Ombudsman Regulations 2017

The instrument defines several critical concepts. “Abuse” in relation to a complainant includes sexual abuse, serious physical abuse, and serious bullying or harassment (section 5). This definition is expansive enough to capture both physical and non-physical serious misconduct. “Complainant” extends beyond traditional Defence Force members to include current or former APS employees deployed outside Australia in connection with a Defence operation or for capacity‑building or peacekeeping functions, and persons contracted to provide services outside Australia in those contexts. “Member of Defence” is defined by reference to the time the abuse is alleged to have occurred and includes the same three categories of persons: Defence Force members, APS employees deployed, and contractors deployed. This ensures the regulatory scheme covers all personnel who may have suffered abuse in a Defence‑related context overseas.

A “new complaint” under subsection 14(1A) is a complaint about abuse engaged in by a member of Defence that is made to the Defence Force Ombudsman on or after the amendment day, or was made on or after 1 December 2016 but before the amendment day and had not been finally dealt with, and is not an “excluded complaint”. An “excluded complaint” is one that was previously made to and dealt with by the Defence Abuse Response Taskforce, or is substantially the same as such a complaint. This prevents re‑litigation of claims already resolved by the Taskforce. An “old complaint” under subsection 14B(2) is a complaint made on or after 1 December 2016 but before the amendment day, which the Ombudsman had finally dealt with before the amendment day, about abuse allegedly occurring on or before 30 June 2014, and which is not an excluded complaint.

The “amendment day” is the day the Ombudsman Amendment (Functions of the Defence Force Ombudsman) Regulations 2017 commenced. “Restorative engagement conference” means a process facilitated by the Defence Force Ombudsman or another person in which a complainant engages with a member of Defence to have their complaint acknowledged. “National Preventive Mechanism Network” refers to the persons and bodies separately appointed or established by the Commonwealth and each State and Territory to give effect to Australia’s obligations under the Optional Protocol. “Prescribed authority” is defined by reference to the Act, and the instrument clarifies what is not a prescribed authority, and also extends the definition to include the two Commonwealth‑controlled companies. “Principal officer” is defined in the Act, and section 8 declares specific offices to be the principal office for listed prescribed authorities, such as the Managing Director for Tourism Australia and the Vice‑Chancellor for the Australian National University. “Determination 2017/06” is a Remuneration Tribunal determination that sets terms and conditions for Departmental Secretaries, and the instrument prescribes Part 7 of that determination for the purposes of subsection 21(2) of the Act.

The regulations affect a broad range of Commonwealth entities and individuals. The primary body affected is the Commonwealth Ombudsman, who gains two additional roles: National Preventive Mechanism Body (section 16) and National Preventive Mechanism Coordinator (section 17). The Ombudsman is also responsible for overseeing the witness expenses scheme under section 13. The Defence Force Ombudsman, a specific office within the Ombudsman portfolio, is given distinct functions under Part 3 to handle complaints of abuse. The Chief of the Defence Force and the Defence Secretary are both required to use their best endeavours to assist the Defence Force Ombudsman in performing these functions (subsection 14(4)). The Defence Department is the recipient of recommendations and potential payouts recommended by the Defence Force Ombudsman under sections 14A and 14B.

Current and former members of the Defence Force, APS employees deployed outside Australia in connection with Defence operations or capacity‑building/peacekeeping, and contractors providing services outside Australia in those contexts are all potential complainants. The regulations also affect the Defence Abuse Response Taskforce, which is required to disclose its information and documents to the Defence Force Ombudsman (section 15(1)). The Attorney‑General’s Department must also disclose information and documents relating to the Taskforce (section 15(2)). Departments and prescribed authorities may voluntarily disclose information relating to new and old complaints of abuse to the Defence Force Ombudsman (section 15(4)). The Privacy Act 1988 implications are resolved by deeming such disclosures authorised by the instrument (section 15(6)).

