Ombudsman (Defence Forces) Act 2004

Functions of Ombudsman.

4

4.—(1) The Ombudsman shall be independent in the performance of his or her functions, and shall at all times have due regard to the operational requirements of the Defence Forces.

(2) Subject to this Act, the Ombudsman may investigate any action that is the subject of a complaint made by a person affected by the action if, having carried out a preliminary examination of the matter, it appears to the Ombudsman that—

( a) the action has or may have adversely affected the complainant,

( b) the action was or may have been—

(i) taken without proper authority,

(ii) taken on irrelevant grounds,

(iii) the result of negligence or carelessness,

(iv) based on erroneous or incomplete information,

(v) improperly discriminatory,

(vi) unreasonable, notwithstanding consideration of the context of the military environment,

(vii) based on undesirable administrative practice, or

(viii) otherwise contrary to fair or sound administration,

( c) the action was not an order issued in the course of a military operation, and

( d) in the case of a serving member of the Defence Forces, the matter is not likely to be resolved and a period of 28 days has expired since the complaint was made under section 114 of the Act of 1954.

(3) The Ombudsman may—

( a) decide not to carry out an investigation under this Act into an action that is the subject of a complaint, or

( b) discontinue an investigation under this Act into an action that is the subject of a complaint,

if he or she is of the opinion that—

(i) the complaint is trivial or vexatious,

(ii) the complainant has an insufficient interest in the matter,

(iii) satisfactory measures to remedy, mitigate or alter the adverse effect of the action on the complainant have been taken or are proposed to be taken, or

(iv) the complainant has not taken reasonable steps to seek redress in respect of the subject matter of the complaint or, if the complainant has taken such steps, he or she has not been refused redress.

F1 [ (3A) If the complaint is that a person has penalised or threatened penalisation (within the meaning of the Protected Disclosures Act 2014) against, or caused or permitted any other person to penalise or threaten penalisation against, the complainant for having made a protected disclosure (within the meaning of that Act), the Ombudsman

(a) is not prevented from investigating any action that is the subject of the complaint, and

(b) may not decide not to carry out, and may not decide to discontinue, an investigation into any such action,

because no complaint has been made under section 114 of the Act of 1954. ]

(4) It shall not be necessary for the Ombudsman to investigate an action under this Act if he or she is of the opinion that the subject matter concerned has been, is being or will be investigated in a similar manner under another investigation by the Ombudsman under this Act.

(5) A preliminary examination or an investigation by the Ombudsman shall not affect the validity of the action investigated or any power or duty of the person who took the action to take further action with respect to any matters the subject of the preliminary examination or investigation.

(6) In determining whether to initiate, continue or discontinue an investigation under this Act, the Ombudsman shall, subject to the provisions of this Act, act in accordance with his or her own discretion.

(7) A member of the Defence Forces—

( a) who makes a complaint to the Ombudsman concerning an action taken by or on behalf of a civil servant shall not, subsequently, make a complaint about the same matter to the Ombudsman appointed under the Act of 1980, or

( b) who makes a complaint to the Ombudsman appointed under the Act of 1980 in relation to an action taken by or on behalf of a civil servant shall not, subsequently, make a complaint about the same matter to the Ombudsman.

(8) Nothing in subsection (2)(a) or section 6 shall be construed as prohibiting the investigation by the Ombudsman of—

( a) an action that is the subject of a complaint by a complainant which, in the opinion of the Ombudsman, has or may have affected the complainant other than in an official capacity, or

( b) an action that is the subject of a complaint by a complainant which was carried out, or may have been carried out, by a person acting other than in an official capacity.

(9) The Ombudsman shall furnish to the Minister such information regarding the performance of his or her functions as the Minister may from time to time request.