Last updated 30 August 2016
The Commonwealth Ombudsman can receive a complaint orally, in writing or by use of the ombudsman’s online complaint form. Where a complaint is made orally, the ombudsman may require that it be put in writing and may decline to investigate a complaint where such a request has been made, but the written complaint has not been received (s 7 Ombudsman Act 1976 (Cth) (Cth Ombudsman Act)).
A complaint can be informal; there is no set structure. However, a complaint should be clear enough to indicate exactly what the complainant’s concerns are, and what they would like done to remedy the situation. There is no need for a complainant to give reasons why they think an administrative action was wrong. The ombudsman’s job is to consider why the action might have been wrong and whether it was wrong in the circumstances.
The ombudsman may also investigate an action of its own accord (s 5 Cth Ombudsman Act). This means that the ombudsman is not confined to investigating the particular matter that a person has complained about, but may also look at related actions affecting that person.
The ombudsman is not restricted in its investigations by needing to know who is making the complaint, it can also investigate matters raised by anonymous complainants. However, choosing to make an anonymous complaint may reduce the opportunities for the investigation to proceed or for the complainant to be informed of any actions taken as a result of their complaint (the remedy). In all cases where a person elects to make an anonymous complaint, they should attempt to provide as much detail as possible.
What can be investigated?
Under the Cth Ombudsman Act, the Commonwealth Ombudsman also undertakes the roles of the Defence Force Ombudsman, the Postal Industry Ombudsman and the Law Enforcement Ombudsman and can investigate actions taken by members of the Australian Federal Police. The Commonwealth Ombudsman also operates as the Australian Capital Territory Ombudsman under the Ombudsman Act 1989 (ACT). Examples of the type of complaints investigated by the ombudsman include:
- the failure to obtain compensation from Australia Post for damage to an insured parcel
- the manner in which the Department of Social Security has recovered overpayments from a beneficiary
- the delay by the Australian Taxation Office in making the appropriate refund in respect of an allowable deduction
- the alleged misleading statements by an officer of the Department of Immigration and Multicultural and Indigenous Affairs on a person’s eligibility for permanent resident status.
What cannot be investigated?
The ombudsman cannot investigate any matter that is not a matter of administration or any action taken by a body that is not a department or prescribed authority. ‘Department’ is defined in the Cth Ombudsman Act to mean a department of the Australian Public Service other than the parliamentary departments such as the Department of the Senate and the Department of the House of Representatives. A prescribed authority includes bodies established for a public purpose by an enactment, bodies established by the Governor-General or a minister, incorporated companies over which the Commonwealth exercises control and persons holding an office established by an enactment.
In addition, s 5 of the Cth Ombudsman Act excludes from the ombudsman’s jurisdiction any action taken:
- by ministers, judges, magistrates and coroners
- with respect to the employment and remuneration of public servants.
Discretion to investigate
In some circumstances the Commonwealth Ombudsman may decide not to investigate a complaint even though it falls within the scope of the ombudsman’s authority. The circumstances in which the ombudsman may decide not to investigate a complaint include (s 6 Cth Ombudsman Act):
- if the ombudsman is satisfied that the complainant became aware of the action more than 12 months before the complaint was made to the ombudsman
- if, in the opinion of the ombudsman:
- the complaint is frivolous, vexatious or was not made in good faith
- the complainant does not have a sufficient interest in the subject matter of the complaint
- an investigation or further investigation of the action is not warranted having regard to all the circumstances.
Section 6(2) of the Cth Ombudsman Act also provides that the ombudsman shall not investigate complaints where the complainant has exercised or exercises a right to have the action reviewed by a court or tribunal, unless there are special reasons justifying an investigation. There are other scenarios set out in s 6 that provide the ombudsman may decide not to investigate, or the complainant has a right to have the action reviewed by a court or tribunal but has not exercised that right, unless their failure to do so is not unreasonable in all the circumstances.
Powers of investigation
Under s 8 of the Cth Ombudsman Act, the ombudsman is required to inform the minister or principal officer of the body concerned that it is to be investigated before commencing an investigation. The ombudsman may either before or after the completion of the investigation discuss any matter relevant to the investigation with the responsible minister or any other minister concerned with the matter (s 8(8) Cth Ombudsman Act).
The investigation is conducted in private, and the ombudsman may obtain information and make such inquiries as they think fit. Most investigations are carried out quite informally.
The ombudsman has power to order persons to appear to answer questions on oath, to answer written questions or to produce documents (s 13 Cth Ombudsman Act). The ombudsman may enter any place occupied by a department or prescribed authority at any reasonable time of the day and inspect any documents kept there (s 14 Cth Ombudsman Act).
Results of investigation
After an investigation is completed, the ombudsman is required to inform the complainant and the government body concerned of the results of the investigation (s 12 Cth Ombudsman Act).
If the investigation reveals that the action taken was contrary to law or was unreasonable, unjust, oppressive or improperly discriminatory (whether in accordance with a rule of law or otherwise), or was based either wholly or partly on a mistake of law or of fact, or otherwise in all the circumstances wrong (s 15 Cth Ombudsman Act), the ombudsman is required to report that finding and the reasons for it to the government body concerned and, if necessary, supply a recommendation as to what should be done to remedy the situation. The ombudsman may request the government body to advise as to the action it proposes to take with respect to the recommendation.
If no action is taken within a reasonable time, the ombudsman may inform the Prime Minister accordingly and give the complainant a copy of the recommendations and any comments thought appropriate. Sections 15-17 of the Cth Ombudsman Act also provide for a copy of the report to be forwarded to the President of the Senate and the Speaker of the House of Representatives for presentation to parliament.
The ombudsman affords all agencies the right of natural justice to respond to an adverse report, notwithstanding the non-disclosure provisions of s 8 of the Cth Ombudsman Act. When a report contains opinions that are critical of a department, prescribed authority or person, the body or person criticised (regardless of whether the criticism is direct or implied) must be given an opportunity to appear before the ombudsman to make submissions relating to the matter being investigated before the report can be made.