APPENDIX 2 | Freedom of information statement

Section 8 of the Freedom of Information Act 1982 (FOI Act) requires each Australian Government agency to publish information about the way it is organised, its powers, the kinds of decisions it makes, the documents it holds, the way members of the public can obtain access to these documents and any arrangements for public involvement in the work of the agency.

The body of this annual report explains the organisation and major functions of the Commonwealth Ombudsman. This statement supplements that general information to meet the requirements of s 8 of the FOI Act. It is correct at 30 June 2006.

Functions and decision-making powers of the Ombudsman

The Commonwealth Ombudsman was established by the Ombudsman Act 1976 (Ombudsman Act). The Act came into effect on 1 July 1977 and is administered by the Prime Minister. The Ombudsman is also the Defence Force Ombudsman (DFO), the Immigration Ombudsman, the Postal Industry Ombudsman (PIO) and the Taxation Ombudsman.

The national office of the Commonwealth Ombudsman and the office of the Australian Capital Territory Ombudsman are co-located in Canberra. Other offices are located in Adelaide, Brisbane, Darwin, Hobart, Melbourne, Perth and Sydney.

The Ombudsman and two Deputy Ombudsmen are statutory officers appointed under the Ombudsman Act. Staff are employed under the Public Service Act 1999.

Investigation of administrative actions

Following a complaint from a member of the public, or using 'own motion' powers under the Ombudsman Act, the Ombudsman may investigate the administrative actions of most Australian Government departments and agencies and private contractors delivering government services.

The Ombudsman cannot investigate:

• the actions of government ministers or judges
• most employment-related matters (although the DFO can investigate employment-related complaints from current or former members of the Australian Defence Force)
• the actions of some government business enterprises.

The Ombudsman can decide not to investigate complaints that are 'stale' or frivolous, where the complainant has not first sought redress from the agency, where some other form of review or appeal is more appropriate, or where he considers investigation would not be warranted in all the circumstances.

The Ombudsman may conduct a complaint investigation as he thinks fit. The powers of the Ombudsman are similar to those of a royal commission, and include compelling an agency to produce documents and examining witnesses under oath. Most investigations are conducted with minimal formality.

Ombudsman investigations are private and details are generally not revealed to people who are not legitimately concerned with the investigation. The Ombudsman's office is subject to the FOI Act and the Privacy Act 1988.

Following an investigation, the Ombudsman is required to consider whether the actions of the department or agency were unreasonable, unlawful, improperly discriminatory or otherwise wrong.

When the Ombudsman concludes that an agency has erred, he may report that view to the agency and may recommend whatever remedial action the Ombudsman thinks is appropriate. If the agency does not implement that action, the Ombudsman can report to the Prime Minister and report to the Parliament. The Ombudsman must inform complainants of the action taken by the office in response to their complaints.

Defence Force Ombudsman

Section 19C of the Ombudsman Act provides that the Commonwealth Ombudsman shall be the Defence Force Ombudsman. The DFO can investigate complaints from current or former members of the Australian Defence Force about Defence Force employment matters. The DFO cannot investigate most 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.

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Taxation Ombudsman

Under s 4(3) of the Ombudsman Act, the Commonwealth Ombudsman may be designated as the Taxation Ombudsman when dealing with matters relating to the Australian Taxation Office (ATO). The Ombudsman has a specialist team, headed by the Special Tax Adviser, to investigate complaints about the ATO.

Immigration Ombudsman

Under s 4(4) of the Ombudsman Act, the Commonwealth Ombudsman may be designated as the Immigration Ombudsman when dealing with matters relating to immigration, including immigration detention. The Ombudsman has a specific statutory role under s 486O of the Migration Act 1958 of reporting to the Minister for Immigration and Multicultural Affairs about the circumstances of any person who has been in immigration detention for two years or more. At the request of the government, the Ombudsman has been reviewing a substantial number of cases where it appears that a citizen or person lawfully entitled to be in Australia may have been detained or removed from Australia.

Postal Industry Ombudsman

Section 19L of the Ombudsman Act provides that the Commonwealth Ombudsman shall be the Postal Industry Ombudsman. The PIO will deal with complaints about postal service delivery by Australia Post and private sector postal operators that elect to be members of the PIO scheme.

Complaints about freedom of information

The FOI Act enables the Ombudsman to investigate complaints about actions and decisions by departments and agencies about requests for access to documents under FOI. Details of these complaints are included in the Ombudsman's annual reports and in any additional reports made to parliament under s 19 of the Ombudsman Act. The FOI Act s 57(3) provides that an application cannot be made to the Administrative Appeals Tribunal for review of an FOI decision that is the subject of a complaint to the Ombudsman until the Ombudsman has finalised the investigation.

Investigations of the Australian Federal Police

The Ombudsman has specific functions in relation to complaints about the Australian Federal Police (AFP) under the Complaints (Australian Federal Police) Act 1981 (Complaints Act). Complaints about the AFP usually focus on its practices and procedures or the conduct of individual AFP members. Complaints about its practices and procedures are dealt with in a similar way to complaints made under the Ombudsman Act. The Ombudsman may conduct an investigation on his own initiative.

