3. Ombudsman

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Queensland University of Technology

The Ombudsman Ombudsman Act 2001 (Qld) | Ombudsman Act 1976 (Cth) Generally • Primary role = investigate complaints from individuals about actions of government offices o Can investigate broader problem—not confined to individual matter Differences from Judicial review | Merits review before tribunal • Advantages o Not dependent on final decision  Can investigate manner—delay, rudeness, refusal to listen  Although ‘conduct’ can be subject to JR o Not restricted to specific legal error  General unjustness • Restriction—Ombudsman does not have determinative power o Can only conduct investigation & make report with recommendations o Rationale—Dependent on  goodwill of person in office  threat of exposure & embarrassment (eg highly critical reports close to election time) Engaging the Ombudsman Three ways of engaging Ombudsman— • Citizen complaint: s12(a)(ii) QOA | s5(1)(a) COA o Annual reports show thousands of complaints per year o Orally or in writing: s20 QOA  But may decline to pursue unless in writing o Standing—  Qld • Previously—required person to be ‘person aggrieved’ • Now ‘apparently directly affected’: s20 QOA • May refuse to investigate if does not have ‘sufficient direct interest’: s23 QOA.  Cth—can refuse if doesn’t have a ‘sufficient interest’ • Ombudsman initiated inquiry: s12(a)(iii) QOA | s5(1)(b) COA o Where individual complaint received sheds light on systemic problem in a certain area o Examples  Qld—FOI request handling | supply of electricity  Cth—Mistreatment in immigration detention centres • Parliamentary referral: s12(a)(i) QOA | s5(1)(c) COA o Ombudsman required to provide report to parliament Andrew Trotter LWB335 Administrative Law Jurisdiction 1. Administrative Action (s14(1) QOA) | Matter of Administration (s5 COA) • including— (s7(1) QOA) o Decision & Act o Failure to make decision or perform act (incl failure to provide statement of reasons) o Proposal o Recommendations • Where some institutional aspect: Booth v Dillon (No 1) (VSC) (prison officer abused by prisoner—took to governor’s office & told him to repeat—struck prisoner in presence of warden  action broadly about enforcement of discipline—institutional, not just an assault—particularly because condoned by warden → administrative action → open to O to investigate) • Includes government’s commercial enterprise activity—everything done in implementation of government policy: Re British Columbia Development Corporation and Friedmann (Canada) (Contract with promoter to redevelop waterfront site—restaurant owner objected: complained to O that acting in bad faith  O had jurisdiction). • NOT— o unauthorised actions: Booth v Dillon (No 2) (VSC) (prison officer making defamatory statements to press about prisoner—saying he was lying  no jurisdiction because if he did make these statements, outside the scope of his role as a prison officer)  BUT may have limited relevance under Qld legislation o NOT general policy: Booth v Dillon (No 2) (VSC) (report into violence—abuse & assaults in jail due to dorm sleeping arrangements—O investigating whether was being implemented  Policy outside scope of O’s responsibilities)  ↔ implementation of policy—whether specific action taken to deal with a specific allegation = matter of administration: Biganovsky (SASC) (investigation of policy re use of premises by community groups  policy → outside O’s duties || BUT could investigate way the policy is applied in particular cases—eg if applied in discriminatory fashion)  BUT indications by Ombudsmen in annual reports suggest they will investigate policy matters  Policy decisions of Minister & Cabinet are excluded: s16(1) QOA • Distinction between high-level & low-level government policy o matters which are judicial or legislative functions of government (Separation of powers approach): Glenister v Dillon (complaints on imprisonment awaiting trial  no jurisdiction due to exclusion for person acting as legal advisor to crown—related to judicial process ↔ not administrative in character) followed in Booth v Dillon (No 3).  Problematic distinction—Rejected in other jurisdictions: Re Ombudsman of Ontario (Canada) (investigation of confirmation of board to confirm lower board’s decision— quasi-judicial body so argued could not investigate  contention rejected—“to base on separation of powers doctrine is to base it on
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