Administrative Law

Commonwealth and ACT Ombudsman

Roles and Powers of the Ombudsman

The office of Commonwealth Ombudsman was established by the Ombudsman Act 1976 (Cth) ('the Ombudsman Act') and began operation in July 1977. The Commonwealth Ombudsman also holds office (created under Part IIA of the Ombudsman Act) as Defence Force Ombudsman.

The Commonwealth Ombudsman is also the Ombudsman for the Australian Capital Territory exercising powers under the Ombudsman Act 1989 (ACT) by a contract arrangement with the ACT Government.

Additional powers were conferred on the office under the Complaints (Australian Federal Police) Act 1981 (Cth), and the Freedom of Information Act 1982 (Cth) ('the FOI Act (Cth)'). Under the Ombudsman Act, the Commonwealth Ombudsman is also the Taxation Ombudsman.

The Ombudsman is responsible, under the Telecommunications (Interception and Access) Act 1979 (Cth) and the Crimes Act 1914 (Cth), for monitoring the integrity of the records of telecommunications interceptions and controlled operations conducted by the Australian Federal Police and the Australian Crime Commission.

In 2006 legislation was passed to create a separate office of Postal Industry Ombudsman within the office of the Commonwealth Ombudsman.

What can be Investigated

The Commonwealth Ombudsman investigates impartially, independently and free of charge complaints about the administrative actions or decisions of Commonwealth government departments, prescribed authorities (including the Australian Crime Commission), certain Commonwealth controlled companies and some private contractors working for government.

The Ombudsman also has a role in the investigation of complaints about the Australian Federal Police.

The Postal Industry Ombudsman can investigate complaints about Australia Post, or about any other postal or courier operators that register with the scheme. The Postal Industry Ombudsman's website ( www.pio.gov.au) contains full details of its role and functions and a list of all operators registered with the scheme.

As Defence Force Ombudsman, the Commonwealth Ombudsman investigates complaints from members or former members of the Australian Defence Force relating to or arising out of their service in the Forces and, as ACT Ombudsman, deals with complaints about departments and agencies set up under the ACT Government.

Investigations may be undertaken as a result of a complaint or may be instigated by the Commonwealth Ombudsman. These latter complaints are known as 'own motion investigations'.

Complaints can be made in writing, by phone, in person or by using an online complaints form. (See Contacts, Links and Resources for relevant phone numbers and the Ombudsman's web address).

The Ombudsman's Workload

The Ombudsman receives some 30,000 complaints per year, about one third of which are investigated. (In most of the other cases, the Ombudsman suggests the complainant use a department or agency internal complaint system first, and come back if dissatisfied). The Ombudsman also receives many thousands of other inquiries.

The agencies most frequently complained about are those that have the most dealings with the public -- Centrelink, the Child Support Agency, the Australian Taxation Office and the Department of Immigration and Citizenship. The Australian Federal Police, Australia Post and the various elements of the Defence portfolio also provide significant parts of the caseload.

What cannot be Investigated

Expressly excluded from the Commonwealth Ombudsman's jurisdiction are:

• actions of Commonwealth ministers (but recommendations to ministers and actions of ministerial delegates are not excluded);
• actions of judges and magistrates (but non judicial actions of Federal Court registries are not excluded);
• actions of State or local governments (except the ACT Government, in the role of ACT Ombudsman);
• actions of a few Commonwealth authorities specifically placed by law outside jurisdiction; and
• most Commonwealth public sector employment matters (except for Defence Force personnel).

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, including where:

• there has been undue delay (12 months or more) in lodging the complaint;
• 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; or
• in the Ombudsman's opinion investigation is not warranted.

The Ombudsman will not generally investigate a complaint unless the complainant has first raised the matter with the agency. This is because most agencies now have dedicated internal complaint handling systems which operate as part of their client service charters. The Ombudsman periodically reviews the effectiveness of these systems. However, if people with complaints are uncertain about who to contact, they should always contact the Ombudsman's office.

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.

