An administrative action is defined broadly in s 7(1) as any action about a matter of administration, including a decision and an act, a failure to make a decision or do an act (including a failure to provide a written statement of reasons), the formulation of a proposal or intention, the making of a recommendation (including to a Minister), and an action taken because of a recommendation made to a Minister. However, s 7(2) excludes an operational action of a police officer or an officer of the Crime and Corruption Commission. What is an administrative action of an agency is further expanded by s 10 to include actions taken by, in or for the agency, by or for an officer of the agency, and actions taken for or in the performance of functions conferred on an agency by an entity that is not an agency. An agency is defined in s 8(1) as a department, a local government, or a public authority. Section 8(2) extends the meaning to include certain boards, councils, committees and subcommittees established under an Act for helping or performing functions connected with the agency, but not incorporated entities or individuals. An individual is not an agency merely because the individual holds an office as an officer, member, or an office established for the purposes of an agency (s 8(3)). Section 9 defines a public authority in detail: it includes entities (other than individuals) established for a public purpose under an Act or by government, entities created by the Governor in Council or a Minister, entities declared by regulation to be a public authority that are supported by government funds or established under an Act, individuals holding an office established under an Act, and individuals holding an appointment made by the Governor in Council or a Minister and declared by regulation to be a public authority. Excluded from being a public authority are departments, local governments, courts when acting judicially or performing authorised functions, and court registries and staff relating to judicial functions (s 9(2)). The ombudsman is an officer of the Parliament (s 11(2)) and is not subject to direction by any person about the way the ombudsman performs functions or the priority given to investigations (s 13). The Act also creates the concept of complaints entity with which the ombudsman may liaise and enter into arrangements to avoid duplication (s 15). In 2024, s 12A was inserted to extend the ombudsman’s functions to entities that are not agencies but that take administrative action of an agency as mentioned in s 10(c), with the entity taken to be an agency for the purpose of those functions.

The Act primarily affects agencies, defined as departments, local governments and public authorities (s 8), and the officers within those agencies. The section 9 definition of public authority brings in a wide range of entities: statutory bodies, entities created by the Governor in Council or a Minister, entities declared by regulation that are government-funded or established under an Act, and individuals holding offices established under an Act or appointed by the Governor in Council or a Minister and declared by regulation. This means that many state entities, local councils, boards and office holders are subject to investigation. The Act also affects complainants’: any person or body of persons (whether incorporated or not) who is apparently directly affected by an administrative action (s 20(1)(b)). Complaints may be made orally or in writing (s 20(1)(a)), and if the person who could have complained has died or cannot act, an individual suitable to represent that person may be the complainant (s 20(5)). Persons in custody or detention have a right facilitated by the relevant custodian (s 20(6)), with a penalty for non-compliance. The Act also affects entities that are not agenciesthat take administrative action of an agency as mentioned in s 10(c); from 2024 such entities are taken to be agencies for the ombudsman’s functions under s 12A. Persons required to comply with investigation requirements (s 30) are affected: they must comply unless they have a reasonable excuse, and incrimination is not a reasonable excuse (though use immunity applies, s 48). The Act affectsMinisters: the ombudsman may consult any Minister concerned in the action complained of (s 26(1)), and must consult a Minister before making a report if the investigation relates to a recommendation made to that Minister (s 26(2)). However, the ombudsman must not question the merits of a decision made by a Minister or Cabinet, or a decision taken to implement a Cabinet decision (s 16(1)). The parliamentary committee(the designated committee under the Parliament of Queensland Act 2001) is given specific oversight functions under s 89, including monitoring the ombudsman’s performance, examining annual reports and reports tabled in the Assembly, and reporting on desirable changes. The Act also affectsthe State, which assumes civil liability for acts or omissions of officers of the ombudsman done honestly and without negligence (s 93(2)). Finally, the Act affects police officers and the Crime and Corruption Commission` by excluding operational actions from the definition of administrative action (s 7(2)) and by barring investigation of certain police conduct that may be investigated under the Crime and Corruption Act 2001 or that has been disciplined under the Police Service Administration Act 1990, part 7 (s 16(2)(c), (d)).

