Last updated 17 July 2017
Section 12 of the Ombudsman Act 2001 (Qld) (Qld Ombudsman Act) provides that the two principal functions of the Queensland Ombudsman are to investigate administrative actions of agencies, consider the administrative practices and procedures of agencies whose actions are being investigated and to make recommendations or provide information or other help to agencies about ways to improve the quality of decision-making and administrative practices.
A complaint may be made by any person apparently directly affected by the action and must usually be made within one year after the day the complainant first had notice of the action. An investigation can be commenced if a complaint is made either in writing or orally about a particular administrative action or if the ombudsman considers an administrative action should be investigated (s 20 Qld Ombudsman Act). The ombudsman must investigate any administrative action of an agency referred by parliament or a statutory committee of the parliament (s 18 Qld Ombudsman Act). An administrative action of an agency includes an administrative action taken by, in or for the agency by an entity that is not an agency (s 10 Qld Ombudsman Act).
What can be investigated?
The ombudsman investigates the administrative actions of agencies. Agencies within the ombudsman’s jurisdiction are Queensland government departments, local governments and public authorities (s 8 Qld Ombudsman Act). An administrative action is defined (s 7 Qld Ombudsman Act) as any action about a matter of administration and includes:
- a decision or an act
- a failure to make a decision or do an act
- the formulation of a proposal or intention
- the making of a recommendation, including one made to a minister
- an action taken because of a recommendation made to a minister.
The ombudsman can investigate administrative actions even if an Act says the action is final or cannot be appealed against, challenged, reviewed, quashed or called into question (ss 7, 14 Qld Ombudsman Act).
What cannot be investigated?
The ombudsman cannot question the merits of a decision made by a minister or by cabinet, or a decision that the ombudsman is satisfied implements a decision made by cabinet (s 16 Qld Ombudsman Act).
In addition, the ombudsman must not investigate an administrative action taken by:
- a tribunal or member in the performance of the tribunal’s deliberative functions
- a person acting as legal adviser to the state or as counsel for the state in legal proceedings
- a member of the police service, if the action can be investigated by the Crime and Corruption Commission or if the officer may be liable for disciplinary action or has been disciplined under the Police Service Administration Act 1990 (Qld)
- the auditor-general
- a mediator at a mediation session under the Dispute Resolution Centres Act 1990 (Qld)
- a person in a capacity as a conciliator under the Health Ombudsman Act 2013 (Qld)
- the Information Commissioner in the performance of the commissioner’s functions under the Right to Information Act 2009 (Qld) (s 12 Qld Ombudsman Act).
If a question arises during an investigation about whether the ombudsman has jurisdiction to conduct the investigation, the ombudsman may apply to the Supreme Court to decide this question. The application must be heard in closed court (s 17 Qld Ombudsman Act).
Discretion to investigate
If a complaint is made orally, the ombudsman may decline to investigate until the complaint is put in writing. The ombudsman may give a person necessary assistance to put the complaint in writing. If a complaint is made after one year from the day the complainant first had notice of the action, the ombudsman may accept it under special circumstances.
In addition, the ombudsman may refuse to investigate a complaint or refuse to continue to investigate a complaint if the ombudsman considers that the:
- complaint is trivial, frivolous, vexatious or not made in good faith
- complainant does not have a sufficient direct interest in the action complained of
- complainant has a right of appeal, reference or review that has not been exhausted where it would be reasonable to do so before investigation
- complainant has a right of appeal, reference or review that has been exhausted and makes the investigation unnecessary or unjustifiable.
Also, the ombudsman will not usually investigate a complaint unless the agency responsible for the administrative action has first been given an opportunity to address the issue.
Finally, a complaint need not be investigated if the ombudsman is satisfied that a complaints entity (as defined) has investigated or will investigate the action complained of at a level at least substantially equivalent to the level at which the ombudsman would otherwise investigate the complaint.
