaints: to investigate protected disclosure complaints under the Protected Disclosure Act 2012 (Vic) (‘PD Act’) that have been referred by the Independent Broad-based Anti-corruption Commission (IBAC) (ss 15C–15F OA (Vic)). These referrals relate to ‘authorities’ or ‘protected disclosure entities’.

From 1 January 2020, the Victorian Ombudsman will have additional functions:

• to engage in alternative dispute resolution;
• to provide education and training to public authorities and the community about the role of the Victorian Ombudsman;
• to review the complaint-handling procedures of authorities.

‘Authorities’ include:

• state government departments and administrative offices;
• Court Services Victoria;
• public statutory bodies;
• municipal council staff; and
• certain private entities that act on behalf of other authorities (e.g. WorkSafe insurers and operators of private prisons).

From 1 January 2020, authorities will also include publicly funded bodies. However, ‘authorities’ do not include ‘exempt persons or bodies’, which are listed in schedule 2 of the OA (Vic).

Exempt persons or bodies 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) (but not including State Trustees);
• the Victorian Electoral Commission;
• the Auditor-General;
• 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 parliament;
• local councillors;
• teachers; and
• state-funded residential care services.

Ministerial advisers are only within the Victorian Ombudsman’s jurisdiction if they are the subject of a referral made by a House of Parliament or a parliamentary committee.

The Victorian Ombudsman makes enquiries and conducts formal investigations into the administrative actions of authorities either in response to complaints or on her ‘own motion’.

Enquiries and investigations: The differences

The distinction between an enquiry and an investi­gation lies in the powers available to the Victorian Ombudsman (investigations carry coercive powers).

For most cases, the Victorian Ombudsman has the discretion to make enquiries, conduct an investigation, or decline to deal with the matter.

The Victorian Ombudsman’s work involves conducting enquiries to determine whether an OA (Vic) investigation is needed or whether the issue may be resolved informally (s 13A OA (Vic)).

In enquiries and investigations, the Victorian Ombudsman is not an advocate for either the complainant or the agency complained about.

Administrative actions

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;
• refusing or failing to make a decision or to perform an act;
• formulating a proposal or intention; and
• making a recommendation – this includes recommendations made to a minister.

Departments and administrative offices

Departments and administrative offices are within the Victorian Ombudsman’s jurisdiction. They are defined in section 2 of the OA (Vic) and in 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 independently from and ‘in relation to a department’ (s 11(a) Public Administration Act 2004 (Vic)). 

Specified entities

The Victorian Ombudsman has jurisdiction over the specified entities listed in the OA (Vic) (col 1 sch 1), including public statutory bodies, defined as (s 2):

• a body, whether corporate or unincorporated, that is established by or under an Act for a public purpose; or
• a body whose members are appointed by the Governor in Council or a minister; or
• a company, all the shares or a majority of the shares in which are held by the state or an authority.

If you are unsure whether a particular body is within the Victorian Ombudsman’s jurisdiction, contact the Victorian Ombudsman’s office (see ‘Contacting the Victorian Ombudsman’, below).

The Victorian Ombudsman’s jurisdiction does not include Commonwealth Government departments and private organisations (see ‘Commonwealth Ombudsman’).

Discretion to not investigate

The Victorian Ombudsman may decide to not investigate a matter (s 15B OA (Vic)). Also, the Victorian Ombudsman does not conduct investigations where the aggrieved person:

• has a right of appeal;
• has referral to or review by a tribunal; or
• has or had a remedy by way of initiating proceedings in a court of law,

unless the Victorian Ombudsman considers that it would not be reasonable 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) OA (Vic)).

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) OA (Vic)).

The Victorian Ombudsman can also 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) OA (Vic));
• 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) OA (Vic)); 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) OA (Vic)).

Under section 14(1) of the OA (Vic), 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 Victorian Ombudsman considers it proper to entertain the complaint.

Complaints may be made over the telephone. However, under section 14(2) of the OA (Vic), the Victorian Ombudsman may require the complainant to provide a written statement in the form (if any) specified by the Victorian Ombudsman that:

• confirms that the complainant wants the Victorian Ombudsman to consider the complaint; and
• specifies the details of the complaint.

Complaints can be made using the Victorian Ombudsman’s online complaint form.

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 or prison, in residential care, or in a mental health service must be immediately forwarded, unopened, to the Victorian Ombudsman by the person in charge of the institution (s 28 OA (Vic)).

Information to include in a letter of complaint:

• the complainant’s name and contact details, including telephone numbers;
• a precise statement of the administrative action complained of (i.e. what the authority did or did not do);
• the 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) OA (Vic)). The majority of complaints are resolved informally using these enquiries powers.

If the matter is not resolved informally and the complaint merits formal investigation (s 15B OA (Vic)), then the complainant, the relevant authority head (e.g. a CEO of a municipal council or a departmental secretary), the mayor (in a matter involving a local council) and the minister will be formally advised of the investigation.

The Victorian Ombudsman can also conduct enquiries or start an investigation with or without a complaint being made, using her ‘own motion’ powers (ss 13A(2), 16A(1) OA (Vic)).

Protected disclosures

Disclosures made under the PD Act can be made by ‘natural persons’ (a real person, not an organisation or company) and can be made orally and anonymously (s 12 PD Act).

