CHAPTER 4Management and accountability

External scrutiny

Privacy legislation

The Ombudsman’s office is subject to the Privacy Act 1988 (Privacy Act). We continually assess our compliance with the Information Privacy Principles, which determine the way the office deals with personal information.

The Ombudsman provided information to the Privacy Commissioner for inclusion in the Personal Information Digest. The Commissioner did not issue any reports about the actions or practices of the office under s 30 of the Privacy Act in 2006–07.

The Privacy Commissioner commenced an investigation during the year into an alleged breach of privacy by the Ombudsman’s office. A complainant approached the Privacy Commissioner, and the Ombudsman’s office has responded to the Commissioner’s enquiries. The matter is still open.

The Ombudsman’s office made a submission to the Australian Law Reform Commission review of privacy legislation.

Human Rights and Equal Opportunity Commission

The Ombudsman’s office is subject to the jurisdiction of the Human Rights and Equal Opportunity Commission.

In 2006–07 the Commission advised the Ombudsman about a complaint it had received on the office’s dealings with a complainant. The office had decided the complainant should, for a limited period, not be allowed to contact the office by telephone. The complainant was still able to write to the office, including by email. This course of action is occasionally adopted when a complainant becomes unreasonably aggressive or offensive or makes lengthy and repetitive telephone calls that do not add to the investigation, but which prevent staff from carrying on with their other work. We have responded to the Commission’s enquiries and understand that the matter is still under review.

Litigation and legal issues

In 2006–07 the Ombudsman’s office was the respondent in one matter brought to the Administrative Appeals Tribunal (AAT) by a complainant who had made requests under the Freedom of Information Act 1982 (FOI Act). The Tribunal dismissed the application on account of the applicant’s failure to attend and pursue the matter. The applicant sought reinstatement of the application but the AAT refused. The applicant applied to the Federal Court for review (Zoia v Commonwealth Ombudsman [2007] FCA 245) and was again unsuccessful. The complainant has now applied to the Full Federal Court.

In 2005–06 a former complainant instituted proceedings in the Federal Court seeking review under the Administrative Decisions (Judicial Review) Act 1977 of decisions not to investigate complaints he had made about the arrangements for the management of federal prisoners in state prisons. In October and December 2006 his applications against five other respondents were dismissed and a motion by the Ombudsman that the application had no reasonable prospects of success was allowed, and that application was also dismissed (Clarkson v Commonwealth et al, [2006] FCA 1348 and [2006] FCA 1839). In December 2006 leave to appeal was refused, other than in relation to one costs order. The Ombudsman’s office understands that the applicant has applied to the High Court, both on appeal and in its original jurisdiction. Those matters are not yet resolved.

The Ombudsman was also identified in an AAT matter as a respondent in a matter related to the Australian Securities and Investments Commission. The application was subsequently dismissed.

Section 35 of the Ombudsman Act provides that the office is not compellable to provide, to a court or tribunal, information or documents obtained by the office in discharging its functions. We customarily rely on that statutory non-compellability when required by subpoena or discovery to produce information for the purposes of a legal proceeding to which we are not a party. The office is reviewing its policies, having regard to a case where a person was accused of having made a serious threat against an Australian Government agency in the course of conversations with Ombudsman’s office staff.

Reports by the Auditor-General and Parliamentary committee inquiries

There were no reports on the operation of the Ombudsman’s office by the Auditor-General or by Parliamentary committees.