The Ombudsman may refer a complaint about agency conduct to that agency for investigation, under section 12A of the Ombudsman Act 1974 or section 25 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (CS-CRAMA), including recommendations for how the agency may investigate or deal with the complaint.
- Section 12A of the Ombudsman Act 1974 (Ombudsman Act) allows the Ombudsman to refer a complaint about the conduct of a public authority for investigation.
- Section 25 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (CS-CRAMA) allows the Ombudsman to refer a community services complaint to another person or body (including a service provider) if the complaint raises issues that may require investigation by the other person or body.
- Complaints about NSW public authorities are referred under the Ombudsman Act and complaints about non-government organisations (NGOs) funded by the NSW government are referred under CS-CRAMA.
What is a s 12A or s 25 referral?
Under section 12A Ombudsman Act and section 25 CS-CRAMA, the Ombudsman may decide to refer a complaint about the conduct of an agency back to that agency for investigation.
A referral may recommend how the agency may investigate or otherwise deal with the complaint. If a referral is made, our office may monitor the progress of the agency’s investigation of the complaint. We may, if considered appropriate, continue to deal with the complaint or part of the complaint.
An agency that receives a referral under s 12A of the Ombudsman Act or s 25 CS-CRAMA must:
- consider any recommendations we make in deciding how to deal with the referred complaint
- on the request of the Ombudsman, provide documents and other information relating to the complaint
- report to the Ombudsman on the outcome of the referral.
About these guidelines
These guidelines are provided to assist your agency understand what we expect of you when you receive a referral from us under s 12A Ombudsman Act or s 25 CS-CRAMA. The guidelines also suggest ways for you to plan and report on your investigation.
What to expect from us
We will consult with you before referring a complaint for investigation.
In our referral letter, we will tell you what we want you to investigate and give you as much information as possible about the complaint being referred. Our letter will specify whether the information sent to you under the referral is confidential. We will only provide you with the identity of the complainant if we think it may be relevant to your investigation.
In some cases, a report may have been made by a public official or from a person having public official functions or is acting in a public official capacity. In these cases, the provisions of the Public Interest Disclosures Act 2022 (PID Act) will apply.
Timeframes and progress reports
Once the complaint has been referred, we will specify a timeframe for the investigation. This follows consultation with the head of your agency or their nominated delegate.
We consider 3 months to be sufficient time to complete an investigation and report back. However, 4 to 5 months may be appropriate in more complex matters.
If circumstances arise that suggest it may be difficult to complete the investigation and report within the specified timeframe, you should notify us beforehand of the reasons for any changes to investigation deadline. We may request a copy of your investigation plan and progress updates during your investigation, usually at the half-way mark. This assists us to effectively oversee your agency’s investigation.
Reviewing the investigation report
We will review the outcomes of your investigation to ensure your agency has dealt appropriately and reasonably with the complaint.
As well as assessing the thoroughness of your investigation, we will consider whether the outcomes, process and any findings or recommendations are sound and appropriate.
The investigation report will assist both your agency and us to identify:
- areas where, and reasons why, wrong conduct may have occurred in the exercise of administrative functions
- individuals who may be involved in wrong conduct
- whether appropriate services were delivered to service receivers.
What are the possible outcomes?
We will advise you whether:
- we are satisfied with the outcome and will monitor any undertakings made
- we may ask for more information or action to be taken
- we are not satisfied and may decide to take other action. Note: we may decide to intervene in the investigation at any point.
Planning your investigation
An investigation plan defines how, when, and why you will investigate. Effective planning is essential to maximise the likelihood of a sound investigation.
We recommend that your plan include the following:
- a description of the complaint issues and any relevant statement of facts
- the scope and purpose of the investigation
- resources that will be used including human and technical
- how long the investigation will take and any key milestones or dependencies
- key documentation to be sourced and analysed if known at the outset
- any key risks identified and ways to mitigate them
- the methodology used and an outline of which witnesses relate to which key issues, if known, and the names and roles of witnesses.
Authority to investigate
Referrals from our office do not give your agency any powers that the Ombudsman has when it investigates matters. The powers available to you to investigate are those that you ordinarily have when conducting internal inquiries on behalf of your agency.
Principles of procedural fairness apply to your investigation. Any affected persons should be given both the opportunity to respond before any final adverse findings of fact are made and the opportunity to be heard before any adverse action is taken against them.
The PID Act places certain restrictions in relation to the identity of public officials and persons having public official functions or acting in a public official capacity who provide information about serious maladministration and other types of conduct specified by the PID Act. Please consult your own legal advisors if you have questions on the applicability of the PID Act to your investigation.
