Ombudsman Regulations 2019

The Regulations are short and focused. The main concepts they create or clarify are:

• Prescribed forms and prescribed statements. The Regulations fix the text and content that must, for certain purposes, accompany or constitute statutory instruments issued under the Act. Form 1 is the witness summons (prescribed for s 18(2)(a) of the Act, reg 5(1)); Form 2 is the "Statement of Rights and Obligations of a Person Attending a Compulsory Appearance" (prescribed for s 18P(2)(c), reg 6); Form 3 is the confidentiality notice prescribed for s 26C(2)(a) (reg 8). The Regulations thereby standardise what information is given to persons compelled to attend and persons subject to confidentiality restrictions. The text of each form is in Schedule 1.

• Compulsory appearance machinery. The Regulations operate within the Act’s framework for witness summonses and compulsory appearances (eg section 18 and Part 18P references in the forms). They prescribe that a witness summons issued under section 18 must include an attached statement (Form 2) (reg 5(2)), and they prescribe the content of that statement (reg 6).

• Procedural safeguards for vulnerable persons and interpreter usage. The Regulations require a presiding officer to administer an oath or affirmation to an interpreter when an interpreter is used and the person appearing takes an oath or affirmation (reg 7(1)(a)). They also require the presiding officer to inform accompanying parents, guardians or independent persons of the rights and obligations in Form 2 where the person appearing is aged 16-18 or has a mental impairment and is accompanied as required (reg 7(1)(b)-(2)). The presiding officer may comply by providing a copy of Form 2 to the parent, guardian or independent person (reg 7(2)).

• Confidentiality notice mechanics. The Regulations prescribe Form 3 for use when issuing a confidentiality notice under section 26C of the Act (reg 8). Form 3 sets out the description of the restricted matter(s), the classes of persons to whom disclosure is permitted and not permitted, the circumstances in which disclosure is always authorised (a detailed statutory list that mirrors and cites provisions in the Act), the offender-facing penalties that apply for unauthorised disclosure, and the expiry conditions for a confidentiality notice (including cancellation by the Ombudsman and extension by the Supreme Court). Form 3 therefore operationalises the Act’s confidentiality regime by giving a template for the content and the warnings that must accompany a notice.

• Interaction with privilege and other statutory obligations. Form 2 reproduces or explains the Act’s limitations on compelling evidence, including that legal professional privilege may apply in some contexts (eg legal professional privilege for public interest complaints at s 19D referenced in Form 2). The forms also explicitly inform witnesses of the Ombudsman’s ability to direct restrictions on legal representation (s 18M) and of the effect of the Act in overriding certain secrecy or confidentiality obligations (s 18K references in Form 2).

• Penalty signalling and administrative references. The forms include explicit references to the relevant offence provisions in the Act (eg non‑compliance with a summons, misleading the Ombudsman, contravening a confidentiality notice) and translate penalty-unit based sanctions into monetary examples using the endnotes’ explanation of penalty unit valuation and calculation. The endnotes also make plain that the Regulations will sunset under the Subordinate Legislation Act 1994 ten years after the making date.

These concepts are implemented by a mixture of mandatory prescription (the forms are prescribed for stated purposes) and mandatory steps (acting before questioning per reg 7). The Regulations do not change the Act’s substantive powers to compel evidence or to issue confidentiality notices; they prescribe how the Ombudsman must exercise certain of those powers administratively (forms, notices, attendant steps).

The Regulations create duties and information flows that primarily affect three groups: the Ombudsman’s office and presiding officers; people served with witness summonses or confidentiality notices (including witnesses, employees, and third parties); and institutions and professionals who interact with the Ombudsman’s processes (legal practitioners, interpreters, parents, guardians, independent persons, Integrity Oversight Victoria, IBAC and Victoria Police in certain circumstances).

• The Ombudsman’s office and presiding officers. The Regulations place affirmative obligations on the Ombudsman and/or the presiding officer to use the prescribed forms (reg 5(1) and reg 8), attach Form 2 to a witness summons (reg 5(2)), administer an oath or affirmation to an interpreter where relevant (reg 7(1)(a)), inform parents/guardians/independent persons of rights and obligations (reg 7(1)(b)) and make audio or video recordings of compulsory appearances (this requirement is not created by the Regulations but is referred to and explained in Form 2 under the Act, s 18Q). Practically the Ombudsman’s office must: prepare and maintain the prescribed forms (including amended versions as per S.R. No. 10/2025), ensure attachments are included in every summons where required, ensure accessible arrangements for interpreters and independent persons, and manage production and disclosure of audiovisual recordings and notice documents.

