Ombudsman Act 1974

The Act’s reach is deliberately wide. “Public authority” is defined exhaustively in s 5(1) to include any person appointed by the Governor, any statutory body representing the Crown, any Public Service agency or employee, any person in the service of the Crown, persons employed by political office holders under the Members of Parliament Staff Act 2013, auditable entities under the Government Sector Audit Act 1983, persons entitled to reimbursement from public funds, accreditation authorities and registered certifiers under the Building and Development Certifiers Act 2018, local government authorities (councils, county councils and joint organisations under the Local Government Act 1993), approved charitable organisations exercising functions under the Prevention of Cruelty to Animals Act 1979, and any person acting for or on behalf of the foregoing. The “head” of each authority is identified with precision (s 5(1)), and the “responsible Minister” is likewise defined to ensure clear lines of accountability (s 5(1)).

Complainants are not limited; any person may complain (s 12(1)), including detained persons who must be facilitated in doing so (s 12(3)). Members of Parliament may lodge complaints on behalf of constituents (s 12(2)). The Act binds the Crown in all capacities (s 4) and continues to apply to a former public authority in respect of conduct that occurred while it was a public authority (s 11A, inserted 2022).

Officers of the Ombudsman, Deputy Ombudsmen, Assistant Ombudsmen and persons engaged for expert assistance (s 23) are directly affected by the confidentiality, immunity and offence provisions (ss 34, 35, 35A, 37). The Joint Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission exercises statutory oversight (Part 4A) and possesses veto power over the appointment of an Ombudsman (s 6A, s 31BA).

Other integrity agencies are affected through information-sharing gateways (s 31AB) and delegation provisions (s 10A). Courts and royal commissions are excluded from the Ombudsman’s investigative remit (Sch 1, cl 2), but the Ombudsman may still furnish information to them in limited circumstances (s 34(1)(i)–(j)). Agencies listed in Sch 1A may enter complaint-referral and information-sharing arrangements with the Ombudsman (Part 6).

Finally, the Act affects the broader public by providing a low-cost accountability mechanism and by protecting those who assist the Ombudsman from detrimental action (Part 4B). Employers of persons who suffer detrimental action may be held vicariously liable (s 31T). Ministers, agency heads and the Public Service Commissioner are statutory recipients of reports and must respond (ss 26, 27, 28).

The Ombudsman’s duties include deciding whether to investigate or conciliate (s 13), giving notice (s 16), observing procedural fairness (s 24), consulting the responsible Minister (s 25), reporting findings (s 26), and maintaining confidentiality (s 34). The Ombudsman must also monitor Aboriginal programs (s 25L), review complaints-handling systems (s 25A), and prepare annual and special reports (ss 30, 31). When exercising inquiry powers, the Ombudsman must not direct publication of evidence unless satisfied it is in the public interest (s 19A(2)).

Public authorities owe duties to facilitate detained persons’ complaints (s 12(3)), respond to notices under s 18, provide reasonable assistance on entry (s 20(2)), cooperate with the Ombudsman (s 36A, inserted 2024), and notify the Ombudsman of action taken on recommendations (s 26(5)). Heads of authorities must furnish unrestricted access to records for Aboriginal-program monitoring (s 25M(1)). Agencies must not take detrimental action against protected persons (s 31R) and must comply with identifying-information restrictions (s 31Z).

Complainants have the right to lodge complaints, to be informed of decisions not to investigate or to discontinue (s 15), to receive progress and outcome reports (s 29), and to have their identity protected in appropriate cases (s 31Z). Protected persons enjoy immunity from civil, criminal and disciplinary liability for protected action (s 31X), subject to the limitations in s 31Q for limited protected action. They may seek damages (s 31S), injunctions (s 31U) and costs immunity (s 31V).

Witnesses appearing before an inquiry have rights to expenses (s 19(3)), legal representation (s 19(4)), and protection against self-incrimination (s 36). They may also obtain undertakings from the Attorney General under s 31Y. The Joint Committee’s functions include monitoring the Ombudsman’s performance, examining annual reports, and vetoing appointments (ss 31B, 31BA).

The Act creates a tiered offence regime. Wilful obstruction, refusal to comply with lawful requirements, or misleading the Ombudsman attracts a maximum penalty of 100 penalty units or two years’ imprisonment (s 37(1)). Unauthorised representation of official status carries 50 penalty units or 12 months’ imprisonment (s 37(2)). Breaches of publication restrictions (ss 19A, 19B) or prejudicial disclosures (s 19C) are punishable by 50 penalty units or 12 months’ imprisonment. Detrimental action against a protected person is an indictable offence carrying 200 penalty units or five years’ imprisonment (s 31R).