Further information
For further information and assistance on preparing your report, conducting your internal investigation or any other issues raised in these guidelines, please contact the Ombudsman officer nominated in the referral.
You may find it useful to refer to the checklists below.
Reporting checklist
It is suggested that your agency’s investigation report could include the following sections to the extent they are relevant to the investigation:
- executive summary
- investigation scope
- methodology
- the sources of evidence
- statements of facts
- conclusions about individuals
- outcomes for individuals
- identification of system weaknesses
- outcomes for systems.
Investigation reports can be detailed and lengthy. An executive summary of the key issues and any findings and outcomes will assist readers of the report.
In this section of the report:
- Outline the allegations. Include those referred to your agency by the Ombudsman for investigation. If we asked that specific questions be addressed in relation to these allegations, these questions should be restated in this introductory section.
- Describe the activities or statutory functions under investigation. For example, the duties or functions of a unit or officer such as supervision, cash handling, use of information and travel payments.
- Describe the rules, policies and procedures that apply. Do not just attach copies of documents.
- List the individuals or bodies affected by the investigation. A public official or authority, private company or citizen may be affected by your investigation if adverse findings or conclusions are drawn against them. People, or other bodies, affected by your investigation may not just be those mentioned in the initial referral. During the investigation, the list of affected people may change or expand beyond those mentioned in our initial referral.
- List all potential witnesses. This includes anyone who had supervisory responsibility for the activities or functions being examined (for example, members of a tender committee or supervisors with review functions).
Identify:
- the investigator/s. If the matter was investigated by:
- your agency’s internal investigators: specify the area responsible. For example, internal audit or human resources
- a contracted external investigator: provide details about the investigator and the reasons that person or company was considered suitable for the investigation.
- the sources of evidence. For example:
- documents examined as part of your investigation
- people interviewed during the investigation
- other evidence that was gathered during your investigation.
- any limiting factors. For example:
- missing records
- relevant staff being unavailable for interview because they no longer work for the agency
- inability to discuss the allegations with the person who raised them.
If any of these factors applied, indicate how they affected your investigation.
A summary of the evidence used to make your statements of fact (see below) should be included in your report. In particular, the summary should include:
- a brief description of the relevant parts of the evidence
- an assessment of the reliability of the evidence.
If copies of the evidence are attached such as transcripts of interviews, place them in an appendix to the report.
Statements of fact are arrived at by drawing inferences from relevant and reliable evidence. They are historical statements inferred from the evidence and should not be confused with your recommendations or outcomes. The rules of evidence that apply in courts do not apply to investigating facts in the matter that has been referred to your agency. In reporting to the Ombudsman, you are not expected to abide by the rules of evidence as applicable in courts when investigating the facts surrounding the matter referred. Statements of fact are usually descriptions of:
- what a person did
- how they did it including omissions and failures to act. For example, details of the person’s conduct or behaviour
- when the conduct occurred. For example, date, time, and location
- why they did it. For example, stated motivations or reasons for the conduct.
For each public official, departmental unit or contractor in your list of affected people (see ‘Scope of the investigation’) specify any adverse comments or findings. State whether the facts indicate that a person:
- failed to act when they should have
- acted unreasonably, unjustly or oppressively
- acted with improper motives or irrelevant considerations
- acted in a way that was improperly discriminatory
- breached policy or procedure
- acted contrary to the law acted (or failed to act) in a way that was otherwise wrong
- failed to provide appropriate services.
For everyone who was the subject of adverse comment or finding, please describe any outcomes they have or will face. For example:
- training
- performance management
- disciplinary action
- termination from employment
- referral to police.
For each of the functions involved in the matter investigated (see ‘Scope of the investigation’) specify whether any failings or weaknesses were found in policies, procedures or organisational culture that may have allowed maladministration to occur.
Describe what is being done to address the weaknesses identified. For example, summarise any:
- reviews and revisions to policy
- strategies to change organisational culture
- new training
- new organisational structures or hierarchies.
s 25 CS-CRAMA referral
If the complaint was referred to your agency under s 25 CS-CRAMA, the investigation report should also address:
- provision of services: were appropriate services provided, were concerns about service provision addressed when they were raised
- failure to provide services: did the agency fail to provide appropriate services, did the agency refuse service to a person who was eligible for that service
- withdrawal of services: did the agency withdraw services from a person eligible to receive that service. If the agency did withdraw services, what steps did the agency take to ensure that the person had access to appropriate services
- variation of services: did the agency vary the services it offered to a person or group of persons, did the variation impact on the services available
- administration of services.
