Commonwealth: Ombudsman Act 1976 (Cth)

Ombudsman Act 1976 No. 181, 1976 Compilation No. 61 Compilation date: 15 February 2025 Includes amendments: Act No. 7, 2025 About this compilation This compilation This is a compilation of the Ombudsman Act 1976 that shows the text of the law as amended and in force on 15 February 2025 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part I—Preliminary 1 Short title 2 Commencement 3 Interpretation 3A Prescribed authorities: Commonwealth‑controlled companies 3B Certain legislation relating to Australian Capital Territory not to be enactment 3BA Commonwealth service providers 3C Application of Act 3D Application of the Criminal Code Part II—Establishment, functions, powers and duties of the Ombudsman Division 1—Establishment and functions 4 Establishment of offices of Ombudsman and Deputy Ombudsman 4A The Office of the Commonwealth Ombudsman 5 Functions of Ombudsman 5A Public interest disclosure functions of Ombudsman 5B Transfer of complaints from the Inspector‑General of Intelligence and Security 6 Discretion not to investigate certain complaints 6A Transfer of complaints about ACC 6B Transfer of complaints about National Anti‑Corruption Commissioner 6C Transfer of complaints to Information Commissioner 6D Tax administration matters and transfer of complaints to Inspector‑General of Taxation 6E Transfer of complaints to the Australian Small Business and Family Enterprise Ombudsman 6F Transfer of complaints to the Inspector‑General of Intelligence and Security 6G Transfer of information to the National Anti‑Corruption Commissioner or the Inspector 7 Complaints 7A Preliminary inquiries 8 Investigations 8A Investigations by Commonwealth and State Ombudsmen 8B Investigations by other authorities of ACC actions 8C Investigations by other authorities of National Anti‑Corruption Commission actions 8D Investigations by Ombudsman and Australian Federal Police 9 Power to obtain information and documents 10 Unreasonable delay in exercising power 10A Ombudsman may refer questions to the Administrative Review Tribunal 11 Ombudsman may recommend that the principal officer refer questions to the Administrative Review Tribunal 11A Powers of Federal Court of Australia 12 Complainant and Department etc. to be informed 13 Power to examine witnesses 14 Power to enter premises 14A Power to obtain access to documents etc. by remote means Division 2—Reports 15 Reports by Ombudsman 16 Reports where appropriate action not taken on Ombudsman's report 17 Special reports to Parliament 18 Ombudsman may have further discussion with principal officer 19 Reports to Parliament Part IIA—Establishment, functions, powers and duties of the Defence Force Ombudsman 19B Establishment of office of Defence Force Ombudsman 19C Functions of Defence Force Ombudsman 19D Discretion to investigate complaints as Commonwealth Ombudsman or as Defence Force Ombudsman 19E Discretion with respect to certain complaints 19F Application of provisions of Act to Defence Force Ombudsman 19FA Reports of the Defence Force Ombudsman Part IIB—Establishment, functions, powers and duties of the Postal Industry Ombudsman Division 1—Preliminary 19G Definitions 19H Action taken by contractors 19J Continued application of this Act to deregistered PPOs 19K Part IIB not to affect operation of other provisions of this Act Division 2—Establishment and functions of the Postal Industry Ombudsman 19L Establishment of office of Postal Industry Ombudsman 19M Functions of Postal Industry Ombudsman 19N Discretion to investigate complaints as Commonwealth Ombudsman or as Postal Industry Ombudsman 19P Discretion to refer complaint to another statutory office‑holder 19Q Discretion not to investigate certain complaints Division 3—Powers and duties of the Postal Industry Ombudsman 19R Application of other provisions of this Act to the Postal Industry Ombudsman 19S Powers of the Postal Industry Ombudsman under section 9 19T Duty to accord procedural fairness 19U Disclosure of identifying information 19V Postal Industry Ombudsman may report to Australia Post or registered PPO 19W Minister to table certain reports in Parliament 19X Reports of the Postal Industry Ombudsman 19Y Postal Industry Ombudsman may notify employer of misconduct 19Z Limitation on liability where information or documents provided in good faith or when required to do so Division 4—Register of PPOs 19ZA Registration of PPOs 19ZB Information to be included in Register 19ZC Deregistration of PPOs 19ZD Register may be maintained by electronic means Division 5—Fees for investigations 19ZE Fees for investigations Part IIC—Establishment, functions, powers and duties of the Overseas Students Ombudsman Division 1—Preliminary 19ZF Definitions 19ZG Continued application of Part to former registered providers 19ZH Part not to affect operation of other provisions of this Act Division 2—Establishment and functions of the Overseas Students Ombudsman 19ZI Establishment of office of Overseas Students Ombudsman 19ZJ Functions of Overseas Students Ombudsman 19ZK Transfer of complaints 19ZL Discretion not to investigate certain complaints Division 3—Powers and duties of the Overseas Students Ombudsman 19ZM Application of other provisions of this Act to the Overseas Students Ombudsman 19ZN Powers of the Overseas Students Ombudsman under section 9 19ZO Duty to accord procedural fairness 19ZP Disclosure of identifying information 19ZQ Overseas Students Ombudsman may report to private registered provider 19ZR Minister to table certain reports in Parliament 19ZS Reports of the Overseas Students Ombudsman 19ZT Overseas Students Ombudsman may notify of misconduct 19ZU Limitation on liability where information or documents provided in good faith or when required to do so Part IID—Private Health Insurance Ombudsman Division 1—Preliminary 20 Principal object of this Part 20A Definitions for this Part 20B Private Health Insurance Ombudsman Rules Division 2—Establishment and functions of the Private Health Insurance Ombudsman 20C Establishment of office of Private Health Insurance Ombudsman 20D Functions of Private Health Insurance Ombudsman Division 3—Complaints Subdivision A—Relevant complaints 20E Who may make a complaint 20F Persons against whom complaints may be made 20G Grounds for complaint Subdivision B—Dealing with complaints 20H Initial receipt of complaint 20J Ways of dealing with complaints 20K Referral to the Australian Competition and Consumer Commission 20L Referral to other bodies 20M Deciding not to deal with a complaint Subdivision C—Referral to subjects of complaints 20N Referral to the subject of the complaint Subdivision D—Investigation of complaints 20P Investigation of complaint Subdivision E—Recommendations and reports 20Q Recommendations as a result of referral or investigation 20R Report to Health Minister on outcome of investigation under Subdivision D Subdivision F—Miscellaneous 20S Complainant to be kept informed Division 3A—Inspection and audit Subdivision A—Inspection and audit 20SA Powers to conduct inspections and audits Subdivision B—Recommendations and reports 20SB Recommendation and reporting powers as a result of inspection or audit Division 4—Investigations Subdivision A—Investigations 20T Initiating investigations 20TA Powers to inspect documents etc. Subdivision B—Recommendations and reports 20U Recommendations as a result of investigation 20V Report to Health Minister on outcome of investigations under this Division 20W Consultation with Australian Competition and Consumer Commission Division 4A—Power to obtain access to documents etc. by remote means 20WA Power to obtain access to documents etc. by remote means Division 5—Mediation 20X Conducting mediation 20Y Participation in mediation may be compulsory 20Z Medical practitioners