Certain bodies and persons are explicitly excluded from being treated as prescribed authorities, meaning they are not subject to the Ombudsman’s jurisdiction under the Act. These include the Commonwealth Grants Commission, the Defence Force Remuneration Tribunal, the Pharmaceutical Benefits Remuneration Tribunal, the Remuneration Tribunal, the Shire of the Cocos (Keeling) Islands, and office‑holders such as the Auditor‑General, Australian Government Solicitor, President of the Defence Force Remuneration Tribunal, President of the Remuneration Tribunal, Inspector of the National Anti‑Corruption Commission, and Inspector‑General of Intelligence and Security (sections 6, 7). Conversely, the two Commonwealth‑controlled companies Aboriginal Hostels Limited and ANU Enterprise Pty Limited are deemed to be prescribed authorities (section 11), bringing them within the Ombudsman’s oversight. Court security officers appointed by the administrative head of a court are declared to be members of the court’s staff for the purposes of the Act (section 10), thus subject to the Ombudsman’s jurisdiction over court staff. The regulations also affect Departmental Secretaries by prescribing certain terms and conditions derived from Determination 2017/06 (section 12). Witnesses who attend to answer questions pursuant to a notice under the Act may be entitled to expense reimbursement (section 13).

The instrument imposes several duties and confers rights. The Defence Force Ombudsman has the duty to take appropriate action in response to new complaints of abuse, but only where satisfied the abuse is reasonably likely to have occurred (subsection 14(1)). Permissible actions include facilitating counselling, using alternative dispute resolution or restorative engagement conferences, making recommendations to the Defence Department, making reparation payment recommendations under section 14A, or deciding not to take further action. For old complaints, the function is narrower: the Ombudsman may only make recommendations under subsections 14B(3) to (5) regarding reparation payments, again requiring satisfaction that the abuse is reasonably likely to have occurred. The Ombudsman also has the right to collect and use information and documents disclosed by the Defence Abuse Response Taskforce, the Attorney‑General’s Department, or other departments and prescribed authorities (section 15).

The Chief of the Defence Force and the Defence Secretary have a statutory duty to use their best endeavours to assist the Defence Force Ombudsman in performing these functions (subsection 14(4)). The Defence Abuse Response Taskforce is under a mandatory duty to disclose its information and documents to the Defence Force Ombudsman (section 15(1)), as is the Attorney‑General’s Department (section 15(2)). Departments and prescribed authorities have a discretionary right to disclose information and documents relating to new or old complaints (section 15(4)).

Complainants have the right to make a complaint about abuse even if they have not first approached the Defence Department (subsection 14(2)). They also have a right to be considered for reparation payments: up to $45,000 for the most serious forms of abuse, up to $20,000 for unlawful interference accompanied by indecency, and an additional $5,000 where the Defence Department did not respond appropriately (sections 14A, 14B). However, these are recommendations only; the Ombudsman has a discretionary power to recommend, not an obligation. Witnesses who attend pursuant to a notice under section 9(1AA) or (2) of the Act have a right to be paid reasonable expenses or losses as determined by the Ombudsman (section 13).

In performing the National Preventive Mechanism Coordinator function, the Ombudsman must not compel or direct any person or body that is part of the National Preventive Mechanism Network (subsection 17(4)). This preserves the independence of State and Territory NPM bodies. The NPM Body function includes a duty to undertake regular inspections of Commonwealth places of detention and to give information to the UN Subcommittee to facilitate inspections (section 16). The Coordinator function includes duties to consult, collect information, propose options, communicate with the UN Subcommittee, convene meetings, give information, report to the public and ministers, and make recommendations to the Commonwealth (section 17).

The instrument itself does not create new offences or penalties. Enforcement relies on the Ombudsman Act 1976, particularly section 35A which allows the Ombudsman to refer evidence of an offence to the Australian Federal Police, a State or Territory police force, or a military justice authority for investigation and possible prosecution. The note to subsection 14(1) expressly references this mechanism in the context of abuse complaints. Non‑compliance with a notice to attend and answer questions under section 9(1AA) or (2) of the Act could attract penalties under the Act, but the regulations do not specify those penalties. The Act itself contains provisions for contempt like behaviour or failure to provide information, but the instrument only prescribes witness expenses for those who do attend.

