The Law Handbook 2024

1090 Section 12: Government and the individual If the matter is not resolved informally and the complaint merits formal investigation (s 15B), then the complainant, the relevant agency head (e.g. a CEO of a municipal council or a departmental secretary) and the relevant Minister will be formally advised of the investigation. The Ombudsman can also conduct enquiries or start an investigation with or without a complaint being made, using her ‘own motion’ powers (ss 13A(2), 16A(1)). Public interest disclosures and the Victorian Ombudsman Public interest disclosures Disclosures made under the Public Interest Disclosures Act 2012 (Vic) (‘ PIDAct’ ) can be made by ‘natural persons’ (a real person, not an organisation or company) and can be made orally and anonymously (s 12 PID Act). Such disclosures must comprise (s 9 PID Act): • information that shows or tends to show that; or information that the person reasonably believes shows or tends to show that: – a person, public officer or public body has/is/ will engage in ‘improper conduct’; or – a public officer or public body has, is or will take ‘detrimental action’. ‘ Improper conduct ’ is a broad term that covers: • ‘corrupt conduct’ as defined in section 4(1) of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (‘ IBAC Act ’) ; and • ‘specified conduct’, which covers a number of types of conduct, including: – conduct that adversely affects the honest performance by a public officer or body of their functions; – dishonest performance of functions; – breaching the public trust; – misuse of information; – substantial mismanagement of public resources; and – substantial risk to public health or safety or to the environment. The Victorian Ombudsman and IBAC Disclosures under the PID Act can be made to a number of bodies including IBAC and the Ombudsman. However, the Ombudsman can only receive disclosures that concern a local councillor, the Victorian Information Commissioner, the Commissioner for Privacy and Data Collection, the Health Complaints Commissioner (s 16 PID Act), or authorities under the OA (Vic). The Ombudsman is authorised to investigate the disclosure if IBAC has determined it to be a public interest disclosure complaint (s 13) and referred it to the Ombudsman. The Ombudsman’s jurisdiction to investigate public interest disclosure complaints is broader than its normal jurisdiction, as it can investigate matters regarding certain persons or bodies that are not authorities, including local councillors. If the Ombudsman receives an assessable disclosure they notify IBAC, which determines whether the disclosure is a public interest complaint (ss 21, 26 PID Act). If IBAC determines a disclosure is a public interest complaint, IBAC may refer the complaint to the Ombudsman for investigation (s 73(3) IBAC Act) and the Ombudsman must investigate (s 15C OA (Vic)). However, the Ombudsman must refuse to investigate public interest disclosure complaints referred by IBAC unless reasonably satisfied that the disclosure shows or tends to show that: • improper conduct has occurred, is occurring or will occur; or • detrimental action has occurred, is occurring or will occur (s 15D OA (Vic)). The Ombudsman must also refuse to investigate a public interest complaint if it would prejudice any criminal proceedings or investigations, or investigations by IBAC or the Victorian Inspectorate (s 13AB OA (Vic)). The Ombudsman may refuse to investigate public interest disclosure complaints if the complaint is trivial, frivolous, vexatious, lacks substance or credibility, is not made in good faith, or the subject matter of the complaint does not amount to improper conduct or has already been investigated or otherwise dealt with (s 15E(1) OA (Vic)). Victorian Ombudsman: Investigations and powers All Ombudsman investigations are conducted in private (s 17(2) OA (Vic)). When a formal investigation