What does it cost to make a complaint or seek an FOI review?
Nothing. The services of the Education and Care Services Ombudsman, Freedom of Information Commissioner and Privacy Commissioner are free.
Do I need to be represented by a lawyer when I make a complaint or seek an FOI Review?
No, you do not need to be represented by a lawyer to make a complaint to the Ombudsman, Freedom of Information Commissioner or Privacy Commissioner. However, if you do decide to hire a lawyer, you must pay for the lawyer yourself.
Can I make an anonymous complaint? Will my identity remain confidential during the investigation of a complaint?
You may lodge your complaint to the Ombudsman or Commissioners anonymously or by adopting a pseudonym. However, depending on the circumstances, it may be difficult or impossible to investigate such a complaint. Complaints seeking a review of Freedom of Information decisions made by ACECQA or a State or Territory Regulatory Authority cannot be made anonymously for practical reasons. Similarly, it is not possible to investigate complaints about a breach of your privacy without your identity being revealed to the Privacy Commissioner, and the respondent agency. You can appoint a representative to act on your behalf. You may also request that your identity not be disclosed to other individuals or agencies throughout an investigation or review, and be suppressed in any documentation related to an investigation. We will carefully consider such requests.
How will you collect, use and disclose my personal information?
We may need to collect further information from you to enable us to handle your matter effectively. We may also collect information about you from the agency involved in your complaint or review and from others if they have information relevant to your matter.
We will use the information you have provided to assess your complaint, conduct a review or investigation and to conciliate. We will usually disclose the information you give us, including a copy of your complaint, to the agency you have complained about. We may also need to disclose your information to others who have information relevant to your complaint. If there is a challenge to a decision made by us with respect to your matter we may need to disclose some information to a review body, for example a court or tribunal.
If you do not wish for your information to be passed on, you will need to tell us as this may affect how we handle your complaint.
In the case of a NECS Freedom of Information Commissioner Review, the respondent will be provided with a copy of your application for review to respond to, and the Freedom of Information Commissioner may disclose the information you give us, including a copy of the documentation you have provided us, to other parties to the Review.
We will always discuss the disclosure of your information with you first. If you would like access to information about you that the Office holds, please contact the Office.
For further information please review our Privacy Statement.
Are the outcomes of Education and Care Services Ombudsman and NECS Freedom of Information and Privacy Commissioners’ investigations or reviews made public?
Yes. The NECS Freedom of Information Commissioner is required to publish their Freedom of Information Review decisions to the public. In certain circumstances the Commissioner may also give a copy of a report of an investigation into a complaint to the Chair of the Education Council which must be tabbed in the Parliaments of all jurisdictions.
The NECS Privacy Commissioner is required to keep a register of Determinations and make it available to the public. In both cases the Commissioners have the powers to de-identify information so that the identity of the complainant and, in some cases other parties, remains confidential.
The Ombudsman may provide a report of an investigation to ACECQA, the Chair of the Education Council or for tabling in the Parliaments.
Is there anything I should do before making a complaint or lodging a FOI review application?
The Ombudsman and Commissioners generally ask that you first raise your complaint directly with the agency you are complaining about – ie ACECQA or one of the State or Territory Regulatory Authorities – to give them an opportunity to address your concerns. Many issues can be resolved at this stage.
ACECQA and the State and Territory Regulatory Authorities must offer people the right to an internal review of any Freedom of Information decisions they have made with respect to access to documents or the amendment or annotation of personal information.
You must apply within 30 days of being notified of the Freedom of Information decision, unless the agency extended the application time. You should contact the agency if you wish to seek an extension. The agency must make a review decision within 30 days. If it does not do so, its original decision is considered to be affirmed. Internal review is not available if a minister or the chief officer of the agency made the decision personally.
How long will it take to look into my complaint or FOI review application?
This depends on the level of complexity or seriousness of the matters raised by you. We have found that many complaints are resolved quickly through consultation and discussion with ACECQA or the relevant Regulatory Authority. However, others may take months to investigate properly. For example, a review of a Freedom of Information decision will take a minimum of 2 months to complete due to procedural requirements of the Freedom of Information Act 1982.
