Legislation

The activities of the Ombudsman’s office are governed by a number of Commonwealth and ACT laws.

The most important of these are the Ombudsman Act 1976, Ombudsman Regulations 1977Freedom of Information Act 1982, Australian Federal Police Act 1979, Telecommunications (Interception) Act 1979, Public Interest Disclosure Act 2013 and the ACT’s Ombudsman Act 1989 and Freedom of Information Act 1989. More detailed information about our responsibilities under these laws is provided below.

Australian Capital Territory

Under ACT legislation, and by arrangement between the Australian and  ACT governments, the Commonweatlh Ombudsman is also the Ombudsman for  the ACT. The ACT Ombudsman is given powers under the Territory’s Ombudsman Act 1989 (ACT), Public Interest Disclosure Act 1994 and the Freedom of Information Act 1989.

Australian Federal Police

Complaints made on or after 30 December 2006

The Ombudsman is also the Law Enforcement Ombudsman and can  investigate complaints about the actions of AFP members and about the  policies, practices and procedures of the AFP as an agency.

Anyone can make a complaint about the AFP, but we encourage  you to try to resolve your concerns with the AFP before you make a  complaint to the Law Enforcement Ombudsman.

AFP Professional Standards (PRS) is responsible for resolving  complaints about the actions of AFP appointees in accordance with Part  V of the Australian Federal Police Act 1979.  The Ombudsman reports to the Parliament, at least annually, on the  comprehensiveness and adequacy of the AFP’s complaint handling.

If you remain dissatisfied after making a complaint to the AFP,  you can make a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976.

Complaints made before 30 December 2006

Complaints made about the AFP before 30 December 2006 are jointly managed by the AFP and the Ombudsman under the Complaints (Australian Federal Police) Act 1981.  In most cases complaints are investigated by the AFP's Professional  Standards Team, but the Ombudsman may take over an investigation or, in  some circumstances including where a complaint is about practices and  procedures, conduct the investigation from the start.

The Ombudsman has oversight of investigations conducted by  AFP's Professional Standards team, and only the Ombudsman can decide an  investigation should not be conducted, although many complaints are  resolved by conciliation. The Act provides for disciplinary action  against AFP appointees and for the Ombudsman to report following an  investigation.

Commonwealth jurisdiction

The office of Commonwealth Ombudsman is created by the Ombudsman Act 1976.

The Ombudsman Act provides that the Ombudsman is to investigate  the administrative actions of Australian Government departments / agencies and prescribed private sector organisations, and sets out the limits on his jurisdiction. For example, the  Ombudsman may not investigate some actions related to Australian  Government employment, or the actions of judges and ministers. The Act  provides the Ombudsman with an extensive range of powers to investigate  actions following complaints or on his own motion and permits him, in  some circumstances, to decline to investigate; for example, the  Ombudsman may decline to investigate until a matter has been raised  with the relevant agency.

The Ombudsman Act enables the Ombudsman to report in a number  of ways following an investigation, although it requires the  investigation itself to be conducted in private and with fairness to  anyone likely to be criticised.

The Ombudsman Act also gives the  Commonwealth Ombudsman jurisdiction to investigate the actions of  Commonwealth Service providers as if the relevant department or  authority had taken those actions.

This means that the Ombudsman may investigate the delivery of goods or services by a contractor to members of the public.

Controlled operations and surveillance devices

In addition to its complaint investigation function, the Ombudsman’s  office undertakes a variety of monitoring roles to ensure compliance  with legislative requirements applying to selected law enforcement and  regulatory activities. Under the Telecommunications (Interception) Act 1979 and the Crimes Act 1914, the Ombudsman is responsible for monitoring the integrity of the  records of telecommunications interceptions and controlled (covert)  operations conducted by the Australian Federal Police (AFP) and the  Australian Crime Commission (ACC).

The Surveillance Devices Act 2004 gives the Ombudsman a similar monitoring role in relation to the AFP and ACC compliance with the Act regarding listening devices and similar technology.

Defence Force Ombudsman

Part IIA of the Ombudsman Act 1976 gives the Ombudsman the function of Defence Force Ombudsman (DFO).

The DFO can investigate complaints about administrative actions and  Defence Force employment matters. The DFO cannot investigate actions  connected with disciplinary proceedings or the grant or refusal of an  honour or award to an individual The DFO investigates complaints from  serving members only after they have exhausted internal grievance  mechanisms, unless there are exceptional circumstances. The DFO also  investigates complaints from ex-service personnel or their families.