The ombudsman has a duty to investigate administrative actions of agencies when a parliamentary reference is made (s 18(2) read with s 19). The ombudsman also has a discretion to investigate on complaint or on the ombudsman’s own initiative (s 18(1)). In performing functions, the ombudsman must act independently (s 13) and must regulate procedure in a way that maintains confidentiality, complies with natural justice, is not bound by the rules of evidence, and may obtain information as considered appropriate (s 25(2)). The ombudsman must give the principal officer of the agency a notice before exercising compulsory powers under pt 4 (s 27), identifying the administrative action under investigation and informing of the powers to be exercised. The ombudsman must consult a Minister if the Minister asks or if the investigation relates to a recommendation made to the Minister and the ombudsman is considering making a report (s 26(2)). Before making a report that may affect or concern an agency, the ombudsman must give the principal officer an opportunity to comment (s 26(3)). If a report contains an adverse comment about a person, the ombudsman must give that person an opportunity to make submissions and must fairly state the person’s defence in the report (s 55). On completion of a complaint-based investigation, the ombudsman must inform the complainant of the result as soon as possible (s 57). The ombudsman must also ensure, when an interpreter is needed, that reasonable steps are taken to provide one (s 90). The ombudsman has the power to require documents and information (s 28), to require attendance and answer questions (s 29), to administer an oath (s 33), to enter and inspect agency premises (s 34), and to apply for an arrest warrant for non-attendance after failure to comply with a subpoena (s 36). The ombudsman may delegate functions to appropriately qualified officers (s 86), but cannot delegate a function under the Act to an officer if the ombudsman as inspector of detention services has already delegated a function to that officer under the Inspector of Detention Services Act 2022 (s 86(2)). Complainants have the right to make a complaint orally or in writing (s 20(1)(a)), and if the person is in custody the custodian must facilitate the complaint (s 20(6)). A complainant has the right not to suffer detriment for making a complaint or giving information: s 47 prohibits causing or threatening detriment with a maximum penalty of 100 penalty units. A person required to give information under compulsion has a use immunity: primary and derived evidence from an investigation requirement is not admissible against the individual in any proceeding, except in criminal proceedings about the falsity or misleading nature of the primary evidence (s 48). A person also has equivalent privileges as a witness in court proceedings (s 45(3)), subject to the overriding of State and agency privileges (s 45(2)). Officers of the ombudsman have a right not to be called to give evidence or produce documents in proceedings except in limited circumstances (s 92A). The State assumes civil liability for honest and non-negligent acts of officers of the ombudsman (s 93).

The Act creates several offences with specified penalties. A person who receives an investigation requirement must comply unless there is a reasonable excuse; maximum penalty 100 penalty units (s 30(1)). A person required to give information on oath must not refuse to be sworn; maximum penalty 100 penalty units (s 33(3)). A person given a requirement under s 34(1)(d) to give reasonable help during an inspection must comply unless a reasonable excuse exists; maximum penalty 100 penalty units (s 34(2)). Making a false or misleading statement to the ombudsman or an officer is an offence with a maximum penalty of 100 penalty units (s 41(1)). Giving a false or misleading document is similarly an offence of 100 penalty units, with a defence if the person tells the ombudsman how it is false or misleading and gives correct information if available (s 42). Assaulting or obstructing the ombudsman or an officer in the performance of duties is an offence with a maximum penalty of 40 penalty units or six months imprisonment (s 43). Assault has the meaning under the Criminal Code, s 245, and obstruct includes hinder, resist and attempt to obstruct. A relevant custodian who fails to take necessary steps to facilitate a complaint by a person in custody or detention is liable to a maximum penalty of 100 penalty units or one year’s imprisonment (s 20(6)). Causing or threatening detriment to a person because they have made or may make a complaint or give information is an offence with a maximum penalty of 100 penalty units (s 47). An attempt to cause detriment includes an attempt to induce a person to cause detriment, and detriment includes dismissal from employment (s 47(2), (3)). Unauthorised disclosure of information obtained in a preliminary inquiry or investigation is an offence with a maximum penalty of 100 penalty units (s 92). Contempt of the ombudsman is dealt