• Persons served with witness summonses (individuals and corporations). Form 1 (prescribed witness summons) states that by law the recipient must attend unless they have a reasonable excuse, and it summarises examples of reasonable excuses (eg incrimination protection for individuals under s 18B(2), age exemptions s 18B(3)). Form 2 sets out detailed rights and obligations for witnesses: right to legal advice and representation (subject to directions restricting specific lawyers, s 18M), right to request an independent person for support (s 18P(9)), the requirement to take an oath/affirmation and the criminal consequences for refusing, lying, obstructing or failing to comply (references to ss 18(2)(c)(i), 18G, 18H, 22, 30), and the circumstances in which statutory or common law confidentiality or secrecy obligations are overridden by the Act (s 18K). Corporations are affected differently: some privilege protections (eg s 18B(2) incrimination exception) are available only to individuals and not to bodies corporate, a point the forms explicitly state.

• Persons subject to confidentiality notices. Form 3 prescribes the content of a confidentiality notice and sets out the scope of permitted disclosures and the criminal/penalty consequences for unauthorised disclosure (citing s 26F(1)). That notice creates affirmative duties on the recipient: they must not disclose restricted matters beyond the permitted classes and circumstances; if they do disclose under a permitted exception they must, in most cases, provide the recipient with a copy of the confidentiality notice; and they must comply with any subsequent replacement, cancellation or extension (Form 3, “Your obligations if you make a permitted disclosure”; and the expiry/extension provisions listing the Ombudsman’s cancellation powers and Supremes Court extension via ss 26C-26D). The notice therefore binds witnesses, employees, third parties and professionals who receive restricted information.

• Legal practitioners and representatives. The forms highlight that legal representation and advice are permitted rights, but the Ombudsman can direct that a particular practitioner not represent or advise a witness where that lawyer’s involvement might prejudice the investigation (Form 2 referencing ss 18M(3)-(6)). Form 3 lists legal practitioners as a permitted disclosure class (to obtain advice) but also notes the Ombudsman’s power to restrict representation. Legal practitioners also face duties under Form 3 when they are themselves the recipient of restricted matters (in which case section 26F(2)(d) allows certain disclosures where professional obligations require it). The Regulations therefore change the information environment and can materially affect practitioners’ ability to consult on and receive restricted information.

• Oversight and enforcement bodies. Integrity Oversight Victoria is specifically put into the information loop: the Ombudsman must inform Integrity Oversight Victoria of directions not to accept a specified legal practitioner (s 18M(6) referenced in Form 2), and audio/video recordings must be provided to Integrity Oversight Victoria (Form 2 referencing s 18Q(7)). IBAC and Victoria Police are also named in the standardised permitted disclosure lists in Form 3 as entities to which restricted matters can be disclosed in certain circumstances (Form 3 reproduces statutory lists in ss 26F(2A), (2B), (2)(a), (2)(b), (2)(c), (2)(d), (5)).

Geographically and institutionally, the Regulations affect all persons who are the subject of an Ombudsman investigation that requires a compulsory or voluntary appearance or a confidentiality notice in Victoria. The burden for compliance falls on the recipient (risk of criminal penalty for non‑compliance) and on the Ombudsman for procedural correctness (attachment of forms, arranging supports, recording obligations). Finally, the endnotes highlight that penalty amounts are to be calculated by reference to penalty units (Sentencing Act 1991 and Monetary Units Act 2004) so the monetary exposure for transgressions varies with time and requires the Ombudsman and recipients to track the current penalty unit value.

The Regulations operate principally by prescribing documents and procedural steps that encode statutory rights and duties from the Act. The principal duties and rights are:

Duties placed on the Ombudsman and presiding officers

• Use of prescribed forms: The Ombudsman must use Form 1 for witness summonses for the purposes of s 18(2)(a) and must attach the statement set out in Form 2 when issuing a witness summons (reg 5(1)-(2)). The Ombudsman must use Form 3 when issuing a confidentiality notice under s 26C(2)(a) (reg 8).

• Administrative steps before questioning or requiring documents: A presiding officer must, before questioning a person or requiring production of documents at a compulsory or voluntary appearance, administer an oath or affirmation to an interpreter if the person is using one and is taking an oath/affirmation (reg 7(1)(a)); and if the person is between 16 and 18 years old or has a mental impairment and is accompanied by a parent, guardian or independent person, inform that accompanying person of the rights and obligations in Form 2 (reg 7(1)(b)). The presiding officer may discharge the reg 7(1)(b) obligation by providing a copy of Form 2 to the accompanying person (reg 7(2)).

• Records and disclosure obligations under the Act: Form 2 highlights the Ombudsman’s obligation to ensure audio or video recording of compulsory appearances (see s 18Q referenced in the Form), to provide copies to witnesses and to give recordings/transcripts to Integrity Oversight Victoria. These are duties under the Act that the Regulations ensure are brought to the attention of witnesses via the prescribed statement.

Duties placed on persons subject to summonses and confidentiality notices

• Attendance and compliance: Persons served with a witness summons must attend and comply unless they have a reasonable excuse. The Forms provide examples and cite the Act’s provisions for reasonable excuses (eg ss 18B(1), (2), (3), 18E) (Form 1, Form 2).