Freedom of Information (FOI)

The Freedom of Information Act 1982 (FOI Act) provides a general right of access to documents held by  government agencies. The FOI Act requires decisions on access to be  made promptly and at relatively low cost. It permits requests for  documents to be refused for specific reasons related to the work of  government or the interests of third parties, with all decisions  subject to internal and external review. The Act provides a special  right to complain to the Ombudsman about actions related to a request.  The Ombudsman has responsibility for investigating agency actions under the FOI Act, including decisions, delays, and refusal or failure to act.

Immigration Ombudsman

Since amendments were made to the Ombudsman Act 1976 in December 2005, the Commonwealth Ombudsman, in performing functions  in relation to immigration and detention, has used the title,  Immigration Ombudsman.

In addition to the general approaches received regarding  immigration matters, the Immigration Ombudsman has also taken on  enhanced responsibilities in relation to immigration, including:

  • reviewing cases of immigration detention exceeding two years and providing reports to the Minister for Immigration
  • monitoring the administration of coercive powers delegated to  immigration officers including powers to search premises, to seize  documents and valuables, to detain non-citizens, and to remove or  deport non-citizens from Australia
  • oversighting off-shore processing of immigration cases
  • inspecting immigration detention facilities.

In July  2005 the Ombudsman commenced a review of possible wrongful immigration  detention matters. Although that review was completed in 2007, the  Immigration Ombudsman continues to monitor outcomes for affected  persons, particularly where a remedy or possible compensation was  recommended in the review.

Legislation and legal information

The links to Commonwealth legislation from this website are to the ComLaw site maintained by the Attorney-General’s Department; an alternative source is provided by the Australian Legal Information Institute (AUSTLII). While we consider these sources to be reliable, the  Ombudsman is not responsible for the content of the ComLaw or AUSTLII  sites. The Ombudsman cannot be held responsible for the accuracy,  suitability and completeness of any information on any other site to  which this site is linked.

For an authoritative copy of ACT legislation, go to the ACT Government Legislation Register

LawAccess Online is  designed to provide quick and easy access to plain language legal  information and assistance. The service indexes resources from over 100  justice sector organisations and currently holds over 1500 plain  languages factsheets, including resources in community languages. There  is a legal topic index to assist in finding resources on particular  areas of the law such as family law, drink driving and domestic  violence and to search for resources by language, keyword and various  other methods. LawAccess NSW (1300 888 529) is a free service providing  a single point of access to legal and related services in NSW.

Public interest disclosures

All Australian government agencies, Commonwealth companies and public authorities have responsibilities under the PID Act to investigate suspected wrongdoing and take appropriate action. Disclosers are also afforded protections from reprisal action and certain immunities from liability.

The Commonwealth Ombudsman has a key role in the monitoring and oversight of the PID Act, and providing assistance to disclosers and agencies.

You can view our privacy statement relating to our PID function here

Postal Industry Ombudsman

Legislation to create a separate office of Postal Industry Ombudsman  (PIO) within the office of the Commonwealth Ombudsman was passed by  Parliament on 29 March 2006.

The jurisdiction of the PIO extends to  private sector postal operators who register to participate in the  scheme. The PIO has the normal powers of an ombudsman to require  information or documents and to publish findings. The PIO is required  to observe procedural fairness in investigations.

For further information see the Postal Industry Ombudsman page.

Telecommunications interception and access

The Telecommunications (Interception) Act 1979 gives the Ombudsman the role of inspecting the records of telephone  interceptions by Commonwealth law enforcement agencies (the Australian  Federal Police and the Australian Crime Commission). Interceptions can  interfere with personal privacy and the Ombudsman ensures that they are  conducted lawfully and properly, reporting to the Attorney-General.

Building and Construction

The Ombudsman’s function under the Building and Construction Industry Improvement Amendment (Transition to Fair Work Australia) Act 2012 is to oversight the Office of the Fair Work Building Industry Inspectorate (FWBII) use of coercive powers to obtain information. This role requires the Ombudsman to review each examination and ensure overall compliance by the FWBII with the relevant Part of the Act (Division 3). The Ombudsman will also investigate and resolve (where possible) complaints relating to the conduct of examinations. The Ombudsman must report to Parliament at least once each financial year on the conduct of examinations under the Act.

Retention of data by telecommunications providers

The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 provides oversight responsibilities for the Ombudsman. These statutory oversight responsibilities involve mandatory regular compliance audits of relevant entities’ use of covert and intrusive powers.