6Discretion not to investigate certain complaints

#### 6 Discretion not to investigate certain complaints (1) Where a complaint has been made to the Ombudsman with respect to action taken by a Department or by a prescribed authority, the Ombudsman may, in his or her discretion, decide not to investigate the action or, if he or she has commenced to investigate the action, decide not to investigate the action further: (a) if the Ombudsman is satisfied that the complainant became aware of the action more than 12 months before the complaint was made to the Ombudsman; or (b) if, in the opinion of the Ombudsman: (i) the complaint is frivolous or vexatious or was not made in good faith; (ii) the complainant does not have a sufficient interest in the subject matter of the complaint; or (iii) an investigation, or further investigation, of the action is not warranted having regard to all the circumstances. (1A) Where a person who makes a complaint to the Ombudsman with respect to action taken by a Department or by a prescribed authority has not complained to the Department or authority with respect to that action, the Ombudsman may, in his or her discretion, decide not to investigate the action until the complainant so complains to the Department or authority. (1B) Where a person who makes a complaint to the Ombudsman with respect to action taken by a Department or prescribed authority has complained to the Department or authority with respect to that action, the Ombudsman may, in his or her discretion, decide not to investigate the action unless and until the complainant informs the Ombudsman that no redress has been granted or that redress has been granted but the redress is not, in the opinion of the complainant, adequate. (1C) Where: (a) a person who has made a complaint to the Ombudsman with respect to action taken by a Department or by a prescribed authority and who has complained to the Department or authority with respect to that action informs the Ombudsman as provided by subsection (1B) that no redress, or no adequate redress, has been granted by the Department or authority; and (b) the Ombudsman is of the opinion: (i) if no redress has been granted—that, since the complainant complained to the Department or authority, a reasonable period has elapsed in which redress could have been granted; or (ii) if redress has been granted—that the redress was not reasonably adequate; the Ombudsman shall, subject to this section, investigate the action. (2) Where a complainant has exercised, or exercises, a right to cause action to which his or her complaint relates to be reviewed by a court or by a tribunal constituted by or under an enactment, the Ombudsman shall not investigate, or continue to investigate, as the case may be, the action unless the Ombudsman is of the opinion that there are special reasons justifying the investigation of the action or the investigation of the action further. (3) Where the Ombudsman is of the opinion that a complainant has or had a right to cause the action to which the complaint relates to be reviewed by a court or by a tribunal constituted by or under an enactment but has not exercised that right, the Ombudsman may decide not to investigate the action or not to investigate the action further, as the case may be, if he or she is of the opinion that, in all the circumstances, it would be reasonable for the complainant to exercise, or would have been reasonable for the complainant to have exercised, that right. (4) Where, before the Ombudsman commences, or after the Ombudsman has commenced, to investigate action taken by a Department or by a prescribed authority, being action that is the subject matter of a complaint, the Ombudsman becomes of the opinion that adequate provision is made under an administrative practice for the review of action of that kind taken by that Department or prescribed authority, the Ombudsman may decide not to investigate the action or not to investigate the action further, as the case may be: (a) if the action has been, is being or is to be reviewed under that practice at the request of the complainant; or (b) if the Ombudsman is satisfied that the complainant is entitled to cause the action to be reviewed under that practice and it would be reasonable for the complainant to cause it to be so reviewed. (4D) Where, before the Ombudsman commences, or after the Ombudsman has commenced, to investigate action taken by a Department or by a prescribed authority, being action that is the subject matter of a complaint, the Ombudsman becomes of the opinion that: (a) a complaint with respect to the action has been, or could have been, made by the complainant to the ACMA under Part 26 of the Telecommunications Act 1997; and (b) the action could be more conveniently or effectively dealt with by the ACMA; the Ombudsman may decide not to investigate the action, or not to investigate the action further, as the case may be, and, if the Ombudsman so decides, the Ombudsman shall: (c) transfer the complaint to the ACMA; (d) forthwith give notice in writing to the complainant stating that the complaint has been so transferred; and (e) give to the ACMA any information or documents that relate to the complaint and are in the possession, or under the control, of the Ombudsman. (4E) A complaint transferred under subsection (4D) shall be taken to be a complaint made to the ACMA under Part 26 of the Telecommunications Act 1997. (5) Where a complaint is made to the Ombudsman by a complainant at the request of another person or of a body of persons, this section applies as if references to the complainant were references to the person or the body of persons at whose request the complaint is made. (6) If the Ombudsman forms the opinion: (a) that a complaint relates to action of a prescribed authority that is a national broadcasting service for the purposes of the Broadcasting Services Act 1992; and (b) that