|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of Technology Sydney Law Research Series |
Last Updated: 10 April 2017
Australian Ombudsmen: Drafting a Blueprint for Reform
This is a pre-publication version of an article forthcoming in (2016) 24 AJ Admin L 1
Anita Stuhmcke[*]
The ombudsman institution was introduced across all Australian jurisdictions from the 1970s as a central piece of administrative law reform. The original role of the office was to scrutinise administrative decision making and to promote government accountability through the resolution of citizen complaints. However, since the 1970s all Australian governments have undergone significant change. Government has expanded involvement into areas such as whistle blower and disability protection and human rights. Government also increasingly outsources decision-making to private companies, leading to the introduction of private industry ombudsman and the removal of control from the purview of administrative law transparency mechanisms. This article argues that this transformation necessitates discussion as to reform of the ombudsman institution and suggests a new blueprint for such reform.
INTRODUCTION
Ombudsmen are a litmus test for the changing operation of government. In Australia we have witnessed three waves of Ombudsmen reform. The first was the 1970s creation, across all Australian jurisdictions, of government ombudsmen as an institution of administrative law to render government accountable to the citizen. The second was the introduction from 1989 of industry ombudsmen, instruments of consumer law to render industries such as telecommunications and gas accountable to the consumer of such services. The third wave of change is characterised by both increasing diversity of operation of ombudsmen with a growing shared focus upon the institutions role in standard setting to ensure public and private organisations which deliver services to citizens and consumers act reasonably and lawfully. This is a result of new functions being given to existing bodies rather than proliferating new watchdog type bodies.
This neat classification of the historical development of Australian ombudsmen into three waves belies the reality of the transformation of the institution. The more significant changes wrought to Australian ombudsmen have been incremental, ad hoc, reactive to government change and brought about through a top-down legislative reform approach rather than a bottom-up evaluation based on stakeholder need. Ombudsman bodies and functions have been both established or disestablished on the basis of fast moving (and sometimes conflicting) political, legal, social and commercial regulatory goals.[1] Moreover, it is questionable as to whether some dispute resolution bodies should carry the title “ombudsman”. For example, some new industry ombudsmen are outside the membership criteria of the Australian and New Zealand Ombudsman Association (ANZOA), an organisation which operates a “light touch accreditation scheme”.[2] The grant of the title “ombudsman” to such bodies has resulted in applicants being refused ANZOA membership[3] with ANZOA most recently opposing the creation of the Australian Small Business and Family Enterprise Ombudsman.[4] Even the traditional government ombudsmen now perform a wide variety of functions which depart from their core focus of individual dispute resolution, these offices are less available as a democratic corrective for the individual citizen complainant.[5] The result is that today’s government ombudsmen, originally introduced as a citizen’s defender, is instead characterised as a citizens’ defender[6] with a multiplicity of roles and a focus on improving whole of government administration.
This article steps into the mire and argues the need for a fourth wave of proactive reform. Part I examines why this is necessary and why it should happen now. While the diversification and proliferation of Australian ombudsmen symbolises the success of the institution in adapting to new requirements,[7] it also confirms a shrinking State and a changing role of government, factors which necessitate reconsideration of the role of administrative law institutions and private bodies who provide dispute resolution services to the public. Australia is falling behind with respect to holistic review of the “ombudsmen enterprise”.[8] Internationally Ombudsman have been the subject of comprehensive review with ongoing reform advocated in the United Kingdom, with calls for review coming from a variety of quarters, including ombudsmen themselves.[9] This article advocates for similar range and depth of review which will encompass all Australian jurisdictions.
Australian ombudsmen have rarely been the focus of holistic review.[10] Part II outlines the “access to justice” inquiries which took place in 1994 and 2014, the only independent and holistic reviews of Australian ombudsmen.[11] Points of similarity and difference between the reviews are examined with a view to exploring whether the two decades of change between the reviews impacted upon the conceptualisation of the role of the institution and reform suggestions. While both external inquiries have resulted in important reform recommendations to the Ombudsman institution it is argued that there is continuing need for a nuanced and targeted approach beginning with close analysis of the purpose of Australian ombudsmen.[12] This is necessary as the three waves of reform have repurposed the institution. Indeed although the first and second waves of change were largely driven by the need for a democratic or economic accountability mechanism whereby ombudsmen handled the individual complaints of citizens and consumers the third wave has moved beyond this notion of individual public benefit to a more collective conceptualisation of the public. Any reform suggestions made must therefore begin from a changed conceptualisation of the institution – one which is not evident in either the 1994 or 2014 reform inquiry.
Against this backdrop of change, Part III suggests a blueprint for Ombudsman reform. It sets out both broad ranging and deep changes to the Australian ombudsman model. Rather than accepting that we have entered a post-1970s Ombudsman world this Part grasps the opportunity to view the transformation of the institution as marking “a tipping point where the model requires a major rethink”.[13] These reforms include protecting the title of the institution; creating large “one stop shops” which merge public and private ombudsmen; locating all government ombudsmen within the legislative arm of government; recognising formally the standard setting role of ombudsmen; securing funding for government ombudsmen; improving the selection and removal process of the individual ombudsman and requiring government and industry to take on Ombudsman recommendations.
WHY REFORM AND WHY NOW?
One constant within the three waves of change is the government preference to
promote and utilise ombudsmen.[14]
Evidence of this is the proliferation on the number of ombudsman-like bodies.
This proliferation has centred on industry ombudsmen.
The Productivity
Commission’s 2014 Access to Justice Report (2014 Report) identified
71 Ombudsmen and complaint bodies – 22 nationally and 49 in States and
Territories.[15] The Productivity
Commission identified 26 organisations in Australia with the word
“ombudsman” in their titles, and a
further 40 that have similar
complaints functions but are called commissions or use other names and noted
that these organisations
resolved around 542 000 complaints in
2011–2012.[16] Government
promotion of ombudsmen seems set to continue as apart from legislative
restrictions in South Australia Ombudsman Act 1932
(SA) s 32 there are few
Australian limitations on the use of the title. Such limitations which do exist
are not directed towards
limiting institutional use, such as s 37 of the
Ombudsman Act 1974 (NSW) which provides protection against somebody
claiming they are the Ombudsman, but does not prevent organisations establishing
a body with the title “Ombudsman”. Despite the push from the
ANZOA[17] there is no political will
towards rationalising or systematising the institution.
