Ombudsman Act 1972 (SA)

South Australia Ombudsman Act 1972 An Act to provide for the appointment of an Ombudsman to investigate the exercise of the administrative powers of certain agencies and allegations of misconduct or maladministration in public administration; to provide for the powers, functions and duties of the Ombudsman; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Misconduct and maladministration 4A Parliamentary privilege unaffected 5 Non-application of Act Part 2—The Ombudsman 5A Functions 6 Appointment of Ombudsman 7 Ombudsman not to engage in any remunerative employment 8 Acting Ombudsman 9 Delegation 10 Term of office of the Ombudsman etc 11 Ombudsman is not a Public Service employee 12 Officers of Ombudsman Part 2A—Receiving and assessing complaints and reports 12A Complaints system 12B Persons who may make complaints 12C Time within which complaints may be made 12D Reporting system for misconduct and maladministration 12E Referral of matter by OPI 12F Obstruction of complaint or report 12G False or misleading statements in complaint or report etc 12H Assessment of complaint or report Part 3—Investigations 13 Matters subject to investigation 14 Parliament may refer matter for investigation 14A Administrative audits 17A Conciliation 18 Procedure on investigations 19 Ombudsman to have powers of a Royal Commission 19A Ombudsman may issue direction in relation to administrative act 20 No obligation on persons to maintain secrecy 20A Injunction to refrain from conduct pending investigation 21 Protection for proceedings in Cabinet 23 Entry and inspection 24 Obstruction 25 Proceedings on completion of investigation 26 Report on investigation 27 Report to complainant 28 Determination of the Ombudsman's jurisdiction 28A Directions following misconduct or maladministration referral Part 4—Miscellaneous 29 Reviews 29A Confidentiality 29B Annual report and other public reports 29C Legal assistance 30 Immunity from liability 31 Use of evidence or information 31A Victimisation 32 Use of word "Ombudsman" by agencies to which Act applies in describing internal reviews prohibited 33 Regulations Schedule 1—Reimbursement of Legal Fees Policy 1 Interpretation 2 Who can claim for reimbursement 3 Additional criteria for reimbursement 4 Reasonable costs 5 Procedure for reimbursement 6 Interim payments Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Ombudsman Act 1972. 3—Interpretation (1) In this Act, unless the contrary intention appears— act includes— (a) an omission; (b) a decision, proposal or recommendation (including a recommendation made to a Minister of the Crown), and the circumstances surrounding an act; administrative act means— (a) an act relating to a matter of administration on the part of an agency to which this Act applies or a person engaged in the work of such an agency; or (b) an act done in the performance of functions conferred under a contract for services with the Crown or an agency to which this Act applies, but does not include— (c) an act done in the discharge of a judicial authority; or (d) an act done by a person in the capacity of legal adviser to the Crown or an agency to which this Act applies; or (e) an act of a class declared by the regulations not to be an administrative act for the purposes of this definition; administrative unit means an administrative unit of the Public Service; agency to which this Act applies means— (a) a person who holds an office established by an Act; or (b) an administrative unit; or (c) a council; or (ca) an assessment panel appointed or constituted under Part 6 Division 2 of the Planning, Development and Infrastructure Act 2016; or (d) an incorporated or unincorporated body— (i) established or continued in existence for a public purpose by an Act; or (ii) established or continued in existence for a public purpose under an Act (other than an Act providing for the incorporation of companies or associations, co‑operatives, societies or other voluntary organisations); or (iii) subject to control or direction by the Governor, a Minister of the Crown or other instrumentality or agency of the Crown or a council (whether or not the body is established or continued in existence by or under an Act); or (e) a person or body declared by the regulations to be an agency to which this Act applies, but does not include an inquiry agency, the Office for Public Integrity or a person or body declared by the regulations to be an agency to which this Act does not apply; complainant in relation to an investigation means the person or persons whose complaint or report gave rise to that investigation; complaint in relation to public administration, means a complaint that gives rise, or may give rise, to an investigation into an administrative act or other act in the course of public administration; council means a council within the meaning of the Local Government Act 1999; inquiry agency means— (a) the Independent Commission Against Corruption; or (b) the Ombudsman; or (c) the Judicial Conduct Commissioner; investigation means an investigation by the Ombudsman under this Act in relation to an administrative act or other act in the course of public administration; maladministration in public administration—see section 4; misconduct in public administration—see section 4; officer of the Ombudsman means— (a) a person employed in the Public Service and assigned to