Taking a problem to an ombudsman

The Victorian Ombudsman’s functions are primarily established by the Ombudsman Act 1973 (Vic) (‘OA (Vic)’.

The Victorian Ombudsman has four principal functions:

• resolving complaints – to resolve complaints about administrative action taken by or in an authority (s13(1)(a));
• enquiries and investigations – to enquire into or investigate administrative actions of authorities (s 13(1)(b));
• enquiries and investigations – to enquire into or investigate corrupt conduct referred by the Independent Broad-based Anti- Corruption Commission (‘IBAC’) (s13(1)(c));
• public interest complaints – to investigate public interest complaints referred by the IBAC about conduct by or in an ‘authority’ or ‘public interest disclosure entity’ (s13(1)(d)). Since 1 January 2020, the Victorian Ombudsman has had additional functions:
• to engage in alternative dispute resolution;
• to provide education and training to public authorities and the community about the role of the Victorian Ombudsman; and
• to review the complaint-handling procedures of authorities. ‘Authorities’ within the Victorian Ombudsman’s jurisdiction include:
• state government departments and administrative offices;
• Court Services Victoria;
• public statutory bodies;
• municipal council staff; and
• certain private entities that act on behalf of other authorities (e.g. WorkSafe insurers and operators of private prisons). Since 1 January 2020, authorities also include publicly funded bodies. ‘Public interest disclosure entities’ include:
• members of parliament;
• local councillors;
• teachers; and
• state-funded residential care services. The Ombudsman’s jurisdiction does not extend to ‘exempt persons or bodies’, listed in schedule 2 of the OA (Vic) including:
• Victoria Police personnel (sworn and unsworn members);
• judges, magistrates, judicial employees or registrars;
• a person acting as a legal adviser to the Crown or as counsel for the Crown in any proceedings;
• a person acting in the capacity as a trustee under the Trustee Act 1958 (Vic) (not including State Trustees);
• the Victorian Electoral Commission;
• the Auditor-General;
• royal commissions and boards of inquiry; and
• boards, tribunals and commissions that are, by virtue of statute, presided over by a judge, magistrate or Australian lawyer. Ministerial advisers are only within the Victorian Ombudsman’s jurisdiction if they are the subject of a referral made by a House of Parliament or a parliamentary committee pursuant to section 16 of the OA (Vic) .

The Victorian Ombudsman makes enquiries and conducts formal investigations into the administrative actions of authorities either in response to complaints, referrals from Parliament or on her ‘own motion’. Enquiries and investigations: the differences A distinction between an enquiry and an investigation lies in the powers available to the Victorian Ombudsman. Investigations carry coercive powers such as the power to summons documents and compel witnesses to appear to give sworn evidence.

For most cases, the Victorian Ombudsman has the discretion to make enquiries, conduct an investigation, or decline to deal with the matter.

The Victorian Ombudsman’s work involves conducting enquiries to determine whether an investigation is needed or whether the issue may be resolved informally (s 13A OA (Vic)).

The Victorian Ombudsman is independent and does not act as an advocate for either the complainant or the agency complained about. Administrative actions An ‘administrative action’ is defined in section 2 of the OA (Vic) to mean any action relating to a matter of administration, and includes:

• a decision and an act;
• refusing or failing to make a decision or to perform an act;
• formulating a proposal or intention; and
• making a recommendation – this includes recommendations made to a minister.