with under ss 38-40. A person is in contempt if, during an investigation, they insult or threaten the ombudsman or others, deliberately interrupt, create a disturbance, obstruct or assault a person attending, use false and defamatory words, or do anything that would be contempt of court if the ombudsman were a judge (s 38(1)). Contempt also occurs if the ombudsman has ordered non-publication under s 91 and the person publishes the information (s 38(2)). The ombudsman may certify the contempt to the Supreme Court (s 39(2)). The court must inquire into the alleged contempt and may punish the person as if the person had committed the contempt in a proceeding for enforcement of a non-money order (s 39(8)). The ombudsman’s certificate is evidence of the matters stated (s 39(10)). If conduct is both contempt and an offence, the person may be proceeded against for either, but not punished twice (s 40). The Act also allows a Magistrates Court to issue a subpoena if a person fails to comply with an investigation requirement (s 31). An arrest warrant can be issued by a magistrate if a person has not complied with an attendance requirement and also not complied with a subpoena (ss 36, 37).

The Act explicitly overrides other legislation in several respects. Section 14(2) allows the ombudsman to investigate an administrative action despite any provision in an Act that the action is final or cannot be appealed or reviewed. Section 21 provides that if an Act prohibits or restricts communication, that provision does not apply to a communication made for the purpose of making a complaint under the Act. Section 45(1) overrides any obligation to maintain secrecy or other restriction on disclosure of information obtained by officers of an agency when the information is relevant to a preliminary inquiry or investigation. Section 45(2) provides that the State or an agency is not entitled to any privilege that would apply to the production of documents or giving of evidence in a legal proceeding. However, s 45(3) preserves for individuals the equivalent privileges they would have as a witness in court proceedings, subject to the overriding provisions and pt 4 div 1. Section 46 preserves Cabinet confidentiality: the Act does not require or authorise a person to give information or answer questions relating to proceedings of Cabinet or a committee of Cabinet, and a certificate by the chief executive of the department administered by the Premier with the Premier’s approval is conclusive. Also, the ombudsman must not require information or documents if the Attorney-General certifies in writing that doing so might prejudice the security of the State or the investigation or detection of offences (s 46(3)). Section 48 provides use immunity for information given under an investigation requirement: primary and derived evidence is not admissible in any proceeding against the individual, except in criminal proceedings about the falsity or misleading nature of the primary evidence. Section 44 applies specified Criminal Code sections (120, 123, 123A, 124, 125, 126, 127, 128, 129, 130) to investigations, deeming the investigation a judicial proceeding and the ombudsman a judicial office holder for those purposes. Section 50(3) requires the ombudsman to notify the Crime and Corruption Commission under the Crime and Corruption Act 2001, s 38 of any matters involving or possibly involving corrupt conduct. Section 15 allows the ombudsman to liaise with and enter into arrangements with complaints entities to avoid duplication. Section 91A permits disclosure of information to an agency if the ombudsman considers the agency has a proper interest or for protecting health, safety or security, but does not apply to information protected under the Crime and Corruption Act 2001, s 213. Section 92A protects officers of the ombudsman from being called to give evidence or produce documents in proceedings, except in proceedings under s 17 (jurisdiction) or s 39 (contempt), or for a relevant offence, or in proceedings against the ombudsman under the Judicial Review Act 1991. Section 93 provides civil liability protection for officers of the ombudsman acting honestly and without negligence, with liability attaching to the State. The Act also references the Public Sector Act 2022 in relation to appointment (s 58(3)) and the ombudsman office not being a public sector entity (s 75A), and allows regulations to apply provisions of that Act (s 75C). The Human Rights Act 2019, s 66 is referenced in the delegation power (s 86). The Financial Accountability Act 2009 applies to the ombudsman office for annual reporting, but s 87 modifies the process by requiring reports to be given to the parliamentary committee, Speaker, Minister and Treasurer, and tabled by the chair of the parliamentary committee. The Act also interacts with the Coroners Act 2003 (s 57A) and the Child Protection Act 1999 (s 57B) for reports relating to deaths or serious physical injury of children. The right to apply under the Judicial Review Act 1991 is preserved (s 17(4), s 23(3)).

