The Government is conducting a legislative and administrative review of the operation of the Ombudsman Act. In addition, a review of procedures relating to the functions of the Auditor General is being conducted.

Ombudsman

Non-compliance with reports
Under section 26 of the Ombudsman Act, the Ombudsman may make a report finding that conduct of a public authority is one or more of the following:

(a) contrary to law;
(b) unreasonable, unjust, oppressive, or improperly discriminatory;
(c) in accordance with any law or established practice but the law or practice is, or may be, unreasonable, unjust, oppressive or improperly discriminatory;
(d) based wholly or partly on improper motives, irrelevant grounds or irrelevant consideration;
(e) based wholly or partly on a mistake of law or fact;
(f) conduct for which reasons should be given but are not given;
(g) otherwise wrong.

In making such a report, the Ombudsman may recommend any of a number of courses of action, as follows:

(a) that the conduct be considered or reconsidered by the public authority whose conduct it is, or by any person in a position to supervise or direct the public authority in relation to the conduct, or to review, rectify, mitigate or change the conduct or its consequences;
(b) that action be taken to rectify, mitigate or change the conduct or its consequences;
(c) that reasons be given for the conduct;
(d) that any law or practice relating to the conduct be changed;
(dl) that compensation be paid to any person; or
(e) that any other step be taken.

Where such a report is made recommending that certain action to be taken, and the person or authority involved does not comply with the recommendation, the Ombudsman may, under section 27 of the Act, make a report to the Minister for presentation to Parliament. However, the Act does not specify any further action to be taken from that point.

I consider that it is desirable, in the interests of open and accountable Government, for the Minister responsible for the agency or department in respect of which a report of non-compliance has been made to respond to the Ombudsman's report under section 27 by a public statement to the House of Parliament in which the Minister sits within twelve sitting days of the tabling of the report. It is intended that the Act will be amended to require Ministers to respond to reports in this manner. However, Ministers should, as a matter of practice, follow such procedure in any case pending an appropriate legislative amendment being effected.

Access to Government documents
Ministers are reminded that they should ensure compliance with the provisions of the Ombudsman Act which enable the Ombudsman free and unfettered access to Government documents (except Cabinet documents) notwithstanding obligations of secrecy, duties of confidence and the laws relating to public interest and legal professional privilege. A review of the Ombudsman Act will be carried out to ensure that free and unfettered access to Government documents is guaranteed. It is proposed, as part of that review, to amend the Ombudsman Act to clarify what Cabinet documents are.

Auditor General

Access to Government documents
A similar review is proposed to be made to the Public Finance and Audit Act to ensure that the Auditor General has the same unfettered access to Government documents other than Cabinet documents as the Ombudsman. Ministers should ensure that this practice is given effect to immediately.

I would appreciate it if youwould take all steps necessary to implement the terms of this Memorandum. In particular, all departments and agencies within your administration should be made aware of the requirement to provide free access to all documents other than Cabinet documents to the Ombudsman and Auditor General, when requested to do so.

Yours sincerely,

N  F Greiner MP

Issued by: Legal Branch
Date: 8 November 1991