For Public Authorities

A lot of the material on our website focuses on complaints, for example outlining which ones we can accept and how to go about making them but, historically, very little has been provided to assist public authorities in responding to our inquiries or investigations.  We are using the upgrade of our website as an opportunity to make some material available to public authorities and we hope to gradually add more materials as and when we can.

If there is one message that we would like to emphasise here it is that we need evidence when we receive responses to inquiries and investigations.  Bald statements or points of view are of little value to us as we must satisfy ourselves that actions or omissions are fair, reasonable and lawful in the circumstances - or not, as the case may be.  So when providing responses to our investigation staff, please include any and all evidence that you can in the form of documents, footage, pictures or any other form of evidence that you have.  Copies of relevant policies and procedures are also relevant as well as pointing us in the direction of any  applicable legislation.  If in doubt, contact us to ask what we need.

Sometimes respondents express concern about providing such information to us and so it is worth drawing your attention to section 17 of the Ombudsman Act 1978 which provides as follows:

Where any provision of an Act prohibits or restricts, or authorizes or requires the imposition of a prohibition or restriction on, the disclosure or communication of information, that provision does not apply to or in respect of the disclosure or communication of information in a manner that will prevent or restrict the making of preliminary inquiries under section 20A or the making of a complaint to, or the carrying out of an investigation by, the Ombudsman.

Responding to an Ombudsman investigation

The Tasmanian Ombudsman is an independent officer appointed by the Governor and answerable to Parliament. This means that we are not advocates for complainants nor do we act for the agency complained about.

The Ombudsman’s role, as prescribed by the Ombudsman Act 1978 (the Act), is to investigate the administrative actions of public authorities to ensure that those actions are lawful, fair and reasonable.

What happens when the Ombudsman receives a complaint?

Assessment

Complaints and inquiries are received by telephone, using the complaint form available on the Ombudsman’s website or by letter or email.

Investigation Officers (IO) working in the Ombudsman’s team assess complaints to determine that they are within jurisdiction, this includes making sure the actions referred to in a complaint:

  • concern a Tasmanian public authority and administrative actions as defined by section 12 and Schedule 2 of the Act;
  • occurred within the time limit provided by section 19 of the Act;
  • have been raised with the agency in question in the first instance;
  • are not reviewable by a court or a tribunal.

It must also be confirmed that the complainant is personally aggrieved by the actions complained of.

The Act also gives the Ombudsman a discretion to refuse a complaint when investigation of it is unjustified or unnecessary.

Once a complaint has been accepted, efforts will be made to address and resolve it informally, if possible. This may involve an IO seeking some additional information from the agency in question.

Preliminary Inquiries

If the complaint requires more detailed consideration, then the Ombudsman can elect to conduct preliminary inquiries, to determine whether the matter can be resolved informally or whether an investigation will be required. Conducting a preliminary inquiry will usually involve the IO writing to the head of the agency and requesting a response to the issues raised in the complaint. Section 20A of the Act requires the Principal Officer of the Agency to provide any reasonable assistance to the Ombudsman or his delegates.

The preliminary inquiry process may involve requesting copies of specific documents, copies of policies or even interviewing certain people. Not all information obtained through this process (or at the assessment phase or if required during an investigation) will be made public or released to the complainant. In the interests of transparency it is the Ombudsman’s preference to be as open as possible, however any reasonable requests for information to be kept confidential will be taken into consideration. The Ombudsman has an evidence-based approach and mere statements of opinion are insufficient, we require copies of any documentary evidence to be provided to us.

If you are concerned about the information that has been requested, or if you require clarification in relation to the details that you need to provide, you are welcome to contact the IO directly about the matter at any time.

IO’s will set a time limit for providing information when a request is made. The Ombudsman understands that on occasions additional time will be required to prepare a response, and if more time is required a request should be made to the IO responsible for the inquiry.

At the conclusion of this process the IO will make a determination about whether the administrative action taken by the agency was reasonable in the circumstances. The complainant will be notified of this determination and offered an opportunity to comment. If no additional relevant information is provided by the complainant, the agency will be advised in writing that the complaint will be closed. On occasions the closure letter will include suggestions that the Ombudsman believes may be useful for the agency to adopt to improve its administrative actions.