Public
confusion[18] and lack of
trust[19] have been identified as
outcomes of this fast changing landscape of dispute resolution. As early as the
Access to Justice Advisory
Committee’s 1994 Access to Justice: An
Action Plan Report (1994 Report) it was suggested that “if used
loosely, the term ‘ombudsman’ could mislead the public, rather
than
protect them”. [20] Public
confusion has since been confirmed as an issue in
Australia[21] and declining public
trust has been identified as an issue by in the United
Kingdom,[22] a system which bears
similarities to our own with respect to a variety of choice of ombudsmen. This
negative public experience diverges
from the positive institutional perception
of change which ombudsmen hold of their own performance. For example, both
government
and industry ombudsmen point to the fact that they increasingly do
more with less and also to consumer satisfaction surveys which
indicate high
rates of average customer
satisfaction.[23] This divergence is
puzzling and while not directly the focus of this discussion it does signal the
need for empirical investigation
as to whether and why this is occurring. One
possible explanation for the divergence in experience between the ombudsmen and
their
citizen or consumer complainants may be an absence of clear vision for the
role of Australian ombudsmen – or perhaps an absence
of public
communication about that
purpose.[24]
Yet, without empirical evidence this remains a mere assertion. And, without holistic and systematic reform the future of Australian ombudsmen seems set to continue in an ill-thought through and fragmented manner. As a result, public confusion grows, as the 2014 Report observes: “[M]any consumers are not well informed of the services that ombudsmen offer in resolving disputes. In some cases, the small scale of ombudsmen can contribute to a lack of visibility.”[25] This very issue of proliferating small ombudsmen and public confusion also exists in the United Kingdom. In that jurisdiction however, as noted earlier, holistic reviews and calls for such review of Ombudsman are ongoing. For example a recent UK report recommended bringing together the jurisdiction of the
<blockquote>
Parliamentary and Health Ombudsman, the Local Government Ombudsman and the Housing Ombudsman, to create a clearer pathway for complainants, to ensure the Ombudsmen can respond effectively to changes in the shape of public services, and to help the Ombudsmen operate more efficiently for the taxpayer.[26]</blockquote>
Such willingness to review and reform the Australian ombudsman system is called for here.
PART II. EXTERNAL REVIEW: THE NATURE AND PURPOSE OF AUSTRALIAN OMBUDSMEN
Of course reform and review has already occurred, albeit to a limited degree. As noted in Part I of this article the first holistic review of the role of Ombudsman in the Australian justice system was undertaken in 1994 and resulted in the 1994 Report[27] and the second in 2014 resulted in the 2014 Report.[28] Each review differs from evaluation of individual ombudsman offices as the focus of each was upon the entirety of the system of dispute resolution and therefore encompassed discussion as to both private and public ombudsmen. Each Report devoted one chapter to ombudsmen and similar complaint handling mechanisms.
In the 1994 Report and the 2014 Report (the Reports) the relevant chapter begins with a statement as to the nature and purpose of the institution. However, in the two decades between the Reports this description of the purpose of the office alters only with respect to recognition of the systemic role performed by the institution (see further below). This is at odds with reality where the waves of reform have brought about fast paced and significant institutional change. The 1994 Report stated that:
The core features of governmental ombudsmen are that they are independent bodies that receive and investigate complaints and, when they consider a complaint to be justified, attempt to seek redress through processes akin to mediation or conciliation...Recent industry-based ombudsman schemes...have picked up most of the core features of governmental ombudsmen.[29]
Similarly, in response to the question “What do ombudsmen do?” the 2014 Report stated that
Ombudsmen are impartial organisations that receive and resolve complaints, and conduct inquiries into individual or systemic cases based on those complaints. Ombudsmen services are provided at no cost to the complainant.[30]
While the observation in both Reports that the purpose of the institution is
to be an ‘independent’ (1994 Report above)
or
‘impartial’ (2014 Report above) individual complaint handler is
almost identical, there is one significant difference
between the Reports. This
is the mention in the 2014 Report of the systemic focus of the institution. The
systemic function was addressed
in the 1994 Report in the context of the
Commonwealth Ombudsman,[31] with the
question being asked as to “whether the Ombudsman should focus more upon
the identification and correction of systemic
problems than upon the resolution
of individual complaints.”[32]
The 1994 Report answered this question in the negative but noted that a
“focus on systemic problems could be a useful, if largely
invisible,
improvement in access to justice for many disadvantaged
Australians.”[33] The
Productivity Commission adopted a much broader approach to systemic work in
relation to government and industry ombudsmen and
stated in the 2014 Report that
the term includes “complaint-driven systemic issues investigations; own
motion investigations;
public interest reports that use complaints data to
inform the community and assist regulators and other bodies in performing their
functions; and formal submissions to
inquiries”.[34] In particular
the 2014 Report observes that systemic investigations provide access to justice
as they “represent an efficient
form of dispute resolution since they
address all instances of wrong treatment in one
investigation”.[35]
The
explicit inclusion of this broad brush approach to the systemic role of
ombudsmen in the 2014 Report acknowledges the re-purposing
of the Australian
Ombudsman over the last two decades. It evidences how the third wave of reform
has remodelled the institution as
one which provides benefit to a collective
conceptualisation of the public. This confirms the growing emphasis of all
Australian
ombudsmen, both public and private, upon standard setting and
enforcement,[36] a shift flagged as
important in 1994 as “a much stronger focus on standards will ultimately
pay off in terms of better decisions
and less complaints about the handling of
complaints and an overall better service to the
customer”.[37]
Also significant is that both the Reports omit description of the nature and purpose of the Ombudsman. Most obviously there is a lack of attention given to firstly, the evolving disparity between Australian Government ombudsmen and secondly, the convergence of private industry ombudsmen and government ombudsmen functions. Extensive examples of both changes now exist.[38] An example of the growing diversity among government ombudsmen is the 2007 grant of power to the Victorian Ombudsman to enquire into whether an administrative action of a public authority is incompatible with a human right.[39] An example of convergence is s 34 of the Parliamentary Commissioner Act 1971 (WA) which now allows the Western Australian Ombudsman to act as an industry ombudsman and to give binding decisions and deliver “private” dispute handling services for consumer contracts. Such significant changes are mirrored by private industry ombudsman. For example the Financial Ombudsman Service (FOS) was created in 2008 following the merger of the Financial Industry Complaints Service (FICS) with the Banking and Financial Services Ombudsman (BFSO) and Insurance Ombudsman Service (IOS); all of which were Industry Self-Regulatory bodies. This has resulted in FOS becoming the largest external dispute resolution scheme in Australia.
The result of change without coherent planning and vision for the role of the institution is that Australian ombudsmen increasingly defy simple categorisation.[40] This is an ever present issue. Indeed both the Reports observe the difficulty with unrestricted usage of the title “ombudsman” and advocate the use of criteria for the grant of the title. The 2014 Report accepted the basic premise put forward by ANZOA that the:
The term Ombudsman should only be used if six key criteria are met. Those criteria are independence of the Ombudsman from those whom the Ombudsman has the power to investigate, accessibility, fairness, public accountability, effectiveness and efficiency.[41]
However despite this being the practice and while the criteria are useful to characterise what an ombudsman institution should be, this agreed criteria has resulted in anything but a simplified ombudsman system.[42]
In the United Kingdom the word “enterprise” was chosen by Buck, Kirkham and Thompson[43] to reflect the growth and proactive role of ombudsmen. Here the argument is made that ombudsmen should be grouped as a system, that there is a need to view the institution as one which must be protected and scrutinised. Such an approach has not yet happened at a policy level in this country. Indeed, while the 2014 Report contextualised ombudsmen within the civil justice system, the relevant chapter of the 2014 Report was titled “Ombudsmen and other Complaint Mechanisms” thus contextualising the institution as one of many in a landscape of complaint-handling schemes including human rights commissioners, health complaint bodies and fair trading or consumer affairs offices.[44] While other mechanisms should not be ignored, the reforms below are not inclusive of other access to justice complaints mechanisms. The suggestion is that ombudsmen, despite their differences, be treated as a stand-alone system, the aim being to improve access to justice for the individual and to elevate, protect and scrutinise the ombudsmen system as recognition of its unique and effective role in complaint handling across government and industry.