As a starting point, your complaint will be promptly assessed to determine whether the matter falls within the jurisdiction of our office. We will let you know the outcome of this assessment as soon as possible and if we do not have jurisdiction we will try to refer you to someone who does. In cases where we do have jurisdiction we will always deal with your complaint as quickly as possible and we will regularly keep you informed of progress.
What happens if I want to withdraw my complaint or FOI review application?
You may withdraw your complaint or FOI review application to the Ombudsman or Commissioners at any stage by making a request to do so in writing. If your complaint was made as a party to a Freedom of Information decision or was about a breach of your personal privacy we will take no further action in relation to your complaint. If your complaint related to administrative actions of ACECQA, or about how ACECQA or a State or Territory Regulatory Authority complies with their obligations under the Commonwealth Freedom of Information Act 1982 or the Privacy Act 1988, we may continue to investigate the issues you have raised, without your involvement, if we consider them to be sufficiently serious.
- What does it cost to make a complaint or seek an FOI review?
What can I complain to the Education and Care Services Ombudsman about?
The Ombudsman can investigate complaints about administrative actions of the Australian Children’s Education and Care Quality Authority (ACECQA) and its contractors in certain circumstances including to see if:
- they are wrong, unjust, unlawful, unreasonable, oppressive, improperly discriminatory or just plain unfair
- a discretionary power had been exercised for an improper purpose or on irrelevant grounds
- irrelevant considerations were taken into account or there was a failure to take relevant considerations into account.
Complaints about actions related to Freedom of Information or Privacy matters will be considered by the NECS Freedom of Information or Privacy Commissioner.
The Ombudsman cannot investigate complaints made about the administrative actions taken by State and Territory Regulatory Authorities. Complaints about the Regulatory Authorities should be directed to the relevant State or Territory Ombudsman.
What is an administrative action?
An administrative action is any action taken or not taken by ACECQA (including its contractors) in relation to ACECQA’s duties, functions or powers.
Is there a timeframe in which I must make my complaint to the Ombudsman?
Complaints should generally be made within 12 months of your becoming aware of the action of ACECQA’s that you wish to complain about.
Who can complain to the Education and Care Services Ombudsman?
Anyone can make a complaint to the Ombudsman. If you do not want to make the complaint yourself, you can ask someone else to complain on your behalf.
If you want another person to complain to the Ombudsman on your behalf, and that person is not your legal guardian or legal representative, you need to give your consent for that person to communicate with the Ombudsman’s office. To do so, you can complete the section of our Complaint Form that allows a representative to make your complaint, and return it to the Office or contact the Office personally, either by email to email@example.com or by letter to PO Box 283 Curtin ACT 2605.
Can the Education and Care Services Ombudsman refuse to investigate my complaint?
Yes – the Ombudsman might decide not to investigate a complaint in certain circumstances, such as those where:
· you have been aware of the actions that are being complained about for more than 12 months
· the complaint is frivolous, vexatious or not made in good faith
· you don’t have sufficient interest in the subject matter of the complaint
· you have already issued legal proceedings in a court or tribunal in respect to the subject matter of the complaint or you could issue such proceedings
· you haven’t first raised the matter with ACECQA directly.
The Ombudsman will always give you the reasons for refusing to investigate your complaint and provide you with an opportunity to respond.
What happens following an investigation by the Education and Care Services Ombudsman into my complaint?
The Ombudsman will advise you of the outcomes of the investigation. If the Ombudsman finds your complaint is justified, a report will be prepared and a copy provided to ACECQA and the Chair of the Education Council. The Ombudsman may make recommendations such as:
· ACECQA should reconsider or change its action or decision
· that a law, rule or procedure should be changed
· that ACECQA should take any other action that is appropriate in the circumstances, for example, paying compensation for financial loss.
