Dossier D2011/112

Dossier Reference: D2011/112

Related case:D2010/324

Agency: Commonwealth Ombudsman

Legal Rights

When dealing with Government agencies all members of the Public have a right to be afforded natural justice (procedural fairness) by decision makers of that agency.

One of the limbs of natural justice is the right to a fair hearing (audi alteram partem).

If a decision maker makes a decision where the principles of natural justice have been contravened that decision is void.


This what the Commonwealth Ombudsman claims:

“The Ombudsman can investigate complaints about the actions and decisions of Australian Government agencies to see if they are wrong, unjust, unlawful, discriminatory or just plain unfair”

Now the operative word here is “can”. There is no compulsion for the Ombudsman to investigate complaints about the actions and decisions of Australian Governments agencies.

In the majority of cases the Ombudsman decides not to investigate complaints. This is not well advertised for obvious reasons.

However under Section 12 of the Ombudsman Act 1976 if the Ombudsman does not “for any reason” investigate a compliant, the Ombudsman must inform the complainant. Furthermore as a matter of procedural fairness the complainant has the right of an internal review by another Officer of the Commonwealth Ombudsman.

Under the Ombudsman’s Service Charter the Ombudsman promises to confirm receipt of a Complaint (Approach) within seven working days of receiving the Approach.

In case D2010/324 a senior Officer of ASIC lied to the Responsible Minister about the scope and operation of Section 1017C(5) and Regulation 7.9.45 of the Corporations Act 2001.

The ASIC Officer was covering up the practice of using a Government Regulated Superannuation Fund as a means of paying secret “Golden Handshake” payments to failed CEOs that would be hidden from the financial media

When the Member complained to the Responsible Minister about the misconduct of this Officer of ASIC, the Responsible Minister advised the member to lodge a Complaint with the Commonwealth Ombudsman.

The Member followed the Minister’s advice.

The Member lodged a Complaint  (Approach) with the Commonwealth Ombudsman on 14 October 2011.

The Member was expecting a confirmation that the Ombudsman had received the Approach in accordance with the Ombudsman’s Service Charter.

This confirmation never came.

Perhaps the Complaint had been lost in the post?

The Member lodged a request for this document under the Freedom of Information Act 1982.

The response confirmed that the Ombudsman received this Approach on 20 October 2011 and the document was given a file number 183566.

But no acknowledgement was sent confirming the receipt of this Approach.

No reason was provided as required by Section 12 of the Ombudsman Act 1976 as to why the Ombudsman had decided not to investigate why a senior ASIC Officer lied to the Responsible Minister.

No opportunity for an internal review was provided.

Instead this Approach was filed in the waste paper bin by the Commonwealth Ombudsman.

Neither the Minister who was lied to nor the Minster responsible for the Commonwealth Ombudsman are concerned about the practice of the Commonwealth Ombudsman filing difficult complaints in the waste paper bin.

So how safe do you think your superannuation is when lies and cover-ups are standard operating procedure in the regulation of your superannuation Trustee?

Australian Guardians – Protecting your wealth when no one else will

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