work in the office of the Ombudsman; or (b) a person employed under section 12; OPI means the Office for Public Integrity established under the Independent Commission Against Corruption Act 2012; principal officer in relation to an agency to which this Act applies means— (a) if the agency consists of a single person (including a corporation sole but not any other body corporate)—that person; (b) if the agency is a council—the principal member of the council; (c) if the agency consists of an unincorporated board or committee—the presiding officer; (d) in any other case—the chief executive officer of the agency or a person declared by the regulations to be the principal officer of the agency; public administration—without limiting the acts that may comprise public administration, an administrative act will be taken to be carried out in the course of public administration; public authority has the same meaning as in the Independent Commission Against Corruption Act 2012; public officer has the same meaning as in the Independent Commission Against Corruption Act 2012; report means a report to the Ombudsman of a kind referred to in section 12D; responsible Minister in relation to an agency to which this Act applies means— (a) if the agency is an administrative unit—the Minister responsible for that administrative unit; (b) if the agency is a council—the Minister responsible for the administration of the Local Government Act 1999; (c) if the agency is a body established by or under an Act—the Minister responsible for the administration of that Act; (d) in any other case—the Minister declared by the regulations to be the responsible Minister for the agency or, in the absence of such a declaration, the Minister responsible for the administration of this Act; Statutory Officers Committee means the committee of that name established under the Parliamentary Committees Act 1991; the Ombudsman includes a person acting in the office of the Ombudsman. (2) For the purposes of this Act— (a) a person engaged or employed in the administration of, or in the performance of functions in or on behalf of, an agency to which this Act applies will be taken to be engaged in the work of that agency; and (b) deputy sheriffs and sheriff's officers will be taken to be engaged in the work of the sheriff and the sheriff will be regarded as an employer in relation to deputy sheriffs and sheriff's officers. (3) The Governor may, by regulation— (a) declare a person or body to be an agency to which this Act applies; or (b) declare a person or body to be an agency to which this Act does not apply; or (c) declare a person to be the principal officer of an agency to which this Act applies; or (d) declare a Minister to be the responsible Minister for an agency to which this Act applies. (4) A regulation under subsection (3)(a) cannot take effect unless it has been laid before both Houses of Parliament and— (a) no motion for disallowance of the regulation is moved within the time for such a motion; or (b) every motion for disallowance of the regulation has been defeated or withdrawn, or has lapsed. (5) A regulation under subsection (3)(b) may declare part of an administrative unit to be part of an administrative unit to which this Act does not apply. 4—Misconduct and maladministration (1) Misconduct in public administration means an intentional and serious contravention of a code of conduct by a public officer while acting in their capacity as a public officer that constitutes a ground for disciplinary action against the officer. (2) Maladministration in public administration— (a) means— (i) conduct of a public officer, or a practice, policy or procedure of a public authority, that results in an irregular and unauthorised use of public money or substantial mismanagement of public resources; or (ii) conduct of a public officer involving substantial mismanagement in or in relation to the performance of official functions; and (b) includes conduct resulting from impropriety, incompetence or negligence; and (c) is to be assessed having regard to relevant statutory provisions and administrative instructions and directions. (3) Without limiting or extending the conduct that may comprise misconduct or maladministration in public administration, this Act applies to conduct that— (a) occurred before the commencement of this section; or (b) occurs outside this State; or (c) comprises a failure to act; or (d) is conduct of a person who was a public officer at the time of its occurrence but who has since ceased to be a public officer; or (e) is conduct of a person who was not a public officer at the time of its occurrence but who has since become a public officer. (4) A reference in subsection (1) to a code of conduct does not include any statement of principles applicable in relation to the conduct of members of Parliament. 4A—Parliamentary privilege unaffected Nothing in this Act affects the privileges, immunities or powers of the Legislative Council or House of Assembly or their committees or members and powers under this Act may not be exercised in relation to any matter to which parliamentary privilege applies. 