The mandatory disclosure duties on the Defence Abuse Response Taskforce and the Attorney‑General’s Department under section 15 are enforceable through the Act’s general mechanisms, but again the instrument does not stipulate specific sanctions for non‑disclosure. The duty on the Chief of the Defence Force and the Defence Secretary to use their best endeavours to assist the Defence Force Ombudsman (subsection 14(4)) is a positive obligation, but its enforcement would likely occur through political or administrative accountability rather than a direct penalty provision.

The reparation payment recommendations made under sections 14A and 14B are not binding on the Defence Secretary; they are recommendations that may or may not be accepted. The instrument confers no right to enforce a recommendation. If the Defence Secretary fails to act on a recommendation, the complainant’s remedy would lie through the Ombudsman’s own reporting powers under the Act, or through judicial review if the decision not to pay was legally unreasonable.

For the National Preventive Mechanism functions, the Ombudsman’s performance of inspections and coordination is likely governed by the OPCAT framework and domestic administrative law. The prohibition on compelling or directing NPM Network members (subsection 17(4)) is a limitation on the Ombudsman’s power; a breach might be challengeable by a affected NPM body, but the instrument provides no specific penalty for the Ombudsman acting beyond that limitation. In summary, the regulations focus on empowering and directing the Ombudsman rather than imposing punitive sanctions; enforcement occurs through the underlying Act and general law.

The regulations are made under the Ombudsman Act 1976 and must be read together with that Act. Section 3 of the instrument states the authority. Many sections directly reference provisions of the Act: for example, sections 6 and 7 refer to the definition of “prescribed authority” in subsection 3(1) of the Act; section 8 refers to the definition of “principal officer” in subsection 3(1); section 9 refers to subsection 3(5A); section 10 refers to paragraph 3(14)(d); section 11 refers to subsection 3A(3); section 12 refers to subsection 21(2); sections 14 and 14B refer to paragraph 19C(1)(a) of the Act; section 13 refers to subsection 9(1AA) or (2); sections 16 and 17 refer to paragraph 4(2)(a). The instrument therefore operates as a supplement to the Act, specifying matters that the Act leaves to regulation.

Interaction with the Privacy Act 1988 is explicitly addressed. Section 15(6) provides that disclosing information or documents to the Defence Force Ombudsman as described in subsections 15(1), (2) and (4) is taken to be authorised by the instrument for the purposes of the Privacy Act. This deeming provision ensures that such disclosures do not breach privacy principles.

The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) is the foundation for Part 4. The instrument notes that OPCAT is in Australian Treaty Series 2018 No. 5. The Commonwealth’s obligations under OPCAT are distinguished from State and Territory obligations (subsection 16(4)). The regulations give domestic effect to those Commonwealth obligations by conferring functions on the Ombudsman.

The Court Security Act 2013 provides the definitions for “administrative head of a court” and “court”, which are used in section 10. The Defence Act 1903 provides the definition of “Defence Force” via subsection 4(1). The Defence Department is defined by reference to the Minister administering section 1 of the Defence Act 1903. The Remuneration Tribunal Act 1973 is referenced via Determination 2017/06 in section 12, and the term “Departmental Secretary” is defined by that Act. The instrument also cross‑references the “APS employee” concept, presumably as defined in the Public Service Act 1999, though the instrument does not cite that Act.

The Defence Abuse Response Taskforce is not established by this instrument but by executive action; the instrument merely defines it and imposes disclosure duties. The National Preventive Mechanism Network is defined as persons and bodies appointed by the Commonwealth and each State and Territory, indicating a cooperative federalism framework under OPCAT.

The instrument does not directly interact with state legislation on abuse, but the definition of “abuse” and the functions of the Defence Force Ombudsman may overlap with state criminal law or workers’ compensation schemes. The note to section 14(1) points to the possibility of referring evidence for prosecution, which engages criminal laws at Commonwealth, state, or military justice level.