PART III: THE REFORMS
While the disparity between Australian
ombudsmen is created by varying jurisdictional requirements it is overwhelmingly
the direct
result of governments following a course of selective intervention.
This intervention is simultaneously caused by and has resulted
in a fragmented
and ill-coordinated policy towards
ombudsmen.[45] Ombudsman
jurisdiction has evolved through reactive management with ever-increasing
decisions being made to counter the unforeseen
outcomes of earlier
policies. [46] The interventions are
piecemeal, increasingly shaped by government need to protect the perceived
interests of vulnerable groups within
the
community.[47] Under this type of
reactive reform the purpose of the institution in meeting the goals
administrative justice – which are so
important to improve the government
administration and enrich the lives of individuals and the community – has
not been centred.
This article promotes proactive reform. This is termed a
“blueprint” as this concept has much traction in the area of
public
administration, where it has been observed that “[R]eform is driven from
the top...”.[48] Accordingly
there is a need for top-down, thoughtful and detailed system wide reforms. In
2011 the United Kingdom Law Commission,
recommended that the United Kingdom
Government “establish a wide-ranging review of the public services
ombudsmen and their
relationship with other institutions for administrative
redress, such as courts and
tribunals.”[49] The reforms
suggested here are a similar initiative.
The following reforms are
suggested to equip ombudsmen to meet future challenges. These are both short
term and long term reforms
with the driver being to encourage longer term
thinking in policy making around the ombudsman institution. Outlining how these
will
be put into effect is beyond the scope of this article however it is noted
that some long term changes may be difficult to implement
and/or there may be a
lack of political will and resourcing. However this is not intended as a
“wish list” of reform,
many of the suggestions below are based on
calls for reform which have often been repeatedly called for from the
establishment of
ombudsmen in the 1970s. Further, the 1994 Report had one Action
Point recommending minimum standards for industry-based consumer
complaint
bodies and for government review. The 2014 Report made a total of 4 out of 83
major recommendations for change to public
and private ombudsmen. The
suggestions below address these recommendations and other proposals made by
scholars and external reviews
of individual ombudsman
offices.[50] The aim of the
suggested reforms is to:
A. Recommendation 1: Protect the Title
The recommendation here is that statutory restrictions be imposed upon the use of the title “Ombudsman” in Australia. The title should be protected through statute. [51] The most effective mechanisms to achieve this would be the passing of uniform legislation across all jurisdictions. This suggestion is far from new. The lack of controls on the use of the title has been subject to wide-ranging discussion in Australia,[52] particularly in the late 1980s with the introduction of the first private industry Ombudsman scheme, the Australian Banking Industry Ombudsman.[53] For example in the Commonwealth Ombudsman Annual Report 1991–1992, Alan Cameron, the then Ombudsman, noted that:
There is no doubt that there is already some confusion within the community about the different ombudsman who are appearing. My concern is that elements which are critical to the traditional concept of an ombudsman could be confused, and damage done to the institution as a result. These elements include that the ombudsman is independent – an internal ombudsman cannot be independent; and that the ombudsman has the power to recommend and to publicise, but not make a binding decision – an industry ombudsman, within certain limits, usually has that power.[54]
Similarly to this observation by Alan Cameron, the 1994 Report observed that “If the word is used to describe systems that do not meet these basic criteria, there is a danger that the term will lose credibility.”[55]
It is curious that the debate and concern over the use of the title in this country has not led to statutory protection. Of course Australia is not alone in this outcome. Apart from New Zealand there is a similar lack of protection across other common law jurisdictions such as Canada and the United Kingdom. Also similarly in both those jurisdictions concerns have also been raised over the unrestricted use of the title. The concerns being that unrestricted use: will undermine the brand name; that the title will be misused by institutions which are not independent, accessible and impartial; that it will lead to increased public confusion and therefore reduced public awareness of the right place to complain;[56] and create confusion over the set of agreed principles which drives ombudsmen.[57]
Of course this reform suggestion thus marks a battle fought and lost. As outlined in Part 3, Australian debate on the ombudsman title is now dominated by the view that criteria should govern the grant of the title to an institution. This approach is adopted by the 2014 Report endorsing the light handed regulatory touch of ANZOA and approval of that organisation’s criteria.
However, the practical effect of the application of criteria is to broaden both the breadth and scope of the Ombudsman role. The title now includes a broad spectrum of institutions which may be public or private or a hybrid of both, which may be both statutory and voluntary and which each has its own culture and practices.[58] Local councils, universities and companies have created internal ombudsmen, sometimes called by that name. Further, industry bodies have created their own ombudsman such as the Produce and Grocery Industry Ombudsman which functions not to resolve public complaints from the public but to mediate industry disputes. Moreover there are bodies which exhibit the criteria yet do not bear the title ombudsman. For example the 2014 Report states:
The difference between ombudsmen and tribunals is not always clear, however, in general, tribunals require an application to conduct an investigation and have the power to resolve disputes through rulings, whereas ombudsmen can conduct own motion investigations and most cannot make binding decisions. Some bodies are difficult to classify, for example the Superannuation Complaints Tribunal, which initially attempts to resolve complaints much like an ombudsman does, but, if that is not successful, will conduct a formal review of the complaint and issue a determination.[59]
This role of the Superannuation Complaints Tribunal bears close similarity to the role of many industry ombudsman adding weight to the observation of Professor John McMillan, a former Commonwealth Ombudsman and Acting NSW Ombudsman that
calling a body an ombudsman, or calling it by some other name, does not mean that it is better or worse at what it does than a body with a different title. For example, depending on which jurisdiction you are in, a complaint against police would be made to an ombudsman, a law enforcement ombudsman, a police complaints authority, a crime and corruption commissioner, a crime and misconduct commissioner, or an integrity commissioner.[60]
One practical reason to accept criteria and the light regulatory touch of ANZOA is that such a proposal to restrict usage of the title comes at a time when the ombudsman landscape is now established as diverse and incoherent. However while difficult to implement, the current disadvantages to the wide ranging use of the title outweigh the advantages. In the United Kingdom, a report proposing reforms to the public services ombudsmen observed that
The public should not have to make complex determinations about who is accountable for delivering a service and to whom they should turn for redress if the service deliverer fails to address their complaint to their satisfaction. Growing complexity in public service delivery should be balanced by determined and imaginative efforts to ease access to redress.[61]
In Australia as in the United Kingdom, there is “increasing convergence between public and private ombudsman schemes” and this commonality needs recognition and protection by formal statutory protection and conferral of the title.[62] The conceptualisation of ombudsmen as professionals governed by a professional body, will assist in evaluating schemes which should not be using the title. Here it is worth considering ANZOA as a professional body – with the power to protect and discipline its members as with any professional organisation such as a law society. The use of ANZOA as a body to regulate professional conduct would allow it to sanction bodies which do not adhere to its six industry benchmarks (noted above and supplemented by a further eight pages of ANZOA guidance and explanation on how those benchmarks apply to ombudsman schemes). It can also ensure Ombudsman perform assisted dispute resolution and undergo appropriate professional
B. Recommendation 2: Create “One Stop Shops” for Complainants
There are at least three approaches to a holistic framework for an ombudsmen system. Firstly, things can continue as they are with the advantage that relationships are already established. This has the advantage of being familiar and easy. However as outlined in Part I this approach is untenable as the most common criticism of the ombudsman system is growing public confusion and distrust of an institution which is generally not well understood.[63] As Adam Sampson, the United Kingdom Legal Ombudsman stated in 2013 when referring to the large number of ombudsmen and complaints systems in the UK, “our complaints system is a mess” and the cost of maintaining multiple systems is “startlingly high”. He went on to suggest that government should “bring some order and efficiency into what is an unwieldy, expensive and confusing world. If that means combining some schemes and eliminating others–so be it”.[64]
If change is going to occur then the remaining two approaches will involve a degree of proactive reform. The choice between the two is micro or macro reform. The macro approach could be the creation of a new end to end system. All offices could be integrated into a “new” single ombudsman. This ombudsman would deliver services to citizens and consumers. One benefit of this approach is that it requires a broad rethinking of the ombudsman role – should such an office have the power of determination for public and private complaints? Should it be a standard setting body? Are there advantages in having one institution staffed by multiple public and private ombudsmen? However it also has disadvantages. It is risky, this system doesn’t exist and it is not known if it will work. It therefore has huge potential to undermine the tradition, credibility and respect of the institution.
