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.

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.

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.

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.

Resources

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

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.

Managing unreasonable complainant conduct – Practice Manual

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