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This Act may be cited as the Ombudsman Act 1973.
This Act shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.
S. 1(3) repealed by No. 15/1989 s. 28(1).
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In this Act—
public body means, subject to this section—
a public sector body within the meaning of section 4(1) of the Public Administration Act 2004; or
a body, whether corporate or unincorporated, established by or under an Act for a public purpose, including a university; or
a body that is performing a public function on behalf of the State or a public body or a public officer (whether under contract or otherwise); or
any other prescribed entity;
public officer means, subject to this section—
a person employed in any capacity or holding any office in the public sector within the meaning of the Public Administration Act 2004; or
a person to whom a provision of the Public Administration Act 2004 applies as a result of the application of Part 7 of that Act; or
a member of Council staff employed under the Local Government Act 2020; or
the holder of any other statutory office (within the meaning of the Public Administration Act 2004) or a prerogative office (within the meaning of the Public Administration Act 2004); or
any other person in the service of the Crown or a public body; or
a person that is performing a public function on behalf of the State or a public body or a public officer (whether under contract or otherwise); or
an employee of, or any person otherwise engaged by, or acting on behalf of, or acting as a deputy or delegate of, a public body or a public officer; or
a prescribed person or class of persons.
The following are not a public body or a public officer for the purposes of this Act—
the Ombudsman;
a member of Ombudsman staff;
a court;
an exempt person or body.
In determining whether a person or body is performing a public function, any of the following factors may be taken into account—
whether the function is conferred on the body or person by or under a statutory provision;
whether the function is of a regulatory nature;
whether the body is publicly funded to perform the function.
To avoid doubt—
the factors listed in subsection (3) are not exhaustive of the factors that may be taken into account in determining whether a body is performing a public function; and
the fact that one or more of the factors set out in subsection (3) are present in relation to a function does not necessarily mean that function is a public function.
S. 2A inserted by No. 2/2019 s. 148.
The objectives of this Act are—
to provide a timely, efficient, effective, flexible and independent means of resolving complaints about administrative action of authorities; and
to provide for the identification, investigation, exposure and prevention of maladministration; and
to assist in the identification, investigation, exposure and prevention of improper conduct and corrupt conduct; and
to assist in improving the quality of administration and complaint handling practices and procedures of authorities; and
to facilitate the education of the Victorian community and the public sector about matters relating to the functions of the Ombudsman.
There shall be appointed a Commissioner for Administrative Investigations, to be called the Ombudsman.
The Ombudsman shall be appointed by the Governor in Council and shall hold office in accordance with this Act.
The Ombudsman shall not be a Member of Parliament of Victoria or of the Commonwealth or any other State.
S. 3(4) substituted by No. 62/1989 s. 5.
Subject to this Act, the Ombudsman holds office for a term of 10 years, and is not eligible to be re‑appointed.
S. 3(5) substituted by No. 30/2016 s. 70(1).
The Ombudsman ceases to hold office if the Ombudsman—
resigns in writing and the resignation is accepted by the Governor in Council; or
is removed from office upon the presentation of an address of both Houses of the Parliament praying for the Ombudsman's removal from office; or
is suspended from office under section 4 and is not restored to office; or
nominates for election for either House of the Parliament of Victoria or of any other State or Territory.
S. 4(1) amended by Nos 62/1989 s. 15(2), 30/2016 s. 70(2)(a).
The Governor in Council may at any time when Parliament is not in session suspend the Ombudsman from office on the ground of disability, bankruptcy, neglect of duty or misconduct or on any other ground which in the opinion of the Governor in Council makes the Ombudsman unfit to be the Ombudsman.
The Ombudsman so suspended shall be restored to office unless—
a statement setting out the grounds of suspension is laid before each House of Parliament during the first seven sitting days of that House following the suspension; and
S. 4(2)(b) amended by No. 30/2016 s. 70(2)(b).
each House of Parliament within 20 sitting days of the statement being so laid passes an address praying for the Ombudsman to be removed from office.
The Ombudsman shall be paid—
a salary at such rate as is fixed from time to time by the Governor in Council; and
such travelling and other allowances as are fixed from time to time by the Governor in Council.
S. 5(2) amended by No. 30/2016 s. 70(2)(c).
The rate of salary paid to the Ombudsman shall not be reduced during the Ombudsman's term of office without the Ombudsman's consent in writing.
The Ombudsman shall be entitled to such leave of absence as the Governor in Council from time to time determines.
The salary and allowances payable to the Ombudsman shall be paid out of the Consolidated Fund, which to the necessary extent is appropriated accordingly.
S. 6(1) amended by Nos 24/1996 s. 30(1), 82/2012 s. 224(3).
The Governor in Council may appoint an Acting Commissioner of Administrative Investigations, to be called the Acting Ombudsman during the temporary absence or suspension of the Ombudsman or during any vacancy in the office of Ombudsman, and may at any time revoke such appointment.
S. 6(2) amended by No. 30/2016 s. 70(2)(d).
The Acting Ombudsman shall, while so acting, have all the powers and may exercise any of the functions of the Ombudsman as if the Acting Ombudsman were the Ombudsman.
S. 6A inserted by No. 14/1988 s. 5, substituted by No. 32/2004 s. 4, amended by No. 56/2004 s. 76(1), repealed by No. 63/2004 s. 7(b).
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S. 6B inserted by No. 14/1988 s. 5, substituted by No. 32/2004 s. 4, repealed by No. 63/2004 s. 7(b).
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S. 6C inserted by No. 14/1988 s. 5, amended by No. 24/1996 s. 30(2)(3), repealed by No. 32/2004 s. 5(1)(a).
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S. 6D inserted by No. 14/1988 s. 5, amended by No. 46/1998 s. 7(Sch. 1), repealed by No. 32/2004 s. 5(1)(a).
