LLB230 Lecture Notes - Lecture 2: Determinative, Aust
WEEK 2 – INVESTIGATING GOVERNMENT ACTION; OMBUDSMAN; ANTI-
CORRUPTION; HUMAN RIGHTS AND ANTI-DISCRIMINTATION:
What is the Ombudsman?
Origin – Sweden, 1809
Introduction in Aust. – introduced after the Kerr & Bland Reports
Ombudsman Act 1976 (Cth):
'An Office provided for by the Constitution or by action of the Legislature or
Parliament and headed by an independent, high-level public official, who is
responsible to the Legislature or Parliament, who receives complaints from
aggrieved persons against Government agencies, officials and employees, or
who acts on [his] own motion, and who has the power to investigate,
recommend corrective action and issue reports.' – Senate Standing
Committee, 1974
What is the Commonwealth Ombudsman’s jurisdiction and function?
oPurpose – to investigate ‘action that relates to a matter of administration’
either after receiving a complaint or on its ‘own motion’ (Section 5(1))
oDeciding whether to investigate a complaint:
Is the agency capable of review by the Ombudsman? – Sections 3(4B),
3BA, 5
Has the agency taken any action? – Section 3(7)
Making of decision or recommendation
Formulation of a proposal
99.Failure or refusal to take any action or formulate a proposal
Is the Ombudsman excluded from investigation? – Section 5(2)
Taken by a Minister
Constitutes proceedings in Parliament (parliamentary
privellage)
Taken by a judge
Taken by a chief executive officer of a court
Taken by a magistrate
Taken in relation to employment in the public service
Does the matter relate to administration?
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Document Summary
Week 2 investigating government action; ombudsman; anti- Introduced after the kerr & bland reports. "an office provided for by the constitution or by action of the legislature or. 99. failure or refusal to take any action or formulate a proposal. Taken by a chief executive officer of a court. Taken in relation to employment in the public service. Apply rule from booth v dillion: statements made in an independent capacity are not a matter of administration, decisions may be a matter of policy, not administration. Section 6, 6a, 7a: deciding whether to initiate an investigation on their own motion: Entitled to make formal inquiries, but does so as it sees fit section 8. Gives agency an opportunity to make submission if an adverse report will be made section 8(5) Ombudsman creates a report based on the opinion that section 15. Appears to be contrary to the law.
