Taking a problem to an ombudsman

The Office of the Commonwealth Ombudsman (Commonwealth Ombudsman) is a non- corporate government entity which was established by the Ombudsman Act 1976 (Cth) (‘OA (Cth)’) and began operation in July 1977. The Commonwealth Ombudsman is appointed for a five-year renewable term by the Governor-General and can only be removed from office following a vote of both Houses of Parliament.

The purpose of the Commonwealth Ombudsman is to:

• provide assurance that the Australian Government and prescribed private sector entities that the Commonwealth Ombudsman oversees act with integrity and treat people fairly; and
• influence enduring systemic improvement in public administration in Australia. The Commonwealth Ombudsman delivers on its purpose through complaint handling, conducting investigations, performing visits and inspections, encouraging good public administration practices, and administering specialist redress schemes. The Commonwealth Ombudsman has jurisdiction over all government entities and their contracted service providers, subject to some specific statutory exclusions, such as the Australian Taxation Office and intelligence agencies. Oversight includes considering complaints about the administrative actions of the agencies the Commonwealth Ombudsman oversees, in addition to a range of private sector organisations, including:
• private health insurers;
• postal operators that elect to register with the Postal Industry Ombudsman (PIO) Scheme; and
• some providers of education services. The Commonwealth Ombudsman is independent and impartial, and does not charge complainants for their services. It is free. Under the OA (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; and
• Vocational Education and Training (VET) Student Loans Ombudsman. All references in this section to ‘the Ombudsman’ are to the Commonwealth Ombudsman, in their various roles, unless stated otherwise. The Victorian Ombudsman is discussed in a later section, below.

  Defence Force Ombudsman

  The Defence Force Ombudsman (DFO) is a complaint-handling mechanism, and serving members, former members and spouses or dependents of members can make a complaint. The role of the DFO is to investigate actions arising from the service of a member of the Australian Defence Force (ADF). The DFO can investigate complaints from current or former members of the ADF about administrative matters relating to ADF agencies. Since December 2016, the DFO functions include the provision of an independent mechanism to report serious abuse in Defence. As the DFO, the Commonwealth Ombudsman receives and investigates complaints about administrative action taken by Defence agencies, including the three services (Royal Australian Navy, Australian Army and Royal Australian Air Force), the Department of Defence and Defence Housing Australia (DHA). The Commonwealth Ombudsman also receives and investigates complaints about the Department of Veterans’ Affairs (DVA).

  Immigration Ombudsman

  The Commonwealth Ombudsman investigates complaints about the migration and border protection functions of the Department of Home Affairs and the Australian Border Force (ABF). Complaints can include visa and citizenship processing delays, detention issues and customs-related issues. For more information see www.ombudsman.gov. au/complaints/immigration-complaints.

  Oversight of law enforcement and integrity agencies’ use of specific covert and intrusive powers

  The Commonwealth Ombudsman performs oversight functions for various pieces of legislation that grant intrusive, covert and coercive powers to certain law enforcement and integrity agencies. The Commonwealth Ombudsman currently oversees 23 law enforcement and integrity agencies across 16 legislative regimes, including the Australian Federal Police’s (AFP’s) handling and investigation of complaints made against its members. The Commonwealth Ombudsman is responsible for overseeing the use of a wide variety of covert and coercive powers, including Chapters 2, 3 and 4 of the Telecommunication (Interception and Access) Act 1979 (TIA Act), the Surveillance Devices Act 2004, and certain federal law enforcement powers in the Crimes Act 1914. More information about oversight functions can be found at www.ombudsman.gov.au

  Overseas Students Ombudsman

  The role of the Overseas Students Ombudsman (OSO) is to investigate complaints from overseas students about private education providers in Australia. The OSO has three main functions:
• assess and investigate complaints about actions taken by private registered education providers in connection with student visa holders;
• give private registered providers advice and training about best practice complaint handling for international student complaints; and
• report on trends and systemic issues arising from our complaint investigations.

  Postal Industry Ombudsman

  The role of the Postal Industry Ombudsman (PIO) is to investigate complaints about Australia Post and private postal operators that elect to register with the PIO scheme.

  Private Health Insurance Ombudsman

  The role of the Private Health Insurance Ombudsman is to protect the interests of private health insurance consumers. The Commonwealth Ombudsman does this by taking complaints about health insurance matters, providing information and advice, and helping to resolve disputes so consumers are not impacted.