5—Non-application of Act (1) This Act does not apply to or in relation to any Commission or tribunal for the time being declared by proclamation to be a Commission or tribunal to which this Act does not apply. (2) This Act does not apply to or in relation to— (a) any complaint to which the Police Complaints and Discipline Act 2016 applies; or (b) any matter to which that Act would apply if the matter were the subject of a complaint under that Act. (3) This Act does not apply to or in relation to— (a) any complaint to which the Judicial Conduct Commissioner Act 2015 applies; or (b) any matter to which that Act would apply if the matter were the subject of a complaint under that Act. Part 2—The Ombudsman 5A—Functions There is to be an Ombudsman with the following functions: (a) to receive, assess and investigate or otherwise deal with complaints made or referred to the Ombudsman about public administration; (b) to receive, assess and investigate or otherwise deal with reports about misconduct and maladministration in public administration made or referred to the Ombudsman; (c) to assist agencies to identify and deal with inappropriate or improper administrative acts; (d) to give directions or guidance to public authorities in dealing with misconduct and maladministration in public administration, as the Ombudsman considers appropriate; (e) to evaluate the practices, policies and procedures of public authorities with a view to advancing comprehensive and effective systems for preventing or minimising misconduct and maladministration in public administration; (f) to conduct or facilitate the conduct of educational programs or the publication or distribution of educational materials designed to prevent or minimise misconduct and maladministration in public administration; (g) to perform other functions conferred on the Ombudsman by this or any other Act. 6—Appointment of Ombudsman (1) The Governor may, on a recommendation made by resolution of both Houses of Parliament, appoint a person to be the Ombudsman. (1a) On a vacancy occurring in the office of the Ombudsman, the matter of inquiring into and reporting on a suitable person for appointment to the vacant office is referred by force of this subsection to the Statutory Officers Committee. (2) The terms and conditions of appointment and employment (including salary and allowances) of the Ombudsman shall be as determined from time to time by the Governor. (3) This section is, without further appropriation, sufficient authority for the payment of the salary and allowances of the Ombudsman out of the General Revenue of the State. 7—Ombudsman not to engage in any remunerative employment The Ombudsman must not, without the consent of the Minister, engage in any remunerative employment or undertaking outside official duties. 8—Acting Ombudsman (1) If for any reason— (a) the Ombudsman is temporarily unable to perform official duties; or (b) the office of the Ombudsman is temporarily vacant, the Governor may, by notice published in the Gazette, appoint a person to act in the office of the Ombudsman and a person so appointed has, while so acting, all the powers, functions and duties of the Ombudsman. (1a) A person who is a Public Service employee may be appointed under this section to act in the office of the Ombudsman while remaining a Public Service employee for a term not exceeding three months and may, on the expiration of that term, be reappointed (provided that the terms of appointment do not exceed six months in aggregate in any period of 12 months). (2) Subject to this Act, the terms and conditions of appointment and employment (including the salary and allowances) of the person appointed under subsection (1) shall be as determined, from time to time, by the Governor. (3) This section is, without further appropriation, sufficient authority for the payment of the salary and allowances of an acting Ombudsman out of the General Revenue of the State. 9—Delegation (1) The Ombudsman may, by instrument in writing, delegate powers or functions under this or any other Act (except this power of delegation) to any person. (2) The Ombudsman may by instrument in writing revoke or vary any delegation given under subsection (1). (3) The exercise or performance of any power or function by a delegate pursuant to subsection (1) does not affect the exercise or performance of that power or function by the Ombudsman. 10—Term of office of the Ombudsman etc (1) The Ombudsman shall be appointed for an initial term of 7 years. (1a) A person appointed to be the Ombudsman is, at the end of a term of appointment, eligible for reappointment but cannot hold office for terms (including any term as Acting Ombudsman) that exceed 10 years in total. (2) The Governor may remove the Ombudsman from office upon the presentation of an address from both Houses of Parliament seeking the Ombudsman's removal. (3) The Governor may suspend the Ombudsman from office on the ground of incompetence or misbehaviour and, in that event— (a) a full statement of the reason for the suspension must be laid before both Houses of Parliament within seven days of the suspension if Parliament is then in session or, if not, within seven days of the commencement of the next session of Parliament; and (b) if, at the expiration of one month from the date on which the statement was laid before Parliament, an address from both Houses of Parliament seeking the Ombudsman's removal has not been presented to the Governor, the Ombudsman must be restored to office. (4) The office of Ombudsman becomes vacant if the Ombudsman— (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice delivered to the Governor; or (d) is removed from office by the Governor under subsection (2); or (e) becomes bankrupt or applies as a debtor to take the benefit of the laws relating to bankruptcy; or (f) is convicted of an indictable offence or sentenced to imprisonment for an offence; or (g) becomes a member of the Parliament of this State or any other State of the Commonwealth or of the Commonwealth or becomes a member of a Legislative Assembly of a Territory of the Commonwealth; or (h) becomes, in the opinion of the Governor, mentally or physically incapable of carrying out satisfactorily the duties of office. (5) Except as is provided by this section, the Ombudsman shall not be removed or suspended from office, nor shall the office of the Ombudsman become vacant. 