Refugee Council of Australia
Parliament House, Canberra

Keeping the Australian Government accountable: a guide

Commonwealth Ombudsman

The Commonwealth Ombudsman oversees Australian Government departments and agencies, and some private organisations, to ensure they act with integrity and treat people fairly, and to influence them to improve their public administration.

The Ombudsman’s role, in relation to refugees and people seeking asylum, includes:

  • inspecting and monitoring immigration detention facilities
  • reporting to the Minister on people who have been detained for two or more years
  • investigating complaints by individuals
  • investigating systemic issues that the Ombudsman has identified (‘own motion’ investigations), and
  • auditing government departments and agencies for compliance.

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The Commonwealth Ombudsman

The Ombudsman Act

Under legislation, the Commonwealth Ombudsman also has a specific role in relation to immigration. In this role, the Ombudsman is referred to as the Immigration Ombudsman.

The Immigration Ombudsman

Detention

The Ombudsman is required by law to look at and report on the arrangements for anyone who has been have been detained for more than two years, and every six months after that if the person is still detained. Public versions of these reports (which do not identify the person) must be tabled in Parliament. The Ombudsman can make recommendations in relation to how to deal with these cases, but the Minister does not need to accept any recommendation. The assessments, recommendations and the Minister’s response are publicly available.

Detention review assessments (Commonwealth Ombudsman)
The Ombudsman also conducts regular inspections of immigration detention centres. It does not publish reports on these visits, but usually makes recommendations for the Government to consider.

The Ombudsman has also been appointed the National Preventative Mechanism as part of OPCAT. This means it will be coordinating the monitoring of detention facilities (including immigration detention facilities) across Australia, and it is likely to be reporting publicly on this work.

Ombudsman’s role on OPCAT

Investigations

The Ombudsman can explore potential systemic issues within the Department of Home Affairs, mainly through investigations which result in public reports. It has published many reports in relation to immigration issues.

Investigation reports (Commonwealth Ombudsman)

Complaints

Before you can make a complaint to the Ombudsman, you must first make a complaint to the department or agency you are complaining about.

Before you make a complaint (Commonwealth Ombudsman)

In many cases, you can make a complaint to the Department of Home Affairs using its online form. However, you should pay careful attention to the information under the heading ‘Out of Scope’.

Compliments, complaints and feedback (Department of Home Affairs)
You should print or save a copy of the complaint and any responses you get.

You can complain to the Ombudsman if you think the Australian Government’s actions were wrong, unjust, unlawful, discriminatory or unfair. Anyone can make a complaint. This is free.

Complain to the Ombudsman
Call them to complain (call 1300 362 2072)
Call them using the Translating and Interpreter Service (call 131 450)
If you are deaf, or have a hearing impairment or speech impairment, you can contact the Ombudsman through the National Relay Service: • TTY users phone 133 677
then ask for 1300 362 072 • Speak and Listen users: phone 1300 555 727
then ask for 1300 362 072 • Internet Relay users connect to the National Relay Service
then ask for 1300 362 072

You can ask someone else to complain on your behalf, if you sign a form giving them permission. You can also complain anonymously, but the complaint must raise a serious matter and there must be enough information to conduct the investigation.

Give permission for another person to make a complaint on your behalf (email this form)

What can you complain about?

You cannot complain about a decision that has been made by a Minister personally. You cannot complain because the Department has refused a visa, or about the Government’s immigration policy generally.

Commonly, the Ombudsman receives the following types of complaints about immigration detention:

  • loss or damage to detainees’ property
  • placement within the detention network, and
  • medical issues such as access to specialist care, appropriate treatment for injuries and illness.

Other issues that the Ombudsman often considers include:

  • long delays in processing visa or citizenship applications
  • unfair or poor decision-making in relation to visas, migration or citizenship.

What will happen

The Ombudsman will consider each complaint and provide reasons if it decides not to investigate.

The Ombudsman does not investigate most of the complaints it receives. About 65-75% of complaints are not investigated.

The Ombudsman may choose not to investigate a complaint for many reasons, including:

  • if there has been a long time between the action of the government and the making of the complaint
  • if the person making the complaint has not complained first to the relevant department or has not waited for a response from it
  • if court action is also being taken in respect of the matter, or
  • if action should be taken by another government authority.

The Ombudsman can also transfer a complaint to the relevant department or agency for action or recommend that the agency reconsider its action or alter a law, rule or procedure.

What can the Ombudsman do?

When the Ombudsman investigates a complaint, it usually asks for information from the department or agency concerned about your complaint. If it needs to, it can also make a department or agency provide records, answer questions and examine witnesses.

The Ombudsman can make recommendations, but the Government does not have to accept these.

Ombudsman investigations (Commonwealth Ombudsman)

What can happen if I complain?

In most cases, complaints are resolved without the Ombudsman deciding if there is something wrong with the Australian Government’s actions. If the Ombudsman does find that something has gone wrong, it will record this. If it is serious, the Ombudsman can report this to the head of the department or agency.

The Ombudsman tries to put a person in the position they would be if the problem had not happened. For example, this may mean the agency might agree to consider a new application or choose not to charge a fee, make a decision more quickly, stop an action, reconsider or change a decision. In some cases, you could expect financial compensation. In most cases, the agency should apologise and provide an explanation.

The Ombudsman will consider both the individual complaint and whether there is a systemic problem. If there are a lot of complaints about the same issue, the Ombudsman may decide to investigate the issue. This happened, for example, when there were many complaints about delays in granting citizenship to people from refugee backgrounds.

Remedies (Commonwealth Ombudsman)

Of the 322 cases it investigated in relation to immigration issues in 2017-18, the Ombudsman achieved 445 results (as complaints contain multiple issues, the number of remedies is greater than the number of complaints). In most cases (312), the result was an explanation, in 42 cases the Department acted more quickly, in 37 cases a decision was changed or reconsidered, and in 10 cases a law, policy or practice was changed. Other results included apologies, counselling or disciplining of staff, or a financial remedy.

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