  VET Student Loans Ombudsman

  The role of the Vocational Education and Training (VET) Student Loans Ombudsman is to investigate disputes between students and their VET loan scheme providers authorised to receive funding under Australian Government loan schemes.

  Other roles of the Commonwealth Ombudsman

  Oversight of examination powers Under the Fair Work Act 2009 (Cth), the Commonwealth Ombudsman oversees and reports on the Fair Work Ombudsman’s use of examination powers to gather information. Reporting wrongdoing (whistleblowing) The Public Interest Disclosure Act 2013 (Cth) provides a framework for public officials at the federal level. Under this Act, the Ombudsman:
• promotes awareness and understanding of the scheme;
• provides information, resources and guidance to agencies and disclosers;
• receives and allocates disclosures to agencies and, in certain circumstances, investigates public interest disclosures;
• monitors the operation of the scheme; and
• reports annually to parliament. Individuals who meet the definition of a public official – which includes most staff of Australian Government agencies, contractors, and employees of providers of goods and services under contract to the Commonwealth – can use the scheme to report wrongdoing. More information is available at www. ombudsman.gov.au/our-responsibilities/making-a- disclosure. International role The Commonwealth Ombudsman is a member of international and regional ombudsmen forums. The Ombudsman receives government funding to provide support and consultative services (e.g. staff development) to ombudsmen in the Pacific and Asian regions. NPM Coordinator for OPCAT The Commonwealth Ombudsman is the National Preventive Mechanism (NPM) Coordinator in the context of Australia’s ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). OPCAT creates obligations on Commonwealth, state and territory governments to establish a system of independent monitoring for places of detention and the promotion of a preventative approach towards the protection of people in detention from torture and mistreatment. As the NPM Coordinator for OPCAT, the Ombudsman:
• coordinates the NPM bodies across Australia;
• independently reports to the United Nations Subcommittee on Prevention of Torture, to ministerial bodies and to the public;
• facilitates sharing expertise, knowledge, practice; and
• consults with relevant stakeholders on best- practice inspection and reporting methods, to prevent torture and other cruel, inhuman or degrading treatment of people in detention. Commonwealth NPM for Commonwealth places of detention The Commonwealth Ombudsman acts as the NPM body for places of detention that are under the control of the Commonwealth. This role requires the Ombudsman to undertake inspections and conduct monitoring activities of immigration detention facilities, military detention facilities and Australian Federal Police cells. ACT Ombudsman The Commonwealth Ombudsman also acts as the Australian Capital Territory (ACT) Ombudsman. The ACT Ombudsman’s role is delivered by the Commonwealth Ombudsman under an agreement with the ACT Government. The Commonwealth Ombudsman is accountable to the ACT Legislative Assembly for the performance of these functions. The ACT Ombudsman is also:
• the Inspector of the ACT Integrity Commission;
• the Principal Officer to the ACT Judicial Council;
• part of the ACT’s multi-body NPM under OPCAT;
• the overseer of the operation of the Freedom of Information Act 2016 (ACT); and
• the overseer of the ACT Reportable Conduct Scheme. More information is available in the ACT Ombuds­ man Annual Report 2022–23 at www.ombudsman.act. gov.au.

Who can make 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 an interpreter, including Indigenous language interpreters, to assist a person to make a complaint.

The Commonwealth Ombudsman has a dedicated Indigenous phone number 1800 060 789 or complaints can be made online. The Commonwealth Ombudsman helps people sort out problems with Australian Government agencies and this includes programs that are for Aboriginal and Torres Strait Islander peoples.

For people with disability, help with making complaints may be available, for example, through the Victorian Office of the Public Advocate (www.publicadvocate.vic.gov.au) (see Chapter 8.2: Disability: Asserting your rights) or the National Disability Advocacy Program (www.dss.gov.au/ our-responsibilities/disability-and-carers/program- services/for-people-with-disability/national- disability-advocacy-program-ndap). What the Commonwealth Ombudsman can investigate The Commonwealth Ombudsman can investigate the ‘administrative actions’ of Commonwealth departments (e.g. the Australian Government’s Services Australia, which includes Centrelink and Medicare); most Commonwealth agencies; and contractors employed by the Commonwealth to provide services to the public (e.g. employment service providers).

