What is an ombudsman?

Ombudsman refers to a body that is easily accessible by individuals to investigate a wide range of maladministration and wrongdoing by government departments and officials. 

This institution ensures that individuals have the means to address their issues and seek justice in matters related to governmental activities.

Public vs Private

Public includes:

ombudsman NSW logo

Private includes (but is not limited to):

  • financial services ombudsmen

Initiating an Investigation

Investigations conducted by the Ombudsman can start in several ways:

Individual Complaints

When an individual raises a complaint regarding government actions or administration, the Ombudsman steps in to investigate the matter.

Section 7A of the Ombudsman Act 1976 allows the Commonwealth Ombudsman to make preliminary inquiries of an agency, in order to:

  • decide whether or not to investigate a complaint or 
  • determine whether the Ombudsman can investigate the complaint (i.e. jurisdiction)

Own Motion Investigations

Additionally, the Ombudsman also has the authority to initiate investigations on their own accord. 

This proactive approach ensures that potential issues get attention even when no one has formally lodged complaints.

Who can ombudsmen investigate?

  • Departments and public authorities: section 5(1)(a) OA authorises investigation of administrative action taken by a Department or prescribed authority
  • Private contractors exercising public power: section 3(4B) authorises the ombudsmen to investigate a government department and take into account actions taken by private contractors on behalf of the department

There are also exclusions as stated in section 5(2) of Ombudsman Act 1976 

What are the functions of the Ombudsman

The Ombudsman’s functions encompass a range of critical roles that serve to safeguard individual rights and ensure accountability:

  • Complaints Handling: The Ombudsman has the authority to investigate actions taken by government departments or prescribed authorities in response to complaints.
  • Own-Motion Investigations: Beyond reacting to complaints, the Ombudsman can initiate investigations independently. 
  • Oversight Roles: The Ombudsman plays a crucial role in supporting the public interest disclosure scheme, which safeguards whistleblowers from mistreatment. Additionally, the Ombudsman oversees the use of covert and intrusive powers by law enforcement agencies.
  • Special Areas: Ombudsmen within the private industry who may act as independent dispute resolution bodies (e.g Private health insurance, postal industry)

What may be subject to investigation

s 5(1)(a) of Ombudsman Act 1976, authorises that issues concerning administrative affairs within the government may be investigated

What they may not investigate:

Conduct of Applicant

  • s 6(1) OA: The ombudsman may in their discretion decide not to investigate that action
  • ss (a): if the ombudsman is satisfied that the complainant became aware of the action more than 12 months before the complaint was made
  • ss (b): if in the opinion of the ombudsman:

(i) the complaint is frivolous or vexatious or not made in good faith

(ii)  the complaint does not have a sufficient interest in the subject matter of the complaint

(iii) an investigation or further investigation of the action is not warranted having regard to all the circumstances 

Subject matter of the decision

  • s 6(12) OA: If the Ombudsman forms the opinion that action in respect of which a complaint has been made relates to a commercial activity of a department or prescribed authority, they can decide not to investigate the complaint or cease investigating

Potential outcomes of Ombudsman

As outlined in s 15(1) of the Ombudsman Act 1976 (Cth), findings can encompass a variety of outcomes:

  • contrary to law
  • unreasonable, unjust, oppressive, improperly discriminatory
  • applied to a law or practice that is unreasonable, unjust, oppressive or improperly discriminatory
  • based on mistake of law or fact
  • was otherwise in all circumstances wrong

Or that exercise of discretionary power was: 

  • based on an improper purpose or irrelevant grounds
  • took into account irrelevant considerations or failed to take into account relevant considerations
  • not accompanied by a required statement of reasons

The ombudsmen then may: 

  1. make recommendations
  2. report ‘up the chain’ (to the relevant minister


O’Brien Criminal & Civil Solicitors
p: 02 9261 4281
a: Level 4, 219-223 Castlereagh St,
Sydney NSW 2000

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