CHAPTER 2 | The organisation

History and establishment

The office of the Commonwealth Ombudsman commenced operation on 1July1977. The office was established by the Ombudsman Act 1976 (Cth) (Ombudsman Act), as part of a new and distinctive system of administrative law in Australia. The office is in the portfolio administered by the Prime Minister.

Over time the responsibilities of the Ombudsman have expanded as follows:

• 1981—handling of complaints about the Australian Federal Police (AFP)
• 1982—handling complaints about freedom of information
• 1983—Defence Force Ombudsman role
• 1988—compliance auditing of AFP and National Crime Authority (now Australian Crime Commission (ACC)) telecommunication intercept records
• 1989—Australian Capital Territory Ombudsman
• 1995—Taxation Ombudsman
• 2001—monitoring controlled (covert) operations by the AFP and ACC and other agencies
• 2004—auditing the use of surveillance devices by the AFP and ACC
• 2005—assessing and reporting on the detention of long term (two years or more) immigration detainees
• 2005—Immigration Ombudsman role
• 2005—handling complaints about Commonwealth service providers
• 2006—Postal Industry Ombudsman role
• 2006—compliance auditing of access to stored communications by the AFP, ACC, Australian Commission for Law Enforcement Integrity and other enforcement agencies (such as the Australian Taxation Office and the Australian Customs Service), and the use of surveillance devices by state law enforcement agencies under Commonwealth legislation
• 2006—Law Enforcement Ombudsman role, with a specific responsibility to review the adequacy and comprehensiveness of the AFP complaint-handling system.

Role and functions

The office of Commonwealth Ombudsman exists to safeguard the community in its dealings with government agencies, and to ensure that administrative action by Australian Government agencies is fair and accountable. The Ombudsman has three major statutory roles:

• Complaint investigation: investigating and reviewing the administrative actions of Australian Government officials and agencies, upon receipt of complaints from members of the public, groups and organisations
• Own motion investigation: investigating, on the initiative or ‘own motion’ of the Ombudsman, the administrative actions of Australian Government agencies—often arising from insights gained from handling individual complaints
• Compliance auditing: inspecting the records of agencies such as the AFP and ACC, to ensure compliance with legislative requirements applying to selected law enforcement and regulatory activities.

The complaint and own motion investigation roles of the Ombudsman are the more traditional Ombudsman roles that constitute the bulk of the work of the office. The guiding principle in an Ombudsman investigation is whether the administrative action under investigation is unlawful, unreasonable, unjust, oppressive, improperly discriminatory, factually deficient, or otherwise wrong. At the conclusion of the investigation, the Ombudsman can recommend that corrective action be taken by an agency. This may occur either specifically in an individual case or more generally by a change to relevant legislation, administrative policies or procedures.

A key objective of the Ombudsman is to foster good public administration within Australian Government agencies, ensuring that the principles and practices of public administration are sensitive, responsive andadaptive to the interests of members of the public.

In undertaking these roles, the Ombudsman is impartial and independent. The Ombudsman is not an advocate for complainants or for agencies.

The role of the Commonwealth Ombudsman is principally performed under the Ombudsman Act. There are special procedures applying to complaints about AFP officers contained in the Australian Federal Police Act 1979 (Cth). Complaints about the conduct of AFP officers received prior to 2007 are dealt with under the Complaints (Australian Federal Police) Act 1981 (Cth). This Act was repealed on 30December2006 after the relevant provisions of the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 (Cth) commenced.

‘… the Ombudsman is impartial and independent … not an advocate for complainants or for agencies’

The Commonwealth Ombudsman can consider complaints about almost all Australian Government departments and agencies, and most contractors delivering services to the community for, or on behalf of, the Australian Government.

The Ombudsman Act also confers five specialist roles on the Ombudsman:

• Defence Force Ombudsman—handling complaints by serving and former members of the Australian Defence Force relating to their service
• Immigration Ombudsman—dealing with matters relating to immigration
• Law Enforcement Ombudsman—handling complaints about the conduct and practices of the Australian Federal Police and its members
• Postal Industry Ombudsman—handling complaints about Australia Post and private postal operators registered with the Postal Industry Ombudsman scheme
• Taxation Ombudsman—dealing with matters relating to the Australian Taxation Office.

The Commonwealth Ombudsman is also theACT Ombudsman in accordance with s28 of the ACT Self-Government (Consequential Provisions) Act 1988 (Cth). The role of ACT Ombudsman is performed under the Ombudsman Act 1989 (ACT), and is funded in accordance with a services agreement between the Commonwealth Ombudsman and the ACT Government. TheACT Ombudsman submits an annualreport to the ACT Legislative Assembly on the performance of the ACT Ombudsman function.

Organisation and structure

The national office of the Commonwealth Ombudsman and the office of the ACT Ombudsman are co-located in Canberra. TheCommonwealth Ombudsman also hasoffices in Adelaide, Alice Springs, Brisbane, Darwin, Hobart, Melbourne, Perthand Sydney.

The Ombudsman and two Deputy Ombudsmen are statutory officers appointed under the Ombudsman Act. Staff are employed under the Public Service Act 1999 (Cth). Senior Assistant Ombudsmen are Senior Executive Service Band 1 staff.

Details on the office’s senior executive and their responsibilities are set out in Chapter4—Management and accountability.

Figure 2.1 illustrates the organisational structure of the Ombudsman’s office.

Outcome and output structure

The Portfolio Budget Statements define oneoutcome for the office, supported by twooutputs.

The outcome is administrative action by Australian Government agencies is fair and accountable. The supporting outputs are:

1. review of administrative action
2. review of statutory compliance in specified areas.

Figure 2.1 Commonwealth Ombudsman organisational structure at 30 June 2008