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 the Commonwealth Ombudsman cannot investigate The Commonwealth investigate:

Ombudsman

cannot

• state, territory or local government actions (except in his or her capacity as the 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, such as the PIO, OSO, VET Student Loans 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 ADF); or
• actions that are or have been the subject of a court or tribunal review initiated by a complainant, unless the Ombudsman considers there are special reasons to investigate.

  Discretion not to investigate

  The Commonwealth Ombudsman may decide to not investigate a matter or to discontinue an investigation in a range of circumstances. These circumstances include:
• there has been a delay of 12 months or more between the complainant becoming aware of the action and lodging the complaint;
• the Ombudsman forms the opinion that the complaint is vexatious or frivolous or not made in good faith;
• the complainant does not have a sufficient ‘interest’ in the matter;
• an investigation is not warranted, considering all the circumstances (e.g. there is no practical outcome the Ombudsman could provide by investigating);
• the agency concerned has not been given a reasonable opportunity to resolve the matter;
• the action relates to the commercial activity of a department or a prescribed authority; and
• more appropriate alternative review or appeal processes are available and it is reasonable that they be used. The Ombudsman does not generally investigate a complaint unless the complainant has first raised the matter with the agency concerned. This is because most agencies with substantial client bases have dedicated internal complaint-handling systems. These systems can offer quick and fair resolutions to many complaints. For matters outside the Ombudsman’s jurisdiction the Commonwealth Ombudsman is unable to consider the complaint. In this circumstance, complainants may be advised to take their complaint to another appropriate oversight body, such as a state ombudsman, industry ombudsman or to a consumer affairs agency. The relevant law is outlined in the OA (Cth).

Investigations are conducted confidentially and in private. 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, premises and information and can require people to answer questions (including appearing to give evidence under oath). The Ombudsman’s 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, the agency’s disclosures 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. The Ombudsman must inform the relevant government minister of the investigation when formally inviting a person or agency to make submissions in response to investigation findings. The Ombudsman may not make a disclosure that contains express or implied critical opinion unless the relevant person or agency 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 under section 35A of the OA (Cth) and often (but not always) does so at the conclusion of investigations conducted using ‘own motion’ powers.

The Ombudsman and their officers are not compellable by courts or tribunals to provide information, documents or evidence about an investigation.

The OA (Cth) 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.

Investigation outcomes 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. The OA (Cth) (s 15(1)) contains a list of possible errors.

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; and
• any other action considered appropriate in the circumstances (e.g. an apology or, in limited circumstances, financial compensation). Regardless of the outcome of an investigation, the Commonwealth Ombudsman informs the complainant of the results of the investigation and explains the outcome.

  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 a complaint investigation by making a formal report. The Commonwealth Ombudsman may also, during or after an investigation, express a preliminary view, or suggestion, that there has been some agency error and suggest a remedy. In most cases, agencies accept this and act on the view or suggestion. The Ombudsman may make a report to the relevant agency and government minister where they form an opinion relating to one or more of the errors mentioned in section 15(1) of the OA (Cth) and consider that a recommendation should be made for remedial action or a change in law or procedure. If adequate action is not taken following a formal report, the Ombudsman may then report to the Prime Minister and to the Australian Parliament. The Commonwealth Ombudsman may also decide to make public information about an investigation (usually without any identifying details).

  Review of Commonwealth Ombudsman decisions

  The Commonwealth Ombudsman’s actions are not subject to external merits review, and judicial review mechanisms have very limited practical application.

The Commonwealth Ombudsman is subject to the requirements of the Freedom of Information Act 1982 (Cth) (‘FoI Act (Cth)’). The Commonwealth Ombudsman processes freedom of information (FoI) requests in accordance with the FoI Act (Cth), and with regard to the confidentiality and privacy provisions in the OA (Cth). If a FoI request relates to a document originating in another agency, the request may be transferred to that agency and the person advised accordingly.

Complaints and reviews of FoI decisions are handled by the Office of the Australian Information Commissioner (www.oaic.gov.au). (Also see Chapter 12.3: Freedom of information law.)

The Commonwealth Ombudsman has offices in most states and territories. The national office is in Canberra. A list of all offices and their addresses can be found at www.ombudsman.gov.au/contact.

This website also has detailed information about what the Commonwealth Ombudsman does, how to make a complaint (including an online complaints service), how to make a public interest disclosure, details of legislation relating to the Commonwealth Ombudsman, a history of the Commonwealth Ombudsman’s role, and copies of the Commonwealth Ombudsman’s reports and publications, including the Commonwealth Ombudsman’s Service Charter.