It is a micro approach, which is favoured here. This approach, raised by the NSW Ombudsman,[65] is to impose a layer of integration between the ombudsmen and the public. The concept is to situate Australian ombudsmen within a framework that creates a “whole greater than its parts”[66] thus satisfying the Sampson push for order and efficiency.
This suggestion includes establishing a single recognisable contact point for everyone in the community which will act as a “triage” station, referring complaints and information to the relevant body, who could then make contact with the complainant and take any appropriate action. However the NSW Ombudsman stressed that “this contact point would not subsume the roles of the various oversight and integrity bodies, who would all maintain their independence and particular roles and responsibilities.”[67] There is also good reason to keep the expertise and specialism of ombudsman offices, thus satisfying the NSW Ombudsman suggestion. The public should not have to make complex determinations about whom to complain to and Ombudsmen should also be free of having to make complex jurisdictional decisions or to rely upon organisational goodwill to determine who resolves complaints.[68] In the Australian context this would mean one triage point in each jurisdiction. This suggestion has also been made in the United Kingdom where the Public Administration Select Committee observed that “the Government should create a single point of contact for citizens to make complaints about government departments and agencies”.[69]
This approach has benefits as it retains the original system with a single look and feel. It is also “business as usual” with an integration layer, low initial cost and low risk. The disadvantage of this approach is that it is simple, a little clunky with “old dogs in new collars” has little customatisation and will need resourcing as in effect the suggestion is for a “front of house” clearing mechanism. This can be conceptualised as an amalgamation of ombudsmen similar to that which has been undertaken in Victoria, NSW[70] and Western Australia with respect to tribunals. This revives the well-worn path of historical recommendations for a holistic government approach to complaint resolution, as alluded to by the Administrative Review Council,[71] and suggested by the former Commonwealth Ombudsman, Professor Dennis Pearce.[72] We have already seen amalgamation of public ombudsmen functions, such as the 2003 merging of the NSW Ombudsman and the Community Services Commission and a combining of both private industry ombudsmen and public functions in government ombudsmen such as in Western Australia. The “one stop shop” is attractive as it provides service to the public as simple and seamless as possible while preserving the variety and subtlety in the practices and procedures of ombudsmen. [73] Chaney has argued that in terms of tribunal amalgamation the benefits are accessibility, efficiency, flexibility, accountability, consistency, and quality.[74] Like the “super-tribunals” the purported benefits of a “one stop ombudsman shop” may be: a whole of government approach to support and recommend improved decision-making; stability of staff of the offices; and simplicity of approach for the public; consistency in practices and decisions; and the visibility of the establishment of a single ombudsman with the title being restricted to such a body. [75]
Ombudsmen are of course not tribunals and this suggestion is not without problems and nor will it be without opposition. In 2007 the Banking and Financial Services Ombudsman Limited, the Insurance Ombudsman Scheme and the Financial Industry Complaints Scheme objected to such a proposal in Victoria, arguing that ombudsmen already have their own central telephone referral point and an “additional gateway will not have the industry-expertise of the schemes currently operating in this area”. [76] Further work must therefore be undertaken as to this proposal including its rationale; a cost-benefit-analysis; an options appraisal; an audit of changes to legislation; the likelihood of legislative change; and a risk assessment.[77] However it does have initial appeal:
Importantly,
this reform also allows for the retention of differences between industry and
government ombudsmen. There is thus no
need to dismantle the body of law which
is developing around private industry ombudsman powers and which cannot apply to
public ombudsmen.[82]
C.
Recommendation 3: Parliamentary Protection and Oversight of Government
Ombudsmen
All government ombudsmen should be afforded the statutory responsibility of being appointed by and reporting to Parliament – for oversight and protection. This is to separate the institution of ombudsman from the executive arm of government and promote its independence. There is currently an absence of uniformity across Australian ombudsmen. For example some ombudsmen are appointed by the Governor, such as the Western Australian Ombudsmen;[83] the Victorian Ombudsman[84] and the Tasmanian Ombudsman.[85] Whereas in Queensland the Governor in Council must consult with a parliamentary committee[86] and in South Australia the appointment occurs by the Governor, on a recommendation made by resolution of both Houses of Parliament[87] and in NSW similarly by the Governor upon address of both Houses of Parliament and with veto over the appointment given to Joint Committee.[88] In the Northern Territory appointment is made upon recommendation by the Legislative Assembly[89] and in the ACT by the Speaker of the Legislative Assembly[90] and the Commonwealth Ombudsman is appointed by the Governor-General.[91] The aim of this suggestion is that offices be established by an Act of Parliament; with which ombudsmen are appointed and dismissed with Parliamentary involvement; overseen by a statutory Parliamentary committee which is also responsible for budget approval; and required to report to a specific Parliamentary committee.[92]
Due to the absence of a separation between the executive and the legislature in Australia this recommendation that Ombudsman be officers of Parliament may appear superfluous. Australian Parliaments generally have been unable to free themselves of Executive domination except when the Government has been in a minority in the upper house, or when it has been dependent on the support of independents or minority parties in the lower house. As early as 1974 it was observed that “most of the Australian Parliaments have become mere rubber stamps of approval for legislation and other enactments formulated by cabinet.”[93] In Australia, particularly at the State level it has been questioned as to whether there is even any point discussing what Parliament does so as to suggest it acts independently of Government.[94] The means, normally adopted to achieve reform and power up the Parliament, is to strengthen the committee system. Further, the capacity of Parliament to criticize and scrutinize has been enhanced through the investigative functions of offices such as the Ombudsman and the Auditor-General.[95]
It follows that despite clear demarcation between the legislature and the executive the constitutional placement of the ombudsman under the legislature is important. This is highlighted by the 2011 resignation of the Commonwealth Ombudsman, Allan Asher. Resignation of an Australian Ombudsman is a rarity. In the case of the resignation of Allan Asher in 2011, 14 months into his five year term, the constitutional positioning of the Commonwealth Ombudsman within the Executive arm of Government contributed to the assertion that his actions had resulted in “...government concerns over his impartiality.”[96] This resignation highlights conflict between the statutory responsibility of an Ombudsman to investigate administrative action by Government and the need to remain independent of the political process.
