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Ombudsman Regulations 2017

Authoritative Version
  • - F2018C00042
  • In force - Superseded Version
  • View Series
Regulations as amended, taking into account amendments up to Ombudsman Amendment (Functions of the Defence Force Ombudsman) Regulations 2017
This regulation repeals and remakes the Ombudsman Regulations 1977, with minor amendments.
Administered by: Attorney-General's
Registered 08 Jan 2018
Start Date 16 Dec 2017
End Date 09 Apr 2019

Commonwealth Coat of Arms of Australia

Ombudsman Regulations 2017

made under the

Ombudsman Act 1976

Compilation No. 1

Compilation date:                              16 December 2017

Includes amendments up to:            F2017L01625

Registered:                                         8 January 2018

 

About this compilation

This compilation

This is a compilation of the Ombudsman Regulations 2017 that shows the text of the law as amended and in force on 16 December 2017 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part 1—Preliminary                                                                                                                                        1

1............ Name............................................................................................................................. 1

3............ Authority....................................................................................................................... 1

5............ Definitions..................................................................................................................... 1

Part 2—General matters                                                                                                                              3

6............ Bodies not to be taken to be prescribed authorities for the purposes of the Act............. 3

7............ Persons not to be taken to be prescribed authorities for the purposes of the Act........... 3

8............ Principal offices............................................................................................................. 3

9............ Actions deemed not to be taken by Attorney‑General’s Department............................. 4

10.......... Members of court staff.................................................................................................. 4

11.......... Commonwealth‑controlled companies to be taken to be prescribed authorities............. 4

12.......... Prescribed terms and conditions.................................................................................... 4

13.......... Witness expenses.......................................................................................................... 4

Part 3—Defence Force Ombudsman                                                                                                   6

14.......... Conferral of functions on Defence Force Ombudsman—new complaints etc............... 6

14A....... Payments to complainants—new complaints................................................................. 7

14B....... Conferral of functions on Defence Force Ombudsman—old complaints...................... 7

15.......... Transitional—conferral of functions on Defence Force Ombudsman........................... 8

Endnotes                                                                                                                                                               10

Endnote 1—About the endnotes                                                                                                      10

Endnote 2—Abbreviation key                                                                                                          11

Endnote 3—Legislation history                                                                                                       12

Endnote 4—Amendment history                                                                                                     13

 


Part 1Preliminary

  

1  Name

                   This instrument is the Ombudsman Regulations 2017.

3  Authority

                   This instrument is made under the Ombudsman Act 1976.

5  Definitions

                   In this instrument:

abuse, in relation to a complainant, includes:

                     (a)  sexual abuse of the complainant; and

                     (b)  serious physical abuse of the complainant; and

                     (c)  serious bullying or harassment of the complainant.

Act means the Ombudsman Act 1976.

administrative head of a court has the meaning given by the Court Security Act 2013.

amendment day means the day on which the Ombudsman Amendment (Functions of the Defence Force Ombudsman) Regulations 2017 commenced.

complainant includes:

                     (a)  a person who is or was a member of the Defence Force; and

                     (b)  a person who is or was an APS employee deployed outside Australia:

                              (i)  in connection with an operation of the Defence Force; or

                             (ii)  for the purpose of capacity‑building or peacekeeping functions by the Defence Force; and

                     (c)  a person who is or was contracted to provide services outside Australia:

                              (i)  in connection with an operation of the Defence Force; or

                             (ii)  for the purpose of capacity‑building or peacekeeping functions by the Defence Force.

court has the meaning given by the Court Security Act 2013.

Defence Abuse Response Taskforce means the taskforce established by the then Attorney‑General and Minister for Defence to respond to complaints of sexual and other forms of abuse by Defence personnel alleged to have occurred before 11 April 2011.

Defence Department means the Department administered by the Minister administering section 1 of the Defence Act 1903.

Defence Force has the same meaning as in subsection 4(1) of the Defence Act 1903.

Defence Secretary means the Secretary of the Defence Department.