• Obligations to take an oath/affirmation and to answer: At a compulsory appearance a person may be required to take an oath or make an affirmation; refusal without reasonable excuse to take the oath/affirmation, or refusal/failure to answer questions, are criminalised in the Act and the Forms underscore the associated penalties (Form 2 citing ss 18(2)(c)(i), 18G, 18H).

• Restrictions on disclosure: Persons subject to a confidentiality notice must not disclose restricted matters outside the permitted circumstances and must give copies of the notice to persons to whom they make permitted disclosures (Form 3; see ss 26C, 26F). Failure to comply with a confidentiality notice may attract imprisonment or fines (Form 3 references s 26F(1)).

Rights conferred or clarified

• Right to legal advice and representation: Form 2 reiterates that a witness has the right to seek legal advice and representation in relation to the investigation, the summons, the compulsory appearance and any related proposed report (Form 2 cites s 18M(1)-(2)). The Form also explains that the Ombudsman can direct that a specified lawyer not provide representation where the lawyer’s involvement could prejudice the investigation (Form 2 cites s 18M(3)-(6)), and that in that event the Ombudsman must give the witness at least three days to seek other representation (s 18M(5)) and inform Integrity Oversight Victoria of the direction (s 18M(6)).

• Right to support and accommodations: The Act and Forms provide for an independent person for those with a mental impairment, for accompaniment of persons aged 16-18 by a parent/guardian/independent person, and for interpreters to be arranged where needed (Form 2 references ss 18P(6)-(9)). The presiding officer has a duty to notify accompanying persons of rights and obligations as noted above (reg 7(1)(b)).

• Protection from some secrecy/confidentiality obligations: Form 2 explains that the Act can override many other secrecy obligations and statutory prohibitions on disclosure (s 18K(1)-(4) referenced in Form 2). However, the Form also cautions that the Act does not permit compulsion to give evidence that could not be compelled in court (s 18K(5)) and notes the continued availability of legal professional privilege in respect of public interest complaints (s 19D).

• Access to recordings and transcripts: The Act requires that the record of a compulsory appearance be made and, subject to specified exceptions, that the witness be given a copy of the recording and transcript, or at least be allowed to view or listen to it, and that Integrity Oversight Victoria receive copies (Form 2 referencing s 18Q).

Penalty structure as a form of duty-enforcement

• The Forms reproduce the Act’s penal consequences for non‑compliance with summonses and confidentiality notices. Form 2 warns of fines of up to 240 penalty units or imprisonment up to two years for non-compliance with a witness summons or for refusing or failing to answer questions (citing ss 18(2)(c)(i), 18G, 18H). Form 3 specifies penalties for unauthorised disclosure of restricted matters, including up to 12 months' imprisonment or a fine of up to 120 penalty units or both (citing s 26F(1)). The endnotes explain how penalty units are valued and calculated (Sentencing Act 1991, Monetary Units Act 2004), giving concrete financial stakes.

Who decides

• The Ombudsman is the decision-maker for issuing summonses and confidentiality notices and for directing whether a legal practitioner may represent a witness (s 18M). A presiding officer conducts the compulsory appearance and must take the prescribed preliminary actions (reg 7). The Ombudsman also has discretion to cancel or replace confidentiality notices; the Supreme Court has a statutorily provided power to extend a confidentiality notice (Form 3 citing ss 26C-26D).

Together these duties and rights form an administratively prescriptive regime: the Regulations standardise what must be told to witnesses and recipients of confidentiality notices, and they require specified preliminary steps to be taken by presiding officers, while leaving the substantive investigatory powers and penalty framework to the Act.

The Regulations themselves do not create new substantive offences; instead they prescribe forms that reproduce and make persons aware of offence provisions and penalties that exist in the Act. The enforcement and penalty architecture is therefore embedded in the Act but operationalised by the Forms and referenced provisions in the Regulations. Key enforcement features and penalty magnitudes appearing in the Forms and endnotes are:

Witness summons and compulsory appearance offences

• Non‑compliance with a witness summons, refusal to take an oath or affirmation without reasonable excuse, refusal to answer questions when required, and misleading or obstructing the Ombudsman are criminalised under the Act. Form 2 cites the relevant Act provisions: ss 18(2)(c)(i), 18G and 18H for non‑compliance and refusal; ss 22 and 30 for misleading or obstructing the Ombudsman. The Forms give numerical penalties: for failing to comply with a witness summons or refusing to take an oath/affirmation or to answer questions, possible penalties include a fine up to 240 penalty units or imprisonment for up to two years (Form 2). For misleading or obstructing the Ombudsman, Form 2 cites a potential fine up to $1,000 or a penalty of 12 months’ imprisonment, or both, noting ss 22 and 30.

• The Forms also explain that individuals have a specified limited privilege against self-incrimination under s 18B(2) of the Act, but that this protection is available only to individuals and not to corporations; the Forms therefore signal differing enforcement exposure for individuals and companies.