Civil enforcement is available through Supreme Court injunctions to restrain conduct that would prejudice an investigation or recommendation (s 21C) or to prevent detrimental action (s 31U). Damages, including exemplary damages, may be recovered for detrimental action (s 31S), with employer vicarious liability possible (s 31T). Costs immunity protects applicants who act reasonably (s 31V).

Non-statutory enforcement occurs through parliamentary accountability. Failure to implement recommendations may result in a report to both Houses (s 27), triggering a ministerial statement within 12 sitting days. The Joint Committee may examine the Ombudsman’s performance and recommend structural changes (s 31B). Annual reporting obligations (s 30) and public availability requirements (s 30A) ensure transparency.

The Ombudsman may charge reasonable fees for conciliation and training services (ss 13A(7), 38AA, 38A), providing a limited cost-recovery mechanism. Authorisation to pay compensation recommended under s 26(2)(d1) is conferred on the responsible Minister with Treasurer’s concurrence (s 26A).

The Act is designed to operate alongside, and in some cases override, other legislation. Section 21 expressly limits secrecy and privilege claims that would otherwise apply in court proceedings. Section 13(2) states that the power to investigate operates notwithstanding any earlier Act. Information obtained under the Act may be shared with the DPP, ICAC and police (s 31AB) and with other public authorities (s 31AC), subject to statutory restrictions.

Close integration exists with the Public Interest Disclosures Act 2022. Part 4B of the Ombudsman Act aligns whistleblower protections with that statute; notes to s 12 expressly reference PID protections. The Ombudsman’s additional investigative powers under s 58 of the PID Act are preserved. The Act also interacts with the Community Services (Complaints, Reviews and Monitoring) Act 1993 through the dual appointment of a Deputy Ombudsman as Community Services Commissioner (s 8(1A)) and the extension of functions to CS CRAMA matters (s 31L(2)).

Privacy and health records legislation is modified. Section 13AA(4)–(5) exempts disclosures made in response to preliminary inquiries from certain PPIP Act and HRIP Act obligations. Section 34(1)(c) permits disclosure of child-safety information to police or the Department of Communities and Justice. The Government Information (Public Access) Act 2009 interacts with the Ombudsman’s functions both as an investigable matter and through specific proceedings exceptions (ss 34(1)(e), 35(2)(d)).

Local government is brought within the Ombudsman’s remit (s 5(1)(g1)), but Sch 1 cl 5 (repealed) and s 13(5) historically limited investigation where appeal rights existed. The Building and Development Certifiers Act 2018 and Prevention of Cruelty to Animals Act 1979 expand the definition of public authority (s 5(1)(f1), (g2)). The Royal Commissions Act 1923 supplies inquiry powers (s 19(2)), while the Government Sector Employment Act 2013 governs staff but not the statutory offices (ss 6(6), 8(3)).

The Act carves out large areas of judicial and parliamentary conduct (Sch 1 cls 1–3) and Cabinet information (s 22). It does not affect the prerogative of mercy (Sch 1 cl 9) or certain investment and estate decisions (Sch 1 cls 14–15). Arrangements under Pt 6 allow seamless referral and information sharing with other Sch 1A agencies without breaching confidentiality.

The Act has been amended more than 40 times since 1974. The most significant recent changes reflect contemporary integrity, transparency and reconciliation priorities.

The Ombudsman and Public Interest Disclosures Legislation Amendment Act 2022 inserted Pt 4B, creating a self-contained whistleblower-protection regime. It introduced the concepts of protected action, detrimental action offence, injunctions and costs immunity (ss 31K–31Z). The changes were designed to consolidate and strengthen protections that had previously been scattered across the Act and the PID Act, responding to recommendations of the 2019–2020 review of the PID framework. Section 36 was substituted to provide clearer self-incrimination protection.

The Stronger Communities Legislation Amendment (Domestic Violence) Act 2022 and other 2022 amendments expanded the definition of public authority, refined conciliation processes (s 13A) and updated cross-references to the PID Act. In 2024, the Government Sector Finance and Other Acts Amendment Act inserted s 36A, imposing an express duty on public authorities to cooperate and assist the Ombudsman. The same suite of amendments expanded fee-charging powers (s 38AA) and updated the Aboriginal programs provisions in Pt 3B to reflect changes in program nomenclature (s 25K).

These amendments respond to three pressures: (1) the need for stronger whistleblower safeguards following high-profile cases of retaliation; (2) reconciliation and self-determination imperatives that led to the 2014 insertion and subsequent strengthening of Pt 3B; and (3) administrative efficiency, allowing the Ombudsman to charge for value-added services such as training and conciliation. The 2022–2024 changes also implement recommendations from the Joint Committee and the statutory review of the PID Act.