Investigations

Investigations are conducted on a confidential basis. The complainant's name is only given to the agency for the purposes of the complaint investigation. The Ombudsman also accepts anonymous or 'whistleblower' complaints, but is less able to communicate the outcome of such investigations. Complainants should note that as an Australian government agency, the Ombudsman's office is subject to the requirements of the Freedom of Information Act 1982 (Cth).

Investigative Powers

The Commonwealth Ombudsman has extensive powers to require the production of documents and information and can require people to appear and give evidence. The coercive powers are used only where a person or agency is unwilling or unable to provide information voluntarily.

During an investigation, the department or authority is asked to comment on the complaint and to give reasons for its action or decision. The complainant is advised of the agency's explanation and of the Commonwealth Ombudsman's opinion, and is given the opportunity to provide more information or raise any further matters.

At various stages of an investigation involving serious matters, the Commonwealth Ombudsman must inform the head of the department or authority concerned and may inform the responsible minister of any action that is being taken. The Ombudsman must inform the minister if he or she intends to exercise coercive powers to obtain information, or if he or she invites a person or agency to make submissions in relation to a possible criticism.

Usually the Commonwealth Ombudsman will not publicly disclose information obtained during the course of an investigation but he or she has the power to make public statements in special circumstances involving important public interest matters. The Ombudsman has the power to provide to an agency head evidence of misconduct by an official.

Results

The Ombudsman usually concludes investigations by deciding no further investigation is needed. This occurs when, for example, an agency agrees it has erred and provides a remedy or when the Ombudsman considers that an agency's action was reasonable. In other cases, the Ombudsman reaches an opinion that there has been defective administration, which means that he or she considers that the action was

• apparently contrary to law;
• unreasonable, unjust or oppressive;
• in accordance with a law or practice which 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.

In these cases, the Ombudsman may issue a report with recommendations. However, this occurs comparatively rarely; more commonly, the Ombudsman's office will express a view that there has been some agency error and suggest a remedy.

Enforcement

The Commonwealth 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 reports to the department or authority concerned and includes any appropriate recommendations.

If the agency fails to comply with a formal recommendation, the Commonwealth Ombudsman may inform the Prime Minister and the Commonwealth Parliament. The Ombudsman may also decide to make public information about the investigation (usually without any identifying details).

Recommendations

Recommendations that can be made by the Commonwealth Ombudsman 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 right in the circumstances, for example, an apology or, in limited circumstances, compensation for any financial loss.

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

The Defence Force

Current Defence Force members may complain to the Defence Force Ombudsman (DFO) about most actions taken during their service. These include assessments, promotions and demotions, postings, discharges and housing allowances.

The main exceptions are complaints relating to discipline or to the grant of some honours and awards to individuals. In addition, the DFO cannot investigate a complaint about any action undertaken in relation to a Minister, a Judge, a Magistrate or a Coroner.

The DFO cannot usually investigate a complaint from a serving member until internal redress or grievance procedures established under Defence Force regulations have been exhausted. A period of at least 28 days from a request for redress is usually required to elapse before the DFO considers investigation; in practice, a longer period is often allowed due to the complexity of these matters and the nature of the Defence command system.

Current and former members of the Defence Force, their spouses and dependants 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.

In most other respects, Defence Force complaints are dealt with in a similar way to other complaints under the Ombudsman Act.

The Australian Federal Police

Under the Ombudsman Act 1976 (Cth) and Division 5 of the Australian Federal Police Act 1979 (Cth), the Ombudsman may investigate matters relating to corruption within the AFP, AFP practices and procedures, and some other actions. However, the Ombdusman cannot investigate complaints relating to AFP employment matters.

In the first instance, complaints about police are almost always investigated by AFP Internal Investigations. The Internal Investigations report is examined by the Ombudsman who, if not satisfied, may:

• conduct his or her own investigation;
• require the AFP to investigate further;
• ask the AFP to reconsider its recommendations; or
• make some other suggestion.

