The Law Handbook 2024

1086 Section 12: Government and the individual 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 by the Commonwealth Ombudsman 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. Commonwealth Ombudsman findings, reports and reviews 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.