may appoint representatives 20ZA Conduct of compulsory mediation 20ZB Admissibility of things said in mediation 20ZC Appointment of mediators Division 6—Information‑gathering 20ZD Information‑gathering—requests for PHI records and information 20ZE Information‑gathering—notices requiring PHI records and information 20ZF Information‑gathering—compliance with requests and notices Division 7—Provisions relating to the Private Health Insurance Ombudsman 20ZG Reports of the Private Health Insurance Ombudsman Division 8—Miscellaneous 20ZH Victimisation 20ZHA Announcement before entry 20ZHB Responsibility to provide facilities and assistance 20ZI Giving information about the Private Health Insurance Ombudsman 20ZIA Identity cards 20ZJ Private Health Insurance Ombudsman Rules 20ZK Application of certain provisions of the Act Part IIE—VET Student Loans Ombudsman Division 1—Establishment and functions 20ZL Establishment of office of VET Student Loans Ombudsman 20ZM Functions of VET Student Loans Ombudsman 20ZN Performance of functions Division 2—Investigations and complaints 20ZO Investigations 20ZP Complaints 20ZQ Referral of complaints to other bodies 20ZR Deciding not to investigate complaints Division 3—Other powers of the VET Student Loans Ombudsman 20ZS Application of Act to VET Student Loans Ombudsman 20ZT Duty to accord procedural fairness Division 4—Reporting by the VET Student Loans Ombudsman 20ZU Disclosure of identifying information 20ZV Reports to VET student loan scheme providers 20ZW Minister to table reports about VET student loan scheme providers in Parliament 20ZX Annual and other reports by the VET Student Loans Ombudsman 20ZY VET Student Loans Ombudsman may notify of misconduct 20ZZ Limitation on liability where information or documents provided in good faith or when required to do so Division 5—Other provisions relating to the VET Student Loans Ombudsman 20ZZA Part does not limit application of other provisions 20ZZB Alternative constitutional basis Part IIF—National Student Ombudsman Division 1—Introduction 21AA Simplified outline of this Part Division 2—Establishment and functions 21AB Establishment of office of National Student Ombudsman 21AC Functions of National Student Ombudsman Division 3—Complaints Subdivision A—Complaints to the National Student Ombudsman 21AD Making a complaint 21AE Complaints taken to be made to the National Student Ombudsman Subdivision B—Dealing with complaints 21AF Initial receipt of complaint 21AG Ways of dealing with complaints 21AH Referral of matters raised in complaints 21AJ Deciding not to deal with a complaint Subdivision C—Referral of complaint to higher education provider 21AK Referral to the subject of the complaint 21AL Recommendations as a result of referral of complaint to higher education provider Subdivision D—Alternative dispute resolution 21AM Conducting an alternative dispute resolution process 21AN Participation in alternative dispute resolution process may be compulsory 21AP Ceasing alternative dispute resolution process 21AQ Admissibility of things said in alternative dispute resolution process Subdivision E—Restorative engagement process 21AR Conducting a restorative engagement process 21AS Admissibility of things said in restorative engagement process Division 4—Investigations 21AT Investigations 21AU Conduct of investigations Division 5—Reporting by the National Student Ombudsman 21AV Reports to higher education providers 21AW Higher Education Minister to table reports about higher education providers in Parliament 21AX Reports of the National Student Ombudsman 21AY Disclosure of identifying information in reports Division 6—Other powers and duties of the National Student Ombudsman Subdivision A—Information gathering powers 21AZ Inquiries 21AZA Notices requiring information, documents or attendance to answer questions 21AZB Responding to inquiries and notices Subdivision B—Application of Act to National Student Ombudsman 21AZC Application of certain provisions of the Act Subdivision C—Duties 21AZD Duty to accord procedural fairness Division 7—Miscellaneous 21AZE Continued application of Part 21AZF Discretion to deal with complaints as National Student Ombudsman or other Ombudsman 21AZG Authorised disclosure of information 21AZH National Student Ombudsman may notify of misconduct 21AZJ Limitation on liability where information or documents provided in good faith 21AZK Part not to affect operation of other provisions of this Act 21AZL National Student Ombudsman Rules Part III—Conditions of service, and staff, of the Ombudsman Division 1—Ombudsman 21A Interpretation 21 Appointment of Ombudsman 22 Tenure of office 23 Deputy Ombudsman 24 Salary and allowances 25 Leave of absence 26 Resignation 27 Retirement 28 Suspension and removal of Ombudsman 28A Removal taken to be retirement on ground of invalidity 28B Retirement on ground of invalidity under the Superannuation Acts 29 Acting appointments Division 2—Staff 31 Staff 31A Engagement of persons to conduct alternative dispute resolution processes Part IV—Miscellaneous 32 Duty of principal officer etc. to assist Ombudsman 33 Ombudsman not to be sued 34 Delegation 35 Officers to observe confidentiality 35AA Disclosure of information and documents to National Anti‑Corruption Commissioner or Inspector 35AB Disclosure of information and documents to Inspector‑General of Intelligence and Security 35A Disclosure of information by Ombudsman 35B Disclosure of ACC information 35C Disclosure of NACC information 35D Protection from reprisals—what constitutes taking a reprisal 35E Protection from reprisals—compensation and other orders etc. 35F Protection from reprisals—offence 36 Offences 37 Protection from civil actions 38 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to provide for the appointment of a Commonwealth Ombudsman, a Defence Force Ombudsman, a Postal Industry Ombudsman, an Overseas Students Ombudsman, a Private Health Insurance Ombudsman, a VET Student Loans Ombudsman and a National Student Ombudsman, and to define their respective functions and powers Part I—Preliminary 1 Short title This Act may be cited as the Ombudsman Act 1976. 2 Commencement This Act shall come into operation on a date to be fixed by Proclamation. 3 Interpretation (1) In this Act, unless the contrary intention appears: ACC means the Australian Crime Commission established under section 7 of the Australian Crime Commission Act 2002. ACMA means the Australian Communications and Media Authority. ACT enactment means an enactment as defined by section 3 of the Australian Capital Territory (Self‑Government) Act 1988. adult has the same meaning as in the Private Health Insurance Act 2007. AFP appointee has the same meaning as in the Australian Federal Police Act 1979. AFP Commissioner means the Commissioner within the meaning of the Australian Federal Police Act 1979. AFP conduct issue has the same meaning as in the Australian Federal Police Act 1979. AFP practices issue has the same meaning as in the Australian Federal Police Act 1979. Agency Head has the same meaning as in the Public Service Act 1999. alternative dispute resolution process means a procedure or service that: (a) is for the resolution of disputes, including mediation and conciliation (but not including arbitration or court processes or services); and (b) does not involve the exercise of the judicial power of the Commonwealth. APS Code of Conduct means the rules in section 13 of the Public Service Act 1999. Australia Post means the Australian Postal Corporation. authorized person means: (a) a person appointed by the Ombudsman to be an authorized person for the purposes of this Act; or (b) a person included in a class of persons appointed by the Ombudsman to be authorized persons for the purposes of this