Allan Asher resigned after admitting he scripted questions for Greens senator Sarah Hanson-Young to ask at a Senate Estimates hearing. The questions concerned Ombudsman powers of immigration audit with the consequent suggestion made that “the real reason for the assault on Asher is the poisonous politics of immigration”[97] Nonetheless, his action was viewed as compromising the independence of the Ombudsman. Mr Asher’s choice of pathway to publicise the sensitive issues troubling the office in terms of immigration oversight[98] was seen as “unwise” and one that “...compromised the independence of his office by actively colluding with the Greens, but [Allan Asher] said he had no other way to air his concerns about government policy”.[99]
This choice to approach a minority party with such damaging policy information (damaging to the Government) is important as it is attributable to deeper structural flaws flowing from the constitutional positioning of the office within the executive arm of government. Relevantly Allan Asher attributed his actions to the Government ignoring his concerns over office funding and (in)ability to oversee immigration detention and the fact that, according to Senator Sarah Hanson-Young he “believed that his job as a decent person in his role was to look after the very vulnerable people who had no other voice.”[100] Further, it was argued that
[I]n the absence of a parliamentary oversight committee with whom he can raise issues of concern, it is not unreasonable for the Ombudsman to raise such issues direct with individual MPs or senators.[101]
In this instance Parliament granted the Commonwealth Ombudsman legislative powers to investigate sensitive issues and then, in the case of the Commonwealth Ombudsman, the Government refuses to respond to criticism. This event goes to the heart of Ombudsman independence highlighting conflict between the statutory responsibility given to an Ombudsman to independently investigate the Government and the Parliament or Government marginalising the Ombudsman.
This suggestion that all Ombudsmen report to Parliament,[102] replicates what occurs in States.[103] However, this recommendation is far from a silver bullet. Recent events in NSW highlight the relative powerlessness of the Ombudsman institution within either the Executive or the Legislative arm of Government. Here the dual NSW Parliamentary investigations into Operation Prospect are particularly relevant. Operation Prospect commenced in late 2012 under the former Ombudsman, Bruce Barbour and continues under the Acting Ombudsman, Professor John McMillan. It is an investigation of allegations concerning the conduct of officers of the NSW Police Force, the NSW Crime Commission and the Police Integrity Commission between 1998 and 2002.[104] While the NSW Ombudsman reports to Parliament via the Parliamentary Joint Committee, in the case of Operation Prospect there were two separate legislative inquiries into the allegedly slow and expensive conduct of the NSW Ombudsman’s investigation.
This Parliamentary review of Operation Prospect illustrates that locating an ombudsman within Parliament is perhaps more important for perception than practice. It is possible that the Legislative Council actions, being independent of the established Ombudsman Parliamentary reporting line may be cast as the upper house acting without democratic authority.[105] Indeed such independent Parliamentary inquiry by the Legislative Council indicates that reporting to Parliament is by no means a panacea for effective Ombudsman oversight. This is despite the fact that ombudsmen may be safeguarded by legislative provisions which provide that they have complete discretion in the performance or exercise of their functions and powers.[106]
While the practical effectiveness of situating the ombudsman in the legislature may not be improved, the symbolism of such placement should not be overlooked. Placement of ombudsmen within the legislative arm of government confirms the office should not be viewed as merely another government department.[107]
There are five additional reforms which will further assist in maintaining independence of Government ombudsmen through Parliament:
This reform recommendation does not include the relocation of the
industry ombudsmen to the legislative branch of government. Historically
industry ombudsmen and the industries they take complaints about have had a high
degree of self-regulation. While industry ombudsmen
are variously constituted no
industry ombudsman reports directly to Parliament. For example, take the two
largest federal private
industry bodies. First, the Telecommunications Industry
Ombudsman is established under Part 6 of the Telecommunications (Consumer
Protection and Service Standards) Act 1999 (Cth), which states that the
“The Minister may, by legislative instrument, determine standards for the
[TIO scheme] purposes
of subsection
(8)”.[119] Secondly, the FOS
is approved by ASIC under the Corporations Act 2001 (Cth) and the
National Consumer Credit Protection Act 2009 (Cth). The issue as to
whether such reporting should be put in place is beyond the scope of this
article.
C Recommendation 4: Articulate the Purpose of Ombudsmen
One challenge to a holistic approach to an ombudsman system is that the difficulties faced by ombudsman will be both shared and dissimilar.[120] Recently, the notion of an integrity system of which ombudsmen are a part, has been articulated as the normative purpose of ombudsmen. This integrity function has led to wide debate as to the role of ombudsmen. In 2013, the Hon Wayne Martin AC, Chief Justice of Western Australia, discussed the issue of a fourth integrity branch of government in his 2013 Whitmore Lecture.[121] To the surprise of those within integrity agencies[122] His Honour used the descriptor of “alarm bells” ringing at the thought of a fourth arm of government and stated:
This article is a response to various suggestions made over the last 10 years or so to the effect that various statutory agencies with different functions and responsibilities should be collectively regarded as a fourth arm of government, united in the discharge of a shared responsibility. It appears to me that there may be significant dangers in this proposition, including the risk of distraction from the specific language used by the Parliament in conferring functions upon each agency, and in defining the standards to be applied and observed by each agency. The collection of these agencies in one grouping creates the risk... that the efficacy of the checks and balances that have characterised relations between the three recognised branches of government, and which have stood the test of time, may be undermined.
Up until this point debate had been overwhelmingly in favour of recognising the growth of the integrity arm of government. In 2004, Chief Justice Spigelman had argued that an integrity branch of government would include agencies such as the auditor-general, ombudsmen, director for public prosecutions etc.[123] This notion was supported by the Rt Hon Dame Sian Elias, Chief Justice of New Zealand, who suggested that this branch could include the integrity functions of the judiciary..[124] The case for an integrity branch of government has been taken up by various commentators[125] and past and present ombudsmen.[126]
In Western Australia the Chief Justice’s concerns have informed the Western Australian Parliament[127] and promoted fresh debate. For example Chris Wheeler, the Deputy Ombudsman of NSW, rejected the views of Justice Martin arguing that the case put forward was based on
what could be described as a false premise – that the historical arrangements or relationships between the existing three branches of government are still adequate to ensure an appropriate balance between the executive, legislative and judicial branches. Such a view would not appear to recognise that there has been a radical, and still ongoing, shift in these relationships over the past 100 years or so, primarily due to changes in the powers and the functions of the executive branch.[128]
Of course, given the long slow absence of change in Australian Federal Constitutional history, the question as to whether this increasing growth of executive power can be stymied through the creation of an integrity arm of government is of more theoretical than practical relevance.
