Ombudsman Act 1976

A Commonwealth‑controlled company is a prescribed authority unless:

it is excluded by subsection (2); or

under the regulations it is to be taken not to be a prescribed authority.

Subject to subsection (3), a Commonwealth‑controlled company is excluded for the purposes of paragraph (1)(a) if:

the company was a Commonwealth‑controlled company immediately before the commencement of Part 6 of the Prime Minister and Cabinet (Miscellaneous Provisions) Act 1994; and

immediately before that commencement the company was not a prescribed authority for the purposes of this Act as then in force.

A Commonwealth‑controlled company that, but for this subsection, would be excluded by subsection (2) is not so excluded if the regulations declare that the company is to be taken to be a prescribed authority.

ACT enactments are not enactments.

The Australian Capital Territory (Self‑Government) Act 1988 and the Canberra Water Supply (Googong Dam) Act 1974 are not enactments.

Part IV, sections 29 and 30, subsection 63(2), section 66 and Division 5 of Part X of the Australian Capital Territory Planning and Land Management Act 1988 are not enactments.

Where the whole of an Act or Ordinance is not an enactment, an instrument made under it is not an enactment.

Where part of an Act or Ordinance is not an enactment, an instrument made under the Act or Ordinance, as the case may be, is not an enactment unless made for the purposes of the other part of the Act or Ordinance, as the case may be.

both of the following apply:

the person, and the Department or prescribed authority or the Commonwealth, are parties to the Commonwealth contract;

for the purposes of the Commonwealth contract, the person is responsible for providing goods or services, for or on behalf of the Department or prescribed authority, to another person who is not a Department or prescribed authority or the Commonwealth; or

both of the following apply:

the person, and a person who is (under a previous application of this section) a Commonwealth service provider of the Department or prescribed authority under the Commonwealth contract, are parties to another contract (the subcontract);

under the subcontract and for the purposes of the Commonwealth contract, the person is responsible for providing goods or services, for or on behalf of the Department or prescribed authority, to another person who is not a Department or prescribed authority or the Commonwealth.

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

For the purposes of this Act, there shall be:

a Commonwealth Ombudsman; and

at least one, and not more than 3, Deputy Commonwealth Ombudsmen.

The functions of the Commonwealth Ombudsman are to investigate complaints made to him or her under this Act and to perform such other functions as are conferred on him or her by:

this Act or the regulations; or

another Act or regulations made under another Act; or

an ACT enactment or regulations made under an ACT enactment.

The Commonwealth Ombudsman, in performing his or her functions in relation to immigration (including immigration detention), may, if he or she so chooses, be called the Immigration Ombudsman.

The Commonwealth Ombudsman, in performing his or her functions in relation to the Australian Federal Police, may, if he or she so chooses, be called the Law Enforcement Ombudsman.

the following group of persons is a listed entity:

the Commonwealth Ombudsman;

the Deputy Commonwealth Ombudsmen;

the staff referred to in subsection 31(1); and

the listed entity is to be known as the Office of the Commonwealth Ombudsman; and

the Commonwealth Ombudsman is the accountable authority of the Office of the Commonwealth Ombudsman; and

the persons referred to in paragraph (a) are officials of the Office of the Commonwealth Ombudsman; and

the purposes of the Office of the Commonwealth Ombudsman include:

the functions of the Commonwealth Ombudsman referred to in subsection 4(2) and section 5; and

the functions of the Defence Force Ombudsman referred to in section 19C; and

the functions of the Postal Industry Ombudsman referred to in section 19M; and

the functions of the Overseas Students Ombudsman referred to in section 19ZJ; and

the functions of the Private Health Insurance Ombudsman referred to in section 20D; and

the functions of the VET Student Loans Ombudsman referred to in section 20ZM; and

the functions of the National Student Ombudsman referred to in section 21AC.

Subject to this Act, the Ombudsman:

shall investigate action, being action that relates to a matter of administration, taken either before or after the commencement of this Act by a Department, or by a prescribed authority, and in respect of which a complaint has been made to the Ombudsman; and

may, of his or her own motion, investigate any action, being action that relates to a matter of administration, taken either before or after the commencement of this Act by a Department or by a prescribed authority; and

with the consent of the Minister, may enter into an arrangement under which the Ombudsman will perform functions of an ombudsman under an ombudsman scheme established in accordance with the conditions of licences or authorities granted under an enactment.