Act. Board of the ACC means the Board of the Australian Crime Commission established under section 7B of the Australian Crime Commission Act 2002. Chief Executive Medicare has the same meaning as in the Private Health Insurance Act 2007. chief executive officer, in relation to a court or tribunal, means the person holding the office, or performing the duties, of: (a) in relation to the High Court—the Chief Executive and Principal Registrar of the Court; or (b) in relation to the Federal Court of Australia—the Chief Executive Officer and Principal Registrar of the Court; or (c) in relation to the Federal Circuit and Family Court of Australia (Division 1)—the Chief Executive Officer and Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1); or (d) in relation to the Federal Circuit and Family Court of Australia (Division 2)—the Chief Executive Officer and Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1); or (e) in relation to the Administrative Review Tribunal—the Chief Executive Officer and Principal Registrar of the Tribunal; or (f) in relation to a court or tribunal declared by the regulations—the office declared by those regulations to be the office of the chief executive officer of the court or tribunal for the purposes of this Act; or (g) an office prescribed by the regulations in lieu of an office referred to in paragraph (a), (b), (c), (d) or (e). Commonwealth‑controlled company means an incorporated company in which the Commonwealth has an interest that enables the Commonwealth: (a) to control the composition of the board of directors of the company; or (b) to cast, or control the casting of, more than one‑half of the maximum number of votes that might be cast at a general meeting of the company; or (c) to control more than one‑half of the issued share capital of the company (excluding any part of that share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital). Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013. Commonwealth service provider has the meaning given by section 3BA. complying health insurance policy has the same meaning as in the Private Health Insurance Act 2007. complying health insurance product has the same meaning as in the Private Health Insurance Act 2007. constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. constitutional provider means: (a) a constitutional corporation; or (b) a body corporate that is established by or under a law of the Commonwealth or a Territory. CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011. Department means a Department within the meaning of the Public Service Act 1999, but does not include the branch of the Australian Public Service comprising the transitional staff as defined by section 3 of the A.C.T. Self‑Government (Consequential Provisions) Act 1988. Department of Defence means the Department administered by the Minister administering section 1 of the Defence Act 1903. Deputy Ombudsman means a Deputy Commonwealth Ombudsman. Deputy Ombudsman (Defence Force) means the Deputy Ombudsman who is, by virtue of a notice under subsection 23(1) that is in force, designated as the Deputy Ombudsman (Defence Force). disclosable conduct has the same meaning as in the Public Interest Disclosure Act 2013. enactment means, subject to section 3B: (a) an Act; or (b) an Ordinance of the Australian Capital Territory; or (c) an Ordinance of Norfolk Island, of the Territory of Christmas Island or of the Territory of Cocos (Keeling) Islands; or (d) an instrument made under an Act or under an Ordinance referred to in paragraph (b) or (c); or (e) a law (not being an Act, an Ordinance referred to in paragraph (c) or an instrument referred to in paragraph (d)) in force in Norfolk Island, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; but does not include the Northern Territory (Self‑Government) Act 1978 or an enactment of the Northern Territory. enactment of the Northern Territory means: (a) a law or Ordinance referred to in paragraph (a) or (b) of the definition of enactment in subsection 4(1) of the Northern Territory (Self‑Government) Act 1978; or (b) an instrument (including rules, regulations or by‑laws) made under such a law or Ordinance. engage in conduct means: (a) do an act; or (b) omit to do an act. examiner of ACC has the meaning given by the Australian Crime Commission Act 2002. excluded action has the meaning given by subsections 21AD(3) and (4). health care provider has the same meaning as in the Private Health Insurance Act 2007. Health Department means the Department administered by the Health Minister. health insurance business has the same meaning as in the Private Health Insurance Act 2007. Health Minister means the Minister administering the Private Health Insurance Act 2007. Higher Education Department means the Department administered by the Higher Education Minister. Higher Education Minister means the Minister administering the TEQSA Act. higher education officer, of a higher education provider, means a person who: (a) is an officer or employee of the provider; or (b) performs services for or on behalf of the provider (other than a person covered paragraph (a)). higher education principal executive officer, of a higher education provider, means the person who has executive responsibility for the operation of the provider. higher education provider means a constitutional provider that is: (a) registered under Part 3 of the TEQSA Act; and (b) listed on the National Register of Higher Education Providers under paragraph 198(1)(a) of that Act. higher education student, of a higher education provider, means: (a) a student enrolled in any course of study with the higher education provider (other than a student enrolled only in a VET course with the provider); or (b) a prospective student, or a former student, in relation to any course of study (other than a VET course) with the higher education provider. Note: A course of study includes, for example, an enabling course and a microcredential course. law enforcement agency has the same meaning as in the Australian Crime Commission Act 2002. medical practitioner has the same meaning as in the Private Health Insurance Act 2007. National Anti‑Corruption Commissioner means the Commissioner within the meaning of the National Anti‑Corruption Commission Act 2022. National Student Ombudsman Rules means rules made under section 21AZL. officer means: (a) in relation to a Department: (i) a person (including the principal officer of the Department) employed, whether in a permanent or temporary capacity, in the Department; or (ii) any other person (not being a Minister) authorized to exercise powers or perform functions of the Department on behalf of the Department; or (b) in relation to a prescribed authority: (i) the person who constitutes, or is acting as the person who constitutes, the authority; (ii) a person who is, or is acting as, a member of the authority or is a deputy of such a member; (iii) a person who is employed in the service of, or is a member of the staff of, the authority, whether or not he or she is employed by the authority; or (iv) a person authorized by the authority to exercise any powers or perform any functions of the authority on behalf of the authority. Note: For the meaning of officer in Parts IIB, IIC and IID, see sections 19G, 19ZF and 20A respectively. Ombudsman means the Commonwealth Ombudsman. ombudsman scheme means a scheme providing for the investigation of complaints by consumers about matters relating to decisions or actions of the holders of licences or authorities granted under an enactment. Ordinance, in relation to the Australian Capital Territory, includes a law of a State that applies, or the provisions of a law of a State that apply, in the Territory by virtue of an enactment (other than a law