Determination 2017/06 means the instrument made by the Remuneration Tribunal under Division 4 of Part II of the Remuneration Tribunal Act 1973 that is known as Determination 2017/06: Departmental Secretaries ‑ Classification Structure and Terms and Conditions, as in force when this instrument commenced.

excluded complaint means a complaint that:

                     (a)  was previously made to, and dealt with by, the Defence Abuse Response Taskforce; or

                     (b)  is the same in substance as a complaint that was previously made to, and dealt with by, the Defence Abuse Response Taskforce.

member of Defence, in relation to a complaint of abuse, includes a person who, at the time the abuse is alleged to have occurred:

                     (a)  was a member of the Defence Force; and

                     (b)  was an APS employee deployed outside Australia:

                              (i)  in connection with an operation of the Defence Force; or

                             (ii)  for the purpose of capacity‑building or peacekeeping functions by the Defence Force; and

                     (c)  was contracted to provide services outside Australia:

                              (i)  in connection with an operation of the Defence Force; or

                             (ii)  for the purpose of capacity‑building or peacekeeping functions by the Defence Force.

new complaint has the meaning given by subsection 14(1A).

old complaint has the meaning given by subsection 14B(2).

restorative engagement conference means a process facilitated by the Defence Force Ombudsman or another person in which a complainant engages with a member of Defence to have their complaint of abuse acknowledged.

Part 2General matters

  

6  Bodies not to be taken to be prescribed authorities for the purposes of the Act

                   For the purposes of subparagraph (a)(iii) of the definition of prescribed authority in subsection 3(1) of the Act, each of the following bodies is not to be taken to be a prescribed authority for the purposes of the Act:

                     (a)  the Australian Security Intelligence Organisation;

                     (b)  the Commonwealth Grants Commission;

                     (c)  the Defence Force Remuneration Tribunal;

                     (d)  the Pharmaceutical Benefits Remuneration Tribunal;

                     (e)  the Remuneration Tribunal;

                      (f)  the Shire of the Cocos (Keeling) Islands.

7  Persons not to be taken to be prescribed authorities for the purposes of the Act

                   For the purposes of subparagraph (c)(ii) of the definition of prescribed authority in subsection 3(1) of the Act, a person is not to be taken to be a prescribed authority for the purposes of the Act if the person holds or performs the duties of:

                     (a)  an office established by a provision of an enactment of the Northern Territory, being a provision relating to a matter in respect of which the Ministers of that Territory have executive authority; or

                     (b)  any of the following offices:

                              (i)  Auditor‑General;

                             (ii)  Australian Government Solicitor;

                            (iii)  President of the Defence Force Remuneration Tribunal;

                            (iv)  President of the Remuneration Tribunal;

                             (v)  Director‑General of Security;

                            (vi)  Inspector‑General of Intelligence and Security.

8  Principal offices

                   For the purposes of subparagraph (c)(i) of the definition of principal officer in subsection 3(1) of the Act, each office specified in column 1 of an item in the following table is declared to be the principal office in respect of the prescribed authority specified in column 2 of the table for the item.

 

Principal offices

Item

Column 1

Column 2

1

Chief Executive Officer

Australian Crime Commission

2

Electoral Commissioner

Australian Electoral Commission

3

Commissioner of Police

Australian Federal Police

4

Chief Executive Officer

Australian Institute of Marine Science

5

Vice‑Chancellor

Australian National University

6

Managing Director

Australian Postal Corporation

7

Chief Executive Officer

Australian Trade and Investment Commission

8

Director

Australian War Memorial

9

Managing Director

Export Finance and Insurance Corporation

10

Director‑General

National Library of Australia

11

Managing Director

Special Broadcasting Service Corporation

12

Managing Director

Tourism Australia

9  Actions deemed not to be taken by Attorney‑General’s Department

             (1)  For the purposes of subsection 3(5A) of the Act, action taken by the Australian Government Solicitor or any other officer of the Attorney‑General’s Department in furtherance of the duties of the Australian Government Solicitor is deemed not to be action taken by the Attorney‑General’s Department.

             (2)  Subsection (1) does not apply to action that is disclosable conduct to which subsection 5A(1) of the Act applies.

10  Members of court staff

                   For the purposes of paragraph 3(14)(d) of the Act, if the administrative head of a court appoints a person as a security officer, that person is declared to be a member of the staff of the court for the purposes of the Act.

11  Commonwealth‑controlled companies to be taken to be prescribed authorities

                   For the purposes of subsection 3A(3) of the Act, each of the following Commonwealth‑controlled companies is to be taken to be a prescribed authority:

                     (a)  Aboriginal Hostels Limited;

                     (b)  ANU Enterprise Pty Limited.

12  Prescribed terms and conditions

                   For the purposes of subsection 21(2) of the Act, the terms and conditions set out in Part 7 of Determination 2017/06 that apply to a Departmental Secretary (within the meaning of the Remuneration Tribunal Act 1973) are prescribed.

13  Witness expenses

                   If:

                     (a)  a person (the witness) attends before another person to answer questions relevant to an investigation in accordance with a notice served under subsection 9(1AA) or (2) of the Act; and

                     (b)  the witness incurs expenses or suffers losses in so attending;

the witness may be paid an amount equal to so much of those expenses or losses as the Ombudsman considers reasonable.

