The Law Handbook 2024

Chapter 12.1: Taking a problem to an ombudsman 1091 is conducted (under ss 15B, 15C, 16A, 16), the Ombudsman can use coercive powers. She may summons people to attend an interview, take evidence under oath, enter premises and obtain confidential documents, and issue confidentiality notices. There are a number of penalty provisions that apply to non-compliance. For example, it is an offence to obstruct the Ombudsman (s 22), or to disclose any information contrary to a confidentiality notice if one has been issued (s 26C). The Ombudsman can discontinue an investigation in certain circumstances (ss 17(6B, 6C)). If, at any time during an investigation, the Ombudsman thinks there are grounds to criticise an agency, the Ombudsman must give the agency’s principal officer the opportunity to comment on the subject of the investigation (s 17(4)). If the Ombudsman intends to include in a report any comment or opinion that is adverse to a person, she is obliged to give that person a reasonable opportunity to respond and to fairly set out their response in the report (s 25A(2)). Where, during an investigation, a question arises about whether the Ombudsman has jurisdiction to conduct the investigation, the Victorian Ombudsman or the party subject to the investigation, may apply to the Supreme Court to resolve that question (s 27(1)). Legal representation A person may seek legal advice and be represented by a lawyer in relation to an enquiry or investigation conducted by the Ombudsman. However, if the Ombudsman considers that the use of a specific legal practitioner may prejudice the enquiry or investigation, she can direct a person to not seek advice from that legal practitioner for particular purposes, including a compulsory appearance (s 18M). Victorian Ombudsman: Reporting Ombudsman Act investigations When an investigation is finalised, if the Ombudsman thinks that the administrative action to which the investigation relates was: • contrary to the law; • unreasonable, unjust, oppressive or improperly discriminatory; • in accordance with a rule of law, an enactment, or a practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory; • taken in the exercise of a power or discretion for an improper purpose or on irrelevant grounds; • a decision for which reasons should have been given, but were not; or • based wholly or partly on a mistake of law or fact; • wrong, the Ombudsman must report their opinion to the principal officer of the appropriate authority with any recommendations. Such a report is also sent to the responsible minister, and the Ombudsman may send copies to the Victorian premier (s 23 OA (Vic)). The Ombudsman may recommend that: • the subject matter be referred to an appropriate authority for further consideration; • action should be taken to rectify, mitigate or alter the effects of the administrative action; • certain practices should be varied; • certain laws should be reconsidered; • reasons should be given for the action; or • any other steps should be taken. The Ombudsman can require the authority to report back to them about the steps taken to implement their recommendations. Public interest disclosure investigations On completing a PID Act investigation, the Ombudsman must report to the principal officer of the appropriate authority and to the responsible minister. A copy of the report can also be sent to the Victorian Premier (s 23(2)(a), (3) OA Act (Vic)). Parliamentary referrals After completing a report related to a matter referred by a parliament under section 16, the Ombudsman must report to the relevant officer(s) (s 25AB OA Act (Vic)). Parliamentary reports The Ombudsman can report to parliament on any matter arising in connection with the performance of its functions (s 25(2) OA Act (Vic)).