The Ombudsman monitors the progress of all AFP Internal Investigations, and can make comments or suggestions and seek progress reports during the investigation. The Ombudsman can issue a report recommending particular action.

Freedom of Information

The Ombudsman's powers and responsibilities relating to freedom of information are set out in s 57 of the Freedom of Information Act 1982 (Cth). As ACT Ombudsman, he or she has a similar role under the Freedom of Information Act 1989 (ACT).

Any aspect of an agency's handling of a person's freedom of information request, such as delay, charges, or refusal of access, can be the subject of complaint to the Ombudsman. Recently, amendments have been proposed to the legislation that would make it harder for the Federal Government to issue a certificate exempting information from the reach of the Freedom of Information Legislation. These amendments remain, at the time of writing (September 2009) before the Parliament.

Both the Commonwealth and the ACT Freedom of Information Acts provide for a formal review process within an agency of any adverse decisions the agency may have made. A person dissatisfied with a decision is normally expected to seek internal review first.

After completion of an internal review, external review is available through the Commonwealth Ombudsman, the Administrative Appeals Tribunal or the ACT Administrative Appeals Tribunal. (The Administrative Appeals tribunals are more formal bodies of review which, unlike the Commonwealth Ombudsman, have the power to overturn an agency's decision except where a conclusive certificate has been issued). The right to seek review by a tribunal is suspended while the Commonwealth Ombudsman is investigating a complaint.

The ACT Ombudsman

The Commonwealth Ombudsman is the Ombudsman for the Australian Capital Territory exercising powers under the Ombudsman Act 1989 (ACT) by a contract arrangement with the ACT Government. Section 4 of the Act provides that the ACT Ombudsman has the following functions

(a) to investigate complaints made under the Act;

(b) to exercise other functions given to the Ombudsman under the Act;

(c) to exercise other functions given to the Ombudsman under the Public Interest Disclosure Act 1994 (ACT); and

(d) to monitor compliance with the Crimes (Child Sex Offenders) Act 2005 (ACT), chapter 4 (Child sex offenders register) by the Chief Police Officer and other people authorised by the Chief Police officer to have access to the child sex offenders register.

The ACT Ombudsman is not authorised to investigate action taken by:

• a Minister (s 5(2)(a));
• a judge or master of the Supreme Court, or a registrar performing a function of a judicial nature (s 5(2)(b);
• a magistrate or a coroner for the ACT (s 5(2)(c));
• a tribunal, a tribunal member, or tribunal staff, in the exercise of the tribunal's deliberative functions (s 5(2)(d));
• a royal commission under the Royal Commissions Act 1991 (ACT) or a board of inquiry under the Inquiries Act 1991 (ACT) (s 5(2)(e),(f));
• the Commissioner for the Environment (s 5(2)(g);
• any agency in relation to the employment, promotion, termination of employment, etc of public servants or employees of a prescribed authorities (s 5(2)(k),(l));
• (or action not taken) under the Legislation Act 2001 (ACT) part 5.2 (Requirements for regulatory impact statements) (s 5(2)(m));
• an agency in providing a disability service, a health service, service for children or young people or for older people (s 5(2)(n)).

the Territory or a territory authority for the management of the environment (not including action taken under the Utilities Act 2000, part 14 (Streetlighting and stormwater) (s 5(2)(h));

the Human Right Commission, a member of the Commission or a staff member, in the exercise of the deliberative functions of the Commission (s 5(2)(i));

a judicial commission under the Judicial Commissions Act 1994 (ACT) (s 5(2)(j));

Offices

The Commonwealth Ombudsman has offices in all States and Territories. For the cost of a local call, people from country areas can call the Ombudsman's National Complaints Line on 1300 362 072.

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. It also contains particularly useful information, such as providing tips and advice about the best way to handle and progress complaints with government agencies.

For a link to the Ombudsmanà ƒ ƒ ¢Â€Â™s website and to further contact information, see Contacts, Links and Resources. The contact details for the ACT Ombudsman are the same as those for the Commonwealth Ombudsman.