The Ombudsman Act 2001 (Act No. 73 of 2001) repealed and replaced the Parliamentary Commissioner Act 1974 (s 95). The Act has been amended extensively. Key amendments include: 2003 No. 19 (amended s 7 exclusion for Crime and Corruption Commission, now references CCC); 2006 No. 25 (amended s 16 references to repealed Health Quality and Complaints Commission Act 2006); 2006 No. 29 (corrective services references in ss 20, 29); 2007 No. 37 (amended s 23); 2008 No. 38 (Public Service Act 2008 references); 2008 No. 59 (amended s 92); 2009 No. 9 (Auditor-General Act 2009 references); 2009 No. 13 (Right to Information and Information Privacy references in s 16); 2010 No. 5 (child safety references); 2010 No. 37 (inserted ss 63A, 63B on declarations of interests and conflicts of interest, and transitional s 104); 2011 No. 15 (amended s 85 and s 89); 2013 No. 36 (Health Ombudsman Act 2013 references in s 16); 2013 No. 39 (references to Integrity Act 2009); 2014 No. 21 (references to Crime and Corruption Act 2001); 2014 No. 28 (Child Protection Reform Amendment Act 2014 inserted transitional provisions div 3, repealed and re-enacted s 57B); 2016 No. 63 (Industrial Relations Act 2016 references); 2017 No. 17 (major amendments: amended ss 5, 6, 12, 24, 30, 38, 47, 48 (substituted), 49, 50 (substituted), 51, 83, 91, inserted s 78A (restriction on employment), s 78B (criminal history report), s 78C (confidentiality of criminal history information), s 92A (protection in proceedings), s 111 (transitional, s 48)); 2018 No. 29 (inserted s 91A (disclosure of information), amended s 92); 2020 No. 15 (amended s 86 to include Human Rights Act 2019 reference); 2022 No. 18 (Inspector of Detention Services Act 2022 - major restructure: substituted ss 58-65, 66-72, 73-75, 76, 77, 78, 79-82, 83, 86, 89, 92A, 93, inserted s 75A, s 75B, s 75C, new pt 7 div 1, new pt 7 div 2, new pt 7 div 3, transitional s 112); 2022 No. 33 (amended s 83, inserted s 113 on strategic review period); 2022 No. 34 (Public Sector Act 2022 references inserted ss 75A, 75B, 75C, amended ss 65, 76, 77, 78, 79, 82, 93); 2023 No. 23 (amended s 31 on subpoena rules); 2023 No. 26 (inserted s 120 validating actions of inspector of detention services before taking oath); 2023 No. 32 (amended s 16); 2024 No. 3 (Integrity and Other Legislation Amendment Act 2024 - inserted s 12A (ombudsman’s functions for administrative action taken by entity not an agency), amended ss 8, 59, 62, 68, 83, 85, 87, 89, inserted pt 8 div 4A (funding proposals, ss 85A-85F), repealed former s 88, inserted transitional provisions div 7 (ss 114-119)).

