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Freedom of Information (FOI) – Section 8 statement

Information concerning functions and documents of the Ombudsman (Freedom of Information Act 1982, section 8)

Establishment
Organisation
Functions


Categories of documents held by the Ombudsman
FOI access and initial contact points

Establishment

The Commonwealth Ombudsman was established by the Ombudsman Act 1976. The Act came into effect on 1 July 1977 and is administered by the Prime Minister. The Ombudsman is also the Defence Force Ombudsman and the Immigration Ombudsman.
See also: About the office

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Organisation

The national office of the Commonwealth Ombudsman and the office of the ACT Ombudsman are co-located in Canberra. The Commonwealth Ombudsman also has offices in Adelaide, Brisbane, Darwin, Hobart, Melbourne, Perth and Sydney.

The Ombudsman and Deputy Ombudsman are statutory officers appointed under the Ombudsman Act 1976. Staff are employed under the Public Service Act 1999. The office comprises a range of functional elements:

  • Central office functions and responsibilities (including human resources, information technology, financial services, records management and public relations) and the principal specialist teams are based in the national office in Canberra.
  • Offices throughout Australia handle complaints and undertake some specialist work. A Senior Assistant Ombudsman supervises the Adelaide, Brisbane, Darwin, Hobart, Melbourne, Perth and Sydney offices, as well as complaint handling relating to the ACT Ombudsman function.

People can contact any of the Ombudsman's offices in person, by telephone, or in writing by post, facsimile, email.

For the cost of a local call, people can contact their nearest Commonwealth Ombudsman’s office by calling the National Complaints Line: 1300 362 072.

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Functions

Complaints about government departments

Following a complaint from a member of the public, or using his ‘own motion’ powers under the Ombudsman Act 1976, the Ombudsman may investigate the administrative actions of most Australian Government departments and agencies and some private contractors delivering government services.

The Ombudsman cannot investigate:

    • the actions of Government Ministers or judges
    • employment-related matters (although as Defence Force Ombudsman he can investigate employment-related complaints from members of the Defence Force)
    • the actions of some government business enterprises.
The Ombudsman has a discretion not to investigate complaints which are ‘stale’, or frivolous, or where the complainant has not first sought redress from the agency, or where some other form of review or appeal is more appropriate in all the circumstances.

The Ombudsman may conduct a complaint investigation as he thinks fit. His powers are similar to those of a Royal Commission, and he can compel the production of documents and examine witnesses under oath.

Ombudsman investigations are private, and details are generally not revealed to people who are not legitimately concerned with the investigation. However, the Ombudsman’s Office is subject to the Freedom of Information Act 1982 and the Privacy Act 1988.

Following an investigation, the Ombudsman is required to consider whether the actions of the department or authority were unreasonable, illegal, improperly discriminatory or otherwise wrong.

When the Ombudsman concludes an agency has erred, he may report his view to the agency and may recommend whatever remedial action he thinks is appropriate. If the agency does not implement that action the Ombudsman can report such to the Prime Minister and the Parliament.

The Ombudsman must inform complainants of his actions in response to their complaint.

Defence Force complaints

The Defence Force Ombudsman (DFO) can investigate complaints about administrative actions and Defence Force employment matters.

He cannot investigate actions connected with disciplinary proceedings or the grant or refusal of an honour or award. The DFO investigates complaints from serving members only after they have exhausted internal grievance mechanisms. He also investigates complaints from ex-service personnel or their families.

Tax complaints

The Ombudsman has a specialist group to investigate complaints about the Australian Taxation Office, headed by the Ombudsman’s Special Adviser on Taxation. The Ombudsman may describe himself as the Taxation Ombudsman.

Complaints about Freedom of Information (FOI)

The Freedom of Information Act 1982 enables the Ombudsman to investigate complaints about actions and decisions by departments and agencies about requests for access to documents under FOI. Details of these complaints are included in the Ombudsman’s Annual Reports and in any additional reports he might make to Parliament under 19 of the Ombudsman Act 1976. The reports may include observations about the operation of the Freedom of Information Act 1982 and recommendations on ways to improve public access to documents.

Complaints about the Australian Federal Police

The Ombudsman has specific functions in relation to complaints about the Australian Federal Police (AFP) under the Complaints (Australian Federal Police) Act 1981. Complaints about the AFP usually focus on its practices and procedures or the conduct of individual AFP appointees. Complaints about the former are dealt with in a similar way to complaints made under the Ombudsman Act 1976.

Where the conduct of AFP appointees is in question, the initial investigation is normally undertaken by the AFP’s Professional Standards Team, although there are occasions where it is not involved (for example, when the complaint is about actions of a member of the team).

The Ombudsman examines reports of all investigations, whether the originating complaint was made to the Ombudsman or to the AFP, and decides whether further action is necessary. If so, the case may be referred back to the AFP for further investigation.

Alternatively, the Ombudsman may decide to investigate the matter independently. Following an investigation by either the Ombudsman or the AFP the Ombudsman can recommend remedial action to the AFP Commissioner. Recommendations may include charging appointees with a criminal offence or a breach of discipline, or some other course of action. If the Commissioner disagrees with the Ombudsman’s recommendations, the matter is referred to the Attorney-General.

If the Commissioner does not take adequate action to implement the recommendation of the Attorney-General, the Ombudsman can report to the Prime Minister and ultimately to the Parliament.

The Ombudsman’s intercept audit function under the Telecommunications (Interception) Amendment Act 1987

Under the Telecommunications (Interception) Amendment Act 1987 the Ombudsman can inspect certain records of the Australian Federal Police and the Australian Crime Commission to ascertain whether the agencies have complied with specified record-keeping requirements of the Act.

Audit of controlled operations

In accordance with the Crimes Act 1914, the Ombudsman is required to inspect and report on records of controlled operations conducted by the Australian Federal Police and the Australian Crime Commission.

ACT Ombudsman

By arrangement between the Australian and ACT Governments, the Commonwealth Ombudsman is also the Ombudsman for the Australian Capital Territory. A more detailed explanation of the role of the ACT Ombudsman appears in a separate annual report made to the ACT Legislative Assembly.

Under the Public Interest Disclosure Act 1994 (ACT), the Ombudsman is a proper authority to receive and investigate disclosures by whistleblowers in relation to the actions of ACT Government agencies.

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Categories of documents held by the Ombudsman

Broadly speaking, the Ombudsman holds information in the following categories:

    1. information related to investigations, including complaints, correspondence and consultations with complainants, agencies and other information sources, background material, records of conversation, analysis and advice and reports;
    2. information related to the Ombudsman’s role as the chief executive of a Commonwealth agency with a particular set of responsibilities, in terms of the development or implementation of administrative process, policy or legislation; and
    3. information related to the Ombudsman’s management of his office, including personnel, contracting and financial records and information about asset management.
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FOI access and initial contact points

General inquiries and requests for access to documents or other matters relating to Freedom of Information may be made in person, by telephone or in writing at any Ombudsman's office. Each office is open between 9.00am and 5.00pm Monday to Friday.

Pursuant to section 23 of the Freedom of Information Act 1982, the Ombudsman has authorised the Deputy Ombudsman and all Senior Assistant Ombudsmen to grant or refuse requests for access. Officers at or above Executive Level 1 are authorised to release limited classes of complaint information outside the FOI Act.

See also