that is, or provisions that are, an ACT enactment). Parliamentary Department means a Department of the Parliament established under the Parliamentary Service Act 1999. personal information has the same meaning as in the Private Health Insurance Act 2007. PHI records, of a subject of a complaint under Division 3 of Part IID or an investigation under Division 4 of Part IID, includes any of the following documents that are in the possession, or under the control, of the subject: (a) the constitution and rules of the subject, if the subject is a private health insurer; (b) the internal training manuals and related documents of the subject; (c) any documents relevant to a private health insurance arrangement to which the subject is a party or that applies to the subject; (d) to the extent that the complaint or investigation relates to the subject's dealings with a particular person—the subject's documents relating to its dealings with that particular person including correspondence, internal memoranda, emails, and recordings of taped conversations; whenever those documents came into existence. postal or similar service includes: (a) a postal service; and (b) a courier service; and (c) a packet or parcel carrying service. PPO (short for Private Postal Operator) means an entity (other than Australia Post) that provides a postal or similar service, whether or not that entity also provides other services. prescribed authority means: (a) a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment, other than: (i) an incorporated company or association; (ii) a body that has the power to take evidence on oath or affirmation and is required, or is expressly permitted, by an enactment to be constituted by, or to include among its members, a person who is a Justice or Judge of a court created by the Parliament or a person who has, by virtue of an Act, the same status as a Justice or Judge of such a court; (iii) a body that, under subsection (2) or the regulations, is not to be taken to be a prescribed authority for the purposes of this Act; and (v) a Royal Commission; or (b) a Commonwealth‑controlled company that is a prescribed authority by virtue of section 3A; or (ba) a body corporate, or an unincorporated body, established by the Governor‑General or by a Minister and declared by the regulations to be a prescribed authority; or (bb) a chief executive officer, in relation to a court or tribunal; or (c) the person holding, or performing the duties of, an office established by an enactment, other than: (i) the chief executive officer, in relation to a court or tribunal, or a person who, for the purposes of this Act, is to be taken to be a member of the staff of a court or tribunal; or (ii) a person who, under subsection (3) or the regulations, is not to be taken to be a prescribed authority for the purposes of this Act; or (d) the person performing the duties of an appointment declared by the regulations to be an appointment the holder of which is a prescribed authority for the purposes of this Act, being an appointment made by the Governor‑General, or by a Minister, otherwise than under an enactment. principal officer means: (a) in relation to a Department of the Australian Public Service—the person holding, or performing the duties of, the office of Secretary of the Department; or (c) in relation to a prescribed authority: (i) if the regulations declare an office to be the principal office in respect of the authority—the person holding, or performing the duties of, that office; or (ii) in any other case—the person who constitutes, or is acting as the person who constitutes, that authority or, if the authority is constituted by 2 or more persons, the person who is entitled to preside at any meeting of the authority at which he or she is present. Note: For the meaning of principal officer for the purposes of Part IIB, see section 19G. private health insurance arrangement has the same meaning as in the Private Health Insurance Act 2007. private health insurance broker has the same meaning as in the Private Health Insurance Act 2007. Private Health Insurance (Information Disclosure) Rules means rules mentioned in subsection 333‑20(1), table item 16, of the Private Health Insurance Act 2007. Private Health Insurance Ombudsman Rules means rules made under section 20ZJ. private health insurance policy has the same meaning as in the Private Health Insurance Act 2007. private health insurer has the same meaning as in the Private Health Insurance Act 2007. product has the same meaning as in the Private Health Insurance Act 2007. registered PPO means a PPO that is registered for the purposes of Part IIB (see section 19ZA). Note: In certain circumstances, a PPO that is no longer registered for the purposes of Part IIB may still be treated as a registered PPO (see section 19J). responsible Minister, in relation to a matter, or to action taken in or in relation to a matter, means: (a) if a Department of the Australian Public Service is responsible for dealing with the matter—the Minister administering that Department; or (c) if a prescribed authority referred to in paragraph (a) of the definition of prescribed authority is responsible for dealing with the matter—the Minister administering the enactment by which, or in accordance with the provisions of which, the prescribed authority is established; or (d) if a prescribed authority referred to in paragraph (c) of that definition is responsible for dealing with the matter—the Minister administering the enactment by which the office is established; or (e) if any other prescribed authority is responsible for dealing with the matter—the Minister declared by the regulations to be the responsible Minister in respect of that authority; or another Minister acting for and on behalf of that Minister. restorative engagement process means a facilitated process that: (a) is for the purpose of a complainant engaging with a higher education officer of a higher education provider that is the subject of the complainant's complaint to have the complaint acknowledged; and (b) does not involve the exercise of the judicial power of the Commonwealth. rules, of a private health insurer, has the same meaning as in the Private Health Insurance Act 2007. Secretary means: (a) in relation to a Department—the person who is the Secretary of the Department for the purposes of the Public Service Act 1999; or (b) in relation to a Parliamentary Department—the person who is the Secretary of the Parliamentary Department for the purposes of the Parliamentary Service Act 1999. State or Territory body includes a Department of State, or an authority or agency, of a State or Territory. takes a reprisal: see section 35D. taxation law has the same meaning as in the Income Tax Assessment Act 1997. TEQSA (short for Tertiary Education Quality and Standards Agency) means the body established by section 132 of the TEQSA Act. TEQSA Act means the Tertiary Education Quality and Standards Agency Act 2011. VET course has the same meaning as in the National Vocational Education and Training Regulator Act 2011. VET loan assistance has the meaning given by subsection 20ZM(4). VET student means: (a) a student enrolled in a course of study with a VET student loan scheme provider; or (b) a prospective student, or a former student, in relation to such a course. VET student loan officer has the meaning given by subsection 20ZS(4). VET student loan principal executive officer has the meaning given by subsection 20ZS(5). VET student loan scheme provider means: (a) an approved course provider within the meaning of the VET Student Loans Act 2016, including a body that has been (but is no longer) such a provider; or (b) a VET provider within the meaning of the Higher Education Support Act 2003, including