  Departments and administrative offices

  Departments and administrative offices are within the Victorian Ombudsman’s jurisdiction. They are defined in section 2 of the OA (Vic) and in section 4(1) of the Public Administration Act 2004 (Vic). Administrative offices were specifically added to the Victorian Ombudsman’s jurisdiction in 2012. This was necessary as while they do not form part of departments, administrative offices exist independently from and ‘in relation to [them]’ (s 11(a) Public Administration Act 2004 (Vic)). Specified entities The Victorian Ombudsman has jurisdiction over the specified entities listed in the OA (Vic) (col 1 sch 1), including public statutory bodies, defined as (s 2):
• a body, whether corporate or unincorporated, that is established by or under an Act for a public purpose; or
• a body whose members are appointed by the Governor in Council or a minister; or
• a company, all the shares or a majority of the shares in which are held by the state or an authority. The Victorian Ombudsman’s jurisdiction does not include Commonwealth Government departments and private organisations (see ‘Commonwealth Ombudsman’, above). If you are unsure whether a particular body is within the Victorian Ombudsman’s jurisdiction, contact the Ombudsman’s office (see ‘Contacting the Victorian Ombudsman’, below).

  Discretion to investigate

  The Victorian Ombudsman may decide to investigate a matter, subject to the directions and discretions in ss 15 and 15A of the OA (Vic). Where the Victorian Ombudsman considers someone has a right of appeal or avenue of review to a tribunal or a court, they must refuse to deal with the matter unless they consider it would not be reasonable to expect the person to exercise that right, or that the matter merits investigation to avoid injustice (s 15(5), 15(6)). The Victorian Ombudsman does not investigate matters relating to the terms and conditions of employment of people employed by an authority unless they consider that the matter merits investigation to avoid some injustice (s 15(4)). The Victorian Ombudsman can also decide to not enquire into or investigate a complaint where:
• the complainant made the complaint more than 12 months after becoming aware of the administrative action and fails to give a satisfactory explanation for the delay in making the complaint (s 15A(2));
• dealing with it is not necessary or justifiable in the following circumstances; it is trivial; it is frivolous, vexatious, or not made in good faith; or if the subject matter of the complaint has already been investigated or otherwise dealt with by another agency (s 15A(1)); or
• the complaint is made by a person who is not affected by the administrative action that is the subject of the complaint, and is not a suitable representative for the aggrieved person (s 14(1)). Under section 14(1) of the OA (Vic), the Ombudsman can accept complaints made on behalf of another person when the complaint is made by:
• a member of parliament acting on behalf of an aggrieved person;
• a person who is considered suitable to represent the interests of an aggrieved person who has died or who is unable to act for themselves; or
• any other person, where considering all the circumstances, the Victorian Ombudsman considers it proper to entertain the complaint.

Complaints may be made over the telephone. However, under section 14(2) of the OA (Vic), the Victorian Ombudsman may require the complainant to provide a written statement in the form (if any) specified by the Victorian Ombudsman that:

• confirms that the complainant wants the Victorian Ombudsman to consider the complaint; and
• specifies the details of the complaint. Complaints can be lodged via an online complaint form or WebChat (available at www.ombudsman.vic. gov.au). Where a complaint lacks details or is unclear, further relevant information or documentation may be sought. This is usually done via telephone. Letters to the Victorian Ombudsman written by people in custody or prison, in residential care, or in a mental health service must be immediately forwarded, unopened, to the Ombudsman by the person in charge of the institution (s 28 OA (Vic)). Information to include in a letter of complaint:
• the complainant’s name and contact details, including telephone numbers;
• a statement of the administrative action complained of (i.e. what the authority did or did not do);
• the date the administrative action occurred;
• brief background details;
• any steps taken to raise the complaint with the relevant agency; and
• any relevant evidence (e.g. a letter from the agency stating their decision about the complaint). When a complaint is received, it is assessed and the Victorian Ombudsman may conduct enquiries to determine if a matter should be investigated or if it can be resolved informally (s 13A(1)). The vast majority of complaints are handled informally after conducting enquiries. If the matter is not resolved informally and the complaint merits formal investigation (s 15B), then the complainant, the relevant agency head (e.g. a CEO of a municipal council or a departmental secretary) and the relevant Minister will be formally advised of the investigation. The Ombudsman can also conduct enquiries or start an investigation with or without a complaint being made, using her ‘own motion’ powers (ss 13A(2), 16A(1)).

