5Functions of Ombudsman

#### 5 Functions of Ombudsman (1) Subject to this Act, the Ombudsman: (a) shall investigate action, being action that relates to a matter of administration, taken either before or after the commencement of this Act by a Department, or by a prescribed authority, and in respect of which a complaint has been made to the Ombudsman; and (b) may, of his or her own motion, investigate any action, being action that relates to a matter of administration, taken either before or after the commencement of this Act by a Department or by a prescribed authority; and (c) with the consent of the Minister, may enter into an arrangement under which the Ombudsman will perform functions of an ombudsman under an ombudsman scheme established in accordance with the conditions of licences or authorities granted under an enactment. (2) The Ombudsman is not authorized to investigate: (a) action taken by a Minister; or (aa) action that constitutes proceedings in Parliament for the purposes of section 16 of the Parliamentary Privileges Act 1987; or (b) action taken by a Justice or Judge of a court created by the Parliament; or (ba) action by the chief executive officer, in relation to a court, or by a person who, for the purposes of this Act, is to be taken to be a member of the staff of a court: (i) when exercising a power of the court; or (ii) when performing a function, or exercising a power, of a judicial nature; or (c) action taken by: (i) a magistrate or coroner for the Australian Capital Territory, Norfolk Island, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; or (ii) a person who holds office as a magistrate in a State or the Northern Territory in the performance of the functions of a magistrate conferred on him or her by or under an Act; or (d) action taken by any body or person with respect to persons employed in the Australian Public Service or the service of a prescribed authority, being action taken in relation to that employment, including action taken with respect to the promotion, termination of appointment or discipline of a person so employed or the payment of remuneration to such a person; or (e) action taken by any of the following: (i) the Australian Security Intelligence Organisation; (ii) the Australian Secret Intelligence Service; (iii) the part of the Department of Defence known as the Australian Geospatial‑Intelligence Organisation; (iv) the Australian Signals Directorate; (v) the part of the Department of Defence known as the Defence Intelligence Organisation; (vi) the Office of National Intelligence; or (g) action taken by a Department or by a prescribed authority with respect to the appointment of a person to an office or position established by or under an enactment, not being an office or position in the Australian Public Service or an office in the service of a prescribed authority. (3) The reference in paragraph (2)(a) to action taken by a Minister does not include a reference to action taken by a delegate of a Minister, and, for the purposes of this subsection, action shall be deemed to have been taken by such a delegate notwithstanding that the action is taken in pursuance of a power that is deemed by a provision of an enactment, when exercised by the delegate, to have been exercised by the Minister. (3A) For the purposes of the application of this Act to or in relation to the Ombudsman, action taken by a Department or by a prescribed authority shall not be regarded as having been taken by a Minister by reason only that the action was taken by the Department or authority in relation to action that has been, is proposed to be, or may be, taken by a Minister personally. (4) Paragraph (2)(d) does not prevent the Ombudsman from investigating action taken by an AFP appointee, or by any other person, with respect to information that: (a) is given to the AFP appointee; and (b) raises an AFP conduct issue or AFP practices issue; and (c) relates to action taken by another AFP appointee. (5) The Ombudsman is not authorised to investigate action taken under: (a) a law of Western Australia in its application in the Territory of Christmas Island by virtue of the Christmas Island Act 1958; or (b) a law of Western Australia in its application in the Territory of Cocos (Keeling) Islands by virtue of the Cocos (Keeling) Islands Act 1955; by a person employed by Western Australia. (6) The reference in subsection (5) to a person employed by Western Australia includes a reference to: (a) a person occupying, or acting in, an office or position under a law of Western Australia; and (b) a person employed by a body established by or under a law of Western Australia. (6A) The Ombudsman is not authorised to investigate action taken under a law of New South Wales, in its application in Norfolk Island by virtue of the Norfolk Island Act 1979, by a person employed by New South Wales. (6B) The reference in subsection (6A) to a person employed by New South Wales includes a reference to: (a) a person occupying, or acting in, an office or position under a law of New South Wales; and (b) a person employed by a body established by or under a law of New South Wales. (7) An arrangement referred to in paragraph (1)(c) may include provision for payment by the other party to the arrangement for the performance of functions by the Ombudsman in accordance with the arrangement.