a body that has been (but is no longer) such a provider. (2) An unincorporated body, being a board, council, committee, sub‑committee or other body established by, or in accordance with the provisions of, an enactment for the purpose of assisting, or performing functions connected with, a prescribed authority shall not be taken to be a prescribed authority for the purpose of this Act, but action taken by the body, or by a person on its behalf, shall, for the purpose of this Act, be deemed to have been taken by that prescribed authority. (3) A person shall not be taken to be a prescribed authority by virtue of holding, or performing the duties of: (a) an office whose duties the person performs as duties of employment as an officer or employee of a Department or as a member of the staff of a prescribed authority; (b) an office of member of a body; or (c) an office established by an enactment for the purposes of a prescribed authority; but any action taken by or on behalf of a person holding, or performing the duties of, such an office shall, for the purposes of this Act, be deemed to have been taken by the Department, body or authority concerned. (4) Where: (a) a person who is not an officer of a Department, or of a prescribed authority, for the purposes of this Act takes action in the exercise of a power or the performance of a function that the person is authorized to exercise or to perform, as the case may be, by reason of his or her holding an appointment made by, or by reason of authority given by, the Governor‑General, a Minister or the Secretary of a Department; and (b) the person does not exercise the power or perform the function by reason of his or her holding, or performing the duties of, an office established by, or in accordance with the provisions of, an enactment or by reason of his or her being a Judge of a court of, or a magistrate of, a State or Territory; the action shall be deemed to be taken, for the purposes of this Act, by the Department responsible for dealing with the matter in connection with which the action is taken. (4A) Notwithstanding subsection (4), where a person is authorized to exercise a power or perform a function by reason of his or her holding an appointment made by, or by reason of authority given by, the Governor‑General, a Minister or the Secretary of a Department otherwise than under an enactment, the regulations may provide that action taken by the person in the exercise of that power or the performance of that function shall not be deemed to be taken, for the purposes of this Act, by the Department responsible for dealing with the matter in connection with which the action is taken. (4B) For the purposes of this Act, if: (a) a person is not an officer of a Department or prescribed authority; and (b) the person is, or is an employee of, a Commonwealth service provider of the Department or prescribed authority under a contract; and (c) for the purposes of the contract, the person takes action in the exercise of a power or the performance of a function for or on behalf of the Department or prescribed authority; and (d) the person does not exercise the power or perform the function by reason of: (i) his or her holding, or performing the duties of, an office established by, or in accordance with the provisions of, an enactment; or (ii) his or her being a Judge of a court of, or a magistrate of, a State or Territory; and (e) the regulations do not otherwise provide; the action is taken to be action taken by the Department or prescribed authority. (5) For the purposes of this Act, action that is taken by an officer of a Department shall be deemed to be taken by the Department: (a) if the officer takes, or purports to take, the action by virtue of his or her being an officer of the Department, whether or not: (i) the action is taken for or in connexion with, or as incidental to, the performance of the functions of the Department; or (ii) the taking of the action is within the duties of the officer; or (b) if the officer takes, or purports to take, the action in the exercise of powers or the performance of functions conferred on him or her by an enactment. (5A) Notwithstanding subsection (5), where the person holding, or performing the duties of, an office established by an enactment is, under the regulations, not to be taken to be a prescribed authority for the purposes of this Act, the regulations may also provide that action taken by an officer of a Department, being action in the furtherance of the duties of that office, shall, for the purposes of this Act, be deemed not to be action taken by that Department. (6) For the purposes of this Act, action that is taken by an officer of a prescribed authority shall be deemed to be taken by the authority: (a) if the officer takes, or purports to take, the action by virtue of his or her being an officer of the authority, whether or not: (i) the action is taken for or in connexion with, or as incidental to, the performance of the functions of the prescribed authority; or (ii) the taking of the action is within the duties of the officer; or (b) if the officer takes, or purports to take, the action in the exercise of powers or the performance of functions conferred on him or her by an enactment. (6A) For the purposes of this Act, action that is taken by a member of the Defence Force shall be deemed to be taken by the Defence Force if the member takes, or purports to take, the action by virtue of his or her being a member of the Defence Force, whether or not: (a) the action is taken in connection with, in the course of, or as incidental to, his or her service as a member of the Defence Force; or (b) the taking of the action is within his or her duties as a member of the Defence Force. (6B) Action taken by any person or persons by way of, or in connection with, the appointment of a person to be the Chief of the Defence Force, the Chief of Navy, the Chief of Army or the Chief of Air Force is not action taken by the Defence Force or by a Department for the purposes of this Act. (6C) In this Act (other than subsection (6A)), unless the contrary intention appears, a reference to a member of the Defence Force or of an arm or part of the Defence Force includes a reference to: (a) a person who has been a member of the Defence Force or of that arm or part of the Defence Force; or (b) a deceased person who was at any time before his or her death a member of the Defence Force or of that arm or part of the Defence Force. (6D) For the purposes of this Act, action that is taken by an officer of a registered PPO is taken to have been taken by the registered PPO if the officer takes, or purports to take, the action because he or she is an officer of the registered PPO, whether or not: (a) the action is taken for or in connection with, or as incidental to, the provision of a postal or similar service by the registered PPO; or (b) the taking of the action is within the duties of the officer. (6E) For the purposes of this Act, action that is taken by a person is deemed to be have been taken by a higher education provider if the person takes, or purports to take, the action because the person is the higher education principal executive officer, or a higher education officer, of the provider, whether or not: (a) the action is taken for or in connection with, or as incidental to: (i) performing services for or on behalf of the provider; or (ii) carrying out the person's powers, duties and functions as an employee in the provider's service, or as an officer of the provider; or (b) the taking of the action is within the person's duties as the higher education principal executive officer, or a higher education officer, of the provider. (7) In this Act, unless the contrary intention appears, a reference to the