However, while theoretical, this debate over an integrity arm of government, raises three current and practical issues for Ombudsman. First, what is the role for government and industry Ombudsman within and amongst other integrity agencies?[129] Second, as the range and nature of such agencies grows[130] and as delivery of services is transformed to what extent must or should the institution change to accommodate these shifts? Third, as “There is a natural tendency in any surveillance mechanism to come to believe that the administration of government exists for the purposes of being investigated” or in other words[131] that integrity agencies must not lose sight of their purpose being one to hold truth to power within the constraints of their legislative mandate and not to become a de-facto policy creator or rule maker. These issues intersect around the question as to what is the purpose of an Ombudsman.
In establishing a clear role for an Ombudsman core principles must be considered. First, the jurisdiction of ombudsmen must be streamlined and clear. Consideration of the place of the citizen and consumer in the role of the institution in preserving the ability of the individual to complain to ombudsmen is central. Second, it is appropriate for the function of ombudsmen to change, however careful consideration should be afforded to how and when this is to be done. Should it be left to ombudsmen to ask the courts to decide the validity of their jurisdiction[132] or should a test for the grant of such powers be developed? One possible litmus test for the grant of new functions to Ombudsman may be to assess whether the functions are a good fit with the core role of individual complaint-handling. As Gill has noted a good fit is one where the function may “help to simplify a complex redress landscape from the perspective of the citizen”[133] or consumers. Finally, the role of the institution as a standard setter must be explicit. This suggestion is not new.[134]
Any explicit justification as to the grant of new functions will require that the purpose of an Ombudsman is clearly articulated. For example, currently the grant of new functions to an Ombudsman occurs due to ad hoc push-pull factors such as that an Ombudsman may desire to take on new powers and there may also be a Government willing to facilitate this conferral of functions.[135] This can be clearly seen in the current ongoing escalation of what Ombudsmen have termed a “whole of government” or “whole of industry” role. Ombudsmen suggest that a wide range of roles assist them to improve administration and/or industry,[136] claiming that their offices act as integrity agencies for the whole of government.[137] The integrity claim is interesting as it simultaneously aligns the reputation of institutions such as ombudsmen with broad notions of administrative justice while highlighting the ambiguous and even contentious nature of the institution.[138] Indeed, that purpose has not been made explicit. To remove this ambiguity the ombudsman role in setting standards for complaint handling could be made explicit and be enshrined in legislation such as in Scotland (see the Public Services Reform (Scotland) Act 2010 (UK)).[139]
Importantly, the purpose of the Ombudsman must be contextualised within the structural limitations of the office.[140] While there are structural differences between the capacity of industry and government ombudsmen to enforce decisions, the 2014 Report recommended mandating government and industry take-up of the recommendations made by ombudsmen. This outcome may be achieved in practice through timely review and subsequent follow-up by a parliamentary committee or government establishing its own key performance indicators. This is necessary as government agencies are busy and:
With the best will in the world an agency will undertake to implement a recommendation, or to review its administrative practices, but the undertaking will be overtaken by other pressures and languish. (Sometimes, too, with the most scheming will in the world an agency will give such an undertaking and quickly bury it!)[141]
Finally, considering the purpose of the institution will involve opening the operational aspects of Ombudsman to review.[142] This is beyond the scope of this article. However further issues which could be examined include: the secrecy and privacy of ombudsman investigations; the more controversial suggestion as to the use of determinative powers by government ombudsmen;[143] success rates of freedom of information applications by ombudsman clients.[144] Any operational review must include empirical research to inform change.
CONCLUSION
Australian Ombudsmen were never intended to be a “system”. Each institution has grown to be increasingly idiosyncratic. Arguably this has reached a tipping point. Confusion must be reduced and emphasis placed upon adoption of “best practice models” rather than differentiation. There are hints of this occurring. For example the NSW Ombudsman model for the child protection related reportable conduct scheme is now being copied in other jurisdictions, with the ACT and Victoria investigating its applicability[145] and creative models for ombudsmen such as hybrid operations between public ombudsman and industry complaint handling have been introduced in both Tasmania where the Ombudsman is also the industry Energy Ombudsman and Western Australia where the Government Ombudsman is also the industry Energy and Water Ombudsman.
However these shifts continue to be sporadic and reactive. Each of the three waves of reform have shared that characteristic and have therefore created unintended problems for the institution. The first and second waves of reform have been based upon an Australian ombudsman institution which primarily deals with individual complaints. Government Ombudsmen in the 1970s and the industry Ombudsmen in the late 1980s were tasked with promoting government and industry accountability through individual complaint handling. Each of these waves of reform raised operational difficulties for ombudsmen. For example the first wave of reform has raised systemic issues such as the absence of constitutional recognition of government ombudsman and the second wave of reform has resulted in ongoing discussion as to the reach of administrative law institutions into the private sector and the quasi-regulatory role of private industry ombudsmen. Similarly the third wave of reform has recast and refined the operation of the institution and has led to two central issues, the first to do with the nature and the second the purpose of the institution. The first issue raises scale. Public confusion as to complaint avenues highlights complexity raised due to the number of offices as well as competition among ombudsmen offices. The second issue raises scope of operations, particularly, whether the primary purpose of the institution is as a complaint-handler or as a quality controller.
To be effective and to proactively improve the operation of ombudsmen the fourth wave of reform must identify the best parts of ombudsman practice through an evidence based approach. For this an “all of government” approach to review, specific to ombudsmen like that in the United Kingdom, is required across all Australian jurisdictions. The first step of such review must be to re-identify the nature and purpose of Australian ombudsmen. Review must occur so that an effective process is developed to ensure that Ombudsman are “...adequately resourced and meet accepted levels of accountability without their independence being compromised by executive government.”[146] To date this has not occurred in any Australian jurisdiction let alone holistically across all Australian ombudsmen. This challenge is immediate and ongoing. To respond to the concerns raised above, two broad sets of reforms have been advocated in this article: to refine and systematise the strategic direction of the Ombudsman and to remedy the perennial problems that have plagued the institution since inception.
[*] Professor of Law, University of Technology Sydney Faculty of Law. I would like to thank an anonymous reviewer for comments, all errors are of course my own. I would also like to thank Chris Wheeler, Chris Gill and Rick Snell for comments on an earlier version of this article. Any mistakes in this article no doubt arise from where I chose to ignore their good advice.
[1] Parliament of Queensland, Legal Affairs and Community Safety Committee, Oversight of the Office of the Queensland Ombudsman (2014) 5. Change is rapid paced and ongoing, eg the Commonwealth Ombudsman from 1 July 2015, takes complaints about private health insurance. These complaints were previously directed to the Private Health Insurance Ombudsman. Conversely from 1 May 2015, most complaints about the Australian Taxation Office must be directed to the Inspector-General of Taxation (IGT) and not the Commonwealth Ombudsman.
[2] John McMillan, “What’s in a Name? Use of the Term ‘Ombudsman’” (Speech delivered at the Australian and New Zealand Ombudsman Association, Melbourne, 22 April 2008).
[3] Commonwealth Ombudsman, Fair Work Ombudsman: Exercise of Coercive Information-Gathering Powers, Report No 9 (2010) (Commonwealth Ombudsman Report); Tess Hardy and John Howe, “Accountability and the Fair Work Ombudsman” (2011) 18 AJ Admin L 127. See also the Queensland Health Ombudsman: Office of the Health Ombudsman, “About Us” <http://www.oho.qld.gov.au/> .