At the conclusion of the preliminary inquiry stage a determination may be made to conduct an investigation.

Investigations

On the rare occasions when it is decided that a formal investigation will be undertaken, the Ombudsman will notify the agency’s principal officer in writing. A request will be made to the agency to produce information or documents. In addition, the Ombudsman may conduct interviews and summon witnesses. Generally the Ombudsman attempts to obtain information cooperatively, but the Act does provide for the use of coercive powers if necessary.

If, as part of the investigation or in any report of its outcome, the Ombudsman is considering making an adverse comment about a particular individual a copy of that comment and supporting information will be given to the person to allow an opportunity for consideration and comment in the interests of procedural fairness.

At the end of the investigation, the Ombudsman will prepare a preliminary report and deliver it to the agency’s principal officer to allow the agency to respond. Any response will be considered and fairly incorporated into the report before a final report is sent to the relevant Minister.

If the findings of the investigation include recommendations to the agency, the Ombudsman will follow up on these recommendations to make sure that they are complied with.


Good decision-making

We acknowledge and thank the Queensland Ombudsman for allowing us to make use of their material for this section. 

Today people expect that organisations will operate consistently and fairly and that they will have developed and implemented systems to ensure that this happens.  Good administrative decision making is integral to this process.

Good decision making lies at the heart of good administration.  Even a decision about a seemingly simple matter can have a serious impact on the community.  So it is important that organisations have systems in place to support fair and consistent decision making.

1.  Maintain a document trail

Comprehensive and timely record keeping is central to good decision making.

The Archives Act 1983 requires public agencies to keep and preserve proper records of their activities.

Decision making is a key agency activity.  All information relevant to the decision making process should be recorded.

Records should be made at the same time or as soon as practicable after the actions they relate to.  If this is not done, the reliability of the record may be called into question.

Good records provide decision makers with detailed information, explain decisions, help decision-makers prepare a statement of reasons, and enhance accountability and transparency.

2.  Identify the power to make a decision

Clear legislative authority is necessary for a decision that may adversely affect someone’s rights or interests.

The legislative power to make a decision may be limited by specified factors including time.  Even if legislation or your organisation’s policy does not specify a timeframe, the decision maker must take action as soon as practicable.

Check you have identified the source and limits of the power to make the decision.

3.  Consider the authority and suitability of the decision-maker

Legislation usually establishes who is authorised to make a particular decision.

An authorised person or body must exercise the decision making power personally. An exception to this general proposition arises when the decision maker is given an express power in the relevant legislation to delegate.  The Acts Interpretation Act 1931 sets out the rules for exercising delegated authority.  Delegations can be general or limited, but all delegations must be in writing and signed by a suitable member of the authorised body or the person delegating the power.

A decision maker should not be involved in a decision where a conflict of interest exists, even if the decision maker has the proper delegation or authority.

A conflict of interest occurs where a person’s private interests interfere or could appear to interfere with their official duties.  It may arise from financial or personal interests.  There can be an actual, perceived or potential conflict of interest.

A conflict of interest should be recorded and reported to management to be resolved in the public interest.

Check your authority and suitability to make the decision by considering delegations and any conflict of interests.

4.  Identify relevant matters

Decision makers must identify all matters relevant to the decision to be made at the outset.

If the relevant matters are not correctly identified and considered, the decision maker is more likely to make a poor decision.

Check you have identified relevant matters by considering the legislation and your organisation’s policy.

5.  Follow procedures

Following procedures is a vital part of good decision making.

Procedures provide the steps needed to achieve a specific legislative or policy purpose and may be directed to gathering relevant information.

Statutory procedures are set out in legislation.  Strict compliance is usually required.

Administrative procedures are developed by organisations.  The procedures must be consistent with the law, reasonable in the particular circumstance and not based solely on cost or convenience.

Check you have complied with all applicable statutory or administrative procedures.

6.  Gather all relevant information

Gathering all the relevant information allows the decision maker to properly determine the facts.  Information is relevant if it is reasonably related to a relevant matter.

Legislation may give a decision maker express powers to gather information for specific purposes.  Even if legislation does not give express powers to collect information, however, the decision maker may still request information.

Decision makers should make reasonable and practical inquiries to collect the best and most current information available.  This may include verbal accounts, documents, site inspections and expert opinion.

