Report 22 - The Relationship Between the Ombudsman and the Administrative Appeals Tribunal 1985

The Relationship Between the Ombudsman and the Administrative Appeals Tribunal, 1985

Summary of the report

The report was transmitted to the Government on 2 January 1985, and was tabled in the Parliament on 21 May 1985.

The report was divided into three parts. The first concerned the legislative inter-relationship between the Ombudsman and the Administrative Appeals Tribunal ('AAT'), and compared their nature, functions, scope, review procedures and remedies. The second discussed the issue of whether it was desirable for the Ombudsman and the AAT to have overlapping jurisdictions. Thirdly, the Council examined options for reform, with a view to improving the relationship between the two bodies.

The report contains four recommendations:

• that subsection 6(3) of the Ombudsman Act 1976 be amended so as to require the Ombudsman to have regard to certain specified factors when exercising the discretion under that subsection not to investigate,
• that provision be made in the respective legislation for mutual referral of cases, with the consent of the complainant or applicant,
• that, in addition to the process in section 11 of the Ombudsman Act 1976 for the principal officer of an agency, on the recommendation of the Ombudsman, to refer a question to the AAT for an advisory opinion, there should be a power in the Ombudsman to refer a question directly to the AAT for such an opinion, and
• that the words 'conferred by an enactment' should be removed from subsection 11(1) of the Ombudsman Act, so that action taken pursuant to a prerogative or non-statutory power was not excluded from being the subject of an advisory opinion of the AAT.

Response to the report

In April 1988 the Attorney-General's Department provided the Council with a preliminary draft of an Administrative Review Legislation Amendment Bill, which was intended to give effect to recommendations made by Council in this report. The Department and the Council became concerned about the complexity of the arrangements in the Bill for reciprocal referral of cases between the two bodies. At the same time, the President of the AAT and the Ombudsman expressed the view that the matter could be handled more simply by administrative arrangements, jointly devised between them. A set of administrative arrangements were subsequently drawn up which:

• facilitated the referral of matters between the Ombudsman and the AAT,
• specified the criteria relevant to the exercise of the Ombudsman's decision to refer a matter to the AAT, and
• provided for the powers of the Ombudsman to be drawn to the attention of applicants to the AAT in appropriate cases.

These arrangements effectively achieved the result that the Council was seeking in its report, and detailed legislative amendments were, therefore, considered to be unnecessary.

The Council advised the Attorney-General to this effect by letter dated 2 June 1988 (reproduced as Letter 19 in Twelfth Annual Report 1987-88). In that letter, the Council also revised the wording of its first recommendation in the report, to reflect the view that the listing of factors in the Ombudsman Act should be non-prescriptive. The Council also reindorsed its fourth recommendation. There was, however, no implementation action taken on these two recommendations.

Note: A comprehensive review of the Ombudsman's Office was subsequently conducted by the Senate Standing Committee on Finance and Public Administration in 1991. The Council made a submission to that review; see, the Council's Fifteenth Annual Report 1990-91, paras 87-89.

​