taking of action includes a reference to: (a) the making of a decision or recommendation; (b) the formulation of a proposal; and (c) failure or refusal to take any action, to make a decision or recommendation or to formulate a proposal. (7A) In this Act, unless the contrary intention appears, a reference to the Ombudsman of a State shall be read as a reference to a person performing, under a law of the State, functions similar to the functions performed by the Ombudsman. (7B) For the purposes of a provision of this Act (other than this subsection) in which a reference to the Ombudsman of a State occurs: (a) a reference to a State, in relation to the Ombudsman of a State, shall be read as including a reference to the Australian Capital Territory and a reference to the Northern Territory; (b) a reference to a law of a State, in relation to the Ombudsman of a State, shall be read as including a reference to an ACT enactment and a reference to an enactment of the Northern Territory; and (c) a reference to a Department or authority of a State, in relation to the Ombudsman of a State, shall be read as including a reference to: (i) the Australian Capital Territory; or (ii) a Territory authority as defined by section 3 of the Australian Capital Territory (Self‑Government) Act 1988; as the case requires. (8) A reference in this Act to the international relations of the Commonwealth is a reference to the relations of the Commonwealth with the Government of another country or with an international organization. (9) For the purposes of this Act, the Australian Federal Police shall be deemed to be a prescribed authority. (10) In the application of this Act in relation to the Australian Federal Police, references in this Act to an officer of a prescribed authority shall be read as references to an AFP appointee. (11) For the purposes of this Act (other than subsection (6)), the Defence Force shall be deemed to be a prescribed authority. (12) In the application of this Act in relation to the Defence Force: (a) references in this Act to an officer of a prescribed authority shall be read as references to a member of the Defence Force; (b) references in this Act to the principal officer of a prescribed authority shall be read as references to the Chief of the Defence Force; and (c) references in this Act to the responsible Minister, in relation to a matter in relation to a prescribed authority, or in relation to action taken by a prescribed authority in or in relation to a matter, shall be read as references to the Minister for Defence or another Minister acting for and on behalf of the Minister for Defence. (13) For the purposes of this Act, any matter (including a report) concerning both the Defence Force and the Department of Defence may, by arrangement between the Defence Force Ombudsman, the Chief of the Defence Force and the principal officer of the Department of Defence, be communicated by the Defence Force Ombudsman to either the Chief of the Defence Force or the principal officer of that Department. (13A) For the purposes of this Act, the ACC is taken to be a prescribed authority. (14) For the purposes of this Act: (a) the officers of a court or tribunal (other than the chief executive officer); and (b) the members of the staff of the registry or registries of a court or tribunal; and (c) officers or employees of a Department, or of an authority of the Commonwealth, whose services are made available to a court or tribunal; and (d) persons declared by the regulations to be members of the staff of a court or tribunal for the purposes of this Act; are to be taken to be members of the staff of the court or tribunal. (15) A reference in this section to an officer of a court or tribunal does not include a judge of a court or a member of a tribunal. (16) In relation to anything that concerns: (a) a chief executive officer, in relation to a court or tribunal; or (b) a Parliamentary Department; a reference to which this subsection applies has effect in accordance with subsection (18). (17) Subsection (16) applies to the following references: (a) a reference in any of the following provisions to the responsible Minister: (i) paragraph 8(7A)(b); (ii) subsections 8(8) and (9); (iii) paragraph 8(10)(c); (iv) subsection 11A(5); (v) subparagraphs 35(3)(b)(i) and (ia); (b) the reference in paragraph 8(10)(a) to the Minister administering a Department; (c) the reference in subsection 15(6) to the Minister concerned. (18) A reference to which subsection (16) applies is to be read as follows: (a) in the case of the chief executive officer, in relation to a court, the reference is to be read as a reference to the chief justice or chief judge (however described) of the court; (b) in the case of the Chief Executive Officer and Principal Registrar of the Administrative Review Tribunal, the reference is to be read as a reference to the President of the Administrative Review Tribunal; (c) in the case of the chief executive officer, in relation to a tribunal (other than the Administrative Review Tribunal), the reference is to be read as a reference to the president or principal member (however described) of the tribunal or, if the tribunal consists of a single member, as a reference to that member; (d) in the case of the Department of the Senate, the reference is to be read as a reference to the President of the Senate; (e) in the case of the Department of the House of Representatives, the reference is to be read as a reference to the Speaker; (f) in the case of any other Parliamentary Department, the reference is to be read as a reference to the President of the Senate and the Speaker. 3A Prescribed authorities: Commonwealth‑controlled companies (1) A Commonwealth‑controlled company is a prescribed authority unless: (a) it is excluded by subsection (2); or (b) under the regulations it is to be taken not to be a prescribed authority. (2) Subject to subsection (3), a Commonwealth‑controlled company is excluded for the purposes of paragraph (1)(a) if: (a) the company was a Commonwealth‑controlled company immediately before the commencement of Part 6 of the Prime Minister and Cabinet (Miscellaneous Provisions) Act 1994; and (b) immediately before that commencement the company was not a prescribed authority for the purposes of this Act as then in force. (3) A Commonwealth‑controlled company that, but for this subsection, would be excluded by subsection (2) is not so excluded if the regulations declare that the company is to be taken to be a prescribed authority. 3B Certain legislation relating to Australian Capital Territory not to be enactment (1) ACT enactments are not enactments. (2) The Australian Capital Territory (Self‑Government) Act 1988 and the Canberra Water Supply (Googong Dam) Act 1974 are not enactments. (3) Part IV, sections 29 and 30, subsection 63(2), section 66 and Division 5 of Part X of the Australian Capital Territory Planning and Land Management Act 1988 are not enactments. (4) Where the whole of an Act or Ordinance is not an enactment, an instrument made under it is not an enactment. (5) Where part of an Act or Ordinance is not an enactment, an instrument made under the Act or Ordinance, as the case may be, is not an enactment unless made for the purposes of the other part of the Act or Ordinance, as the case may be. 3BA Commonwealth service providers A person is a Commonwealth service provider of a Department or prescribed authority under a contract (the Commonwealth contract) if: (a) both of the following apply: (i) the person, and the Department or prescribed authority or the Commonwealth, are parties to the Commonwealth contract; (ii) for the purposes of the Commonwealth contract, the person is responsible for providing goods or services, for or on behalf of the Department or prescribed authority, to another person who is not a Department or prescribed authority or the Commonwealth; or (b) both of the following apply: (i) the person, and a person who is (under a previous application of this section) a Commonwealth service provider of the Department or prescribed authority under the Commonwealth contract, are parties to another contract (the subcontract); (ii) under the subcontract and for the purposes of the Commonwealth contract, the person is responsible for providing goods or services, for or on behalf of the Department or prescribed authority, to another person who is not a Department or prescribed authority or the Commonwealth. 