The Ombudsman is not authorized to investigate:

action taken by a Minister; or

action that constitutes proceedings in Parliament for the purposes of section 16 of the Parliamentary Privileges Act 1987; or

action taken by a Justice or Judge of a court created by the Parliament; or

action by the chief executive officer, in relation to a court, or by a person who, for the purposes of this Act, is to be taken to be a member of the staff of a court:

when exercising a power of the court; or

when performing a function, or exercising a power, of a judicial nature; or

action taken by:

a magistrate or coroner for the Australian Capital Territory, Norfolk Island, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; or

a person who holds office as a magistrate in a State or the Northern Territory in the performance of the functions of a magistrate conferred on him or her by or under an Act; or

action taken by any body or person with respect to persons employed in the Australian Public Service or the service of a prescribed authority, being action taken in relation to that employment, including action taken with respect to the promotion, termination of appointment or discipline of a person so employed or the payment of remuneration to such a person; or

action taken by any of the following:

the ACIC;

the Australian Security Intelligence Organisation;

the Australian Secret Intelligence Service;

the part of the Department of Defence known as the Australian Geospatial‑Intelligence Organisation;

the Australian Signals Directorate;

the part of the Department of Defence known as the Defence Intelligence Organisation;

the Office of National Intelligence; or

action taken by a Department or by a prescribed authority with respect to the appointment of a person to an office or position established by or under an enactment, not being an office or position in the Australian Public Service or an office in the service of a prescribed authority.

The reference in paragraph (2)(a) to action taken by a Minister does not include a reference to action taken by a delegate of a Minister, and, for the purposes of this subsection, action shall be deemed to have been taken by such a delegate notwithstanding that the action is taken in pursuance of a power that is deemed by a provision of an enactment, when exercised by the delegate, to have been exercised by the Minister.

For the purposes of the application of this Act to or in relation to the Ombudsman, action taken by a Department or by a prescribed authority shall not be regarded as having been taken by a Minister by reason only that the action was taken by the Department or authority in relation to action that has been, is proposed to be, or may be, taken by a Minister personally.

Paragraph (2)(d) does not prevent the Ombudsman from investigating action taken by an AFP appointee, or by any other person, with respect to information that:

is given to the AFP appointee; and

raises an AFP conduct issue or AFP practices issue; and

relates to action taken by another AFP appointee.

The Ombudsman is not authorised to investigate action taken under:

a law of Western Australia in its application in the Territory of Christmas Island by virtue of the Christmas Island Act 1958; or

a law of Western Australia in its application in the Territory of Cocos (Keeling) Islands by virtue of the Cocos (Keeling) Islands Act 1955;

The reference in subsection (5) to a person employed by Western Australia includes a reference to:

a person occupying, or acting in, an office or position under a law of Western Australia; and

a person employed by a body established by or under a law of Western Australia.

The Ombudsman is not authorised to investigate action taken under a law of New South Wales, in its application in Norfolk Island by virtue of the Norfolk Island Act 1979, by a person employed by New South Wales.

The reference in subsection (6A) to a person employed by New South Wales includes a reference to:

a person occupying, or acting in, an office or position under a law of New South Wales; and

a person employed by a body established by or under a law of New South Wales.

An arrangement referred to in paragraph (1)(c) may include provision for payment by the other party to the arrangement for the performance of functions by the Ombudsman in accordance with the arrangement.

If:

a disclosure of information has been, or is required to be, allocated under section 43 of the Public Interest Disclosure Act 2013; and

some or all of the disclosable conduct with which the information is concerned relates (within the meaning of that Act) to an agency (within the meaning of that Act); and

the agency is neither an intelligence agency (within the meaning of that Act) nor the Inspector‑General of Intelligence and Security;

For the purposes of the application of this Act to the action:

the agency is taken to be a prescribed authority; and

the action is to be treated as if it were action taken by the prescribed authority; and

a public official who belongs (within the meaning of the Public Interest Disclosure Act 2013) to the agency is taken to be an officer of the prescribed authority; and

the person who disclosed the information is taken, if the disclosure is allocated to the Ombudsman, to have made a complaint to the Ombudsman in respect of the action.

It is immaterial whether the disclosable conduct occurred before or after the commencement of this section.

AUSTRAC; or

the Australian Federal Police; or

the Department of Home Affairs;

A complaint or part of a complaint can also be transferred from the Ombudsman to the Inspector‑General of Intelligence and Security under section 6F of this Act.