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Complaints the Ombudsman cannot investigate

There are some complaints the Ombudsmans do not have the power to investigate. When this happens the person is usually referred to some other source of review.

Limitations on the Commonwealth Ombudsman

The Ombudsman Act 1976 (Cth) specifically prevents the Ombudsman from investigating:

  • actions of a government Minister
  • actions of police (see complaints against police)
  • actions of a judge, magistrate or coroner
  • actions of a private person or company
  • disputes about employment matters between government and the people who work for it (but the Defence Force Ombudsman can deal with complaints about such matters from Defence Force members)
  • other actions of a few government authorities that are specifically excluded by the Ombudsman Act 1976 (Cth)

Limitations on the State Ombudsman

Similar exclusions apply to the State Ombudsman.

Of these the most controversial is the first exclusion concerning actions of a government Minister. The State Ombudsman may investigate 'a decision, proposal or recommendation (including a recommendation made to a Minister of the Crown)' [see Ombudsman Act 1972 (Cth) s 3] . However, if a matter reaches ministerial levels before a complaint is made, it may be too late for the Ombudsman to do anything. The Ombudsman cannot become involved in disputed facts and questions of law which can only be resolved conclusively by a court order. The Ombudsman's opinion may be effective where the law fails to provide an answer in a particular case, but cannot change a statute or declare that provisions of a statute do not apply.

Further limitations

The Ombudsman will not investigate complaints if there are better ways of dealing with it or if an investigation would not be worthwhile. For example, if the person complaining is not directly affected by the administrative act or where the complaint is:

  • frivolous or vexatious
  • able to be dealt with by another avenue, for example, an administrative appeal, judicial appeal, recourse to the AAT or some other tribunal or civil action has been or could have been taken
  • one which could be resolved by internal government procedures.
Complaints the Ombudsman cannot investigate  :  Last Revised: Mon Jul 30th 2012
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.