OMBUDSMAN

The office of Commonwealth Ombudsman was established by the Ombudsman Act 1976 (Cth). ("the Ombudsman Act"). The Commonwealth Ombudsman also holds office as Defence Force Ombudsman and as the Postal Industry Ombudsman. Under the Ombudsman Act, the Ombudsman can, when performing relevant functions, be referred to as the Taxation Ombudsman, the Immigration Ombudsman and the Law Enforcement Ombudsman.

Here, references to the Ombudsman are to the Commonwealth Ombudsman unless otherwise specified.

What the Ombudsman can and cannot investigate

The Ombudsmancan investigate the administrative actions of Commonwealth Departments, most other Commonwealth agencies (such as Centrelink, the Australian Taxation Office and the Child Support Agency) and Commonwealth contractors when providing services to the public.

The Ombudsman’s approach to investigation

The Ombudsman is independent and impartial, appointed for a renewable term by the Governor-General, and subject to removal only following a vote of both Houses of Parliament. The Ombudsman’s responsibility is to the Parliament and, through it, to the public interest.

The Ombudsman’s investigations are free to complainant and agencies (other than in the Postal Industry Ombudsman role where the scheme requires Australia Post and the private postal providers to pay for investigations conducted).

The Ombudsman must investigate following a complaint (unless it is outside the Ombudsman’s jurisdiction or a decision is made to decline or cease an investigation for one of the reasons set out in section 6 of the Ombudsman Act; see: “Complaints”, below).

Complaints can be made to the Commonwealth Ombudsman:

Where people with any kind of disability, physical, intellectual or psychiatric, are concerned, help with complaints may also be available through the Victorian Office of the Public Advocate.

Discretion not to investigate

The Commonwealth Ombudsman may exercise the discretion not to investigate a matter or to discontinue an investigation in a range of circumstances, such as where a person has not taken up their complaint with the relevant agency or the agency has provided a reasonable remedy.

Investigations are conducted on a confidential basis, in private and as informally as possible consistent with the issue under consideration. The Ombudsman also accepts anonymous or “whistleblower” complaints, but is less able to communicate the outcome of such investigations. The Ombudsman must inform the agency of the commencement of an investigation and its conclusion. If the Ombudsman forms an opinion that is implicitly or explicitly critical of an agency or person during the course of an investigation and is considering making a report on the investigation, the agency or person must be given an opportunity to comment before the report is finalised.

Investigative powers

During an investigation, the department or authority may be asked to comment on the complaint and to give reasons for its action or decision, or to provide material from its files that can explain the action that was taken. The Commonwealth Ombudsman has extensive powers to require the production of documents and information and can require people to appear and give evidence, including on oath or affirmation, but these powers are not used often.

The Ombudsman must inform the relevant Minister of the investigation before inviting a person or agency to make submissions in relation to an implicit or explicit criticism, or before using the formal investigative powers.

The Ombudsman commonly ceases investigations after a fair and reasonable result is achieved, either because the agency provides a rememdy or the Ombudsman conisders that the agency's actions were not unreasonable. In some cases the Ombudsman's office advises an agency that it considers the agency's actions amounted to an administrative deficiency, a non-statutory term suggesting that an action should not have been taken in the way it was and there is need for improvement. In some cases, the Ombudsman may issue a report with recommendations.

Enforcement

Should the Ombudsman consider remedial action necessary but an agency does not agree to provide a remedy, the Ombudsman can report to the department or authority concerned and make any appropriate recommendations. The Ombudsman provides a copy of the report to the relevant Minister. If the agency fails to comply with a formal recommendation, the Commonwealth Ombudsman may inform the Prime Minister and report to the Commonwealth Parliament. This happens very rarely.

Recommendations

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

The Commonwealth Ombudsman has offices in all states and territories. The Ombudsman’s website has detailed information about the Ombudsman’s services, an online complaints service, details of legislation and copies of Ombudsman reports and publications, including the Ombudsman’s Service Charter and a history of the office.

