Victorian Consolidated Legislation

Ombudsman Act 1973 - SECT 13

PART III FUNCTIONS AND JURISDICTION OF THE OMBUDSMAN

Functions and jurisdiction

13. Functions and jurisdiction



(1) The principal function of the Ombudsman shall be to enquire into or
investigate any administrative action taken in any Government Department or
Public Statutory Body to which this Act applies or by any member of staff of a
municipal council.



(1A) The functions of the Ombudsman under subsection (1) include the power to
enquire into or investigate whether any administrative action is incompatible
with a human right set out in the Charter of Human Rights and
Responsibilities.

(2) Subject to this section this Act applies to all Government Departments and
Public Statutory Bodies except those or the branches of those mentioned in the
Schedule and to members of staff of all municipal councils.





(2AAA) The Ombudsman is also to monitor compliance with Division 3 of Part 2
of the Prevention of Cruelty to Animals Act 1986 by officers of the Royal
Society for the Prevention of Cruelty to Animals who are approved as
inspectors under section 18(1)(b)(ii) of that Act.

(2AA) The Ombudsman is also to monitor compliance by members of the police
force with Division 3 of Part 4 of the Melbourne City Link Act 1995.





(2AB) The Ombudsman must review the records of the police force at least twice
during each financial year to monitor compliance by members of the force with
Division 3 of Part 4 of the Melbourne City Link Act 1995.

(2AC) The Ombudsman is also to monitor compliance with the
Domestic Animals Act 1994 by persons appointed as authorised officers under
section 71A(1) or 72A(1) of that Act.



(2A) Despite subsection (3)(c), the Ombudsman may, subject to this Act,
enquire into or investigate any administrative action taken by State Trustees.

(3) Nothing in this Act shall authorize the Ombudsman to enquire into or
investigate any administrative action taken-

   (a)  by a court of law or by a Judge or a magistrate;

   (aa) by a board tribunal commission or other body presided over by a Judge
        magistrate or Australian lawyer (within the meaning of the
        Legal Profession Act 2004) presiding as such by virtue of a statutory
        requirement and appointment;



   (b)  by a person acting as legal adviser to the Crown or as counsel for the
        Crown in any proceedings;

   (ba) by the Director of Public Prosecutions;





   (c)  by a person in his capacity as trustee under the Trustee Act 1958;

   (ca) by the Victorian Electoral Commission established under section 6 of
        the Electoral Act 2002;





   (d)  by the Auditor-General or an authorised person within the meaning of
        the Audit Act 1994; or





   (da) by Audit Victoria;





   (e)  by a municipal council or a councillor of a municipal council acting
        as such.





(3AA) To avoid doubt, section 13(3)(aa) does not apply and is taken never to
have applied to the Director, Police Integrity or the Office of Police
Integrity.

(3A) Nothing in this Act authorises any enquiry into or investigation of any
administrative action taken by a member of the police force of Victoria
otherwise than-

   (a)  in accordance with Part IVA of the Police Regulation Act 1958; or

   (b)  on a complaint made by a member of the police force in respect of his
        or her terms and conditions of employment (including matters relating
        to appointments, promotions, removals, pay, discipline and
        superannuation, and other personnel matters); or

   (ba) in respect of an administrative action taken by that member in the
        course of the secondment of that member to the Office of Police
        Integrity; or

   (c)  for the purpose of-



   (i)  carrying out a function under subsection (2AA) or (2AB); or

   (ii) investigating the disclosure or use by a member of the police force of
        restricted tolling information within the meaning of the
        Melbourne City Link Act 1995.

(4) The Ombudsman shall not conduct an investigation in respect of any matter
where it appears to him that-

   (a)  the aggrieved person has or had a right of appeal reference or review
        to or before a tribunal constituted by or under any enactment or by
        virtue of Her Majesty's prerogative; or

   (b)  the aggrieved person has or had a remedy by way of proceedings in a
        court of law-

unless the Ombudsman considers that in the particular circumstances-

   (c)  it would not be reasonable to expect or to have expected the aggrieved
        person to resort to that right or remedy; or

   (d)  the matter merits investigation in order to avoid injustice.

(5) The Ombudsman shall not investigate any matter with respect to persons who
are or were in service under an authority so far as the matter relates to
terms and conditions of employment (including matters relating to appointments
promotions removals pay discipline and superannuation, and other personnel
matters) unless the Ombudsman considers that the matter merits investigation
in order to avoid injustice.

(6) The powers of the Ombudsman in relation to any administrative action taken
by an authority to which this Act applies may be exercised notwithstanding
that the action was taken on behalf of, or in the exercise of any function
conferred on, an authority or a body to which this Act does not apply, but
nothing in this Act shall authorize or require the Ombudsman to question the
merits of any decision made by the authority or body to which this Act does
not apply.

(7) Where any administrative action is taken by an authority or body to which
this Act does not apply under any powers or functions conferred on or
instructions given to it by an authority to which this Act applies, the
administrative action so taken shall, for the purposes of this Act, be deemed
to be the administrative action of the authority to which this Act applies,
and the powers of the Ombudsman in respect of that action may be exercised
accordingly.

(8) The Ombudsman may conduct an enquiry or investigation in respect of an
administrative action taken by an authority to which this Act applies before
the coming into operation of this Act, if in all the circumstances the
Ombudsman considers it proper so to do.

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