[4] Australian and New Zealand Ombudsman Association, Submission No 3 to Senate Standing Committee on Legal and Constitutional Affairs, Australian Small Business and Family Enterprise Ombudsman Bill 2015 and the Australian Small Business and Family Enterprise Ombudsman (Consequential and Transitional Provisions) Bill 2015, 15 July 2015.
[5] Anita Stuhmcke, “‘Each for Themselves’ or ‘One for All’? The Changing Emphasis of the Commonwealth Ombudsman” (2010) 38 Federal Law Review 143.
[6] Chris Wheeler, “Being Difficult or Experiencing Difficulty?” (Paper presented at Commonwealth Ombudsman National Conference, Barton, 24 September 2009).
[7] In 2014 the Productivity Commission observed that: “Ombudsmen provide independent, timely and accessible dispute resolution in particular areas and industries. Ombudsmen and other complaint bodies resolve close to 550 000 disputes each year, compared to around 1 million disputes resolved by tribunals and courts together.”: Productivity Commission, “Access to Justice Arrangements” (Inquiry Report No 72, 2014) 311.
[8] Trevor Buck, Richard Kirkham and Brian Thompson, The Ombudsman Enterprise and Administrative Justice (Ashgate, 2011).
[9] Nick O’Brien, “What Future for the Ombudsman?” (2015) 86 The Political Quarterly 72, 74.
[10] Reviews have been undertaken of single Ombudsman offices: see Senate Standing Committee on Finance and Public Administration, Review of the Office of the Commonwealth Ombudsman (AGPS, 1991). Such reviews are not included due to their single organisational focus.
[11] It is arguable whether the Access to Justice Advisory Committee’s 1994 Report (Access to Justice Advisory Committee, “Access to Justice: An Action Plan” (AGPS, 1994)) should be included here as an independent review given that it was an advisory committee commissioned by the then Attorney-General Michael Lavarch and Minister for Justice Duncan Kerr, led by Ronald Sackville QC. There have been two other holistic civil justice reviews which might be also included but are excluded due to their limited focus on ombudsmen: Access to Justice Taskforce, Attorney-General’s Department, Strategic Framework for Access to Justice in the Federal Justice System (Commonwealth of Australia, 2009) (which is excluded from this article as it only focuses upon two Federal Ombudsmen – the Commonwealth Ombudsman and the Telecommunications Industry Ombudsman); Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (1999) (which is excluded as it only incidentally dealt with ombudsmen and made recommendations concerning the Legal Professional Ombudsman). State reviews such as the Victorian Law Reform Commission, Civil Justice Review, Report No 14 (2008) are also excluded due to their singular institution focus.
[12] This call is being made in the United Kingdom as well: O’Brien, n 9, 74.
[13] Thanks to Rick Snell for this point and the wording.
[14] See, eg, Access to Justice Taskforce, Attorney-General’s Department, n 11, 90, Recommendation 7.1. This Recommendation stated that the “The AttorneyGeneral should work with responsible ministers to examine options to increase the range of consumer disputes which have access to an industry ombudsman or external dispute resolution service.”
[15] Productivity Commission, n 7, 5. This finding relies on 2011–2012 data – a modest count which would exclude university and other internal ombudsmen. The previous inquiry was undertaken in 1994 by Ronald Sackville QC as Chair: see Access to Justice Advisory Committee, n 11.
[16] Productivity Commission, n 7, 312.
[17] Australian and New Zealand Ombudsman Association, Submission to Consumer Affairs Australia and New Zealand, Review of Australian Consumer Law (ACL) Issues Paper, 25 May 2016.
[18] Productivity Commission, n 7, 165.
[19] Naomi Creutzfeldt, “What People Expect from Ombudsmen in the UK: A Report on the Findings of the Project on ‘Trusting the Middle-man: Impact and Legitimacy of the Ombudsmen in Europe’” (University of Oxford, 2015). Whether the UK position is indicative of the position in Australia must be evidenced by empirical research in this country (thank you to Chris Wheeler for this point).
[20] Productivity Commission, n 7, 329–330; Access to Justice Taskforce, Attorney-General’s Department, n 11, 315.
[21] Productivity Commission, n 7; also in the United Kingdom.
[22] Creutzfeldt, n 19. This empirical investigation of the individual’s experience of public and private ombudsmen, found that public ombudsmen were far more negatively regarded than private industry ombudsmen with 57% of people stating that the overall satisfaction with the procedure was “unfair” or “very unfair” compared to 25% of dissatisfaction with private schemes.
[23] Australian and New Zealand Ombudsman Association, Submission No 133 to the Productivity Commission, Inquiry into Access to Justice Arrangements, 10 December 2013, stating that of the six offices that took part the satisfaction rate was 86%.
[24] Buck, Kirkham and Thompson, n 8, 94.
[25] Productivity Commission, n 7, 36.
[26] UK Cabinet Office, A Public Service Ombudsman: A Consultation (Cabinet Office, 2015) 2; See also Lorne Crerar, The Crerar Review: Report of the Independent Review of Regulation, Audit, Inspection and Complaints Handling of Public Services in Scotland (Scottish Parliament, 2007).
[27] Access to Justice Advisory Committee, n 11.
[28] Productivity Commission, n 7.
[29] Access to Justice Advisory Committee, n 15, 303.
[30] Productivity Commission, n 7, 312.
[31] Access to Justice Advisory Committee, n 15, 318–319.
[32] Access to Justice Advisory Committee, n 15, 318.
[33] Access to Justice Advisory Committee, n 15, 319; the Committee noted it was unfortunate it could not consider this issue.
[34] Productivity Commission, n 7, 316.
[35] Productivity Commission, n 7, 317.
[36] Here in relation to industry ombudsmen note the adoption of the CDR Benchmarks: Australian Government, The Treasury, Benchmarks for Industry-Based Customer Dispute Resolution (Commonwealth of Australia, 2015) <http://www.treasury.gov.au/PublicationsAndMedia/Publications/2015/benchmarks-ind-cust-dispute-reso> .
[37] Access to Justice Advisory Committee, n 15.
[38] See, eg, the Private Health Insurance Ombudsman which is within the Office of the Commonwealth Ombudsman: Commonwealth Ombudsman, “Private Health Insurance Ombudsman” <http://www.ombudsman.gov.au/making-a-complaint/private-health-insurance> .
[39] Charter of Human Rights and Responsibilities Act 2006 (Vic); see Anita Stuhmcke, “The Role of Australian Ombudsmen in the Protection and Promotion of Human Rights” (2010) 16 Australian Journal of Human Rights 37.
[40] For example the South Australian Office of the Police Ombudsman website states that the system created by the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) “deliberately follows the model of ‘external monitoring of internal investigation,’ rather than creating a truly independent investigative agency”: Office of the Police Ombudsman, History of the OPO <http://www.policeombudsman.sa.gov.au/history-of-the-opo /> .
[41] Australian and New Zealand Ombudsman Association, Rules and Criteria (Australian and New Zealand Ombudsman Association, January 2014) <http://www.anzoa.com.au/assets/anzoa_rules_january2014.pdf> .
