The office of Commonwealth Ombudsman was established by the Ombudsman Act 1976 (Cth) ("Ombudsman Act (Cth)") and began operation in July 1977. Under the Ombudsman Act (Cth), the Ombudsman can, when performing relevant functions, be referred to as:
- Immigration Ombudsman
- Taxation Ombudsman
- Law Enforcement Ombudsman.
The Commonwealth Ombudsman also holds office as:
- Defence Force Ombudsman (under Part IIA)
- Postal Industry Ombudsman, (under Part IIB)
- Oversease Students Ombudsman, Uunder Part IIC).
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. 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 Ombudsman's responsibility is to the Parliament and, through it, to the public interest.
The Ombudsman's investigations are free to complainants and agencies (other than in the Postal Industry Ombudsman role where Australia Post and the private postal providers that are part of the scheme are required 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 (Cth) (see: "Complaints", below). The Ombudsman may investigate on his or her "own motion", typically where there is a systemic issue or where the Ombudsman wishes to check the effectiveness of an agency's complaint system.
In this section, references to the Ombudsman are to the Commonwealth Ombudsman unless otherwise specified.
The Ombudsman can investigate action taken by the Department of Immigration and Citizenship (DIAC) in relation to visa, citizenship and immigration detention issues. This includes DIAC's processing of visa and citizenship applications, and visa refusal or cancellation decisions.
The Ombudsman also has a compliance role and by undertaking file inspections, site visits and observations of DIAC's field operations, the Ombudsman monitors DIAC's functions concerning the location, identification, detention and removal of unlawful non-citizens.
The Ombudsman regularly visits immigration detention centres and other facilities that are used to accommodate detainees, such as residential housing and alternative places of detention. Immigration detention centres are currently operated by an outsourced service provider engaged by DIAC.
In the 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. The Ombudsman also regularly visits off-shore immigration detention centres, for example, Christmas Island. 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 persons held in immigration detention for more than two years. In 2009, this function was extended to include assessment and reporting every six months while a person is detained. The Ombudsman fulfills this function by relying on the own motion powers under the Ombudsman Act (Cth).
As Taxation Ombudsman, the Ombudsman can investigate all aspects of tax administration. These include debt recovery actions; decisions to bankrupt; conduct audits; provision of advice; methods of handling inquiries; remission of penalties; handling of correspondence; delays in decision making; handling of private and public rulings; superannuation guarantee audits; operation of the pay-as-you-go installment system; collection of fringe benefits tax and/or collection of pay-as-you-go withholding tax.
Individuals are encouraged to try and resolve their complaints directly with the Australian Taxation Office (ATO) before contacting the Ombudsman.
The Defence Force Ombudsman (DFO) can investigate action taken in relation to members and former members of the Australian Defence Force (ADF) arising out of the ADF employment (other than some disciplinary actions and certain actions taken in relation to honours and awards).
Before the DFO 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, if there are special reasons the DFO 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 DFO about service-related actions of Commonwealth agencies, for example, repatriation benefits, Defence Service home loans, military superannuation, compensation and service or campaign medals. Defence Force complaints are dealt with in a similar way to other complaints under the Ombudsman Act.
The Postal Industry Ombudsman (PIO) 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 Ombudsman Act (Cth). The intent is that the PIO acts in a similar manner to other industry ombudsmen, but with the capacity to exercise set statutory investigation and reporting powers and to use general Ombudsman powers in relation to Australia Post if warranted.
The Ombudsman’s law enforcement role has an increasing emphasis on inspection and oversight of critical activities, and the Ombudsman's role in relation to the Australian Federal Police (AFP) is generally to monitor and react to the AFP's own management of professional standards issues (under Part V of the 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's other law enforcement roles are provided by:
- the Telecommunications (Interception and Access) Act 1979 (Cth), in relation to interception of telecommunications and access to stored communications;
- 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.
In those roles, the Ombudsman inspects and reports on sensitive or intrusive law enforcement activities undertaken by the AFP and the ACC and, in some cases, their state counterparts. The Ombudsman reports to the responsible Federal Minister, who reports to Parliament.
The Overseas Students Ombudsman (OSO) can investigate complaints received from overseas students about the actions of private registered providers who are registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). CRICOS isadministered by the Department of Education, Employment and Workplace Relations. Private registered providers provide educational, training and other connected services to fee paying overseas students including accommodation, student support services and information to assist the overseas student to adjust to study and life in Australia.
The person appointed as the Ombudsman also performs the role as the Australian Capital Territory (ACT) Ombudsman. The ACT Ombudsman relies on the Ombudsman Act 1989 (ACT) to fulfill this role.
Legislation was enacted in December 2010 (commencement date 12 June 2011) to enable the Ombudsman to perform the role of Norfolk Island (NI) Ombudsman. The final edition of the NI Ombudsman Bill 2011 is set to go before the NI Legislative Assembly in May 2011. This Bill will give the NI Ombudsman the power to receive and investigate complaints about administrative actions of the NI administration.
Complaints can be made to the Ombudsman by individuals, companies, or organisations either in their own right or through an agent or representative. Complaints can be made in person, by telephone, in writing, and via an online complaint form.
A person can ask someone else, for example a friend, relative or solicitor, to complain on their behalf. If necessary, the Ombudsman's office will arrange for an interpreter or translator. People in custody are entitled to communicate through sealed envelopes with the Ombudsman so as to preserve the privacy of their complaints.
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, or a corresponding body in other states or territories. For information on the Victorian body, see: "Office of the Public Advocate", in Chapter 16*2 Advocacy.