Confidentiality notice offences

• Form 3 states that unauthorised disclosure of a restricted matter specified in a confidentiality notice can attract penalties including up to 12 months imprisonment or a fine up to 120 penalty units or both, citing s 26F(1) of the Act. The Form lists permitted disclosure classes and circumstances (eg to IBAC, Integrity Oversight Victoria, Victoria Police in specified circumstances; to legal practitioners for legal advice; to interpreters and independent persons where necessary), and it explains the requirement that a person making a permitted disclosure must give the recipient a copy of the confidentiality notice (Form 3). Failure to pass on updated notices or cancellation/extension notices likewise exposes a disclosing person to penalties where they lack a reasonable excuse.

Penalty unit mechanics and monetary conversion

• The Regulations’ Endnotes explain that the Act’s penalty references are expressed in penalty units (Sentencing Act 1991) and that the Monetary Units Act 2004 fixes the monetary value of a penalty unit for each financial year. For the financial year commencing 1 July 2024 the value is $197.59. The endnotes therefore provide the concrete conversion that applies for calculating monetary penalties in examples. The Regulations also explain that the value of penalty units is to be published annually and that calculated penalties may be rounded to the nearest dollar.

Enforcement actors and reporting

• The Forms and Regulations entrench a role for external oversight bodies in enforcement and oversight: audio/video recordings of compulsory appearances must be provided to Integrity Oversight Victoria (Form 2 referencing s 18Q(7)). The Ombudsman is required to inform Integrity Oversight Victoria in circumstances where the Ombudsman directs that a witness not be represented by or take advice from a specified legal practitioner (Form 2 referencing s 18M(6)). IBAC and Victoria Police are named as entities to which disclosures can be made under certain circumstances (Form 3 referencing ss 26F(2A) and 26F(2B)).

Judicial involvement

• The Form 3 text reproduces the Act’s scheme for the expiration, cancellation and extension of confidentiality notices: the Ombudsman may cancel or replace a notice (ss 26C(3)-(5)) and the Supreme Court may order an extension of a confidentiality notice (Form 3 references ss 26C(7) and 26D(2)). Thus courts can be involved if an extension beyond the Ombudsman’s cancellation point is sought, creating a potential route for judicial review or intervention where extended confidentiality is contested.

Scope and limits on enforcement

• The Regulations do not purport to alter the Act’s substantive limits on compulsion: Form 2 emphasises s 18K(5) (evidence that could not be compelled in court cannot be compelled by the Ombudsman) and s 19D (legal professional privilege in respect of public interest complaints), so enforcement cannot extend beyond those statutory protections.

In summary, penalties and enforcement operate through the Act’s criminal and administrative provisions. The Regulations primarily ensure that persons subject to the Ombudsman’s processes are formally informed of those penalties and the channels of permitted disclosure, and they standardise the notice mechanics that determine when and how enforcement risk attaches.

The Regulations are expressly designed to work with, and to summarise rights and duties under, multiple other statutes. The instrument repeatedly reproduces and cross-references provisions of the Ombudsman Act 1973 and explicitly references a number of other statutes whose content or procedural requirements intersect with Ombudsman powers. The principal interactions are:

Direct interaction with the Ombudsman Act 1973

• Authorising power and operational dependency. The Regulations are made under s 31 of the Ombudsman Act 1973 (reg 2). Much of the forms’ content reproduces and explains the Act’s provisions on summonses, compulsory appearances, confidentiality notices, non‑compliance offences and the Ombudsman’s powers to restrict representation or to cancel confidentiality notices. Thus the Regulations do not displace the Act; they operationalise several procedural requirements and standardise communications that the Act contemplates (see regs 5-8 and Sch. 1).

Oaths and Affirmations Act 2018

• Interpreter oath/affirmation. The Regulations require that where a person appearing is to take an oath or affirmation and is using an interpreter, the presiding officer must administer an oath or affirmation to the interpreter in accordance with the Oaths and Affirmations Act 2018 (reg 7(1)(a)). Form 2 also references the Oaths and Affirmations Act (s 50) when explaining the effect of oath or affirmation, so the Regulations rely on that Act for the legal form and effect of swearing procedures.

Public Interest Disclosures Act 2012 (PID Act)

• Confidentiality cross‑reference. Form 3 (confidentiality notice) draws attention to sections 52 and 53 of the PID Act concerning confidentiality of assessable disclosures and people who make assessable disclosures. Form 2 likewise warns that in investigations relating to public interest complaints, other offence provisions under the PID Act may apply to disclosure. Thus the confidentiality regime created under the Ombudsman Act interlocks with the PID Act where the matter under investigation is a public interest disclosure.

Integrity Oversight Victoria Act 2011 and IBAC Act 2011

• Information-sharing and oversight. The forms and regs reference Integrity Oversight Victoria and IBAC as recipients or co-actors in the investigatory and oversight architecture. Form 3 lists IBAC as an entity to which restricted matters may be disclosed in certain circumstances (eg where IBAC referred a complaint to the Ombudsman and has withdrawn it, s 26F(2A)). Form 2 requires the Ombudsman to inform Integrity Oversight Victoria when the Ombudsman directs a witness not to be represented by a particular legal practitioner (s 18M(6)). The Regulations therefore embed inter-agency information flows and oversight obligations.