the complaint could have been made to the ACMA under Part 11 of the Broadcasting Services Act 1992 and could be more conveniently or effectively dealt with by the ACMA; the Ombudsman may decide not to investigate the action, or not to investigate the action further, as the case may be, and to transfer the complaint to the ACMA. (7) If the Ombudsman makes a decision under subsection (6), the Ombudsman must: (a) transfer the complaint to the ACMA as soon as is reasonably practicable; and (b) give the ACMA any information or documents relating to the complaint that are in the possession, or under the control, of the Ombudsman; and (c) as soon as is reasonably practicable, give the complainant written notice that the complaint has been transferred to the ACMA. (8) A complaint transferred under subsection (7) is to be taken to be a complaint made under Part 11 of the Broadcasting Services Act 1992. (9) If the Ombudsman forms the opinion: (a) that a complaint could have been made under the Public Service Act 1999; and (b) that the complaint could be more conveniently or effectively dealt with by the Australian Public Service Commissioner; the Ombudsman may decide not to investigate the complaint, or not to investigate the complaint further, as the case may be, and to transfer the complaint to the Australian Public Service Commissioner. (10) If the Ombudsman makes a decision under subsection (9), the Ombudsman must: (a) transfer the complaint to the Australian Public Service Commissioner as soon as is reasonably practicable; and (b) give the Australian Public Service Commissioner any information or documents relating to the complaint that are in the possession, or under the control, of the Ombudsman; and (c) as soon as is reasonably practicable, give the complainant written notice that the complaint has been transferred to the Australian Public Service Commissioner. (11) In considering whether to make a decision under subsection (9) relating to a complaint that includes an allegation of misconduct by an Agency Head, the Ombudsman must consult with the Australian Public Service Commissioner. (11A) If the Ombudsman forms the opinion: (a) that a complaint could have been made under the Parliamentary Service Act 1999; and (b) that the complaint could be more conveniently or effectively dealt with by the Parliamentary Service Commissioner; the Ombudsman may decide not to investigate the complaint, or not to investigate the complaint further, as the case may be, and to transfer the complaint to the Parliamentary Service Commissioner. (11B) If the Ombudsman makes a decision under subsection (11A), the Ombudsman must: (a) transfer the complaint to the Parliamentary Service Commissioner as soon as is reasonably practicable; and (b) give the Parliamentary Service Commissioner any information or documents relating to the complaint that are in the possession, or under the control, of the Ombudsman; and (c) as soon as is reasonably practicable, give the complainant written notice that the complaint has been transferred to the Parliamentary Service Commissioner. (11C) In considering whether to make a decision under subsection (11A) relating to a complaint that includes an allegation of misconduct by the Secretary of a Parliamentary Department, the Ombudsman must consult with the Parliamentary Service Commissioner. (12) 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, the Ombudsman may decide not to investigate the complaint, or to cease investigating the complaint, as the case may be. (13) If the Ombudsman forms the opinion: (a) that a complaint relates to action taken by a Department or a prescribed authority; and (b) that the complaint could be more conveniently or effectively dealt with by the industry ombudsman for a particular industry; the Ombudsman may decide not to investigate the action, or not to investigate the action further, as the case may be, and to transfer the complaint to that industry ombudsman. (14) If the Ombudsman makes a decision under subsection (13), the Ombudsman must: (a) transfer the complaint to the industry ombudsman as soon as is reasonably practicable; and (b) give the industry ombudsman such information or documents relating to the complaint that are in the possession, or under the control, of the Ombudsman as the Ombudsman believes are reasonably necessary to enable the industry ombudsman to deal effectively with the complaint; and (c) as soon as is reasonably practicable, give the complainant written notice of the transfer of the complaint. (15) For the purposes of subsection (13), the industry ombudsman for a particular industry is the person holding, or acting in, the office or appointment declared by the regulations to be the office or appointment the holder of which is the ombudsman for that industry. (20) If the Ombudsman forms the opinion: (a) that a complaint includes information about an AFP conduct issue or an AFP practices issue; and (b) that the information could have been given under section 40SA of the Australian Federal Police Act 1979 and the issue could be more conveniently or effectively dealt with under Part V of that Act; the Ombudsman may decide not to investigate the complaint, or not to investigate the complaint further, as the case may be, and to give the information to the AFP Commissioner under that section of that Act. (21) If the Ombudsman makes a decision under subsection (20), the Ombudsman must: (a) give the information to the AFP Commissioner under section 40SA of the Australian Federal Police Act 1979 as soon as is reasonably practicable; and (b) give the AFP Commissioner any information or documents relating to the complaint that are in the possession, or under the control, of the Ombudsman; and (c) as soon as is reasonably practicable, give the complainant written notice that the complaint has been transferred to the AFP Commissioner to be dealt with under that Act.