3C Application of Act This Act applies both within and outside Australia and extends to every external Territory. 3D Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Part II—Establishment, functions, powers and duties of the Ombudsman Division 1—Establishment and functions 4 Establishment of offices of Ombudsman and Deputy Ombudsman (1) For the purposes of this Act, there shall be: (a) a Commonwealth Ombudsman; and (b) at least one, and not more than 3, Deputy Commonwealth Ombudsmen. (2) The functions of the Commonwealth Ombudsman are to investigate complaints made to him or her under this Act and to perform such other functions as are conferred on him or her by: (a) this Act or the regulations; or (b) another Act or regulations made under another Act; or (c) an ACT enactment or regulations made under an ACT enactment. (4) The Commonwealth Ombudsman, in performing his or her functions in relation to immigration (including immigration detention), may, if he or she so chooses, be called the Immigration Ombudsman. (5) The Commonwealth Ombudsman, in performing his or her functions in relation to the Australian Federal Police, may, if he or she so chooses, be called the Law Enforcement Ombudsman. 4A The Office of the Commonwealth Ombudsman For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013): (a) the following group of persons is a listed entity: (i) the Commonwealth Ombudsman; (ii) the Deputy Commonwealth Ombudsmen; (iii) the staff referred to in subsection 31(1); and (b) the listed entity is to be known as the Office of the Commonwealth Ombudsman; and (c) the Commonwealth Ombudsman is the accountable authority of the Office of the Commonwealth Ombudsman; and (d) the persons referred to in paragraph (a) are officials of the Office of the Commonwealth Ombudsman; and (e) the purposes of the Office of the Commonwealth Ombudsman include: (i) the functions of the Commonwealth Ombudsman referred to in subsection 4(2) and section 5; and (ii) the functions of the Defence Force Ombudsman referred to in section 19C; and (iii) the functions of the Postal Industry Ombudsman referred to in section 19M; and (iv) the functions of the Overseas Students Ombudsman referred to in section 19ZJ; and (v) the functions of the Private Health Insurance Ombudsman referred to in section 20D; and (vi) the functions of the VET Student Loans Ombudsman referred to in section 20ZM; and (vii) the functions of the National Student Ombudsman referred to in section 21AC. 5 Functions of Ombudsman (1) Subject to this Act, the Ombudsman: (a) shall investigate action, being action that relates to a matter of administration, taken either before or after the commencement of this Act by a Department, or by a prescribed authority, and in respect of which a complaint has been made to the Ombudsman; and (b) may, of his or her own motion, investigate any action, being action that relates to a matter of administration, taken either before or after the commencement of this Act by a Department or by a prescribed authority; and (c) with the consent of the Minister, may enter into an arrangement under which the Ombudsman will perform functions of an ombudsman under an ombudsman scheme established in accordance with the conditions of licences or authorities granted under an enactment. (2) The Ombudsman is not authorized to investigate: (a) action taken by a Minister; or (aa) action that constitutes proceedings in Parliament for the purposes of section 16 of the Parliamentary Privileges Act 1987; or (b) action taken by a Justice or Judge of a court created by the Parliament; or (ba) action by the chief executive officer, in relation to a court, or by a person who, for the purposes of this Act, is to be taken to be a member of the staff of a court: (i) when exercising a power of the court; or (ii) when performing a function, or exercising a power, of a judicial nature; or (c) action taken by: (i) a magistrate or coroner for the Australian Capital Territory, Norfolk Island, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; or (ii) a person who holds office as a magistrate in a State or the Northern Territory in the performance of the functions of a magistrate conferred on him or her by or under an Act; or (d) action taken by any body or person with respect to persons employed in the Australian Public Service or the service of a prescribed authority, being action taken in relation to that employment, including action taken with respect to the promotion, termination of appointment or discipline of a person so employed or the payment of remuneration to such a person; or (e) action taken by any of the following: (i) the Australian Security Intelligence Organisation; (ii) the Australian Secret Intelligence Service; (iii) the part of the Department of Defence known as the Australian Geospatial‑Intelligence Organisation; (iv) the Australian Signals Directorate; (v) the part of the Department of Defence known as the Defence Intelligence Organisation; (vi) the Office of National Intelligence; or (g) action taken by a Department or by a prescribed authority with respect to the appointment of a person to an office or position established by or under an enactment, not being an office or position in the Australian Public Service or an office in the service of a prescribed authority. (3) The reference in paragraph (2)(a) to action taken by a Minister does not include a reference to action taken by a delegate of a Minister, and, for the purposes of this subsection, action shall be deemed to have been taken by such a delegate notwithstanding that the action is taken in pursuance of a power that is deemed by a provision of an enactment, when exercised by the delegate, to have been exercised by the Minister. (3A) For the purposes of the application of this Act to or in relation to the Ombudsman, action taken by a Department or by a prescribed authority shall not be regarded as having been taken by a Minister by reason only that the action was taken by the Department or authority in relation to action that has been, is proposed to be, or may be, taken by a Minister personally. (4) Paragraph (2)(d) does not prevent the Ombudsman from investigating action taken by an AFP appointee, or by any other person, with respect to information that: (a) is given to the AFP appointee; and (b) raises an AFP conduct issue or AFP practices issue; and (c) relates to action taken by another AFP appointee. (5) The Ombudsman is not authorised to investigate action taken under: (a) a law of Western Australia in its application in the Territory of Christmas Island by virtue of the Christmas Island Act 1958; or (b) a law of Western Australia in its application in the Territory of Cocos (Keeling) Islands by virtue of the Cocos (Keeling) Islands Act 1955; by a person employed by Western Australia. (6) The reference in subsection (5) to a person employed by Western Australia includes a reference to: (a) a person occupying, or acting in, an office or position under a law of Western Australia; and (b) a person employed by a body established by or under a law of Western Australia. (6A) The Ombudsman is not authorised to investigate action taken under a law of New South Wales, in its application in Norfolk Island by virtue of the Norfolk Island Act 1979, by a person employed by New South Wales. (6B) The reference in subsection (6A) to a person employed by New South Wales includes a reference to: (a) a person occupying, or acting in, an office or position under a law of New South Wales; and (b) a person employed by a body established by or under a law of New South Wales. (7) An arrangement referred to in paragraph (1)(c) may include provision for payment by the other party to the arrangement for the performance of functions by the Ombudsman in accordance with the arrangement. 