Ombudsman Amendment Regulations 1999 (No. 1)

Overview

The Ombudsman Amendment Regulations 1999 (No. 1), issued under the authority of the Prime Minister, were enacted to align with the Judiciary Amendment Act 1999, which established the Australian Government Solicitor as a statutory authority separate from the Attorney-General's Department. These regulations were necessary to ensure that the Ombudsman Act 1976 did not encompass the new Australian Government Solicitor as a prescribed authority, thereby removing it from the Ombudsman's jurisdiction. This change reflects the decision that entities such as the new Australian Government Solicitor should be exempt from statutory administrative law unless otherwise agreed by shareholder Ministers in individual cases. The primary objective of these regulations is to explicitly exclude the new Australian Government Solicitor from being considered a prescribed authority under the Ombudsman Act, thus implementing the Cabinet's directive and maintaining consistency with the broader legislative intent regarding the new statutory authority's operational independence.

Scope and Application

The Ombudsman Amendment Regulations 1999 (No. 1) are made under Section 38 of the Ombudsman Act 1976, enabling the Governor-General to establish regulations necessary for the Act's execution. These regulations specifically address the newly established Australian Government Solicitor (AGS) as a statutory authority separate from the Attorney-General's Department, a change implemented by the Judiciary Amendment Act 1999. The Act originally directed the Ombudsman to investigate complaints against prescribed authorities, defined under Section 3, but the new regulations modify this by explicitly excluding the new AGS from being considered a prescribed authority. This exclusion aligns with Cabinet's decision to exempt certain entities from statutory administrative law, including the new AGS, unless otherwise agreed upon by shareholder Ministers in individual cases. The regulations also include a transitional provision to preserve the Ombudsman's jurisdiction over any existing complaints based on matters occurring before the commencement of the Judiciary Amendment Act 1999 and the creation of the new AGS. These amendments ensure that the new AGS operates outside the Commonwealth Ombudsman's oversight, effective from the date of gazette.

Key Provisions

The Ombudsman Amendment Regulations 1999 (No. 1) make several key changes to the existing Ombudsman Regulations under the Ombudsman Act 1976. The primary operative section of these amendments is Regulation 4, which explicitly excludes the Australian Government Solicitor (AGS) from being considered a "prescribed authority" (Section 3 of the Act). This exclusion means that complaints against the AGS will no longer fall under the Ombudsman's jurisdiction. This change is necessitated by the Judiciary Amendment Act 1999 (JAA), which establishes the AGS as a separate statutory authority. The amendments also include a transitional provision to preserve the Ombudsman's jurisdiction over any complaints that are based on matters that occurred before the commencement of the JAA and the creation of the new AGS. These regulations impose certain obligations on the Ombudsman's office, primarily to ensure that any existing complaints against the AGS that are based on actions or decisions made before the commencement of the JAA are still processed. Additionally, the regulations require the Ombudsman to maintain records and procedures that distinguish between complaints falling within their jurisdiction and those that do not, due to the new exclusions. This includes ensuring that any complaint related to the new AGS is not investigated or addressed by the Ombudsman. There are no specific offences or penalties outlined within the regulations themselves, as they primarily serve to amend the scope of the Ombudsman's jurisdiction. However, any breach of the Ombudsman Act 1976 by the Ombudsman, such as improperly investigating a matter that falls under the new exclusions, could lead to disciplinary action under the Public Service Act 1999. Moreover, if the Ombudsman investigates a matter that falls outside their jurisdiction as defined by these regulations, it could result in the Ombudsman's decision being subject to judicial review, which could lead to the quashing of the decision. The maximum penalties for such administrative errors are not explicitly stated in the regulations but would be determined by the courts in the context of judicial review proceedings.