Who can complain?
People, companies, organisations and associations may complain. However, the person or body that complains must be directly affected by the administrative act which is the subject of the complaint [see Ombudsman Act 1972 (SA) s 15(3a)]. If a person is unable to make a complaint themselves, then a suitable representative of the person, such as a relative, solicitor or support worker may be permitted to lodge a complaint on their behalf [s 15(2)]. Complaints may be lodged through the online complaints form, in writing, by telephone or at a personal interview.
Do time limits apply?
What the Ombudsman can investigate?
The Ombudsman has the power to look into all administrative actions including:
- decisions or recommendations
- refusal or failure to take action
The Ombudsman is empowered by legislation to investigate an administrative act (a decision, or refusal to make a decision, by an officer of a government department, which is subject to review either internally, or externally) on the Ombudsman's own initiative. This power is frequently used.
Limits to the Ombudsman's investigative powers
In contrast the Ombudsman cannot investigate matters involving a judicial or legislative function of government or if the matter involves policy rather than administrative decisions.
This distinction can be difficult to draw.
In Salisbury City Council v Biganovsky (1990) 70 LGRA 71, the South Australian State Ombudsman investigated a complaint about a council policy on calculation of fees to a community group for using council premises. The Court held that the Ombudsman could investigate and report on the way that the council's policy was applied but could not report on or recommend changes to the policy itself.
See also Complaints the Ombudsman cannot investigate
Since 18 December 2017 prescribed child protection complaints may be made to Ombudsman SA and will be taken to be complaints under the Ombudsman Act 1972 (SA) [Health and Community Services Complaints Act 2004 (SA) s 28A]. Previously all complaints relating to child protection went to the Health and Community Services Complaints Commissioner in the first instance.
What is a prescribed child protection complaint?
Prescribed child protection complaints are complaints relating to health or community services that:
- are provided to, or for the benefit of, a child who may be or who has been at risk
- involve a notification (whether mandatory or otherwise) of a suspicion that a child may be at risk
- involve an investigation of a case where a child may be at risk
- are provided to, or for the benefit of, a child who is in the custody or guardianship of the Minister or someone else under the Act
and the provision of the service is an administrative act [s 28A]. However, the regulations may declare a particular complaint to be included or excluded from the definition [s 28A(8)(b)].
An administrative act is an act relating to a matter of administration (including a service, activity or omission listed above) by the Department for Child Protection, or by an employee or contractor on their behalf [see Ombudsman Act 1977 (SA) s 3 and 13(5)].
Complaints may relate to things such as:
- action or inaction by the Department in response to notifications
- communication with families or approved carers during an investigation
- the conduct of child protection officers or other Departmental staff during an investigation
- other matters relating to the conduct of an investigation
- the assessment of children and young people or their parents or guardians
- the quality of medical care or other support services
If the complaint does not concern an administrative act, and is not therefore a prescribed child protection complaint, it may still be made to the Health and Community Services Complaints Commissioner (HCSCC). For example, a child or young person under a custody or guardianship order (or their guardian) may make a complaint to the HCSCC about a privately supplied health service.
The Ombudsman may also refer some complaints to HCSCC according to an administrative arrangement they may have between them from time to time [see Health and Community Services Complaints Act 2004 (SA) s 28A(2)].
If a complaint is made to the Ombudsman, but should have been made to the HCSCC, or vice versa, the complaint will be referred by them accordingly.
Can the Ombudsman refuse to investigate?
The Ombudsman need not entertain a complaint if the matter raised is trivial, the complaint is frivolous, vexatious or not made in good faith, the complainant has not got a sufficient personal interest in the matter or the investigation of the matter is unnecessary or unjustifiable [s 17]. The Ombudsman will not usually investigate a complaint unless the person has already lodged a complaint directly with the Department and given them time to respond. The Department's Central Complaints Unit has an online complaints form and can be contacted on 1800 003 305.
The Ombudsman may investigate a prescribed child protection complaint even if a complainant has another right of appeal or review available to them [see Ombudsman Act 1972 (SA) ss 13(3) and (3b)]. For example, if a complaint may be made to the Health and Community Services Complaint Commissioner SA as well as to the Ombudsman, the Ombudsman may nevertheless proceed to investigate it.
What powers does the Ombudsman have?
When investigating a prescribed child protection complaint the Ombudsman has both the powers under the Ombudsman Act 1977 (SA) [s 13 (3)(d)] and any additional powers from the Health and Community Services Complaints Act 2004 (SA) [s 28A(6)].
The Ombudsman should have regard to the health and community services rights charter and any relevant codes of conduct under the Health and Community Services Complaints Act 2004 (SA) when investigating [s 13(3e)].
For more information about Ombudsman investigations and possible recommendations, see The Ombudsman and Health and Community Services Complaints Commissioner SA.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.