5A Public interest disclosure functions of Ombudsman (1) If: (a) a disclosure of information has been, or is required to be, allocated under section 43 of the Public Interest Disclosure Act 2013; and (b) some or all of the disclosable conduct with which the information is concerned relates (within the meaning of that Act) to an agency (within the meaning of that Act); and (c) the agency is neither an intelligence agency (within the meaning of that Act) nor the Inspector‑General of Intelligence and Security; to the extent that the conduct so relates, it is taken, for the purposes of this Act, to be action that relates to a matter of administration. (2) For the purposes of the application of this Act to the action: (a) the agency is taken to be a prescribed authority; and (b) the action is to be treated as if it were action taken by the prescribed authority; and (c) a public official who belongs (within the meaning of the Public Interest Disclosure Act 2013) to the agency is taken to be an officer of the prescribed authority; and (d) the person who disclosed the information is taken, if the disclosure is allocated to the Ombudsman, to have made a complaint to the Ombudsman in respect of the action. (3) It is immaterial whether the disclosable conduct occurred before or after the commencement of this section. 5B Transfer of complaints from the Inspector‑General of Intelligence and Security A complaint is taken to have been made under this Act in respect of action taken by: (a) ACC (except action taken by an examiner of ACC performing functions or exercising powers as an examiner); or (b) the Australian Federal Police; if the Inspector‑General of Intelligence and Security transfers all or part of the complaint to the Ombudsman under section 32AG of the Inspector‑General of Intelligence and Security Act 1986. Note: A complaint or part of a complaint can also be transferred from the Ombudsman to the Inspector‑General of Intelligence and Security under section 6F of this Act. 6 Discretion not to investigate certain complaints (1) Where a complaint has been made to the Ombudsman with respect to action taken by a Department or by a prescribed authority, the Ombudsman may, in his or her discretion, decide not to investigate the action or, if he or she has commenced to investigate the action, decide not to investigate the action further: (a) if the Ombudsman is satisfied that the complainant became aware of the action more than 12 months before the complaint was made to the Ombudsman; or (b) if, in the opinion of the Ombudsman: (i) the complaint is frivolous or vexatious or was not made in good faith; (ii) the complainant does not have a sufficient interest in the subject matter of the complaint; or (iii) an investigation, or further investigation, of the action is not warranted having regard to all the circumstances. (1A) Where a person who makes a complaint to the Ombudsman with respect to action taken by a Department or by a prescribed authority has not complained to the Department or authority with respect to that action, the Ombudsman may, in his or her discretion, decide not to investigate the action until the complainant so complains to the Department or authority. (1B) Where a person who makes a complaint to the Ombudsman with respect to action taken by a Department or prescribed authority has complained to the Department or authority with respect to that action, the Ombudsman may, in his or her discretion, decide not to investigate the action unless and until the complainant informs the Ombudsman that no redress has been granted or that redress has been granted but the redress is not, in the opinion of the complainant, adequate. (1C) Where: (a) a person who has made a complaint to the Ombudsman with respect to action taken by a Department or by a prescribed authority and who has complained to the Department or authority with respect to that action informs the Ombudsman as provided by subsection (1B) that no redress, or no adequate redress, has been granted by the Department or authority; and (b) the Ombudsman is of the opinion: (i) if no redress has been granted—that, since the complainant complained to the Department or authority, a reasonable period has elapsed in which redress could have been granted; or (ii) if redress has been granted—that the redress was not reasonably adequate; the Ombudsman shall, subject to this section, investigate the action. (2) Where a complainant has exercised, or exercises, a right to cause action to which his or her complaint relates to be reviewed by a court or by a tribunal constituted by or under an enactment, the Ombudsman shall not investigate, or continue to investigate, as the case may be, the action unless the Ombudsman is of the opinion that there are special reasons justifying the investigation of the action or the investigation of the action further. (3) Where the Ombudsman is of the opinion that a complainant has or had a right to cause the action to which the complaint relates to be reviewed by a court or by a tribunal constituted by or under an enactment but has not exercised that right, the Ombudsman may decide not to investigate the action or not to investigate the action further, as the case may be, if he or she is of the opinion that, in all the circumstances, it would be reasonable for the complainant to exercise, or would have been reasonable for the complainant to have exercised, that right. (4) Where, before the Ombudsman commences, or after the Ombudsman has commenced, to investigate action taken by a Department or by a prescribed authority, being action that is the subject matter of a complaint, the Ombudsman becomes of the opinion that adequate provision is made under an administrative practice for the review of action of that kind taken by that Department or prescribed authority, the Ombudsman may decide not to investigate the action or not to investigate the action further, as the case may be: (a) if the action has been, is being or is to be reviewed under that practice at the request of the complainant; or (b) if the Ombudsman is satisfied that the complainant is entitled to cause the action to be reviewed under that practice and it would be reasonable for the complainant to cause it to be so reviewed. (4D) Where, before the Ombudsman commences, or after the Ombudsman has commenced, to investigate action taken by a Department or by a prescribed authority, being action that is the subject matter of a complaint, the Ombudsman becomes of the opinion that: (a) a complaint with respect to the action has been, or could have been, made by the complainant to the ACMA under Part 26 of the Telecommunications Act 1997; and (b) the action could be more conveniently or effectively dealt with by the ACMA; the Ombudsman may decide not to investigate the action, or not to investigate the action further, as the case may be, and, if the Ombudsman so decides, the Ombudsman shall: (c) transfer the complaint to the ACMA; (d) forthwith give notice in writing to the complainant stating that the complaint has been so transferred; and (e) give