Ombudsman’s Office

Tel: 1300 362 072

Web: www.ombudsman.gov.au

Ombudsman's Victorian Office

Level 1, 441 St Kilda Road

Melbourne Vic 3004

Correspondence should be addressed to:

Commonwealth Ombudsman

PO Box 7444

St Kilda Road

Melbourne Vic 8004

Fax: (03) 9867 3750

or

Commonwealth Ombudsman

GPO Box 442

Canberra City ACT 2601

TTY: 13 36 77

Fax: (02) 6249 7829

Email: ombudsman@ombudsman.gov.au

It is not always immediately clear whether it is a public statutory body or not. To determine whether or not a particular body is within the Ombudsman's jurisdiction, you should contact the office of the Ombudsman. Government departments and public statutory bodies must be Victorian, not Commonwealth.

The Ombudsman Act (Vic) section 2 definition of administrative action is wide and people with complaints should not hesitate to place them before the Ombudsman to determine whether there is an administrative action.

The Ombudsman Act (Vic) provides that the Ombudsman shall not conduct an investigation where the aggrieved person has a right of appeal, etc, to a tribunal, or has a remedy by way of proceedings in a court of law, unless the 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.13(4)).

The Ombudsman may conduct an enquiry or investigation either on his own initiative or as a consequence of a complaint made by a person or by a body of persons. All complaints must be in writing. Where a complainant has difficulty in expressing a complaint coherently in writing, but appears to have a genuine complaint, the Ombudsman will provide assistance in having the complaint lodged.

The Ombudsman has discretion to decide not to entertain a complaint.

The Ombudsman may conduct an enquiry to determine if a matter should be investigated or the matter may be resolved informally (s.13A). Most complaints are dealt with informally.

The Ombudsman is not required to hold a hearing and may determine whether any person may be represented (s.17). It is an offence to obstruct the Ombudsman (s.22).

The Ombudsman shall report his opinion together with reasons to the principal officer of the appropriate authority with any recommendations as he thinks fit.

Where in the course of an investigation a question arises as to whether the 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).

Any action taken or decision made by a body under the Freedom of Information Act 1982 (Vic) ("FoI Act (Vic)") is an administrative action for the purpose of the Ombudsman Act (Vic). In addition to responsibilities under the Ombudsman Act (Vic), the FoI Act (Vic) makes reference to the Ombudsman in relation to the following situations.

The Whistleblowers Protection Act 2001 (Vic) ("WPA") enables all members of the public and employees of public bodies to make disclosure about improper conduct and detrimental action by public bodies or a public officer.

With a few exceptions, disclosures about most public bodies can be made either to the Protected Disclosure Coordinator within the relevant public body or to the Ombudsman. A disclosure can be made either orally or in writing, and either anonymously or in person.

An individual will receive the protections of the WPA if it is determined they have reasonable grounds for their belief that improper conduct has occurred.

Public bodies must comply with the Ombudsman's Guidelines when assessing complaints under the WPA. A copy of these Guidelines can be obtained from the Ombudsman's website at www.ombudsman.vic.gov.au or by telephoning the Ombudsman's office on 9613 6222.

In 2003, the Ombudsman was given new powers to monitor compliance with Division 3 of Part 2 of the Prevention of Cruelty to Animals Act 1986 (Vic) ("POCTA") by officers of the Royal Society for the Prevention of Cruelty to Animals (RSPCA) who are approved as inspectors under that Act. The Ombudsman discharge his function of monitoring compliance with these provisions.

The Ombudsman does not have a specific function to investigate complaints against RSPCA inspectors.

The Transport (Miscellaneous Amendments) Act 2003 (Vic) empowers the Ombudsman to investigate the actions of officers employed by transport companies in exercising statutory duties in the detection of transport offence. This is added to the Ombudsman’s existing power to deal with complaints concerning decisions to issue Transport Infringement Notices.

Complaints regarding the Victorian Police are considered by the Office of Police Integrity (OPI). The OPI has wider powers and can both investigate complaints involving members of the police and oversee police investigations.

For more information on this subject refer to The Law Handbook chapter 21.4.