Such disclosures must comprise (s 9):

• 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/will engage in ‘improper conduct’; or
  • a public officer or public body has, is or will take ‘detrimental action’.

‘Improper conduct’ is a broad term that covers:

• ‘corrupt conduct’ as defined in section 4(1) of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (‘IBAC Act’); and
• ‘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;
  • substantial risk to public health or safety or to the environment.

The Victorian Ombudsman and IBAC

Disclosures under the PD Act can be made to a number of bodies including IBAC and the Victorian Ombudsman. However, the Victorian Ombudsman can only receive disclosures if the disclosure concerns a local councillor, the Victorian Information Commissioner, the Commissioner for Privacy and Data Collection, the Health Complaints Commissioner (s 16 PD Act), or authorities under the OA (Vic). The Victorian Ombudsman is authorised to investigate the disclosure if IBAC has determined it to be a protected disclosure complaint (s 13).

The Victorian 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 local councillors. However, the Victorian Ombudsman does not have the jurisdiction to investigate ministerial advisers (sch 2 OA (Vic)).

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 PD Act).

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) IBAC Act).

However, the Victorian 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 (ss 15C, 15D(2) OA (Vic)).

The Victorian Ombudsman may also refuse to investigate protected disclosure complaints if the complaint is trivial, frivolous, vexatious, lacks substance or credibility, is not made in good faith, or the subject matter of the complaint does not amount to improper conduct or has already been investigated or otherwise dealt with (s 15E(1)).

The procedure for each form of investigation is identical. Under section 17(2) of the OA (Vic) all investigations are conducted in private.

When a formal investigation is conducted (under ss 15B, 15C, 16A, 16), the Victorian Ombudsman can use coercive powers. 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). An investigation is conducted by the Victorian Ombudsman as if she has most of the powers and functions of a royal commission – except the ability to conduct public hearings.

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).

The Victorian Ombudsman can discontinue an investigation in certain circumstances (ss 17(6B, 6C)).

If, at any time during an investigation, the Victorian Ombudsman thinks there are grounds to criticise an agency, the Victorian Ombudsman must give the agency’s principal officer the opportunity to comment on the subject 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 their response in the report (s 25A(2)).

Where, during an investigation, a question arises about whether the Victorian Ombudsman has jurisdiction to conduct the investigation, the Victorian Ombudsman or the party subject to the investigation, may apply to the Supreme Court to resolve that question (s 27(1)).

Legal representation

A person may seek legal advice and be represented by a lawyer in relation to an enquiry or investigation conducted by the Victorian Ombudsman.

However, if the Victorian 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 OA (Vic)).

OA (Vic) investigations

On completion of an investigation, if the Victorian Ombudsman thinks that the administrative action to which the investigation relates was:

• contrary to the law;
• unreasonable, unjust, oppressive or improperly discriminatory;
• in accordance with a rule of law, an enactment, or a practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory;
• taken in the exercise of a power or discretion for an improper purpose or on irrelevant grounds;
• a decision for which reasons should have been given, but were not;
• based wholly or partly on a mistake of law or fact; 
• wrong,

the Victorian Ombudsman must 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 Victorian Ombudsman may send copies to the Victorian premier (s 23 OA (Vic)).

The Victorian Ombudsman may recommend that:

• the subject matter be referred to an appropriate authority for further consideration;
• action should be taken to rectify, mitigate or 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.

The Victorian Ombudsman can require the authority to report back to her about the steps taken to implement her recommendations.

Protected disclosure investigations

On completing a PD Act investigation, the Victorian Ombudsman must report to the principal officer of the appropriate authority and to the responsible minister. A copy of the report can also be sent to the Victorian premier (s 23(2)(a), (3) OA (Vic)).

Parliamentary referrals

After completing a report of a parliamentary referral under section 16, the Victorian Ombudsman must report to the relevant officer(s) (s 25AB OA (Vic)).

Parliamentary reports

The Victorian Ombudsman can report to parliament on any matter arising in connection with the performance of her functions (s 25(2) OA (Vic)).

Matters that cannot be included in reports

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 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 Victorian 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 wellbeing,

and the report states that the person is not subject to any adverse opinion (s 25A OA (Vic)).

Oversight

The Victorian Ombudsman is subject to two forms of oversight:

• by a parliamentary committee (the Integrity and Oversight Committee); and 
• by the Victorian Inspectorate – in relation to the use of the Victorian Ombudsman’s coercive powers.

Freedom of Information

The Freedom of Information Act 1982 (Vic) does not apply to documents held by any person or body that relates to a complaint, enquiry, investigation, recommendation, report or draft report. These documents are not subject to release under the Freedom of Information Act 1982 (Vic) (s 29A).

Charter of Human Rights and Responsibilities Act

The Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Human Rights Charter’) 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 Human Rights Charter also places an obligation on public authorities to act in a way that is compatible with the human rights set out in the Human Rights Charter.

Since 1 January 2008, all public authorities have been required to act consistently with the human rights as set out in the Human Rights Charter. 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 Human Rights Charter .

Victorian Ombudsman
Level 2, 570 Bourke Street, Melbourne Vic 3000
Tel: 9613 6222; 1800 806 314 (regional callers)
Web: www.ombudsman.vic.gov.au