The Law Handbook 2024

1088 Section 12: Government and the individual ‘ 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) . Ombudsman Act enquiries and investigations 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 theOA (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