What Can the Ombudsman Investigate?

What the Ombudsman can Investigate

The Ombudsman can investigate complaints about the administrative actions of government departments or authorities.

In Tasmania, this includes most bodies (known as ‘public authorities’) established by the State government, as well as local councils. A few agencies are specifically excluded from its jurisdiction. The Ombudsman’s office will advise whether a particular body falls within the State or

Commonwealth Ombudsman’s jurisdiction

The Ombudsman has the power to look into:

• administrative actions of a department or prescribed authority;
• decisions or recommendations;
• refusal or failure to take some action or to make a decision or recommendation; and
• delays in taking action or in communicating with a complainant.

In addition, under section 28(1) of the Ombudsman Act 1978 (Tas) the Ombudsman may investigate actions that:

• appear contrary to the law;
• are unreasonable, unjust, oppressive, or improperly discriminatory whether or not they are according to a law;
• were taken in the exercise of a power/discretion and were so taken for an improper purpose or on irrelevant grounds or on the basis of irrelevant considerations;
• required an explanation but none was given; and
• were made wholly or partly on a mistake of law or fact or were wrong.

Under the Right to Information Act 2009 (Tas) section 44, the public may apply to the Ombudsman for a review and, if warranted, a fresh determination in relation to agency decisions to exempt information. The office also provides assistance and advice to agencies with regard to the interpretation and administration of the Right to Information Act, as well as workshops on the Right to Information Act. As this is a new Act, the website provides comprehensive cover.

What the Ombudsman Cannot Investigate

The Tasmanian Ombudsman cannot investigate:

• private disputes between citizens or between an individual and a private enterprise;
• action taken by a government minister and cabinet;
• actions in relation to a Bill, regulation, rule or bylaw;
• actions of Parliament generally;
• legal proceedings;
• royal commissions;
• judges/magistrates;
• action taken by a legal adviser to the Crown, by the Tasmanian Industrial Commission or by the State Service Commissioner.

The Ombudsman cannot investigate matters where a government policy is clearly being implemented as intended. However, recommendations or advice given to a minister by a department or authority or the way a ministerial decision is implemented can be investigated. If, in the Ombudsman’s view, the advice is wrong or the decision has been incorrectly implemented, then the Ombudsman can advise the minister to that effect.

Employment Matters

Under the provisions of the Tasmanian State Service Act 2000 (Tas), employment matters affecting public servants generally are dealt with by the State Service Commissioner. Decisions taken by the Commissioner are specifically excluded from the Ombudsman’s jurisdiction. However, there are circumstances under the Public Interest Disclosures Act 2002 (Tas) that allow for the State Service Commissioner to pass a disclosure issue to the Ombudsman.

There are some authorities, including local government, which are not covered by the State Service Act. In those cases, the Ombudsman may be the appropriate avenue of redress. The Ombudsman’s Office can advice on this.

Can the Ombudsman Refuse to Investigate a Complaint?

The Ombudsman may decline to investigate complaints if a suitable alternative remedy is available or if the Ombudsman considers investigation would not be worthwhile.

Some of the matters which the Ombudsman will consider when deciding if a complaint should be investigated are:

• is the complaint trivial, frivolous or vexatious? An example of this is where a person complained about a penalty of 19 cents for late payment of council rates: the Ombudsman declined to investigate the complaint on the grounds that the complaint was trivial;
• is the complainant directly or sufficiently affected by the matter being complained about?
• could the matter still reasonably be resolved by internal complaint procedures?
• is there an alternative review process by a court or tribunal available, e.g. the Resource Management and Planning Appeals Tribunal?

There may also be times when a complaint is best investigated by the Ombudsman even if there are other complaint handling mechanisms such as:

• if there are personal factors (such as age or health) which may affect a complainant’s ability to obtain redress elsewhere;
• if the facts might be better established using the Ombudsman’s investigative powers, e.g. few of the ordinary legal limitations on the production of evidence in court, especially those that protect the disclosure of the files of government authorities, apply to the Ombudsman’s investigations.

The intention generally is to avoid unnecessary duplication of efforts and resources whilst at the same time endeavouring to ensure justice is achieved for a complainant.

Time Limits

As a general rule the Tasmanian Ombudsman cannot investigate actions taken more than two years before the complaint is made.