The instrument was originally made as the Ombudsman Regulations 2017. The definition of “amendment day” in section 5 refers to the day on which the Ombudsman Amendment (Functions of the Defence Force Ombudsman) Regulations 2017 commenced. This indicates that the instrument was amended at least once after its initial making. The text provided does not include a table of amendments or a commencement date for the principal regulation, but the inclusion of “amendment day” as a defined term shows that the Defence Force Ombudsman functions in Part 3 were added or altered by that amending regulation. The instrument itself carries a note to subsection 14(1B)(b) regarding the time limit for new complaints (on or before 30 June 2022, with written notice of intention by that date and complaint by 30 June 2023), which suggests a sunset or transitional window. The instrument also references Determination 2017/06 as in force when the instrument commenced, indicating that the terms and conditions for Departmental Secretaries are locked to that determination unless amended.

The text provided does not include any later amendments beyond the Ombudsman Amendment (Functions of the Defence Force Ombudsman) Regulations 2017. The instrument as supplied appears to be the consolidated version containing both the original provisions and the amending provisions. There is no mention of any other amending regulations or Acts in the provided text. The commencement provisions for the original instrument and the amending instrument are not included in the text, but one can infer that the “amendment day” is later than the original commencement. The fact that old complaints are defined as those finally dealt with before the amendment day indicates that the amendment day is a critical demarcation point for the scope of the new functions.

The instrument itself does not reference any litigation. It is a legislative instrument, not a judgment. No cases are named or discussed in the text. The Ombudsman Act 1976 has been the subject of judicial review in various contexts, but those cases would interpret the Act, not these specific regulations, unless the regulations were challenged as ultra vires or procedurally invalid. Without further source material, one cannot identify any specific litigation concerning the Ombudsman Regulations 2017. It is possible that the Defence Force Ombudsman’s decisions on reparation payment recommendations could be subject to judicial review, but the instrument does not provide any record of such challenges. The note referencing section 35A of the Act indicates a pathway for criminal referral, but again no cases are mentioned. Similarly, the National Preventive Mechanism functions under Part 4 may have been implemented without direct litigation. Because the instrument does not provide any case citations or references to legal proceedings, a prudent analysis must conclude that the regulations contain no litigation history on their face. Any discussion of litigation would necessarily derive from external sources not provided in this text.

Practitioners should be alert to several traps. First, the definition of “abuse” in section 5 is inclusive only of sexual abuse, serious physical abuse, and serious bullying or harassment. Other forms of mistreatment, such as minor physical abuse, non‑serious bullying, or purely psychological abuse without serious harassment, may not qualify. Complainants must ensure their allegations fall within these categories. Second, an “excluded complaint” is one previously dealt with by the Defence Abuse Response Taskforce or substantially the same as such a complaint. This effectively bars re‑litigation of claims the Taskforce has already considered, even if the outcome was unsatisfactory. Complainants need to verify whether their matter was previously raised with the Taskforce.

Third, the time limits for new complaints under subsection 14(1B) are critical. A new complaint is covered by the reparation payment provisions only if the abuse allegedly occurred on or before 30 June 2014 and either the complaint is made to the Defence Force Ombudsman on or before 30 June 2022, or a written notice of intention to make the complaint is given on or before 30 June 2022 and the full complaint is made by 30 June 2023. These dates are now likely past, meaning only complaints that met those windows are eligible for payment recommendations. For old complaints (section 14B), the complaint must have been made between 1 December 2016 and the amendment day, and finally dealt with before the amendment day, and concern abuse before 1 July 2014. This temporal gate limits the cohort significantly.

Fourth, the reparation payments are not automatic. The Defence Force Ombudsman must be satisfied that the abuse is reasonably likely to have occurred, and for payments under section 14A, that the abuse involved the most serious forms of abuse or unlawful interference with indecency. Even then, the Ombudsman “may recommend” (discretionary), and the Defence Secretary decides whether to pay. The additional $5,000 for inappropriate response adds another layer of discretion. Complainants should not expect receipt.

Fifth, the instrument deems certain bodies and persons not to be prescribed authorities (sections 6, 7), meaning the Ombudsman cannot investigate them unless otherwise provided. Conversely, the two companies in section 11 are deemed prescribed authorities. Practitioners must check the list carefully when determining jurisdiction.

