The Law Handbook 2024

Chapter 12.1: Taking a problem to an ombudsman 1085 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- ser vices/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 Ombudsman cannot investigate : • 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