Public interest disclosures Disclosures made under the Public Interest Disclosures Act 2012 (Vic) (‘PID Act’) can be made by ‘natural persons’ (a real person, not an organisation or company) and can be made orally and anonymously (s 12 PID Act). Such disclosures must comprise (s 9 PID Act):

• information that shows or tends to show that; or information that the person reasonably believes shows or tends to show that: – a person, public officer or public body has/is/ will engage in ‘improper conduct’; or – a public officer or public body has, is or will take ‘detrimental action’. ‘Improper conduct’ is a broad term that covers:
• ‘corrupt conduct’ as defined in section 4(1) of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (‘IBAC Act’); and
• ‘specified conduct’, which covers a number of types of conduct, including: – conduct that adversely affects the honest performance by a public officer or body of their functions; – dishonest performance of functions; – breaching the public trust; – misuse of information; – substantial mismanagement of public resources; and – substantial risk to public health or safety or to the environment.

  The Victorian Ombudsman and IBAC

  Disclosures under the PID Act can be made to a number of bodies including IBAC and the Ombudsman. However, the Ombudsman can only receive disclosures that concern a local councillor, the Victorian Information Commissioner, the Commissioner for Privacy and Data Collection, the Health Complaints Commissioner (s 16 PID Act), or authorities under the OA (Vic). The Ombudsman is authorised to investigate the disclosure if IBAC has determined it to be a public interest disclosure complaint (s 13) and referred it to the Ombudsman. The Ombudsman’s jurisdiction to investigate public interest disclosure complaints is broader than its normal jurisdiction, as it can investigate matters regarding certain persons or bodies that are not authorities, including local councillors. If the Ombudsman receives an assessable disclosure they notify IBAC, which determines whether the disclosure is a public interest complaint (ss 21, 26 PID Act). If IBAC determines a disclosure is a public interest complaint, IBAC may refer the complaint to the Ombudsman for investigation (s 73(3) IBAC Act) and the Ombudsman must investigate (s 15C OA (Vic)). However, the Ombudsman must refuse to investigate public interest disclosure complaints referred by IBAC unless reasonably satisfied that the disclosure shows or tends to show that:
• improper conduct has occurred, is occurring or will occur; or
• detrimental action has occurred, is occurring or will occur (s 15D OA (Vic)). The Ombudsman must also refuse to investigate a public interest complaint if it would prejudice any criminal proceedings or investigations, or investigations by IBAC or the Victorian Inspectorate (s 13AB OA (Vic)). The Ombudsman may refuse to investigate public interest disclosure complaints if the complaint is trivial, frivolous, vexatious, lacks substance or credibility, is not made in good faith, or the subject matter of the complaint does not amount to improper conduct or has already been investigated or otherwise dealt with (s 15E(1) OA (Vic)).

All Ombudsman investigations are conducted in private (s 17(2) OA (Vic)). When a formal investigation is conducted (under ss 15B, 15C, 16A, 16), the Ombudsman can use coercive powers. She may summons people to attend an interview, take evidence under oath, enter premises and obtain confidential documents, and issue confidentiality notices.

There are a number of penalty provisions that apply to non-compliance. For example, it is an offence to obstruct the Ombudsman (s 22), or to disclose any information contrary to a confidentiality notice if one has been issued (s 26C).

The Ombudsman can discontinue an investigation in certain circumstances (ss 17(6B, 6C)).

If, at any time during an investigation, the Ombudsman thinks there are grounds to criticise an agency, the Ombudsman must give the agency’s principal officer the opportunity to comment on the subject of the investigation (s 17(4)).

If the Ombudsman intends to include in a report any comment or opinion that is adverse to a person, she is obliged to give that person a reasonable opportunity to respond and to fairly set out their response in the report (s 25A(2)).

Where, during an investigation, a question arises about whether the Ombudsman has jurisdiction to conduct the investigation, the Victorian Ombudsman or the party subject to the investigation, may apply to the Supreme Court to resolve that question (s 27(1)). Legal representation A person may seek legal advice and be represented by a lawyer in relation to an enquiry or investigation conducted by the Ombudsman.

