The Commonwealth Ombudsman is an independent and impartial statutory official who can investigate government actions generally as well as the specific areas of immigration, some taxation, law enforcement, postal industry and overseas students. The Ombudsman is answerable only to Parliament and can only be removed by both houses of Parliament.
Functions and roles
The office of the Commonwealth Ombudsman was established by the Ombudsman Act 1976 (Cth) (“OA (Cth)”) and began operation in July 1977. The Ombudsman is appointed for a renewable term by the Governor-General and can only be removed from office following a vote of both Houses of Parliament.
The Commonwealth Ombudsman safeguards members of the community in their dealings with Australian Government entities and the prescribed private sector organisations that it oversees.
The Commonwealth Ombudsman’s office handles complaints, conducts investigations, performs audits and inspections, encourages good administration, and discharges specialist oversight tasks.
The Commonwealth Ombudsman is independent and impartial. This impartiality informs the Ombudsman’s approach to investigation. The Ombudsman does not advocate for complainants or the agencies about which they complain. The Commonwealth Ombudsman’s responsibility is to parliament, and through it, to the public interest.
The Commonwealth Ombudsman’s investigat-ions are free for complainants and agencies. Except, Australia Post and registered private postal operators are required to pay for investigations by the Postal Industry Ombudsman; and insurers pay a levy to the Private Health Insurance Ombudsman.
The Commonwealth Ombudsman cannot investigate complaints that are beyond their jurisdiction, and may exercise discretion to decline or cease an investigation if they form an opinion set out in the OA (Cth) (s 6).
The Commonwealth Ombudsman may investigate on their “own motion” (i.e. without having received a complaint); this typically occurs where there is a systemic issue or where the Ombudsman wishes to assess an agency’s complaint-handling system.
Under the OA (Cth), the Commonwealth Ombudsman is also the:
• Defence Force Ombudsman;
• Immigration Ombudsman;
• Law Enforcement Ombudsman;
• Overseas Students Ombudsman;
• Postal Industry Ombudsman;
• Private Health Insurance Ombudsman;
• Vocational Education and Training Student Loans Ombudsman.
All references in this section to “the Ombudsman” are to the Commonwealth Ombudsman, in his or her various roles, unless stated otherwise. The Victorian Ombudsman is discussed in a later section.
The Defence Force Ombudsman investigates actions taken in relation to members and former members of the Australian Defence Force (ADF) arising from their ADF employment (excluding certain matters such as disciplinary actions or actions relating to honours and awards).
Complaints about relevant matters (e.g. promotion, demotion, discharge, postings, housing allowances, and matters relating to their service) can be lodged by current and former members of the ADF and by their dependants.
Unless the Defence Force Ombudsman decides that there are special circumstances that warrant earlier intervention, the ADF member must first seek redress through the ADF’s internal redress of grievance system, and allow at least 28 days to reach a decision.
ADF complaints are dealt with in a similar way to other complaints under the OA (Cth).
The Defence Force Ombudsman can also receive reports of serious abuse within the ADF from serving and former members, and from Australian public service employees who are deployed overseas in connection with ADF activities. “Serious abuse” is sexual abuse, serious physical abuse, serious bullying or harassment that occurred between two (or more) people employed by the ADF at the time. The matter does not need to be reported to the ADF before approaching the Defence Force Ombudsman.
The Immigration Ombudsman can investigate actions taken by the Australian Government Department of Home Affairs (“Home Affairs”), including the Australian Border Force, in relation to visas, citizenship, immigration and detention. This includes Home Affairs’ processing of visa and citizenship applications, and decisions to refuse or cancel visas.
The Immigration Ombudsman undertakes file inspections, site visits and observations of Home Affairs’ field operations using the power to commence an investigation on the Ombudsman’s own motion, without an individual complaint.
The Immigration Ombudsman monitors Home Affairs’ actions in relation to the location, identification, detention and removal of unlawful non-citizens. The Immigration Ombudsman regularly visits immigration detention centres and other facilities that are used to accommodate detainees.
Under the Migration Act 1958 (Cth) (pt 8C), the Immigration Ombudsman must assess, report on and make recommendations about people who have been held in immigration detention for more than two years. These reports are given to the Minister for Home Affairs and a de-identified copy is tabled in parliament. The Immigration Ombudsman also ensures that the refugee assessment process for unlawful non-citizens is conducted in a timely and reasonable manner.
In the Immigration 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 has a special role under part v of the Australian Federal Police Act 1979 (Cth) in relation to the Australian Federal Police (AFP). In this role, the Ombudsman may be referred to as the Law Enforcement Ombudsman. The Law Enforcement Ombudsman oversees the AFP’s management of its professional standards issues through regular and ad hoc inspections of the AFP’s records.