The Act itself does not mention specific case names. It does provide for judicial proceedings in several contexts. Section 17 allows the ombudsman to apply to the Supreme Court to decide a question about whether the ombudsman has jurisdiction to conduct an investigation, and the application must be heard in closed court. Section 17(4) preserves the right of entities under investigation or complainants to make applications under the Judicial Review Act 1991. Section 23(3) expressly provides that a right or remedy mentioned in s 23(1)(d)(i) or (e)(i) (alternative remedies that a complainant should exhaust) does not include a right under the Judicial Review Act 1991 to make application to the Supreme Court. Section 31 allows a Magistrates Court to issue a subpoena at the request of the ombudsman if a person fails to comply with an investigation requirement, with the Uniform Civil Procedure Rules 1999 applying. Section 39 provides for the Supreme Court to inquire into and punish contempt of the ombudsman certified under that section, with the court’s power similar to enforcement of a non-money order. Section 92A protects officers of the ombudsman from being called to give evidence or produce documents in proceedings, but excepts proceedings under s 17 (jurisdiction), s 39 (contempt), proceedings for a relevant offence (offences against the Act or the Inspector of Detention Services Act 2022, or specified Criminal Code offences as applied by s 44), and proceedings against the ombudsman under the Judicial Review Act 1991. This indicates that judicial review of the ombudsman’s decisions is available, at least in relation to jurisdictional matters. The Act also contemplates the potential for applications under the Judicial Review Act 1991 by entities whose actions are being investigated or by complainants, as noted in s 17(4). Because the Act does not name any decided cases, no specific litigation history can be provided from the source. However, the structure of the Act makes clear that questions of jurisdiction and contempt are justiciable, and that the ombudsman’s investigative decisions may be subject to judicial review. Practitioners should note that any judicial consideration of the Act would be in the context of these provisions, but no case law is cited in the legislation.

Several provisions in the Act contain traps for the unwary. The definition of administrative action in s 7(1) is very broad, but s 7(2) contains a critical carve-out: operational actions of police officers or officers of the Crime and Corruption Commission are not administrative actions. This means many types of police operational conduct are outside the ombudsman’s jurisdiction. Further, s 16(2) lists specific persons and actions the ombudsman must not investigate, including tribunal deliberative functions, legal advisers to the State, police members if the action may be investigated under the Crime and Corruption Act 2001, police officers liable to disciplinary action under the Police Service Administration Act 1990 part 7, the auditor-general, mediators under the Dispute Resolution Centres Act 1990, certain conciliators, and the information commissioner performing specific functions under the Right to Information Act 2009 or Information Privacy Act 2009. Section 16(1) prohibits the ombudsman from questioning the merits of a decision made by a Minister or Cabinet, or a decision taken to implement a Cabinet decision. This limits the ombudsman’s ability to review policy choices. The one-year limitation period for complaints (s 20(1)(c)) can be extended if special circumstances exist (s 20(3)(c)), but practitioners should be aware that late complaints are not automatically accepted. The ombudsman may refuse to investigate a complaint if the complainant has not exhausted alternative rights of appeal, reference or review, or another remedy, and it would be reasonable to require exhaustion (s 23(1)(d)). However, this does not include a right to apply for judicial review (s 23(3)). The ombudsman may also refuse if the complaint is trivial, frivolous, vexatious, not made in good faith, or if the complainant lacks sufficient direct interest (s 23(1)(a)-(c)). A person who receives an investigation requirement must comply despite the requirement that compliance may incriminate them; incrimination is not a reasonable excuse (s 30(4)). However, s 48 provides use immunity: primary and derived evidence is not admissible against the individual in any proceeding except in criminal proceedings about the falsity or misleading nature of the primary evidence. This immunity does not protect against prosecution for perjury or false statements, as the exception in s 48(3) allows use of the evidence in criminal proceedings about the falsity or misleading nature of the primary evidence. Section 45(2) removes State and agency privileges that would otherwise apply in legal proceedings, so agencies cannot claim legal professional privilege or similar to withhold documents from the ombudsman. Section 46 Cabinet confidentiality and Attorney-General certificates (security or investigation of offences) are conclusive and cannot be questioned by the ombudsman. Officers of the ombudsman have broad protection from being called as witnesses (s 92A), but this protection does not apply in proceedings under s 17 (jurisdiction), s 39 (contempt), or for relevant offences, or in judicial review proceedings against the ombudsman. The Act also contains a requirement that a person seeking employment or secondment as an officer of the ombudsman must consent to a criminal history check (s 78A). If the ombudsman has an interest that conflicts with responsibilities, the ombudsman must disclose to the Speaker and parliamentary committee and must not take action until the conflict is resolved (s 63B). A further trap: the ombudsman must not delegate a function under the Act to an officer if the ombudsman as inspector of detention services has already delegated a function to that officer under the Inspector of Detention Services Act 2022 (s 86(2)). This prevents the same officer exercising both investigative and inspector powers in relation to the same matter. Finally, the preservation of rights provisions (ss 79-82) contain a misconduct exception: a person who stops holding office for misconduct loses entitlements to reinstatement or continuity of service.