Where the conduct of an AFP appointee is in question, the AFP Professional Standards and Internal Investigation division normally undertakes the initial investigation. Sometimes the internal investigation division is not involved; for example, when the complaint is about the actions of a member of the division. The Ombudsman examines reports of all AFP investigations, whether the originating complaint was made to the Ombudsman or to the AFP, and decides whether further action is necessary. If action is required, the case may be referred back to the AFP for further investigation. Alternatively, the Ombudsman can decide to investigate the matter independently.

Following an investigation by either the Ombudsman or the AFP, the Ombudsman can recommend remedial action to the AFP Commissioner. Recommendations may include that a member be charged with a criminal offence or a breach of discipline, or some other course of action.

The Law Enforcement (AFP Professional Standards and Related Measures) Act 2006, which passed through Parliament on 23 June 2006, repeals the Complaints Act. When the amending legislation commences operation, complaints to the Ombudsman about the AFP will be investigated under the Ombudsman Act. The legislation will permit the Ombudsman to be designated as the Law Enforcement Ombudsman in dealing with matters relating to the AFP.

The Ombudsman's interception and surveillance devices audit

Under the Telecommunications (Interception and Access) Act 1979 and the Surveillance Devices Act 2004, the Ombudsman can inspect certain records of the AFP and the Australian Crime Commission (ACC) to ascertain whether the agencies have complied with specified record-keeping requirements of the Acts.

Audit of controlled operations

In accordance with the Crimes Act 1914, the Ombudsman is required to inspect and report on records of controlled operations conducted by the AFP and the ACC.

Audit of compliance powers

Until 2006, the Ombudsman had responsibility for auditing the use of compliance powers in the Workplace Relations Act 1996 by members of the Building Industry Taskforce. That framework has been replaced by the Building and Construction Industry Improvement Act 2005.

Australian Capital Territory (ACT) Ombudsman

Under the ACT Self-Government (Consequential Provisions) Act 1988 (Cth), the Commonwealth Ombudsman discharges the role of ACT Ombudsman. A memorandum of understanding between the Commonwealth Ombudsman and the ACT Government covers the discharge of this role. The work of the ACT Ombudsman is set out in a separate annual report made to the ACT Government pursuant to the Ombudsman Act 1989 (ACT).

Under the Public Interest Disclosure Act 1994 (ACT), the Ombudsman is a proper authority to receive and investigate public interest disclosures in relation to the actions of ACT Government agencies.

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Categories of documents held by the Ombudsman

The Ombudsman holds information related to:

• investigations, including complaints, correspondence and consultations with complainants, agencies and other information sources, background material, records of conversation, analysis and advice, and reports
• oversight functions
• the Ombudsman's role as the chief executive of an Australian Government agency with a particular set of responsibilities, in terms of the development or implementation of administrative process, policy or legislation
• the Ombudsman's management of the office, including personnel, contracting and financial records and information about asset management.

FOI access and contact

General enquiries and requests for access to documents or other matters relating to FOI may be made in writing, by telephone or in person at any Commonwealth Ombudsman office. Each office is open between 9 am and 5 pm on weekdays. For the cost of a local call, people can contact the Ombudsman's office by calling 1300 362 072. (See contacts in the 'References' section of this report.)

Pursuant to s 23 of the FOI Act, the Ombudsman has authorised the Deputy Ombudsmen, all Senior Assistant Ombudsmen, and some Executive Level officers to grant or refuse requests for access. Under an arrangement made outside the Act, the Ombudsman has agreed to officers at and above Executive Level 1 providing limited complaint information if requested by, or on behalf of, a complainant as detailed below.

FOI requests to the Ombudsman's office

The Ombudsman's office deals with a moderate number of requests every year under the FOI Act (24 in 2005–06 and 15 in 2004–05), mostly for documents related to investigations. Following are some observations about how those requests are handled:

• The office tries to set a good standard of compliance. We do not require a complainant to submit an FOI request prior to Ombudsman staff providing certain kinds of documents:
  • documents previously and lawfully provided by or to the complainant by the Ombudsman's office or someone else
  • records of telephone conversations involving the complainant
  • most database entries relating to the complainant.
• In the course of investigation, we may provide an agency response to a complainant so that he or she can better understand the agency's position. It is likely that an investigation file could contain information and documents provided by other agencies—typically, the agency about which a complaint was made. Wherever possible, the Ombudsman will seek the other agency's agreement to transfer to it those parts of the request that relate to its functions. This is done because the other agency is usually much better placed to make an informed decision about the documents' content and context, in the light of their experience in dealing with requests for similar documents.
  
  A further consideration is that if the request is not transferred, the other agency would have a legitimate interest in making suggestions about the decisions the Ombudsman should make. The Ombudsman would not be bound to accept those suggestions, but they would have to be given considerable weight. From the point of view of the complainant, if there is a subsequent complaint about an FOI process, it is probably better that the Ombudsman's office has been involved as little as possible.

The Ombudsman's office has raised with government, in the context of a current review of the Ombudsman Act, whether the office should be subject to the FOI Act. Some other ombudsman offices in Australia are exempt from the FOI Act in their jurisdiction. The explanation given is that it can be unsuitable to apply the Act to an office that has the function of investigating complaints against other government agencies, including complaints about FOI matters. Many of the documents held by the Ombudsman's office will have come either from the complainant or the agency under investigation, or be internal working documents of the Ombudsman's office that contain interim expressions of opinion about other agencies that should not be disclosed publicly unless that agency has first been given an opportunity to comment on the opinion, consistent with natural justice and s 8(5) of the Ombudsman Act.