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4 Ombudsman Act 1976

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The Ombudsman Act 1976 came into operation on 1 July 1977 and provided for the appointment of the Commonwealth Ombudsman. The Ombudsman's function is to investigate complaints about administrative actions of Commonwealth Government officials or a Commonwealth agency. The principal concern is with the manner, or the procedures by which, officials have gone about the matter that is the subject of complaint.

A complaint to the Ombudsman may be directed at a case of delay; or of failure to take sufficient account of certain arguments put by the complainant; or of disregard of a person's privacy as officials make inquiries or go about their duties. The most appropriate general description is that his work is directed at the correction of cases of "maladministration" - a term which has been described as including bias, neglect, delay, inattention, incompetence, ineptitude, perversity and arbitrariness.

The Ombudsman is not specifically concerned with the merits of what has been decided, (ie. where a different decision might have been made on the facts of a case), but with the question of whether the decision or action or procedure under review involves what has been called "maladministration". Where there is no element of "maladministration" present in the decision or action, there is no direct concern with the merits of that decision or action. His powers do not reach matters of policy or commercial judgement.

The Ombudsman Act 1976 is complementary to the Administrative Appeals Tribunal Act 1975, but it is important that the two not be confused. (See Administrative Appeals Tribunal Act 1975 - Chapter 8)

The Ombudsman's role is advisory and covers the general area of "maladministration" by officials as described above, whereas the AAT is a decision-making body in respect of appeals against decisions of Ministers and officials in specified cases provided for by legislation - the AAT is generally concerned with the merits of such decisions.

An overlap in the jurisdiction of the AAT and the Ombudsman is avoided because the Ombudsman Act 1976 provides that the Ombudsman is not to investigate a matter where a right of appeal has been exercised or is available, unless the Ombudsman considers there are special reasons why he should investigate the matter notwithstanding the right of appeal. One factor the Ombudsman will take into account when determining if such "special reasons" exist is the cost to the applicant of instituting court proceedings.

The authority of the Ombudsman to review administrative actions extends beyond decisions made in the exercise of statutory powers. The action complained of may be the end result of a series of decisions, or of a sequence of actions, no one of which may be identifiable with the action complained of, or appropriate for review by a body such as the AAT.

Moreover, many Acts about which complaints are made to an Ombudsman are simply part of the day to day administration of departments, performed by officials in the ordinary course of their duties. As well, the remedy sought may not be the simple reversal of a decision - but a change in procedures, or an apology or the payment of compensation.

Although Government agencies are not legally bound to comply with the recommendations of the Ombudsman, it is only in rare circumstances that an agency will refuse to comply. If agencies habitually ignored the Ombudsman's recommendations (one of the main purposes of creating an Ombudsman is to provide an expeditious and inexpensive means for a person to remedy his grievance), the Ombudsman's service would be rendered worthless. If an agency takes inadequate or inappropriate action concerning the Ombudsman's recommendations, under section 16 of the Ombudsman Act 1976, the Ombudsman may inform the Prime Minister of the defect in administration in question and may also report to the Parliament.