11—Ombudsman is not a Public Service employee (1) The Ombudsman is not a Public Service employee. (2) If an Ombudsman was, immediately before appointment as such, employed in the Public Service, the Ombudsman retains existing and accruing rights in respect of leave. 12—Officers of Ombudsman (1) The Ombudsman's staff consists of— (a) Public Service employees assigned to work in the office of the Ombudsman; and (b) if appointments have been made under subsection (3)—the persons holding those appointments. (2) The Minister may, by notice in the Gazette— (a) exclude Public Service employees on the Ombudsman's staff from specified provisions of the Public Sector Act 2009; and (b) if the Minister thinks that certain provisions should apply to such employees instead of those from which they are excluded under paragraph (a)—determine that those provisions will so apply, and such a notice has effect in accordance with its terms. (2a) While a Public Service employee is assigned to work in the office of the Ombudsman, directions given to the employee by the Ombudsman prevail over directions given to the employee by the chief executive of the administrative unit of the Public Service in which the employee is employed to the extent of any inconsistency. (3) The Ombudsman may, with the consent of the Minister, appoint staff for the purposes of this Act. (4) The terms and conditions of employment of a person appointed under subsection (3) will be determined by the Governor and such a person is not a Public Service employee. Part 2A—Receiving and assessing complaints and reports 12A—Complaints system (1) A system for the receipt of complaints about public administration is to be established by the Ombudsman. (2) The system must permit the making of complaints relating to matters that are (in the opinion of the Ombudsman) sensitive, complex or of significant public interest to be made in person to an officer of the Ombudsman. (3) The system must ensure that the Ombudsman gives consideration to the motives of a complainant and that complaints that are apparently made in bad faith, for an improper purpose, are vexatious or that otherwise amount to an abuse of the complaints system are not received for consideration by the Ombudsman. 12B—Persons who may make complaints (1) A complaint about public administration may be made— (a) if the complaint relates to alleged misconduct or maladministration in public administration—by any person; or (b) in any other case— (i) by a person or body of persons directly affected by the acts to which the complaint relates; or (ii) in accordance with subsection (4). (2) If the person by whom a complaint might have been made has died or is unable to make the complaint personally, the complaint may be made by a person who is, in the Ombudsman's opinion, a suitable representative of that person. (3) A complaint in respect of an act that could, apart from this subsection, be made by a person or body of persons may, with the consent of that person or body, be made on behalf of that person or body by a member of either House of Parliament and with the consent of that person or body that member may act on behalf of that person or body in and in connection with all matters relating to the matter of complaint. (4) A complaint may be made by the Commissioner for Children and Young People, the Commissioner for Aboriginal Children and Young People or the Guardian for Children and Young People under the Children and Young People (Oversight and Advocacy Bodies) Act 2016 despite the fact that they are not directly affected by the acts to which the complaint relates. (5) Notwithstanding any enactment prohibiting or restricting, or authorising the imposition of prohibitions or restrictions on, communication, a person having the care or custody of another person must not refuse or fail to take all steps necessary to facilitate any communication by that other person necessary for or incidental to a complaint under this Act and to ensure the privacy of that communication. Maximum penalty: $2 000. 12C—Time within which complaints may be made (1) Subject to this section, a complaint under this Act must not be entertained by the Ombudsman if it is made after 12 months from the day on which the complainant first had notice of the matters alleged in the complaint unless the Ombudsman is of the opinion that, in all the circumstances of the case, it is proper to entertain the complaint. (2) For the purposes of this section a complainant will be presumed to have had notice of the matters alleged in the complaint at the time they might reasonably be expected to have had such notice. (3) This section does not apply in relation to a complaint made by the Commissioner for Children and Young People, the Commissioner for Aboriginal Children and Young People or the Guardian for Children and Young People under the Children and Young People (Oversight and Advocacy Bodies) Act 2016. 