Allegations of corruption within the AFP and the Australian Criminal Intelligence Commission (ACIC) are referred to the Australian Commission for Law Enforcement Integrity (www.aclei.gov.au).
The Law Enforcement Ombudsman also inspects and reports on covert or intrusive law enforcement activities undertaken by the AFP, the ACIC and other bodies including state and territory police forces. In addition, the Law Enforcement Ombudsman oversees the retention and storage of data by these bodies. These roles are provided by:
• the Telecommunications (Interception and Access) Act 1979 (Cth), in relation to the interception of telecommunications, access to stored communications, and the retention of telecommunications data (i.e. metadata);
• the Surveillance Devices Act 2004 (Cth), in relation to the use of surveillance technology (e.g. listening devices);
• the Crimes Act 1914 (Cth), in relation to law enforcement controlled operations, the AFP’s use of delayed notification search warrants and its monitoring of control orders for counter-terrorism purposes;
• the Fair Work (Building Industry) Act 2012 (Cth) in relation to agency investigation of acts or practices by building industry participants that may contravene a designated building law, a safety net contractual entitlement or the Building Code.
Under these Acts, the Law Enforcement Ombudsman reports to the responsible federal government minister, who reports to parliament.
The Overseas Students Ombudsman investigates complaints from overseas students about the actions of private education providers on the Commonwealth Register of Institutions and Courses for Overseas Students (www.cricos.education.gov.au). This register is administered by the Australian Government’s Department of Education and includes education providers and services (e.g. Law Enforcement accommodation, student support and information services) that assist overseas students to adjust to life in Australia.
The Postal Industry Ombudsman can investigate the actions of Australia Post and private postal operators that register under the OA (Cth). The Postal Industry Ombudsman is intended to act in a similar manner to other industry ombudsmen, but with the capacity to exercise set statutory investigation and reporting powers, and to use their ombudsman powers in relation to Australia Post, if warranted.
The Private Health Insurance Ombudsman deals with complaints related to private health insurance. For example, complaints can be made against private health insurers, healthcare providers and private health insurance brokers. The Ombudsman may, with the complainant’s consent, investigate a complaint, conduct mediation or refer the complaint.
The Private Health Insurance Ombudsman does not deal with complaints about the services or treatments provided by health professionals or hospitals. These should be directed to the Victorian Health Complaints Commissioner.
The Private Health Insurance Ombudsman also publishes information about complying health insurance products to better inform people about the available entitlements and benefits, and publishes annual reports on the comparative performance and service delivery of all private health insurers.
The Vocational Education and Training (VET) Student Loans Ombudsman investigates complaints regarding VET student loans and VET student loan providers.
The Ombudsman can assist students who are studying a diploma, advanced diploma, graduate certificate or graduate diploma course, and who have a VET student loan that covers either all or part of the cost of their studies.
The Ombudsman can also help people who believe they have an incorrect VET student loan or debt, and students who think they have been treated unfairly by their student loan provider.
Oversight of examination powers
Under the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the Commonwealth Ombudsman oversees the Australian Building and Construction Commission’s use of examination powers to gather information. The Ombudsman has a similar function under the Fair Work Act 2009 (Cth) (s 712F) to oversee the Fair Work Ombudsman’s use of examination powers.
The Public Interest Disclosure Act 2013 (Cth) provides a Whistleblower Protection Scheme for public officials at the federal level. Under this Act, the Ombudsman:
• promotes awareness and understanding of the scheme;
• provides information, resources and guidance to agencies and disclosers;
• monitors the operation of the scheme;
• reports annually to parliament.
Individuals who meet the definition of a public official – which includes most staff of Australian Government agencies, contractors, and employees of providers of goods and services under contract to the Commonwealth – can use the scheme to report wrongdoing. More information is available at www.ombudsman.gov.au/our-responsibilities/making-a-disclosure.
The Commonwealth Ombudsman is a member of international and regional ombudsmen forums. The Ombudsman receives government funding to provide support and consultative services (e.g. staff development) to ombudsmen in the Pacific and Asian regions.
The Commonwealth Ombudsman is the National Preventive Mechanism (NPM) Coordinator for the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).
OPCAT creates obligations regarding the oversight of places of detention and the promotion of a preventative approach towards the protection of people in detention from torture and mistreatment.