Other Acts specified as relevant for legal advice and permitted disclosure

• The list in Form 3 of laws in respect of which a legal practitioner may be consulted or to which disclosures may relate includes a number of statutes beyond the Ombudsman Act: the Public Interest Disclosures Act 2012; the Independent Broad‑based Anti‑corruption Commission Act 2011; the Integrity Oversight Victoria Act 2011; the Fair Work Act 2009 (Cth); the Local Government Act 1989; the Racing Act 1958; and the Freedom of Information Act 1982 (Form 3, permitted disclosures). This means that the forms expressly permit disclosure to lawyers for the purposes of advising on entitlements or obligations under those statutes, subject to any Ombudsman restriction under s 18M.

Supreme Court and judicial interplay

• Extension of confidentiality notices. Form 3 reproduces the Act’s mechanism for the Supreme Court to order an extension of a confidentiality notice (ss 26C(7), 26D(2)). The effect is that judicial processes can be invoked to extend confidentiality beyond what the Ombudsman can unilaterally order, allowing court‑level scrutiny and potential legal argument about the proper scope and duration of confidentiality restrictions.

Sentencing Act 1991 and Monetary Units Act 2004

• Penalty unit valuation and calculation. The endnotes explain that penalties expressed in the Act are in penalty units (Sentencing Act 1991) and that the monetary value of penalty units is fixed annually under the Monetary Units Act 2004. The Regulations therefore interact with the sentencing and monetary units framework to give their penalty references concrete dollar amounts.

Subordinate Legislation Act 1994

• Sunset requirements. The endnotes state that the Regulations will sunset ten years after making (17 December 2029) under the Subordinate Legislation Act 1994 s 5. That imposes a time limit on their operation unless remade or saved by further legislative action.

Freedom of Information and other confidentiality regimes

• Limitations and overrides. Form 2 explains that while the Act overrides many other secrecy provisions (s 18K(1)-(4)), it does not permit compelling evidence that could not be compelled in court (s 18K(5)). The forms therefore mark the boundary between investigative compulsion and other legal protections such as legal professional privilege (s 19D) and statutory secrecy elsewhere.

In short, the Regulations sit within a network of statutory instruments. They do not alter substantive law but standardise procedural interaction points with other Acts. Practitioners and compliance officers need to treat the Regulations as creating mandatory templates and steps that translate the provisions of multiple statutes into the actual conduct of Ombudsman investigations, and they must track related statutes (for example, to know when privilege or other statutory confidentiality regimes still apply).

The Regulations were made on 17 December 2019 and commenced on 1 January 2020 (reg 3 and Endnotes). The publication incorporates amendments made up to 25 March 2025. The endnotes include a Table of Amendments with the following recorded change:

• Ombudsman Amendment Regulations 2025, S.R. No. 10/2025, made and commenced 25 March 2025. The Schedule 1 notes indicate that Form 2 and Form 3 were amended by that statutory rule (Sch. 1 Form 2 amended by S.R. No. 10/2025 reg. 4; Sch. 1 Form 3 amended by S.R. No. 10/2025 reg. 5).

Statutory mechanics and lifecycle

• Authorising provision. The Regulations are made under s 31 of the Ombudsman Act 1973 (reg 2), which prescribes the Governor in Council’s power to make regulations. As subordinate legislation they have the lifecycle characteristics associated with statutory rules, including the requirement to be published and the potential for repeal or further amendment by later statutory rules. The endnotes also note interpretation and style rules drawn from the Interpretation of Legislation Act 1984 (ILA), including that headings, examples, and punctuation form part of a Statutory Rule made after 1 January 2001, and other ILA interpretative consequences.

• Sunset provision. Under the Subordinate Legislation Act 1994 the Regulations will sunset ten years after the making date (17 December 2029), unless replaced or otherwise preserved by subsequent action (Endnotes, General Information). Any further amendments or remaking would need to follow the statutory rule process and could alter the prescribed forms or actions.

What the 2025 amendment did (as recorded)

• The 2025 statutory rule is recorded to have amended Forms 2 and 3. The Sch. 1 text of the Regulations indicates amendment notes adjacent to Forms 2 and 3. The public register entry (Table of Amendments) gives the date of making and commencement as 25 March 2025 for S.R. No. 10/2025. The Regulations as reproduced incorporate those amendments, meaning that the current version (as at 25 March 2025) must be used when issuing summonses and confidentiality notices.

Operational implication of amendment history

• Office processes must incorporate version control: because the Regulations are form‑based and because Forms 2 and 3 were amended in 2025, the Ombudsman’s office must ensure it is using the current prescribed forms when issuing summonses and confidentiality notices. The Regulation’s Endnotes and Table of Amendments are the authoritative record for amendments and dates; practitioners should consult the consolidated version that incorporates S.R. No. 10/2025.