The Ombudsman can investigate the administrative actions of Commonwealth departments, most other Commonwealth agencies (such as Centrelink, the ATO and the Child Support Agency) and Commonwealth contractors when providing services to the public. For this purpose, an administrative action is generally 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 jurisdiction (for example decisions of specialist tribunals, complaint and regulatory agencies and prosecutors) where the Ombudsman takes a restrained approach to exercising jurisdiction.
The Ombudsman cannot investigate:
- state, territory or local government actions (other than in the ACT Ombudsman role or in some cases of Commonwealth/State cooperation where an arrangement has been made);
- 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 subject to the specialists role of the Ombudsman such as the PIO or OSO);
- the actions of Ministers (although the Ombudsman can investigate the advice given to them) or other Parliamentarians or proceedings in Parliament;
- the actions of Judges and the judicial and similar actions of court officials;
- 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 has a specialist role as DFO in relation to the ADF); 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".
The Ombudsman may exercise the discretion not to investigate a matter or to discontinue an investigation in a range of circumstances, including where:
- there has been undue delay (12 months or more) in lodging the complaint from the time the complainant became aware of the action;
- 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 opinion 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. 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. Those schemes can offer quick and fair resolutions of many complaints, and the Ombudsman encourages agencies to develop and maintain good quality complaint systems. 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.
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 which can make a new decision.
Investigations are conducted on a confidential basis, in private and as informally as is possible, consistent with the issue under consideration. The complainant's name is only given to the agency for the purposes of the complaint investigation. The Ombudsman also accepts anonymous complaints, but is less able to communicate the outcome of such investigations.
The Ombudsman has extensive powers to require the production of documents, information and answers to questions, and can require people to appear and give evidence, including on oath or affirmation. The Ombudsman's strong preference is to exercise those powers only when it is very difficult or for some reason undesirable to proceed by way of cooperation with the complainant, the agency and any other witness. The coercive powers are used only where a person or agency is unwilling or unable to provide information voluntarily. Before coercive powers are used, the relevant Minister must first be informed of the investigation. In most cases, the Ombudsman simply requests information and an agency provides it voluntarily; in doing so in good faith, its disclosures do not breach laws or privacy and do not compromise legal professional privilege.
During an investigation, the agency 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 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 report or 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 Ombudsman will not publicly disclose information obtained during the course of an investigation but has the power to make public statements in the public interest. These documents, sometimes edited versions of reports under section 15 of the Ombudsman Act (Cth), appear on the Ombudsman's website (at www.ombudsman.gov.au).
The Ombudsman has the power to provide to an agency evidence of misconduct by an official. The Ombudsman and its officers are not compellable by courts or tribunals to provide information, documents or evidence about an investigation. But the Ombudsman can disclose information about an investigation if it is in the public interest to do so and any person or agency that may be adversely affected by the disclosure has been consulted.
The Ombudsman Act (Cth) imposes strict confidentiality obligations upon Ombudsman employees. An employee must not disclose any information that he or she obtains as a result an investigation at the Ombudsman’s office. Serious penalties apply if confidentiality is breached.
The Ombudsman may conclude the investigation by deciding no further investigation 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 Ombudsman decides to record that there has been an administrative deficiency, a non-statutory term suggesting that an action should not have been taken in the way it was. The object of these recordings is to ensure that an agency is made aware of a possible problem area without the need for a formal report.
Section 15(1) of the Ombudsman Act (Cth) establishes a list of possible defects, namely:
- 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 Commonwealth Ombudsman are unlimited in scope but can include:
- reconsideration by the department 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.
The Ombudsman's reporting power arises where the Ombudsman is of one of the opinions in section 15(1) of the Ombudsman Act (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 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 Ombudsman cannot overturn an agency's decision. Should the Ombudsman consider remedial action necessary but an agency does not agree to provide a remedy, the Ombudsman can report under section 15 of the Ombudsman Act (Cth) to the agency 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 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 in the first half of the 1980s. The Ombudsman may also decide to make public information about the investigation (usually without any identifying details).
Regardless of the outcome of an investigation, the Ombudsman will tell the complainant the results of the investigation and give reasons for a recommendation or opinion.
The Ombudsman has established a non-statutory internal review process that allows complainants who do not agree with the outcome of an investigation an opportunity to identify the error for consideration by a more senior officer. If a review is granted, the review can lead to changes in investigation outcomes or confirmation of the original outcome.
The Ombudsman's investigation actions are not subject to external merits review, and judicial review mechanisms have very limited practical application. (See: Chapter 21*1 Administrative Law for an explanation of reviews.)
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 Ombudsman will process an FOI request in accordance with the FOI Act (Cth) and the confidentiality and privacy provisions in the Ombudsman Act (Cth). If an FOI request relates to a document originating in another agency, the request is transferred to that agency and the person advised accordingly.
Prior to 1 November 2010, the FOI Act (Cth) provided the Ombudsman with a special role receiving complaints about the handling and decisions of FOI requests by Commonwealth agencies. That role is now shared with the newly created Office of the Australian Information Commissioner (OAIC). In practice the FOI review role will be conducted by the OAIC with some transitional provisions in the FOI Act (Cth) that require the Ombudsman to retain the review role for FOI requests made prior to 1 November 2010.
For further information, see: Chapter 21*6 Freedom of Information.
The Commonwealth Ombudsman is a member of international and regional ombudsman forums. Under an arrangement with AusAID, and in cooperation with other ombudsmen, the Ombudsman provides a range of support and consultative services (for example staff development) to ombudsman in the Pacific and Asian regions.
The Ombudsman has offices in all states and territories. The national office is in Canberra.
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.
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COMMONWEALTH OMBUDSMAN :: Last updated: Thu Jul 1st 2010