As the NPM Coordinator for OPCAT, the Ombudsman:
• coordinates the NPM bodies across Australia;
• independently reports to ministerial bodies and to the public;
• facilitates the sharing of expertise, knowledge and practice; and
• consults with relevant stakeholders on best-practice inspection and reporting methods, to prevent torture and other cruel, inhuman or degrading treatment of people in detention.
The Commonwealth Ombudsman acts as the NPM body for Commonwealth primary places of detention. This role requires the Ombudsman to inspect immigration detention facilities, military detention facilities and AFP cells.
The Commonwealth Ombudsman also acts as the Australian Capital Territory (ACT) Ombudsman. The ACT Ombudsman investigates complaints about the administrative actions of the ACT Government under the Ombudsman Act 1989 (ACT). The ACT Ombudsman additionally administers the ACT’s Reportable Conduct Scheme and oversees the ACT Police’s use of covert powers. The Ombudsman also undertakes specific functions under the Freedom of Information Act 2016 (ACT), including independent merits review of freedom of information (FoI) decisions and publishing FoI guidelines. The ACT Ombudsman has also adopted a new role as the ACT Inspector of the Integrity Commission under the Integrity Commission Act 2018 (ACT). For more information see www.ombudsman.act.gov.au.
Who can make a complaint?
Individuals, companies and organisations can complain to the Commonwealth Ombudsman. Complaints can be made in person, by telephone, in writing, or via the online complaint form on the Ombudsman’s website (www.ombudsman.gov.au).
A person can ask someone else (e.g. a friend, relative or solicitor) to complain to the Ombudsman on their behalf. The Ombudsman’s office can arrange for a translator to assist a person to make a complaint. People in custody are entitled to communicate with the Ombudsman via sealed envelopes to preserve the privacy of their complaints.
Where people with any kind of disability – physical, intellectual or psychiatric – are concerned, help with making complaints may be available through the Victorian Office of the Public Advocate (www.publicadvocate.vic.gov.au). For more information, see “The Public Advocate” in Disability: asserting your rights.
The Commonwealth Ombudsman can investigate the “administrative actions” of:
• Commonwealth departments (e.g. the Australian Government Department of Human Services, which includes Centrelink and Medicare);
• most Commonwealth agencies;
• contractors employed by the Commonwealth to provide services to the public.
An “administrative action” is an action that is made 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 the Commonwealth Ombudsman’s jurisdiction (e.g. decisions of specialist tribunals) where the Ombudsman takes a restrained approach to exercising jurisdiction.
The Commonwealth Ombudsman cannot investigate:
• state, territory or local government actions (except in his or her capacity as the ACT Ombudsman);
• 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 that come under the Ombudsman’s jurisdiction as the Postal Industry Ombudsman, Overseas Students Ombudsman, VET Student Loans Ombudsman, or Private Health Insurance Ombudsman);
• the actions of ministers (although the Ombudsman can investigate the advice given to ministers), other parliamentarians, or proceedings in parliament;
• the actions of judges, and court officials when exercising powers of a judicial nature;
• 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 the Ombudsman has a specialist role as the Defence Force Ombudsman in relation to the ADF); or
• actions that are or have been the subject of a court or tribunal review initiated by a complainant, unless the Ombudsman considers there are special reasons to investigate.
The Commonwealth Ombudsman may decide to not investigate a matter or to discontinue an investigation in a range of circumstances, including where:
• there has been a delay of 12 months or more between the complainant becoming aware of the action and lodging the complaint;
• the Ombudsman forms the opinion that the complaint is vexatious or frivolous or not made in good faith;
• the complainant does not have a sufficient “interest” in the matter;
• an investigation is not warranted, considering all the circumstances;
• the agency concerned has not been given a reasonable opportunity to resolve the matter;
• the action relates to the commercial activity of a department or a prescribed authority;
• more appropriate alternative review or appeal processes are available and it is reasonable that they be used;
• the Ombudsman’s 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 does not generally investigate a complaint unless the complainant has first raised the matter with the agency concerned. This is because most agencies with substantial client bases have dedicated internal complaint-handling systems. These systems can offer quick and fair resolutions to many complaints. The Ombudsman periodically reviews the effectiveness of these systems, for example, ensuring that agencies inform complainants with unresolved complaints how to contact the Ombudsman. However, if people with complaints are uncertain about who to contact, they can contact the Ombudsman’s office (see “Contacting the Commonwealth Ombudsman”).
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.
Investigations are conducted confidentially, in private, and as informally as possible. The complainant’s name is only given to the agency for the purposes of investigating the complaint.
The Commonwealth Ombudsman accepts anonymous complaints, but these can be difficult to investigate and the Ombudsman is less able to communicate the outcome of an investigation to the complainant.