Sixth, section 9 deems actions of the Australian Government Solicitor not to be actions of the Attorney‑General’s Department, except for disclosable conduct under the Act. This can affect who is the proper respondent in a complaint.

Seventh, in performing the NPM Coordinator function, the Ombudsman cannot compel or direct any member of the NPM Network (subsection 17(4)). This limits the Ombudsman’s authority and means coordination must be consensual.

Eighth, witness expenses under section 13 are payable only when attendance is “in accordance with a notice” under specific subsections of the Act, and the amount is at the Ombudsman’s discretion. There is no set scale.

Ninth, the Chief of the Defence Force and Defence Secretary must “use their best endeavours” to assist the Defence Force Ombudsman. This is a soft obligation, not an absolute duty, and may be difficult to enforce.

Compliance obligations under the regulations fall on different entities. For the Defence Department and the Defence Force, the key requirement is assisting the Defence Force Ombudsman. Subsection 14(4) requires the Chief of the Defence Force and the Defence Secretary to use their best endeavours to assist the Ombudsman in performing functions under subsection 14(1). This means providing information, facilitating access to personnel and records, and supporting restorative engagement conferences and alternative dispute resolution. The Defence Department should have internal procedures to respond promptly to Ombudsman requests and to evaluate recommendations for reparation payments under sections 14A and 14B. Although the Ombudsman only recommends, the Defence Secretary must have a process for considering and deciding whether to make the recommended payment. The Department should also maintain appropriate records to enable the Ombudsman to assess whether abuse is reasonably likely to have occurred and whether the Department responded appropriately.

The Defence Abuse Response Taskforce and the Attorney‑General’s Department have mandatory disclosure obligations under section 15. They must identify and transfer all information and documents obtained or relating to the Taskforce to the Defence Force Ombudsman. This is not discretionary; it is a “must disclose”. Practitioners within those bodies should establish protocols to ensure complete and timely compliance, and to avoid breaching the Privacy Act (the instrument deems disclosure authorised for Privacy Act purposes, but other confidentiality obligations may need to be considered).

Other departments and prescribed authorities have a permissive right to disclose information relating to new or old complaints to the Defence Force Ombudsman. If they wish to do so, they should ensure the disclosure is for the purpose of the Ombudsman performing functions under paragraphs 14(1)(a) or 14B(1)(a). They may also collect and use such information for the same purpose. A best practice is to seek the Ombudsman’s confirmation that the information is needed before disclosing, and to document the authorisation under section 15(6) to satisfy Privacy Act requirements.

For complainants, the main compliance step is to submit a timely complaint. The definition of new complaint in subsection 14(1A) requires the complaint to be about abuse by a member of Defence and not be an excluded complaint. If the abuse occurred on or before 30 June 2014, the complainant must have made the complaint by 30 June 2022, or given written notice of intention by that date and made the full complaint by 30 June 2023. Complainants should retain copies of any notice of intention and the complaint itself. They need not approach the Defence Department first (subsection 14(2)). If the complaint is about abuse after 30 June 2014, the general Ombudsman functions under the Act may still apply, but the reparation payment provisions only cover pre‑July 2014 abuse.

The Commonwealth Ombudsman, in the NPM Body role, must undertake regular inspections of Commonwealth places of detention and give information to the UN Subcommittee. The Ombudsman should develop an inspection schedule and establish reporting lines. In the Coordinator role, the Ombudsman must consult, collect information, propose options, communicate with the UN Subcommittee, convene meetings, give information to various entities, report to the public and ministers, and make recommendations. The Ombudsman must not compel or direct any NPM Network member (subsection 17(4)). Compliance requires the Ombudsman to act cooperatively and not exercise coercive power over state and territory NPM bodies.

Witnesses attending under a notice to answer questions have no compliance duty except to attend if served with a valid notice under the Act. They may claim expenses under section 13, which should be requested from the Ombudsman.

Departmental Secretaries should note that section 12 prescribes terms and conditions from Determination 2017/06 for the purposes of subsection 21(2) of the Act. This likely relates to the Ombudsman’s ability to inquire into the terms and conditions of employment. The specific terms are not restated in the regulations; practitioners must consult the Determination itself.