The Ombudsman’s primary function is to make enquiries into or investigate administrative actions taken by or on behalf of:

Examples of private entities are WorkSafe insurers and prisons.

These functions are established by section 13 of the Ombudsman Act 1973 (Vic) ("Ombudsman Act (Vic)"). 

The Ombudsman may conduct informal enquiries or formal investigations in response to complaints, or on his own motion; that is, without having received a complaint. 

The Ombudsman also has functions and/or increased jurisdiction under the Whistleblowers Protection Act 2001, the Charter of Human Rights and Responsibilities Act 2006 and the Freedom of Information Act 1982.

The Ombudsman is not an advocate for either the complainant or the agency complained about.

"Administrative action" is defined in section 2 of the Ombudsman Act (Vic) to mean any action relating to a matter of administration, and includes:

Defining "administrative action" was dealt with in Booth v Dillon (No. 1) [1976] VR 291.

"Government department" and "public statutory body" are also defined in section 2 of the Ombudsman Act (Vic). State government departments are listed alphabetically in the Melbourne White Pages directory and at www.vic.gov.au/government-contacts/index-az-letter.html.

"Government department" is also defined in section 2 of the Ombudsman Act (Vic). State government departments are listed alphabetically in the Melbourne White Pages directory and online at www.vic.gov.au/contactsandservices/directory/.  Bodies listed in section 16 of the Public Administration Act 2004 (Vic) also come within the Ombudsman’s jurisdiction.

Under section 13 of the Ombudsman Act (Vic), the Ombudsman does not have power to investigate any administrative action taken by:

Also excluded are Boards, Tribunals and Commissions where, by virtue of statute, they are presided over by a Judge, Magistrate or lawyer. For instance, the Victorian Civil and Administrative Tribunal (VCAT).

Certain officers – for example municipalcouncillors – who are outside the Ombudsman’s jurisdiction under The Ombudsman Act (Vic), may fall within his jurisdiction under the Whistleblowers Protection Act. 

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

The Ombudsman is unlikely to investigate matters relating to terms and conditions of employment unless it is considered that the matter merits investigation in order to avoid some injustice (section 13(5)).

The Ombudsman has discretion not to entertain a complaint where:

However, under section 14(4), the Ombudsman shall not refuse to entertain a complaint on behalf of the complainant where:

Under section 14, all complaints must be in writing and may be made anonymously. Complaint may be by letter or on-line at http://www.ombudsman.vic.gov.au/www/html/215-complaint-form.asp. People may also telephone the Ombudsman’s office to discuss their concerns, and the Ombudsman’s staff will reduce the complaint to writing.

Where a complaint lacks details or is unclear, the Ombudsman may seek further relevant information or documentation from the complainant. This is usually done via telephone.

Letters to the Ombudsman written by persons in custody or by patients in psychiatric hospital units must immediately be forwarded unopened to the Ombudsman by the person in charge of the prison or institution (section 28).

Useful information to include in a letter of complaint are:

Under section 17 of the Ombudsman Act (Vic), all investigations are conducted in private. All written complaints are assessed and the Ombudsman may conduct enquiries to determine if a matter should be investigated or may be resolved informally (section 13A). The matter may be resolved through this process. The majority of complaints are dealt with informally. If the matter is not resolved and the complaint merits formal investigation (section 14), the relevant department head (for example a CEO of a municipal council or the relevant departmental Secretary) and Mayor or the Minister will be formally advised. The Ombudsman does not require there to have been a complaint and he can decide to make enquiries or conduct an investigation on his own motion (section13A(2) & section 14(1)).

When a formal investigation is conducted, under s14 or s 16, the Ombudsman has a number of powers. For example, he may summons people to attend, take evidence under oath, enter premises, and obtain confidential documents. These powers and exclusions are provided for in the Ombudsman Act 1973 and sections 17-20A of the Evidence (Miscellaneous Provisions)Act 1958 (Vic).  In short an investigation is conducted by the Ombudsman as if the Ombudsman were the sole Commissioner issued with a commission by the Governor in Council (section 18(1)).

