Conduct of Investigations
The conduct of the Ombudsman’s investigation can be summarised as follows:
- The Ombudsman is required to undertake investigations in private, otherwise investigations may be conducted in such manner as the Ombudsman thinks fit.
- The Ombudsman needs to establish the facts about a complaint. For this purpose the Ombudsman has wide powers to inspect government premises and files, to require persons to answer questions and to examine witnesses on oath. In most cases departments are very cooperative and investigations are carried out informally.
- The complainant is entitled to know the outcome of any investigation. A more detailed report on the conduct of the investigation may also be made available but the Ombudsman is not required to do so. The reason for this is that sometimes a report may contain material which is privileged or otherwise highly confidential.
- The Ombudsman adheres to the principles of Natural Justice, allowing an authority and individuals an opportunity to respond to the views formed by the Ombudsman.
- If the Ombudsman is unable to investigate a complaint or decides at any point not to proceed further, the reasons for that decision will be explained to the complainant.
- Penalties are prescribed for hindering or obstructing the Ombudsman or for failure to comply with a lawful requirement of the Ombudsman.
Procedures upon Completion of an Investigation
When investigating a complaint, the Ombudsman may find administrative actions to be defective on a number of grounds, including that the action:
- appears to be contrary to law;
- is unreasonable, unjust or oppressive;
- is in accordance with a particular law, but the law itself is unjust or unreasonable;
- involves improper discrimination against an individual or category of persons;
- involves the exercise of a discretion which was based on irrelevant considerations; or
- in all the circumstances, was wrong.
The Ombudsman may also decide that although an agency’s decision may have been reasonable it did not explain its reasons adequately and may recommend that it does so.
The Ombudsman cannot substitute a decision for that of a department or authority. If there is nothing unfair or improper about the way a decision has been reached, the Ombudsman will not go on to consider whether, in the same circumstances, a different decision might have been made.
The Ombudsman may make such recommendations as the Ombudsman thinks fit, for example, that a decision be changed or at least reconsidered; that a practice upon which a decision was based should be varied; or that a law should be amended or repealed. The Ombudsman may also request that a head of an agency notify the steps taken to give effect to any recommendations. Sometimes the Ombudsman will recommend that an ex gratia payment be made to a complainant to compensate for the consequences of an administrative action which, although lawful, was in the circumstances unfair or unreasonable.
What if the Agency does not accept the Ombudsman’s Recommendations?
The Ombudsman cannot force a department or authority to accept recommendations. However, under the Ombudsman Act, the Ombudsman can report directly to the relevant minister on the matter. If the recommendation is still not implemented, the Ombudsman may send a report to the Premier and ultimately table it in both Houses of the State Parliament.
The power to publicise the results of an investigation by tabling a report in Parliament or through the annual report is the Ombudsman’s ultimate sanction. The Ombudsman is also vested with the discretion to make reports (through the media) to the public.