The Ombudsman cannot override the decisions of ACECQA or compel ACECQA to comply with the Ombudsman’s recommendations. The Ombudsman will work with ACECQA through consultation and negotiation on the outcomes of an investigation. If, however, the Ombudsman considers suitable action is not taken by ACECQA the Ombudsman may make the report of the investigation, together with any responses from ACECQA, available to the Commonwealth, State and Territory Parliaments.
- What can I complain to the Education and Care Services Ombudsman about?
Freedom of Information
What can I seek a review of, or complain about, to the NECS Freedom of Information Commissioner?
If you have made a Freedom of Information application to ACECQA or a State or Territory Education and Care Services Regulatory Authority for access to documents and you are unhappy with the decision, or you are a third party who is affected by that decision (such as a business or individual) you can seek a review of the decision by the Commissioner. You may also seek a review of a decision by ACECQA or the Regulatory Authority to charge you fees for processing your request for access to documents.
You can also seek a review by the Commissioner if ACECQA or a State or Territory Regulatory Authority has refused your request to amend or annotate documents they hold containing your personal information.
The Commissioner can also investigate complaints from anyone about how ACECQA or a State or Territory Regulatory Authority has carried out its powers and functions under the Commonwealth Freedom of Information Act 1982.
Is there a timeframe in which I must request a review by the NECS Freedom of Information Commissioner of a Freedom of Information decision?
You need to lodge your request for a review by the Commissioner of a Freedom of Information decision made by ACECQA or a State or Territory Regulatory Authority (the agencies) within:
- 60 days of the date ACECQA or a Regulatory Authority gave you notice of its original decision, or of its decision following an internal review if one was conducted, for:
- decisions by the agency to wholly or partially refuse access to documents requested, or to amend or annotate personal records or to defer access to a document
- failure by the agency to give you access to documents after having agreed to do so
- the charging of fees associated with your FOI request by the agency
- a refusal by the agency to grant you an extension of time to make an application for an internal review of various decisions by the agency related to your FOI request.
- 30 days of the date the agency gave an affected third party notice of its decision to grant access to documents following consultation with the affected third party
- 30 days of the date the agency gave an affected third party the notice of its internal review decision to grant access to documents.
You can apply to the Commissioner for an extension of time to submit your application. An Extension of Time application form is available here. For more information about seeking a review of a Freedom of Information decision click here.
Is there a timeframe in which I must lodge a complaint about how ACECQA or a State or Territory Regulatory Authority exercises its powers and functions under the Commonwealth Freedom of Information Act 1982?
No. However, the Commissioner has the discretion to refuse to investigate a complaint if the Commissioner believes excessive time has elapsed since the action you complained about.
Can the NECS Freedom of Information Commissioner refuse to conduct a review or investigate a complaint?
Yes. The Commissioner may refuse to conduct, or continue, a review of a Freedom of Information decision, or investigate a complaint if the Commissioner believes
- the application is frivolous, vexatious, lacking in substance or was not made in good faith
- you have been uncooperative in the matter, are unable to be contacted after reasonable attempts have been made, or have failed to comply with a direction from the Commissioner
- in the case of a Freedom of Information Review decision, it is desirable for a Tribunal to consider the review.
In addition, the Commissioner might decide not to investigate, or continue to investigate, a complaint about how ACECQA or a State or Territory Regulatory Authority has carried out its powers and functions under the Commonwealth Freedom of Information Act 1982 if you have not given the agency you are complaining about the right to address your complaint first.
The Commissioner will always give you the reasons for refusing to conduct a review of a Freedom of Information decision or to investigate a complaint and provide you with an opportunity to respond.
What happens after the NECS Freedom of Information Commissioner has conducted an FOI review?
The Commissioner might confirm, vary, or set aside and replace, a Freedom of Information decision made by ACECQA or a State or Territory Regulatory Authority, including decisions with respect to requests to amend or annotate personal records.