Part 3Defence Force Ombudsman

  

14  Conferral of functions on Defence Force Ombudsman—new complaints etc.

             (1)  For the purposes of paragraph 19C(1)(a) of the Act, the Defence Force Ombudsman has:

                     (a)  the function of taking appropriate action to respond to a new complaint of abuse made by a complainant if the Defence Force Ombudsman is satisfied that the abuse is reasonably likely to have occurred, including any of the following actions:

                              (i)  facilitating counselling for the complainant;

                             (ii)  using a process to address or resolve the complaint, facilitated by the Defence Force Ombudsman or another person, such as an alternative dispute resolution process or a restorative engagement conference;

                            (iii)  making a recommendation to the Defence Department in respect of the complaint;

                          (iiia)  if the new complaint is made before 1 July 2021 and relates to abuse that allegedly occurred on or before 30 June 2014—making recommendations under section 14A in relation to the complaint;

                            (iv)  deciding not to take, or to continue to take, action in response to the complaint; and

                     (b)  functions that are ancillary or incidental to the function mentioned in paragraph (a); and

                     (c)  the function of inquiring into matters relating to complaints of abuse, including, for example:

                              (i)  the Defence Department’s and the Defence Force’s procedures relating to making and responding to such complaints; and

                             (ii)  the effectiveness and appropriateness of those procedures; and

                     (d)  the function of dealing with any matter relating to complaints previously made to, and dealt with by, the Defence Abuse Response Taskforce.

Note:          In addition to the ways mentioned in paragraph (a), certain provisions of the Act could also be used to respond to a complaint of abuse. For example, section 35A of the Act could be used to refer evidence relating to a complaint of abuse to the Australian Federal Police, the police force or police service of a State or Territory or a military justice authority for investigation and possible prosecution of an offence.

          (1A)  A complaint is a new complaint if:

                     (a)  the complaint is about abuse engaged in by a member of Defence; and

                     (b)  either:

                              (i)  the complaint is made to the Defence Force Ombudsman on or after the amendment day; or

                             (ii)  the complaint was made to the Defence Force Ombudsman on or after 1 December 2016 but before the amendment day and, immediately before the amendment day, the complaint had not been finally dealt with; and

                     (c)  the complaint is not an excluded complaint.

             (2)  To avoid doubt, a complainant may make a complaint about abuse engaged in by a member of Defence even if the complainant has not approached the Defence Department in relation to the complaint.

             (4)  The Chief of the Defence Force and the Defence Secretary must both use their best endeavours to assist the Defence Force Ombudsman in his or her performance of the functions set out in subsection (1).

14A  Payments to complainants—new complaints

             (1)  If:

                     (a)  a complainant makes a new complaint of abuse of a kind referred to in subparagraph 14(1)(a)(iiia); and

                     (b)  the Defence Force Ombudsman is satisfied that the abuse involved the most serious forms of abuse;

the Defence Force Ombudsman may recommend that the Defence Secretary make a reparation payment of up to $45,000 to the complainant.

             (2)  If:

                     (a)  a complainant makes a new complaint of abuse of a kind referred to in subparagraph 14(1)(a)(iiia); and

                     (b)  the Defence Force Ombudsman is satisfied that the abuse involved unlawful interference with the complainant accompanied by some element of indecency;

the Defence Force Ombudsman may recommend that the Defence Secretary make a reparation payment of up to $20,000 to the complainant.

             (3)  If:

                     (a)  the Defence Force Ombudsman makes a recommendation under subsection (1) or (2) in relation to a new complaint of abuse made by a complainant; and

                     (b)  the Defence Force Ombudsman is reasonably satisfied that the Defence Department did not respond appropriately to the abuse;

the Defence Force Ombudsman may recommend that the Defence Secretary make an additional payment of up to $5,000 to the complainant.

14B  Conferral of functions on Defence Force Ombudsman—old complaints

             (1)  For the purposes of paragraph 19C(1)(a) of the Act, the Defence Force Ombudsman has:

                     (a)  the function of making recommendations under subsections (3) to (5) in relation to an old complaint if the Defence Force Ombudsman is satisfied that the abuse to which the old complaint relates is reasonably likely to have occurred; and

                     (b)  functions that are ancillary or incidental to the function mentioned in paragraph (a).

             (2)  A complaint is an old complaint if:

                     (a)  the complaint was made to the Defence Force Ombudsman on or after 1 December 2016 but before the amendment day; and

                     (b)  immediately before the amendment day, the Defence Force Ombudsman had finally dealt with the complaint; and

                     (c)  the complaint was about abuse allegedly engaged in by a member of Defence on or before 30 June 2014; and

                     (d)  the complaint is not an excluded complaint.