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S. 6E inserted by No. 14/1988 s. 5, repealed by No. 32/2004 s. 5(1)(a).
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S. 6F inserted by No. 24/1996 s. 31, repealed by No. 32/2004 s. 5(1)(a).
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S. 7 amended by No. 14/1988 s. 6(1), substituted by Nos 62/1989 s. 6, 46/1998 s. 7(Sch. 1), amended by Nos 32/2004 s. 5(1)(b), 63/2004 s. 7(c), 108/2004 s. 117(1) (Sch. 3 item 144.3).
Any employees that are necessary to enable the functions of the Ombudsman to be properly carried out may be employed under the Public Administration Act 2004.
S. 8 (Heading) inserted by No. 108/2004 s. 117(1) (Sch. 3 item 144.4)
S. 8(1) amended by Nos 9059 s. 2(1)(Sch. item 31), 14/1988 s. 7, 62/1989 s. 7(a)(b), 46/1998 s. 7(Sch. 1), substituted by No. 32/2004 s. 5(2), amended by Nos 63/2004 s. 7(d), 108/2004 s. 117(1) (Sch. 3 item 144.5).
A person who is the Ombudsman or Acting Ombudsman is not, in respect of the office of Ombudsman or Acting Ombudsman, subject to the Public Administration Act 2004.
S. 8(2) amended by Nos 9059 s. 2(1)(Sch. item 32), 14/1988 s. 7, 62/1989 s. 7(a)(b), substituted by No. 46/1998 s. 7(Sch. 1), amended by Nos 32/2004 s. 5(3)(a), 30/2016 s. 70(2)(e).
A person who is the Ombudsman or Acting Ombudsman and who, immediately before their appointment as such was an employee in the public service—
S. 8(2)(a) amended by Nos 32/2004 s. 5(3)(a), 30/2016 s. 70(2)(e)(f).
is eligible to be employed in the public service at the termination of their office as the Ombudsman or Acting Ombudsman with a classification and emolument corresponding with or higher than that which the person last held or received in the public service immediately before their appointment as the Ombudsman or Acting Ombudsman as if their service as the Ombudsman or Acting Ombudsman had been service in the public service; and
S. 8(2)(b) amended by Nos 32/2004 s. 5(3)(a), 30/2016 s. 70(2)(f).
for the purposes of long service leave, is to be taken to continue to be an employee in the public service while the person was Ombudsman or Acting Ombudsman.
S. 9(1) amended by Nos 14/1988 s. 8, 50/1988 s. 93(2)(Sch. 2 Pt 2 item 42), 46/1998 s. 7(Sch. 1), 32/2004 s. 5(3)(b)(i)(ii), 30/2016 s. 70(2)(g).
A person who is the Ombudsman or Acting Ombudsman or an employee of the Ombudsman and who immediately before their appointment as such was an officer within the meaning of the State Superannuation Act 1988 or of any corresponding previous enactment shall, subject to that Act, continue during their term of office as the Ombudsman or Acting Ombudsman or an employee of the Ombudsman to be an officer within the meaning of that Act.
S. 9(2) amended by Nos 62/1989 s. 15(3), 100/1995 s. 32(Sch. 2 item 4), 46/1998 s. 7(Sch. 1), 30/2016 s. 70(2)(h).
A person who is the Ombudsman and who immediately before appointment as the Ombudsman was not an employee in the public service may elect to be a contributor to a pension scheme determined by the Governor in Council after consideration of a report by the Secretary to the Department of Treasury and Finance.
S. 10 amended by Nos 14/1988 s. 9, 15/1989 s. 24, substituted by No. 32/2004 s. 6.
S. 10(1) amended by Nos 63/2004 s. 7(e)(i), 30/2016 s. 70(2)(i)(j).
Before the Ombudsman or Acting Ombudsman performs any of the duties of office of Ombudsman, the Ombudsman or Acting Ombudsman must take an oath or make an affirmation that they—
S. 10(1)(a) amended by No. 63/2004 s. 7(e)(ii).
will faithfully and impartially perform the duties of office of Ombudsman; and
will not divulge, except according to law, any information received in the performance of those duties.
S. 10(2) substituted by No. 82/2012 s. 225(1), amended by No. 302016 s. 70(2)(k).
Before a member of Ombudsman staff performs any duties as a member of Ombudsman staff, the member must take an oath or make an affirmation that the member—
S. 10(2)(a) amended by No. 30/2016 s. 70(2)(l).
will faithfully and impartially perform their duties as a member of Ombudsman staff; and
will not divulge, except according to law, any information received in the performance of those duties.
The oath or affirmation is to be administered by—
the Speaker of the Legislative Assembly, in the case of the Ombudsman or Acting Ombudsman;
S. 10(3)(b) amended by No. 82/2012 s. 225(2).
the Ombudsman or Acting Ombudsman, in the case of a member of Ombudsman staff.
S. 11(1) amended by No. 80/2006 s. 20.
The Ombudsman or the Acting Ombudsman may, by instrument in writing, delegate all or any of the powers or functions of the Ombudsman (except this power of delegation) under this or any other Act to any person, and may in like manner revoke or vary such delegation.
A person to whom any such powers or functions have been delegated may exercise or perform those powers and functions so long as they are not revoked.
The delegation of any powers or functions shall not affect the exercise of those powers or functions by the Ombudsman or, where applicable, by the Acting Ombudsman.
S. 11(4) inserted by No. 14/1988 s. 10, amended by No. 32/2004 s. 7(1), repealed by No. 63/2004 s. 7(f).
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S. 12 amended by Nos 32/2004 s. 7(2), 63/2004 s. 7(g), 34/2008 s. 143(Sch. 2 item 9), substituted by No. 82/2012 s. 226.
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