However, if the Ombudsman considers that the use of a specific legal practitioner may prejudice the enquiry or investigation, she can direct a person to not seek advice from that legal practitioner for particular purposes, including a compulsory appearance (s 18M).

Ombudsman Act investigations When an investigation is finalised, if the Ombudsman thinks that the administrative action to which the investigation relates was:

• contrary to the law;
• unreasonable, unjust, oppressive or improperly discriminatory;
• in accordance with a rule of law, an enactment, or a practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory;
• taken in the exercise of a power or discretion for an improper purpose or on irrelevant grounds;
• a decision for which reasons should have been given, but were not; or
• based wholly or partly on a mistake of law or fact;
• wrong, the Ombudsman must report their opinion to the principal officer of the appropriate authority with any recommendations. Such a report is also sent to the responsible minister, and the Ombudsman may send copies to the Victorian premier (s 23 OA (Vic)). The Ombudsman may recommend that:
• the subject matter be referred to an appropriate authority for further consideration;
• action should be taken to rectify, mitigate or alter the effects of the administrative action;
• certain practices should be varied;
• certain laws should be reconsidered;
• reasons should be given for the action; or
• any other steps should be taken. The Ombudsman can require the authority to report back to them about the steps taken to implement their recommendations.

  Public interest disclosure investigations

  On completing a PID Act investigation, the Ombudsman must report to the principal officer of the appropriate authority and to the responsible minister. A copy of the report can also be sent to the Victorian Premier (s 23(2)(a), (3) OA Act (Vic)).

  Parliamentary referrals

  After completing a report related to a matter referred by a parliament under section 16, the Ombudsman must report to the relevant officer(s) (s 25AB OA Act (Vic)).

  Parliamentary reports

  The Ombudsman can report to parliament on any matter arising in connection with the performance of its functions (s 25(2) OA Act (Vic)). Matters that cannot be included in reports The Ombudsman cannot include in public or private reports:
• any information it considers would prejudice any criminal proceeding or investigation, or IBAC or Victorian Inspectorate investigations;
• information that would reveal Cabinet matters;
• any finding or opinion that a specified person has committed, or is guilty of, an offence or should be prosecuted for an offence;
• most information that would be likely to lead to the identification of a person who has made a public interest disclosure; or
• information that would identify a person who is not the subject of an adverse comment in the report unless the Ombudsman is satisfied that: – including the information is necessary and in the public interest, and; – including that information will not cause unreasonable damage to the person’s reputation, safety or wellbeing, and the report states that the person is not subject to any adverse opinion (s 25A OA (Vic)).

Oversight The Victorian Ombudsman is subject to two forms of oversight:

• by a parliamentary committee (the Integrity and Oversight Committee); and
• by the Victorian Inspectorate.

  Freedom of Information

  The Freedom of Information Act 1982 (Vic) does not apply to documents held by any person or body that relates to a complaint, enquiry, investigation, recommendation, report or draft report. These documents are not subject to release under the Freedom of Information Act 1982 (Vic) (s 29A).

  Charter of Human Rights and Responsibilities Act

  The Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Human Rights Charter’) protects the human rights of all people in Victoria. The Human Rights Charter ensures that when the government makes laws and delivers services, it does so with civil and political rights in mind. The Human Rights Charter also places an obligation on public authorities to act in a way that is compatible with the human rights set out in the Act. Since 1 January 2008, all public authorities have been required to act consistently with the human rights as set out in the Human Rights Charter. Under the OA (Vic), the Ombudsman can enquire into or investigate whether any administrative action is incompatible with any of the rights set out in the Human Rights Charter and if the administrative action involves a decision, whether there was a failure to give proper consideration to a relevant human right.

Contacting the Victorian Ombudsman

Victorian Ombudsman
Level 2, 570 Bourke Street, Melbourne Vic 3000
Tel: 1800 806 314
Web: www.ombudsman.vic.gov.au