The Commissioner will provide the decision, which is known as the NECS FOI Commissioner Decision, in writing to all parties to the review, explaining the reasons for the decision and setting out their rights to apply to a relevant Tribunal for a review of the merits of the Commissioner’s decision. A party to the review may also appeal against the NECS FOI Commissioner’s decision to a relevant Court on a question of law. For more details see Right to Seek Review of Our Decisions. Once all review and appeal rights have been exhausted the Commissioner must make the Commissioner’s FOI Review Decision publicly available.
The principal officer of the agency whose decision was subject to review – ie ACECQA or a State or Territory Regulatory Authority – must comply with and implement the Commissioner’s decision. If they do not comply, the Commissioner or the review applicant may apply to a Court for an order directing compliance.
What happens after the NECS Freedom of Information Commissioner has investigated my complaint about how ACECQA or a State or Territory Regulatory Authority exercises its powers and functions under the Commonwealth Freedom of Information Act 1982?
The Commissioner must provide a ‘Notice of Completion of an Investigation’ to you and to the agency that is the subject of the complaint – ie ACECQA or the State or Territory Regulatory Authority. The Notice must set out the investigation results including any recommendations and the reasons for them. The agency is expected to undertake adequate and appropriate action to implement the recommendations and the Commissioner may issue an ‘Implementation Notice’ requiring implementation details be provided within a set timeframe.
If the Commissioner believes the agency has not taken adequate and appropriate action to implement the investigation recommendations, the Commissioner may give a written report to the Chair of the Education Council. The report must include details of actions the Commissioner believes need to be taken by the agency. The report must also be tabled in the Parliaments of all jurisdictions.
- What can I seek a review of, or complain about, to the NECS Freedom of Information Commissioner?
What can I complain to the NECS Privacy Commissioner about?
You can complain to the Privacy Commissioner if you believe ACECQA or a State or Territory Regulatory Authority has interfered with your privacy by breaching an Australian Privacy Principle in relation to your personal information. Personal information is any information that is about an individual and can reasonably identify that individual.
The Australian Privacy Principles (APPs) dictate the types of measures ACECQA and the State and Territory Regulatory Authorities need to put in place in handling personal information. Details of the Australian Privacy Principles can be found here.
Is there a timeframe in which I must lodge a complaint about a breach of privacy by ACECQA or a State or Territory Regulatory Authority?
No. However the Commissioner has the discretion to refuse to investigate a complaint if you have been aware of the matter you are complaining about for more than 12 months.
Can the NECS Privacy Commissioner refuse to investigate my complaint?
Yes. The Commissioner may decide not to investigate, or continue to investigate your complaint in certain circumstances including:
- you have been aware of the matter complained about for more than 12 months
- the complaint is frivolous, vexatious, misconceived, lacking in substance or not made in good faith
- you have not made a timely response to requests from the Privacy Commissioner for information
- the matter is being dealt with by another body.
- The Privacy Commissioner will discuss their reasons for not investigating a complaint with you.
What happens after an investigation by the NECS Privacy Commissioner into my complaint?
The Commissioner may make a Determination that either dismisses the complaint or finds the complaint is substantiated. If the Commissioner finds the complaint substantiated the Determination may include one or more declarations that the agency being complained about – ie ACECQA or a State or Territory Regulatory Authority – must comply with. Court proceedings may be commenced to enforce a Determination. Declarations requiring compliance that might be included in a Determination are:
a) that the agency engaged in conduct constituting an interference with an individual’s privacy and they must not repeat or continue the conduct;
b) that the agency must undertake specified action within a stated timeframe to ensure the conduct is not repeated or continued;
c) that the agency must take any reasonable action to redress any loss or damage suffered by the complainant;
d) that the complainant is entitled to a specified amount in compensation for any loss or damages suffered as a result of the breach of privacy by the agency.
The Commissioner may also include a declaration that the complainant is entitled to reimbursement of expenses incurred in making the complaint.
The complainant or the agency can appeal against the Determination decision made by the Commissioner. See Review of Our Decisions.
The Commissioner is required to keep a register of Determinations and make the register available to the public.
- What can I complain to the NECS Privacy Commissioner about?