There are also a number of penalty provisions.  For example, it is an offence to obstruct the Ombudsman (section 22), or to disclose any information learnt during the course of an investigation (section 20).

If at any time during the course of an investigation it appears to the Ombudsman that there are grounds for being critical of an agency, or there is evidence of a breach of duty or misconduct by an employee of an agency, before making the report, the Ombudsman will give the principal officer the opportunity to comment (section 17(4)).

On completion of the investigation, if the Ombudsman is of the opinion that the administrative action:

The Ombudsman shall report his/her opinion together with reasons to the principal officer of the appropriate authority with any recommendations as he/she thinks fit.  Such a report is also sent to the responsible Minister and the Ombudsman may send copies to the Premier (section 23).  The Ombudsman may also report to Parliament regarding his investigation (section 25).

The Ombudsman’s recommendations may be that:

There is no obligation for the agencies to comply with the Ombudsman's recommendations. Where the Ombudsman makes recommendations, however, the principal officer of the authority may be requested to notify the Ombudsman within a specified time of the steps that have been or are proposed to be taken to give effect to the recommendations or, if no such steps have been or are proposed to be taken, the reasons for the inaction.

Where appropriate steps have not been taken within a "reasonable time" of the Ombudsman's recommendations, the matter may be reported to the Governor in Council and to Parliament (section 23(5)).

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 (section 27).

The Whistleblowers Protection Act 2001 (Vic) ("WPA") enables all members of the public including employees of public bodies to make disclosures about improper conduct and detrimental action by public bodies or a public officer (section 5 of the WPA). 

Improper conduct includes corrupt conduct, substantial mismanagement of public resources and conduct involving a threat to public health and safety or the environment. Detrimental action includes harassment, intimidation, and action causing injury, loss or damage (section 3 of the WPA).

Some office holders, who would be outside the Ombudsman’s jurisdiction where a complaint is made under the Ombudsman Act (Vic), are within his jurisdiction in an investigation of a disclosure made under the WPA.  For example, the Ombudsman may investigate elected officials, such as Municipal councillors and Members of Parliament, under the WPA.

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. However, a disclosure about a local government councillor must be made to the Ombudsman. In the case of a Member of Parliament (MP), the disclosure must be made to either the Speaker of the Legislative Assembly or to the President of the Legislative Council, according to which chamber the MP sits in.

A disclosure can be made either orally or in writing, and either anonymously or in person. When making a disclosure personally or on behalf of a client, it is important to set out the specific allegations as well as the grounds for those allegations, and to provide copies of any supporting documents.

A person will receive WPA protections if it is determined he or she has reasonable grounds for the belief that improper conduct has occurred.

The protections include:

The WPA also establishes a criminal offence:

The Ombudsman considers whether the disclosure is a public interest disclosure. If so, the matter must be investigated. This investigation can be conducted by the Ombudsman or referred by him to the agency in question, or other bodies.

Public bodies must comply with the Ombudsman's Guidelines when assessing complaints under the WPA (section 38 of the WPA). A copy of the guidelines can be obtained from the Ombudsman's website at www.ombudsman.vic.gov.au/www/html/37-whistleblowers.asp or by telephoning the Ombudsman's office.

The Victorian Charter of Human Rights and Responsibilities Act 2006 ("the Charter") is legislation that protects the human rights of all people in Victoria. The Charter ensures that when the government makes laws and delivers services, it does so with civil and political rights in mind. The Charter also places an obligation on public authorities to act in a way which is compatible with the human rights set out in the Charter.

Since 1 January 2008, all public authorities have been required to act compatibly with the human rights set out in the Charter. Under the Ombudsman Act (Vic), the 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.

Complaints regarding the sworn members of Victorian Police are considered by the Office of Police Integrity (OPI), not the Ombudsman. The Director Police Integrity has the powers to investigate, or to oversee police investigation of, these complaints. The Ombudsman has the power to enquire into and investigate administrative actions taken by non-sworn Victoria Police staff and has a monitoring role in regards to sworn members’ compliance with aspects of the Melbourne City Link Act 1995.