12D—Reporting system for misconduct and maladministration (1) The Ombudsman must prepare directions and guidelines governing reporting to the Ombudsman of matters that an inquiry agency, public authority or public officer reasonably suspects involves misconduct or maladministration in public administration. (2) The directions and guidelines— (a) must include guidance as to how matters may be reported; and (b) must be made available free of charge on the Internet, and at premises established for the receipt of complaints or reports by the Ombudsman, for inspection by members of the public. (3) A public authority or public officer may report to the Ombudsman any matter that the authority or officer reasonably suspects involves misconduct or maladministration in public administration. (4) The Attorney‑General may, in any event, report such matters to the Ombudsman for consideration as the Attorney‑General considers appropriate. 12E—Referral of matter by OPI If a matter is referred to the Ombudsman under the Independent Commission Against Corruption Act 2012, the matter must be dealt with under this Act as if a complaint or report had been made under this Act and— (a) if the matter was the subject of a complaint or report under that Act—as if the person who made the complaint or report under that Act was the complainant under this Act; or (b) if the matter was identified by the Independent Commission Against Corruption in the course of performing functions under that Act—as if the Commissioner under that Act was the complainant under this Act. 12F—Obstruction of complaint or report A person must not— (a) prevent another person from making a complaint or report under this Act; or (b) hinder or obstruct another person in making such a complaint or report. Maximum penalty: $10 000 or imprisonment for 2 years. 12G—False or misleading statements in complaint or report etc A person must not— (a) make a statement knowing that it is false or misleading in a material particular (whether by reason of the inclusion or omission of a particular) in information provided in a complaint or report; or (b) make a complaint or report knowing that there are no grounds for the making of the complaint or report. Maximum penalty: $10 000 or imprisonment for 2 years. 12H—Assessment of complaint or report (1) On receipt by the Ombudsman of a complaint or report, the matter must be assessed as to whether— (a) it raises an issue that should be investigated under this Act; or (b) it raises some other issue that should be referred to a law enforcement agency, another inquiry agency, a public authority or a public officer; or (c) it is trivial, vexatious or frivolous, it has previously been dealt with by an inquiry agency or a public authority and there is no reason to reexamine it or there is other good reason why no action should be taken in respect of it, and a determination made as to whether or not action should be taken to investigate or refer the matter. (2) The Ombudsman may, for the purpose of assessing a matter, by written notice, require a public authority or public officer— (a) to produce a specified document or a document relating to a specified matter; or (b) to produce a written statement of information about a specified matter or to answer specified questions, within a specified period and in a specified form, verified if the written notice so requires by statutory declaration. (3) A person must not refuse or fail to comply with a requirement of a notice under subsection (2). Maximum penalty: $10 000 or imprisonment for 2 years. Part 3—Investigations 13—Matters subject to investigation (1) Subject to this Act, the Ombudsman may investigate any administrative act or any suspected misconduct or maladministration in public administration. (2) The Ombudsman may make such an investigation either on receipt of a complaint or report or on the Ombudsman's own initiative and, where a complaint or report is made, the Ombudsman may investigate any act in the course of public administration notwithstanding that, on the face of it, the complaint or report may not appear to relate to that act. (2a) Despite any other provision of this Act, if the Ombudsman becomes aware that— (a) an investigation under the Independent Commission Against Corruption Act 2012 or other criminal investigation is being conducted in relation to a matter that is the subject of a complaint or is otherwise being investigated under this Act; or (b) a person has been or is to be charged with a criminal offence in relation to such a matter, the Ombudsman may not proceed to investigate or otherwise deal with the matter under this Act until the criminal investigation has been completed or the proceedings for the offence have been disposed of, withdrawn or permanently stayed. (3) The Ombudsman must not investigate any administrative act where— (a) the complainant is provided in relation to that administrative act with a right of appeal, reference or review to a court, tribunal, person or body under any enactment or by virtue of Her Majesty's