Check you have gathered and recorded all relevant information.

7.  Provide procedural fairness

Procedural fairness is about providing a person who might be adversely affected by a decision a ‘fair hearing’ before the decision is made.

Generally, a fair hearing involves disclosure to a person of any allegations or assertions made against them, giving the person a reasonable opportunity to respond, and impartiality.

The affected person should be notified of the key issues and be given enough information to participate meaningfully in the decision making process. Reasonable steps should be taken to notify the affected person.

The affected person should be given a reasonable opportunity and time to respond. The decision maker should genuinely consider the affected person’s submission when making their decision.

The decision maker should be seen to be impartial and open to persuasion on the information and arguments presented.

Check that you have provided a fair hearing to anyone who may be adversely affected by the decision.

8.  Determine the facts

Decisions should be based on facts and it is important that sound factual findings related to relevant matters are made.

The decision maker should determine the facts by considering information that is relevant, reliable and sufficient.

All relevant information should be considered and should not be dismissed without good reason.

Not all information is equal in value or reliability.  The decision maker should analyse the information gathered and weigh it up reasonably.

Unless legislation requires otherwise, the balance of probabilities guides administrative decision makers when determining the facts.  The more serious the issue and outcome, the more caution should be exercised in order to meet this standard.

Each factual finding should be clearly recorded, including the information considered and the reason for the finding.

Check that your factual findings are based on sufficient, relevant and reliable information.  Your findings should be clearly identified and explained.

9.  Evaluate the facts to make the decision

Evaluating the facts is the final step in reaching a decision.

One important consideration in evaluating the facts is whether the decision to be made is non-discretionary or discretionary.

A non-discretionary decision is one where the legislation sets out what must be considered and how it is to be decided.  The decision maker does not have any flexibility.

Decision makers need to identify the legislative provisions that relate to their decision.  A piece of legislation should be interpreted in a way that best achieves its purpose and objectives.  Court and tribunal decisions, legal advice and agency policy can provide guidance as to the meaning and application of legislation.

The decision maker should apply the law to the facts when making the decision.

In contrast, a discretionary decision allows the decision maker some flexibility. The legislation does not impose a duty on the decision-maker to exercise their power in a particular way.  It is usually indicated by the use of the word ‘may’.

No one matter or combination of matters is necessarily determinative in making a discretionary decision.  When making a discretionary decision, the decision maker must ensure that all relevant matters in relation to the factual findings are considered and given appropriate weight, and that no irrelevant matters are taken into account

The decision maker may also consider agency policy and relevant previous decisions in reaching the decision.  Again, irrelevant matters must be excluded from consideration, however, and agency policy and practice must not be inflexibly applied.  The decision and reasons should be recorded.

Check you have properly evaluated the facts in reaching your decision.

10.  Give meaningful and accurate reasons for your decision

It is important that people affected by an organisation’s decisions are informed of the decision, the reasons for that decision and any right of review or appeal.

Reasons are defined in the Judicial Review Act 2000 as findings on material questions of fact relating to a decision and a reference to the evidence or other material on which any such findings were based, as well as the reasons for the decision. Reasons are the logical explanation for a decision and should refer to the factual findings and the information on which the findings are based.  Failing to expressly refer to a factual finding may indicate a relevant matter was not considered.

Providing reasons for a decision also helps avoid misunderstandings, promotes acceptance of adverse outcomes and reduces the likelihood of ill-informed complaints, reviews and appeals.

Even where a decision maker is not required to give reasons, it is good administrative practice to do so.  Also, an affected person may be able to request a statement of reasons under the Judicial Review Act 2000.

Decision makers should also offer advice about any right of appeal, including the time allowed to apply for the appeal and how to apply.

If there is no statutory review or appeal process, the affected person should be advised about the organisation's complaint management system.


Managing unreasonable complainant conduct

In 2006 the Australasian Parliamentary Ombudsmen began a collaborative project on Managing Unreasonable Complainant Conduct (UCC). The focus of this project has been to develop clear and practical strategies to help organisations and their staff manage their interactions with complainants whose conduct is identified as unreasonable.

Public Interest Disclosures (PID)

Personal Information Protection (PIP)