For agencies subject to investigation, compliance requires proactive cooperation and adherence to the Act’s procedures. The principal officer of the agency must give the ombudsman reasonable help in preliminary inquiries (s 22(2)) and in informal investigations (s 24(2)). When the ombudsman decides to exercise compulsory powers under pt 4, the principal officer must be given notice under s 27. Agencies must ensure that their officers comply with investigation requirements (s 28, s 29), which include giving information, answering questions, producing documents, and attending before the ombudsman. Failure to comply without reasonable excuse is an offence carrying a maximum penalty of 100 penalty units (s 30(1)). Agencies must allow the ombudsman to enter and inspect premises at reasonable times after giving reasonable notice, and officers at the premises must give reasonable help (s 34). If the ombudsman makes a report with recommendations (s 50), the principal officer should respond to any request for comments under s 51(2) within the stated time, setting out steps taken or proposed to give effect to the recommendations, or reasons for not taking steps. The ombudsman may then escalate the report to the Premier and ultimately to the Assembly (s 51(3), (4)). Agencies should also be aware of the secrecy obligations: an officer of an agency or another person who obtains information in a preliminary inquiry or investigation must not disclose that information except as part of performing the function, formulating a report or recommendation, or in proceedings for an offence against the Act, or in de-identified form for providing help or research (s 92). Breach is an offence carrying a maximum penalty of 100 penalty units (s 92(1)). However, s 91A allows the ombudsman to disclose information to an agency if the agency has a proper interest or for protecting health, safety or security. Agencies should not take detrimental action against a person because they have made a complaint or given information to the ombudsman; doing so is an offence (s 47). For complainants, the process is designed to be accessible. A complaint may be made orally or in writing (s 20(1)(a)), by any person or body apparently directly affected (s 20(1)(b)), and must be made within one year of first notice of the action (s 20(1)(c)). The ombudsman may accept late complaints if special circumstances exist (s 20(3)(c)). If a complainant is in custody or detention, the relevant custodian must facilitate the complaint (s 20(6)). Complainants who need help to put a complaint in writing may receive it from the ombudsman (s 20(4)). The ombudsman must inform the complainant of the result of the investigation (s 57). For the ombudsman office, compliance involves following the procedural requirements in pt 3 div 4 and pt 4: maintaining confidentiality (s 25(2)(a)), complying with natural justice (s 25(2)(b)), consulting with Ministers where required (s 26), giving notices before using compulsory powers (s 27), and ensuring that before making an adverse comment in a report, the person is given an opportunity to make submissions and their defence is fairly stated (s 55). The ombudsman must also ensure that annual reports are given to the parliamentary committee, Speaker, Minister and Treasurer (s 87(2)), and that strategic reviews are conducted at least every five years (s 83). If the ombudsman requires additional funding, the formal funding proposal process under pt 8 div 4A must be followed, including giving the proposal to the parliamentary committee and awaiting approval or deemed approval (s 85C). The ombudsman must also comply with conflict of interest obligations under s 63B, declaring any conflict to the Speaker and parliamentary committee and not taking action until resolved.