No other amendments are recorded in the Table of Amendments section within the provided text. Any future amendments before sunsetting require an additional statutory rule and will be subject to the usual subordinate legislation procedures.

The Regulations as provided do not record any litigation or case law interpreting them. The text of the Regulations, Schedule 1 Forms and Endnotes include no references to judicial decisions or reported cases. Consequently, there is no litigation history contained in the instrument itself to cite.

Practical points about potential litigation or judicial involvement (statutory contours)

• Supreme Court role on confidentiality notices. The Regulations reproduce the Act’s mechanism by which the Supreme Court may order an extension of a confidentiality notice (Form 3 referencing ss 26C(7) and 26D(2)). That statutory pathway creates a predictable route for judicial involvement where an extension is sought; while no cases are cited by the instrument, the statutory framework permits parties to seek judicial orders or review on questions of necessity, duration and scope of confidentiality.

• Potential for judicial review of administrative acts. Because the Regulations impose procedural duties on the Ombudsman and presiding officers (for example, to attach Form 2 to summonses and to take prescribed actions before questioning under reg 7), a person served with a summons who alleges procedural non‑compliance (for example, not being given the prescribed statement or not having an interpreter properly sworn) could seek judicial review or relief on administrative law grounds in appropriate circumstances. The instrument itself makes no mention of such litigation, but the existence of express mandatory steps increases the salience of procedural compliance for both the Ombudsman and regulated persons.

• Enforcement prosecutions rest on the Act, not these Regulations. Criminal prosecutions (for non‑compliance with summonses or breaches of confidentiality notices) would be brought under the Act’s offence provisions. The Regulations are relevant because they prescribe the forms that give notice to persons of the statutory offences and procedural protections. The presence of prescribed forms can be probative in litigation about whether appropriate notice or information was given, but there are no reported cases included in the instrument.

• Areas likely to generate dispute. The most likely areas for challenge or litigation, given the statutory framework reproduced in the Forms, are disputes over (a) the scope or duration of confidentiality notices and whether an extension is justified; (b) asserted restrictions on legal representation that the Ombudsman imposes under s 18M (Form 2 requires informing Integrity Oversight Victoria when a direction is made); and (c) whether a witness was properly informed of rights, protections and avenues for objection before questioning, as reg 7 prescribes certain steps that must be taken in advance. Each of these areas may give rise to judicial review or contested applications to the Supreme Court, but the Regulations do not record any reported decisions.

In short, there is no litigation history recorded in this instrument. The Regulations do, however, structure the procedural touchpoints and judicial avenues that would frame any litigation arising from disputes about confidentiality notice extensions, restrictions on legal representation, or procedural non‑compliance at compulsory appearances.

The Regulations and their prescribed Forms contain numerous detail points that can cause compliance failure or unexpected liability if missed. The following are concrete "gotchas" grounded in the instrument text and the Act provisions reproduced in the Forms:

• Attachment requirement for summonses. A witness summons issued by the Ombudsman must include, as an attachment, a copy of Form 2 (reg 5(2)). Failure to attach the prescribed statement may be a procedural defect: the forms are prescribed for s 18(2)(c)(iv) and s 18P(2)(c) purposes. Practically, Ombudsman staff must ensure Form 2 is attached to summonses. A served witness who did not receive the prescribed statement might be able to argue procedural non‑compliance in subsequent proceedings or complaints.

• Interpreter oath formalities. Where a person is to take an oath or affirmation and uses an interpreter, the presiding officer must administer an oath or affirmation to the interpreter in accordance with the Oaths and Affirmations Act 2018 (reg 7(1)(a)). Failure to do so may affect the admissibility or validity of evidence or provide grounds for challenge. The duty applies specifically when the person appearing is to take an oath/affirmation and is using an interpreter.

• Limited availability of self‑incrimination protection. The reasonable-excuse protection from incrimination under s 18B(2) is available only to individuals. Form 2 emphasises that companies or other bodies corporate cannot claim that particular excuse. Organisations that assume corporate protection may be surprised to find that exposure differs between natural persons and legal entities.

• Ombudsman direction restricting legal representation. The Ombudsman may direct in writing that a witness must not obtain advice or representation from a specified legal practitioner where the practitioner’s involvement could prejudice the investigation (Form 2 referencing s 18M(3)-(4)). When the Ombudsman exercises this power, the witness has only three days to obtain new representation (s 18M(5)). The Ombudsman must inform Integrity Oversight Victoria of the direction and reasons (s 18M(6)). Practitioners who expect unfettered access to represent a client at an appearance may be surprised by a direction, so they should check for any such written direction early.

• Confidentiality notice non‑disclosure traps. Form 3 spells out authorised classes for disclosure and emphasises that exceptions are narrow unless expressly listed. The notice can list specific authorisations and specific prohibitions (the Form contains checkboxes and a sample table format). A party who mistakenly discloses to a person not listed as authorised (for example, to a spouse whose name is not included if the notice denies that class) risks criminal sanction up to 12 months imprisonment and/or a fine up to 120 penalty units (Form 3 citing s 26F(1)). The Form also requires a person making a permitted disclosure to give the recipient a copy of the confidentiality notice; failing to do so without a reasonable excuse also risks penalty.

