Part 1—Preliminary
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.
National Preventive Mechanism Network means the persons and bodies separately appointed or established by the Commonwealth and each State and Territory to give effect to Australia’s obligations under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
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 2—General 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 3—Defence 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 complaint is covered by subsection (1B)—making recommendations under section 14A in respect of 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.
(1B) A new complaint is covered by this subsection if:
(a) the complaint is about abuse allegedly engaged in by a member of Defence on or before 30 June 2014; and
(b) either:
(i) the complaint is made to the Defence Force Ombudsman on or before 30 June 2022; or
(ii) a written notice of intention to make the complaint is given to the Defence Force Ombudsman on or before 30 June 2022 and the complaint is made to the Defence Force Ombudsman on or before 30 June 2023.
(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—certain new complaints
(1) If:
(a) a complainant makes a new complaint of abuse covered by subsection 14(1B); 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 covered by subsection 14(1B); 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.
Part 4—National Preventive Mechanism functions
Division 1—National Preventive Mechanism Body function
16 National Preventive Mechanism Body function
(1) For the purposes of paragraph 4(2)(a) of the Act, the National Preventive Mechanism Body function is conferred on the Ombudsman.
(2) The National Preventive Mechanism Body function is to be performed for the purposes of giving effect to the Commonwealth’s obligations under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Optional Protocol), so far as those obligations relate to places of detention under the control of the Commonwealth.
Note: The Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment is in Australian Treaty Series 2018 No. 5 ([2018] ATS 5) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
(3) The National Preventive Mechanism Body function includes the following:
(a) undertaking regular inspections of places of detention;
(b) giving information to the United Nations Subcommittee on Prevention of Torture and other Cruel or Degrading Treatment or Punishment to facilitate the inspection of places of detention by the Subcommittee;
(c) functions incidental to the function of National Preventive Mechanism Body.
(4) For the purposes of this section, the Commonwealth’s obligations under the Optional Protocol do not include the obligations of each of the States and Territories under the Optional Protocol.
Division 2—National Preventive Mechanism Coordinator function
17 National Preventive Mechanism Coordinator function
(1) For the purposes of paragraph 4(2)(a) of the Act, the function of National Preventive Mechanism Coordinator is conferred on the Ombudsman.
(2) The function of National Preventive Mechanism Coordinator is to be performed for the purposes of giving effect to Australia’s obligations under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Optional Protocol).
(3) The function of National Preventive Mechanism Coordinator includes the following:
(a) consulting with governments and other bodies on the development of standards and principles regarding the treatment and conditions of persons deprived of their liberty;
(b) collecting information on oversight arrangements in relation to persons deprived of their liberty and undertaking related research;
(c) proposing options and developing resources to facilitate improvements in oversight arrangements in relation to persons deprived of their liberty, including by:
(i) facilitating the sharing of expertise, knowledge and practice in order to build on the existing work of detention inspectorates of the Commonwealth, the States and the Territories; or
(ii) proposing options for reducing duplication of, and overlap in, inspections of places of detention; or
(iii) proposing options for covering gaps in oversight of places of detention;
(d) communicating, on behalf of the National Preventive Mechanism Network, with the United Nations Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment;
(e) convening meetings and facilitating collaboration between any of the following for the purposes of giving effect to the Optional Protocol:
(i) State and Territory governments and governments of other countries;
(ii) National Preventive Mechanism persons and bodies, including such persons and bodies outside Australia;
(f) giving information to the following for the purposes of giving effect to the Optional Protocol:
(i) the United Nations Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment;
(ii) State and Territory governments and governments of other countries;
(iii) National Preventive Mechanism persons and bodies, including such persons and bodies outside Australia;
(g) reporting to the public and to Commonwealth, State and Territory Ministers on the following:
(i) the implementation of the Optional Protocol;
(ii) the activities of the National Preventive Mechanism Network;
(h) making recommendations to the Commonwealth in relation to the implementation of the Optional Protocol;
(i) functions incidental to the function of National Preventive Mechanism Coordinator.
Note: For National Preventive Mechanism Network, see section 5.
(4) In performing the function of National Preventive Mechanism Coordinator, the Commonwealth Ombudsman must not compel or direct a person or body that is a part of the National Preventive Mechanism Network.