The Commonwealth Ombudsman has extensive powers to access documents and information, and can require people to answer questions (including appearing to give evidence under oath). The Ombudsman’s strong preference is to exercise these coercive powers only when a person or agency is unwilling or unable to cooperate and provide information voluntarily. Before coercive powers are used, the relevant government minister must be informed of the investigation. However, in most cases, the Ombudsman requests information and an agency provides it voluntarily; in doing so in good faith, the agency’s disclosures do not breach laws or privacy and do not compromise legal professional privilege.
During an investigation, the relevant agency may be asked to comment on the complaint and to give reasons for its actions or decisions, or to provide material from its files that can explain its actions. 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 government minister of the investigation before formally inviting a person or agency to make submissions in relation to an action. The Ombudsman may not make a disclosure that contains express or implied critical opinion unless the relevant person or agency has been provided with an opportunity to appear and make submissions.
Usually, the Ombudsman does not publicly disclose information obtained during an investigation. However, the Ombudsman has the power to make public statements that are in the public interest under section 35A of the OA (Cth).
The Commonwealth Ombudsman can provide an agency with evidence of an official’s misconduct. The Ombudsman and their officers are not compellable by courts or tribunals to provide information, documents or evidence about an investigation.
The OA (Cth) imposes strict confidentiality obligations upon Commonwealth Ombudsman employees. An employee must not disclose any information that they obtain as a result of an investigation at the Ombudsman’s office. Serious penalties apply if confidentiality is breached.
The Commonwealth Ombudsman may conclude an investigation by deciding no further action 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 Commonwealth Ombudsman may advise an agency that an action should not have been taken, or suggest another action or practice that would promote better administration. This ensures that an agency is made aware of a problem without the Ombudsman submitting a formal report.
• 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;
• in all the circumstances, wrong.
Recommendations that can be made by the Ombudsman are unlimited in scope, but can include:
• reconsideration by the department, agency or authority to change its action or decision;
• change in a law, rule or procedure used by the agency;
• any other action considered appropriate in the circumstances (e.g. an apology or, in limited circumstances, financial compensation).
Regardless of the outcome of an investigation, the Commonwealth Ombudsman informs the complainant of the results of the investigation and gives reasons for a recommendation or opinion.
Although the Ombudsman cannot overturn an agency’s decision, he or she can seek to influence administrative decisions by making recommendations in a formal report in relation to an action that an agency has taken or should take in the future.
However, it is not the norm for the Commonwealth Ombudsman to finalise an investigation by submitting a formal report. More commonly, the Ombudsman’s office expresses a preliminary view that there has been some agency error and suggests a remedy. In most cases, agencies accept this and act on the recommendation.
The formal report process usually only arises when a matter is sufficiently important to public administration, or an agency refuses to implement recommendations made by the Ombudsman after an investigation. The Ombudsman may make a report to the relevant agency and government minister where they form an opinion relating to one or more of the errors mentioned in section 15(1) of the OA (Cth) (see list above) and consider that a recommendation should be made for remedial action or a change in law or procedure. If adequate action is not taken following a formal report, then the Ombudsman may report to the prime minister and parliament.
The Commonwealth Ombudsman may also decide to make public information about an investigation (usually without any identifying details).
The Commonwealth Ombudsman’s actions are not subject to external merits review, and judicial review mechanisms have very limited practical application. (For an explanation of reviews, see Appealing government and administrative decisions.)
The Commonwealth Ombudsman’s office is subject to the requirements of the Freedom of Information Act 1982 (Cth) (“FoI Act (Cth)”). Similar to other Commonwealth agencies, the Commonwealth Ombudsman processes freedom of information (FoI) requests in accordance with the FoI Act (Cth), and with regard to the confidentiality and privacy provisions in the OA (Cth). If a FoI request relates to a document originating in another agency, the request may be transferred to that agency and the person advised accordingly.
The Commonwealth Ombudsman has offices in most states and territories. The national office is in Canberra. A list of all offices and their addresses can be found at www.ombudsman.gov.au/contact.
This website also has detailed information about what the Commonwealth Ombudsman does; how to make a complaint (including an online complaints service); how to make a public interest disclosure; details of legislation relating to the Commonwealth Ombudsman; a history of the Commonwealth Ombudsman’s role; and copies of the Commonwealth Ombudsman’s reports and publications, including the Commonwealth Ombudsman’s Service Charter.
Level 6, 34 Queen Street, Melbourne Vic 3000
Tel: 1300 362 072
Tel (for Indigenous callers): 1800 060 789