• Audio/video copy exceptions. The Act requires audio/video recording of a compulsory appearance (Form 2 cites s 18Q), and usually requires that witnesses be given a copy of the recording and transcript. However, the Ombudsman may withhold a copy if it reasonably may prejudice an investigation. The Form flags this but also says the witness will at least be allowed to listen or view the recording. Witnesses and their counsel need to understand these exceptions and how and when copies may be withheld.

• Expiry, cancellation and extension conditions for confidentiality notices. Form 3 lists several ways a confidentiality notice expires or may be amended (cancellation by the Ombudsman; replacement; expiry at the conclusion of the investigation unless the Supreme Court extends it; and extension by court order). Parties assuming indefinite confidentiality risk are mistaken; conversely, parties assuming immediate cancellation without formal steps may be exposed if the Ombudsman has not cancelled or a court has extended the notice.

• Penalty unit dollar value changes. The monetary cost of penalties depends on the annual penalty unit value fixed under the Monetary Units Act 2004. The endnotes specify the value for the 2024-25 year ($197.59). Practitioners relying on an out-of-date figure or failing to check the current penalty unit value will miscalculate financial exposure.

• Standardised language may remove nuance. Because the Regulations prescribe forms, some nuance or case-specific phrasing that might otherwise be negotiated can be lost. For example, Form 1 requires the summons to state the nature of the matters about which the witness is to be questioned, except to the extent the Ombudsman considers disclosure would prejudice the investigation or be contrary to public interest (Form 1 citing s 18(2)(b)). That exception can lead to narrowly phrased summonses; affected persons should look carefully at what the summons discloses and consider written objections if necessary.

• Multiple overlapping disclosure regimes. The Forms signpost multiple statutes (PID Act, FOI Act, Fair Work Act, etc.) as potentially relevant to permitted disclosures. Parties making disclosures across these regimes must be careful: an authorised disclosure under the Ombudsman Act may still trigger obligations or consequences under another statute (Form 3 cross-references sections of other Acts). Lawyers should check both the Ombudsman Act’s list of permitted disclosures and any other statutory duties that apply.

• Corporate vs individual differences not always salient on face of forms. The forms are given to both individuals and corporate representatives; but several rights or excuses differ between natural persons and corporate entities (eg s 18B self‑incrimination protection). Organisations must therefore parse the forms carefully and not assume identical treatment.

These "gotchas" arise from the interaction of the prescribed forms, the Act’s substantive provisions, and the other referenced statutes. The practical consequence is that both the Ombudsman’s office and recipients must maintain checklists and version control for the prescribed forms and must monitor the statutory architecture that shapes permitted disclosures, representation rights and penalty exposure.

Below is a practical compliance checklist and process guidance, organised by actor, derived from the Regulations (regs 5-8) and the prescribed Forms in Schedule 1. It is procedural and source‑grounded; specific legal advice should be sought where rights are contested.

For the Ombudsman’s office and presiding officers

• Use the correct version of prescribed forms. Ensure the office holds the consolidated version of the Regulations incorporating S.R. No. 10/2025 (amending Forms 2 and 3) and any later amendments. Use Form 1 for witness summonses as prescribed by reg 5(1), attach Form 2 whenever a summons is issued (reg 5(2)), and use Form 3 where issuing confidentiality notices (reg 8).

• Attachment and distribution process. Implement a document control process that attaches Form 2 as an appendix to every witness summons issued by the Ombudsman, per reg 5(2). When issuing a confidentiality notice, populate Form 3’s tables carefully to specify the restricted matters and the classes of authorised and unauthorised disclosures.

• Presiding officer obligations checklist before questioning. Before asking questions or requiring production, presiding officers must:

  • Check whether the person will take an oath or affirmation and is using an interpreter; if so, administer an oath or affirmation to the interpreter in accordance with the Oaths and Affirmations Act 2018 (reg 7(1)(a)).
  • If the person is aged 16-18 or has a mental impairment and is accompanied by a parent, guardian or independent person, inform that accompanying person of the rights and obligations set out in Form 2 (reg 7(1)(b)). Compliance may be by providing a copy of Form 2 (reg 7(2)).
  • Ensure that the compulsory appearance will be conducted by two authorised Ombudsman officers and that audio/video recording arrangements are in place (Form 2 references s 18Q).

• Interpretation and support arrangements. Put operational procedures in place to:

  • Book and verify professional interpreters and swear/affirm them as required.
  • Arrange independent persons for those with mental impairment and provide advice about medical evidence requirements.
  • Inform and allow for support persons and legal representatives while noting the Ombudsman’s power to restrict representation in specified circumstances (Form 2 referencing s 18M).