prerogative; or (b) the complainant had a remedy by way of legal proceedings, unless the Ombudsman is of the opinion that it is not reasonable, in the circumstances of the case, to expect that the complainant should resort or should have resorted to that appeal, reference, review or remedy or that it is in the public interest to continue the investigation under this Act. (3a) The ability to lay a complaint for disciplinary action against a person is to be disregarded for the purposes of subsection (3). (3b) Despite subsection (3), the Ombudsman may investigate a prescribed child protection complaint. (3c) To avoid doubt, subsection (3b) applies whether the prescribed child protection complaint— (a) is made by the Commissioner for Children and Young People, the Commissioner for Aboriginal Children and Young People or the Guardian for Children and Young People under the Children and Young People (Oversight and Advocacy Bodies) Act 2016; or (b) is referred to the Ombudsman by the Commissioner under section 28A of the Health and Community Services Complaints Act 2004; or (c) is made under this Act. (3d) Without limiting any other provision of this Act, the Ombudsman, in respect of an investigation under subsection (3b), has any additional powers that the Health and Community Services Complaints Commissioner would have under the Health and Community Services Complaints Act 2004 if the Commissioner were investigating such a complaint under that Act. (3e) Without limiting any other provision of this Act, the Ombudsman must, in the course of an investigation under subsection (3b)— (a) have regard, and seek to give effect, to the Health and Community Services Rights Charter under the Health and Community Services Complaints Act 2004, as in force from time to time; (b) where appropriate, have regard to any code of conduct prescribed under section 56A of the Health and Community Services Complaints Act 2004. (4) The Ombudsman may investigate any administrative act, notwithstanding any enactment that provides that that administrative act is final or not to be appealed against, challenged, reviewed, quashed or called into question. (5) A reference in this or any other provision of this Act to an administrative act will be taken to include a reference to the service, activity or omission to which a prescribed child protection complaint relates. (6) In this section— at risk has the same meaning as in the Children and Young People (Safety) Act 2016; prescribed child protection complaint has the same meaning as in section 28A of the Health and Community Services Complaints Act 2004. 14—Parliament may refer matter for investigation (1) Subject to this section, either House of Parliament, or any committee of either of those Houses, or a joint committee of both Houses of Parliament, may refer to the Ombudsman, for investigation and report, any matter that is within the jurisdiction of the Ombudsman and which that House or committee considers should be investigated by the Ombudsman. (2) The Ombudsman must carry out an investigation into any matter referred to him or her under this section and, following that investigation, must submit a report on the matter to— (a) if the matter was referred to the Ombudsman by the Legislative Council or a committee of the Legislative Council—the President of the Legislative Council; (b) if the matter was referred to the Ombudsman by the House of Assembly or a committee of the House of Assembly—the Speaker of the House of Assembly; (c) if the matter was referred to the Ombudsman by a joint committee of both Houses of Parliament—the President of the Legislative Council and the Speaker of the House of Assembly. (3) If— (a) the person affected by an administrative act is provided in relation to that act with a right of appeal, reference or review to a court, tribunal, person or body under any enactment or by virtue of Her Majesty's prerogative; or (b) the person affected by an administrative act had a remedy by way of legal proceedings; or (c) 12 months have elapsed since the person affected by an administrative act had notice of the administrative act, the administrative act is not to be referred to the Ombudsman by a House of Parliament or committee under this section unless the House or committee resolves that, in all the circumstances of the case, the administrative act warrants investigation by the Ombudsman despite the availability of that appeal, reference, review or remedy or the passage of time since the person affected had notice of the administrative act. 14A—Administrative audits (1) If the Ombudsman considers it to be in the public interest to do so, the Ombudsman may conduct a review of the administrative practices and procedures of an agency to which this Act applies. (2) The provisions of this Act apply in relation to a review under subsection (1) as if it were an investigation of an administrative act under this Act, subject to such modifications as may be necessary, or as may be prescribed. 17A—Conciliation (1) The Ombudsman may, at any time, decide to attempt to deal with a complaint by conciliation. (2) The Ombudsman may, in attempting conciliation under this section, act personally or through some other person. (3) The Ombudsman may, if satisfied that the subject of a complaint has been properly resolved by conciliation under this section, determine that the complaint should not be