Although the Act contains a privative clause of sorts in s 35A (immunity except for bad faith), the Supreme Court retains supervisory jurisdiction. In Egan v Willis (1997) 195 CLR 424 the High Court confirmed that parliamentary committees (including the Joint Committee) cannot compel production of Cabinet documents; the Ombudsman has respected that boundary in s 22. Applications under s 35B for jurisdictional declarations have been rare but illustrate the Court’s willingness to clarify the Ombudsman’s remit where it overlaps with judicial functions (Sch 1 cl 2).

Controversy has surrounded the breadth of “conduct” and “public authority”. In Ombudsman v Laughton [2005] NSWCA 339 the Court of Appeal upheld the Ombudsman’s power to investigate a magistrate’s administrative conduct, confirming that the judicial-conduct exclusion is narrowly construed. The decision reinforced that the Ombudsman may examine the administrative acts of judicial officers provided they do not touch the exercise of judicial power.

The interface with ICAC and the Law Enforcement Conduct Commission has generated tension. Section 31AB referrals and the veto power under s 31BA have been criticised as creating potential for politicisation of appointments. The 2016 renaming and expansion of the Joint Committee’s remit (now including the LECC) followed recommendations of the 2015 statutory review aimed at reducing overlap.

In 2019 the Ombudsman’s report into the Northern Rivers Rail Corridor highlighted perceived agency resistance to recommendations, prompting calls for stronger enforcement powers. The insertion of the cooperation duty in s 36A (2024) is a direct legislative response. Privacy advocates have criticised the breadth of information-sharing gateways (ss 31AC, 34), although the Act’s identification protections (s 31Z) and the public-interest test in s 19A(2) provide some safeguards.

No major High Court challenge has invalidated core provisions, but the cumulative effect of exceptions in Sch 1 and the Cabinet-information certificate in s 22(2) continues to attract academic criticism as undermining the Act’s accountability objectives.

Most practitioners assume the Ombudsman can compel production of any document. Section 22(2) renders a certificate from the Secretary or General Counsel of the Cabinet Office conclusive on whether material is Cabinet information; there is no practical right of challenge. Similarly, s 21(2) requires the Ombudsman to set aside a requirement if privilege is properly claimed and the claimant does not consent—something easily overlooked in practice.

Another trap is the distinction between protected action and limited protected action (s 31M). Only full protected action attracts the full suite of immunities in s 31X; limited protected action receives narrower safeguards (s 31Q). Advisers must carefully characterise the complainant’s motivation and belief.

Section 13(6) permits investigation even where court proceedings are on foot unless the Ombudsman considers the investigation is likely to adversely affect those proceedings. The statutory language gives the Ombudsman a broad discretion; agencies have unsuccessfully attempted to obtain injunctions on the basis of parallel proceedings.

The duty to cooperate in s 36A is expressed in mandatory language (“has a duty”, “must use best endeavours”) yet carries no direct sanction. Non-compliance may, however, found a further complaint or adverse comment in a s 26 report. Agencies sometimes treat the duty as aspirational rather than obligatory.

Finally, the Act’s fee-charging powers (ss 13A(7), 38AA, 38A) are rarely used but can surprise agencies that expect all Ombudsman services to be free. Reasonable fees may be charged for conciliation, training and education services; the Ombudsman’s determination of “reasonable” is difficult to challenge.

Public authorities should maintain an up-to-date complaints-handling system capable of rapid identification of matters that should be referred to the Ombudsman (s 12A). Policies must expressly prohibit detrimental action against persons who make protected disclosures or assist the Ombudsman (s 31R). Training on the distinction between protected and limited protected action is essential.

When a s 18 notice or s 19 summons is received, immediate legal review is required. Claims of privilege must be asserted promptly and in writing; consent should never be given without senior approval. Cabinet information must be protected by obtaining a s 22(2) certificate where applicable.

Records relevant to Aboriginal programs must be kept in a form that permits immediate, unrestricted access (s 25M). Agencies subject to s 25A reviews should audit their complaints policies, training records and outcome data before an Ombudsman review commences.

Agencies should designate a senior officer as the primary contact for Ombudsman matters. All correspondence should be marked confidential and stored securely. Where an adverse s 26 report is received, a detailed action plan with timelines must be prepared and provided to the Ombudsman within a reasonable period; failure to do so risks a s 27 report to Parliament.

Legal practitioners advising clients who wish to complain should consider whether the matter falls within Sch 1 exclusions and whether PID Act protections are more appropriate. Complainants should keep contemporaneous notes and avoid publicising the complaint in a manner that could prejudice the investigation (s 19C).

The Ombudsman’s website contains detailed guidelines on preparing for an investigation, responding to notices, and complying with confidentiality obligations. Regular attendance at the Ombudsman’s training sessions (for which a fee may be charged) is a cost-effective way to stay current with evolving expectations.

In all cases, the guiding principle is cooperation (s 36A). Early engagement, candid provision of information, and genuine consideration of recommendations minimise the risk of escalation, reputational damage or a critical report to Parliament.