• Recording and distribution of audiovisual evidence. Make and retain audio/video recordings of compulsory appearances and provide copies/transcripts to witnesses except where the Ombudsman reasonably considers disclosure may prejudice the investigation (Form 2 referencing s 18Q). Always prepare to provide copies to Integrity Oversight Victoria (s 18Q(7)).

• Confidentiality notice practice. When issuing a confidentiality notice:

  • Specify the restricted matters clearly in Form 3 and populate the authorised/disallowed disclosure lists intentionally.
  • Advise recipients of the criminal penalties and the obligation to provide copies of the notice to persons to whom they make permitted disclosures.
  • Track expiry: cancel, replace or seek Supreme Court extension in accordance with ss 26C-26D reproduced in Form 3.

• Recordkeeping and notification. Where the Ombudsman directs that a specified legal practitioner must not represent a witness (s 18M), provide written notice and give the witness three days to obtain alternative representation; record the direction and inform Integrity Oversight Victoria (s 18M(5)-(6)).

• Version control and staff training. Because the prescriptive documents can be amended by statutory rule, maintain version control and train all presiding officers and administrative staff in the updated regulatory and form requirements.

For persons served with a witness summons (individuals and corporate officers)

• Read Form 1 and Form 2 carefully. They set out legal obligations, reasonable excuses, avenues for objection (in writing before the attendance date), and examples of materials required. The forms cite the Act’s relevant sections (eg ss 18B, 18E, 18G).

• Check for procedural compliance by the Ombudsman. Confirm that the summons includes the prescribed statement (Form 2 attached, reg 5(2)). If the statement was not provided, consider seeking legal advice on whether that constitutes a procedural irregularity meriting objection.

• Consider and document reasonable excuses early. If you believe you have a reasonable excuse (self‑incrimination for individuals, irrelevance, age under 16 with proof), prepare a written objection and deliver it before the date specified on the summons as advised in Form 1 and Form 2.

• Legal advice and representation. You have a right to legal advice and representation (Form 2, s 18M(1)-(2)), but be alert to the possibility the Ombudsman may restrict a specified practitioner if involvement would prejudice the investigation (s 18M(3)-(6)). If you are served with such a direction, exercise the three‑day window to obtain other representation.

• Support persons and special needs. If you need an interpreter, an independent person, or if you are aged 16-18 or have a mental impairment, notify the Ombudsman ahead of the attendance so arrangements can be made (Form 2, ss 18P(6)-(9)).

• Record handling. Expect audio/video recording; know your right to a copy or to view/listen to the recording unless the Ombudsman reasonably considers disclosure would prejudice the investigation (Form 2, s 18Q). If a copy is withheld, request the opportunity to review the recording during a controlled session.

• Confidentiality notices. If you receive a confidentiality notice, read Form 3 carefully to identify what matters are restricted and which persons or classes you may disclose to. If you make a permitted disclosure you must provide a copy of the notice to the recipient unless you have a reasonable excuse (Form 3). If unsure, seek legal advice promptly.

For legal practitioners

• Verify whether representation is permitted. Before attending a compulsory appearance with a client, check whether the Ombudsman has issued a direction prohibiting a particular legal practitioner from representing the client (Form 2 referencing s 18M). If a direction exists, advise the client and assist them in obtaining alternative counsel within the three‑day window required by s 18M(5).

• Confidentiality and professional obligations. If you receive restricted matters in the course of advising a client, observe Form 3’s instruction on permitted disclosure to legal practitioners and the related obligations. If you are themselves the recipient, note that some professional obligations may entitle you to receive information (Form 3 referencing s 26F(2)(d)).

For organisations and HR/compliance

• Prepare internal protocols for receiving and handling witness summonses and confidentiality notices. Ensure employees know not to disclose restricted matters except as permitted, and that any permitted disclosure requires the recipient to be provided with a copy of the confidentiality notice.

• Train managers on the difference between permitted vs disallowed disclosures (Form 3 provides a table structure to specify which classes are authorised or explicitly disallowed).

• Workers’ compensation and external proceedings. Form 3 expressly lists permissible disclosures to the Victorian WorkCover Authority and for Fair Work Commission applications in specified circumstances. Ensure internal claims officers know when disclosures are permitted and must be accompanied by the confidentiality notice.

Operational compliance checklist

• Maintain up-to-date versions of Forms 1-3 and document a revision history.
• Implement a pre-attendance checklist for presiding officers (interpreter oath, parent/guardian/independent person notification, audiovisual recording capacity).
• Adopt a standardised process for issuing confidentiality notices that records the restricted matters, the permitted recipients, and all subsequent copies and replacements/cancellations.
• Keep audit logs of all notices, summonses, recordings, and legal representation directions and ensure copies are provided to Integrity Oversight Victoria where required.
• Review and reconcile penalty exposures annually against the current penalty unit value published under the Monetary Units Act 2004.

Following these steps will align operational practice with the Regulations’ prescription of forms and preliminary actions (regs 5-8 and Schedule 1), clarify rights and obligations for witnesses and recipients, and reduce exposure to procedural non‑compliance claims and penalties.