             (3)  If the Defence Force Ombudsman is satisfied that the abuse to which an old complaint relates involved the most serious forms of abuse, the Defence Force Ombudsman may recommend that the Defence Secretary make a reparation payment of up to $45,000 to the complainant.

             (4)  If the Defence Force Ombudsman is satisfied that the abuse to which an old complaint relates involved unlawful interference with the complainant accompanied by some element of indecency, the Defence Force Ombudsman may recommend that the Defence Secretary make a reparation payment of up to $20,000 to the complainant.

             (5)  If:

                     (a)  the Defence Force Ombudsman makes a recommendation under subsection (3) or (4) in relation to an old complaint of abuse made by a complainant; and

                     (b)  the Defence Force Ombudsman is reasonably satisfied that the Defence Department did not respond appropriately to the abuse;

the Defence Force Ombudsman may recommend that the Defence Secretary make an additional payment of up to $5,000 to the complainant.

15  Transitional—conferral of functions on Defence Force Ombudsman

Disclosure, collection and use of information and documents relating to the Defence Abuse Response Taskforce

             (1)  The Defence Abuse Response Taskforce must disclose information and documents obtained by the Taskforce in the performance of its functions to the Defence Force Ombudsman for the purposes of the Defence Force Ombudsman performing his or her functions under the Act or this instrument.

             (2)  The Attorney‑General’s Department must disclose information and documents relating to the Defence Abuse Response Taskforce to the Defence Force Ombudsman for the purposes of the Defence Force Ombudsman performing his or her functions under the Act or this instrument.

             (3)  The Defence Force Ombudsman may collect and use information or documents disclosed under subsection (1) or (2), or disclose information or documents, for the purposes of performing his or her functions under the Act or this instrument.

Disclosure etc. of information and documents relating to new complaints or old complaints

             (4)  A Department or prescribed authority may disclose information and documents relating to a new complaint, or an old complaint, of abuse to the Defence Force Ombudsman for the purposes of the Defence Force Ombudsman performing his or her function under paragraph 14(1)(a) or 14B(1)(a) of this instrument.

             (5)  The Defence Force Ombudsman may collect and use information or documents disclosed under subsection (4), or disclose information or documents, for the purposes of performing his or her functions under the Act or this instrument.

Interaction with the Privacy Act 1988

             (6)  For the purposes of the Privacy Act 1988, disclosing information or documents to the Defence Force Ombudsman, as mentioned in subsections (1), (2) and (4), is taken to be authorised by this instrument.


Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

 

ad = added or inserted

o = order(s)

am = amended

Ord = Ordinance

amdt = amendment

orig = original

c = clause(s)

par = paragraph(s)/subparagraph(s)

C[x] = Compilation No. x

    /sub‑subparagraph(s)

Ch = Chapter(s)

pres = present

def = definition(s)

prev = previous

Dict = Dictionary

(prev…) = previously

disallowed = disallowed by Parliament

Pt = Part(s)

Div = Division(s)

r = regulation(s)/rule(s)

ed = editorial change

reloc = relocated

exp = expires/expired or ceases/ceased to have

renum = renumbered

    effect

rep = repealed

F = Federal Register of Legislation

rs = repealed and substituted

gaz = gazette

s = section(s)/subsection(s)

LA = Legislation Act 2003

Sch = Schedule(s)

LIA = Legislative Instruments Act 2003

Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given

SLI = Select Legislative Instrument

    effect

SR = Statutory Rules

(md not incorp) = misdescribed amendment

Sub‑Ch = Sub‑Chapter(s)

    cannot be given effect

SubPt = Subpart(s)

mod = modified/modification

underlining = whole or part not

No. = Number(s)

    commenced or to be commenced

 

Endnote 3—Legislation history

 

Name

Registration

Commencement

Application, saving and transitional provisions

Ombudsman Regulations 2017

26 Sept 2017 (F2017L01248)

27 Sept 2017 (s 2(1) item 1)

 

Ombudsman Amendment (Functions of the Defence Force Ombudsman) Regulations 2017

15 Dec 2017 (F2017L01625)

16 Dec 2017 (s 2(1) item 1)

 

Endnote 4—Amendment history

 

Provision affected

How affected

s 2.............................................

rep LA s 48D

s 4.............................................

rep LA s 48C

s 5.............................................

am F2017L01625

s 14...........................................

am F2017L01625

s 14A........................................

ad F2017L01625

s 14B........................................

ad F2017L01625

s 15...........................................

am F2017L01625

Schedule 1................................

rep LA s 48C