Powers of investigation
The ombudsman may undertake a preliminary inquiry to decide whether a complaint should be investigated (s 22 Qld Ombudsman Act). If a decision is made to investigate a complaint, it may be conducted either informally or by exercising powers under pt 4 of the Qld Ombudsman Act. If any of these powers are to be exercised, a formal notice to the agency is required (s 27 Qld Ombudsman Act). The powers include to:
- require a person to give a document or information
- require a person to create and give a document
- require a person to attend before the ombudsman and give information, answer questions or give a stated document or all documents of a stated type
- enter and inspect a place occupied by the agency on giving reasonable notice and take extracts from or copy documents located at that place.
Unless the Qld Ombudsman Act provides otherwise, the ombudsman may regulate the procedure of an investigation in the way the ombudsman considers appropriate (s 24 Qld Ombudsman Act).
The ombudsman has the discretion to consult with the minister concerned in the action complained of (s 26 Qld Ombudsman Act). However, consultation must occur if the minister asks to consult or if the investigation relates to a recommendation the agency has made to the minister, and the ombudsman is considering making a formal report.
If the ombudsman considers there may be grounds for making a report that may affect or concern an agency, the principal officer of that agency must be given the opportunity to comment on the matter under investigation before that report is made.
The ombudsman must not make an adverse comment about a person in a report unless, before the report is prepared, the ombudsman gives the person an opportunity to make submissions about the proposed adverse comment. If the person makes submissions and the ombudsman still proposes to make the adverse comment, the ombudsman must ensure the person’s defence is fairly stated in the report (s 55 Qld Ombudsman Act).
Results of investigation
If the ombudsman cannot investigate a complaint, refuses to investigate a complaint or refuses to continue an investigation of a complaint, the ombudsman must inform the complainant in a way the ombudsman considers appropriate of the decision and the reasons for the decision as soon as reasonably practicable (s 23(4) Qld Ombudsman Act).
Where an investigation is undertaken, the ombudsman does not make decisions in the same way as a court, but forms opinions and makes recommendations.
If the ombudsman considers that:
- the action investigated should be considered further by the agency
- the action should be taken to rectify, mitigate or alter the effects of the action in some way
- any practice or law under which the action was taken should be varied or reconsidered
- further reasons should be given for the administrative action
- other steps should be taken
the ombudsman may give to the principal officer a report stating the action the ombudsman considers should be taken and the reasons, and may make such recommendations as the ombudsman considers appropriate (s 50 Qld Ombudsman Act).
Under s 49 of the Qld Ombudsman Act, the ombudsman may make a report if it is considered the administrative action was:
- taken contrary to law
- unreasonable, unjust, oppressive or improperly discriminatory
- in accordance with a rule of law, a provision of an Act or a practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory in particular circumstances
- taken for an improper purpose, on irrelevant grounds or on irrelevant considerations
- taken without giving reasons, and reasons should have been given
- based wholly or partly on a mistake of law or fact.
If the ombudsman considers there is evidence of a breach of duty or misconduct on the part of an officer of the agency, a report must be given to the principal officer and a copy may be given to the minister or, if the agency is a local government, to the mayor. If the agency is a local government, the principal officer must give a copy of the report and any recommendations to all members of the local government (s 50(2) Qld Ombudsman Act).
The ombudsman may ask the principal officer of the agency to advise within a stated time of the steps taken or proposed to be taken to give effect to the recommendations made in the report. If any steps that the ombudsman considers appropriate have not been taken within a reasonable time after giving the report, and within that time the ombudsman has considered any comments made and the ombudsman considers it appropriate, the ombudsman may give the premier a copy of the report and a copy of any comments made by the principal officer. In such a case, the ombudsman may give to the speaker another report that deals with the original report and the comments for tabling in the assembly (s 51 Qld Ombudsman Act).
If an investigation is undertaken, the ombudsman must inform the complainant of the result of the investigation in a way the ombudsman considers appropriate (s 57 Qld Ombudsman Act).