Complaining about Commonwealth Decision Making

Based on the contribution of David Kelsey-Sugg and Heather Lambrick for the Fitzroy Law Handbook 2016, as amended by Andrew Klein and current to March 2022

The Commonwealth Ombudsman - an overview

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.

The Commonwealth Ombudsman safeguards the community in its dealings with Australian Government entities and the prescribed private sector organisations that it oversees. The Ombudsman’s office handles complaints, conducts investigations, and performs audits and inspections, encourages good administration and discharges specialist oversight tasks.

The Commonwealth Ombudsman is independent and impartial. This impartiality contributes to 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 investigations are free for complainants and agencies, except for the Postal Industry Ombudsman role where Australia Post and private postal providers are required to pay for investigations, and the Private Health Insurance Ombudsman role where insurers pay a levy.

The Commonwealth Ombudsman must investigate complaints (unless they are outside the ombudsman’s jurisdiction or a decision is made to decline or cease an investigation for one of the reasons set out in s 6 of the Ombudsman Act 1976 (Cth)). The Ombudsman may investigate on his or her "own motion" (i.e. without having received a complaint); this typically occurs where there is a systemic issue or where the Ombudsman wishes to check the effectiveness of an agency’s complaint-handling system.

Under the Ombudsman Act 1976 (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.

What can be investigated

The Commonwealth Ombudsman can investigate any administrative actions of:

• Commonwealth departments (e.g. the 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.

What cannot be investigated

The Commonwealth Ombudsman cannot investigate any administrative actions of:

• State, territory or local government actions (except in the capacity as 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, 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 Australian Defence Force); 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 to investigate.

Making 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 Public Advocate of the ACT (https://hrc.act.gov.au/public-advocate/) (or a corresponding body in other states or territories).

Investigations - powers and processes

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 disclosure 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 person or agency criticised 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; this includes publishing reports under s 15 of Ombudsman Act – published reports are available on the Ombudsman’s website (www.ombudsman.gov.au).

The Commonwealth Ombudsman has the power to 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 Ombudsman Act 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.

Outcomes of Investigations

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.

Section 15(1) of the Ombudsman Act contains a list of possible defects; namely that an action was:

• 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; for example, an apology or, in limited circumstances, compensation for any financial loss.

Regardless of the outcome of an investigation, the Commonwealth Ombudsman informs the complainant of the results of the investigation and give reasons for a recommendation or opinion.

Commonwealth Ombudsman reports

Although the Ombudsman cannot overturn an agency’s decision, they 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. As long as the Ombudsman has formed an opinion relating to one or more of the defects mentioned in section 15(1) of the Ombudsman Act (see Outcomes of Investigations) and considers that a recommendation should be made for remedial action or a change in law or procedure then they may make a report to the agency and government minister concerned. If, after that, adequate action is not taken 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).