[42] This is further discussed in Anita Stuhmcke, ‘Australian Ombudsmen: A call to take care’ (2016) 44(3) The Federal Law Review 531
[43] Buck, Kirkham and Thompson, n 8.
[44] Productivity Commission, n 7, 331.
[45] Anita Stuhmcke, ‘Australian Ombudsmen: A call to take care’ (2016) 44(3) The Federal Law Review 531. .
[46] Such as the removal of police from the jurisdiction of the NSW Ombudsmen following Operation Prospect: New South Wales Ombudsman, Operation Prospect (NSW Ombudsman, December 2016).
[47] Government has increasingly used the Ombudsman as a place to rest difficult issues such as immigration detention; child sexual abuse; Indigenous justice issues; prisons.
[48] Advisory Group on Reform of Australian Government Administration, Ahead of the Game: Blueprint for the Reform of Australian Government Administration (Australian Government Department of the Prime Minister and Cabinet, 2010) v. Due to space limitations the most obvious and central reforms are canvassed here.
[49] UK Law Commission, Public Services Ombudsmen, Law Com No 329/HC 1136 (2011) 1136, cited in House of Commons Public Administration Select Committee, Time for a People’s Ombudsman Service, House of Commons, Paper No 14, HC 655, Session 2013–14 (2014).
[50] See, eg, Senate Standing Committee on Finance and Public Administration, n 10; Henry Smerdon, Strategic Review of the Office of the Queensland Ombudsman (Queensland Government, Office of the Queensland Ombudsman, 2006); Henry Smerdon, Strategic Review of the Office of the Queensland Ombudsman (2012).
[51] Only in South Australia and in New Zealand are there legislative guidelines on the use of the title Ombudsman. In South Australia the internal use of the title by a government agency is prohibited: Ombudsman Act 1972 (SA) s 32; Ombudsmen Act 1975 (NZ) s 28A(1). Since 1991 in New Zealand it has been necessary to have a statutory appointment or permission of the Chief Ombudsman before the title is used; this has been given to two industry Ombudsmen in New Zealand.
[52] The issues pertaining to use of the title by the private sector are regularly discussed in Commonwealth Ombudsman Annual Reports. For example, in the Commonwealth Ombudsman, Annual Report (Commonwealth Ombudsman, 1988-1989) two pages (18–20) were devoted to discussion about the use of the name “Ombudsman”, the issue being instigated by the proposed introduction of the first national private industry Ombudsman, the Australian Banking Industry Ombudsman. There are opposing views on whether the use of the title “Ombudsman” by industry will confuse the public or whether the wider use of the term “Ombudsman” would benefit the official public office as it would familiarise the public with the expression and the idea. For example, it has been suggested that the adoption of the title “Ombudsman” which belongs to the public sector is a deliberate tactic used by the industry Ombudsman schemes to emulate the “prestigious public review bodies”: see Jeffrey Barnes, “Administrative Law: Is Administrative Law the Corporate Future?” (1993) 21 ABLR 66, 68.
[53] NSW Ombudsman, Annual Report (NSW Ombudsman, 1989); South Australian Ombudsman, Twenty-Fifth Annual Report (Government Printers Adelaide, 1997).
[54] Commonwealth Ombudsman, Annual Report (Commonwealth Ombudsman, 1991–1992), 4.
[55] Access to Justice Advisory Committee, n 11.
[56] A 2013 study by Queen Margaret University highlighted the challenges faced by ombudsmen in raising their public profile and cementing themselves in the minds of the public as an alternative source of redress: Chris Gill et al, The Future of Ombudsman Schemes: Drivers for Change and Strategic Responses (Queen Margaret University, 2013).
[57] This is also made difficult by the message ombudsmen have to sell – they are forceful in pursuing legitimate complaints but do not act as advocates for complainants: McMillan, n 2, 5.
[58] For similar developments, see the United Kingdom study: Margaret Doyle, Varda Bondy and Carolyn Hirst, The Use of Informal Resolution Approaches by Ombudsmen in the UK and Ireland: A Mapping Study (Hot off the Press, 2014) 4.
[59] Productivity Commission, n 7, 314.
[60] McMillan, n 2, 5.
[61] Robert Gordon, Better to Serve the Public: Proposals to Restructure, Reform, Renew and Reinvigorate Public Services Ombudsmen – A Report to The Rt Hon Oliver Letwin MP, Minister for Government Policy and Chancellor of the Duchy of Lancaster (2014) 13.
[62] Gill et al, n 56, 6.
[63] Commonwealth Ombudsman, Annual Report 2010-2011 (Commonwealth of Australia, 2011) viii: “66% of respondents were aware of the Ombudsman (consistent with previous surveys). Of note was that young people, particularly those aged 18–24 years, were less likely to be aware of our services”.
[64] Adam Sampson, “Time to Streamline Britain’s Complaints System”, The Guardian, 26 November 2013 <https://www.theguardian.com/society/2013/nov/26/time-streamline-britains-complaints-legal-ombudsman> cited in House of Commons, Public Administration Select Committee, n 49, 36.
[65] This went as far as draft legislation.
[66] Administrative Review Council, Review of Commonwealth Merits Review Tribunals, Discussion Paper No 39 (1994) 5.
[67] NSW Ombudsman, Submission No DR295 to Productivity Commission’s Draft Report, Access to Justice Arrangements,
23 June 2014.
[68] There is a need to refine jurisdictions. See for example the problems with conflicts of jurisdiction between the overlap of ICAC and South Australian Ombudsman; South Australian Ombudsman, Annual Report 2013–2014 (Ombudsman SA, 2014) p 6-9.
[69] House of Commons Public Administration Select Committee, More Complaints Please!, House of Commons, Paper No 12, Session 2013-14 (2014) 4.
[70] For example NSW Civil and Administrative Tribunal was the amalgamation of 22 pre-existing tribunals and bodies and divided into four divisions.
[71] Administrative Review Council, Report to the Attorney-General: Access to Administrative Review: Stage One — Notification of Decisions and Rights of Review, Report No 27 (1987).
[72] Dennis Pearce, “The Fading of the Vision Splendid? Administrative Law: Retrospect and Prospect” (1989) 58 Canberra Bulletin of Public Administration 15, 20[.
[73] This has been an outcome for tribunal amalgamation see Robertson Wright “The work of the NSW Civil and Administrative Tribunal” (2014) 26(10) Judicial Officers Bulletin 87.
[74] John Chaney, “Comparing Australia’s Super-tribunals” (2013) 35(7) Bulletin (Law Society of South Australia) 16, 18.
[75] Of course this suggestion will require careful consideration. Pitfalls must be guarded against such as the possibility that this may signal a movement towards responsive regulation and away from accountability see: Geoff Airo-Farulla and Steven White, “Separation of Powers, ‘Traditional’ Administration and Responsive Regulation” [2004] MqLawJl 4; (2004) 4 Macquarie Law Journal 57.
[76] See Banking and Financial Services Ombudsman Limited, Financial Industry Complaints Service, and Insurance Ombudsman Scheme, Submission No 22 to Victorian Parliament Law Reform Committee, Alternative Dispute Resolution Discussion Paper (23 November 2007), and specifically Appendix 1: Banking and Financial Services Ombudsman Limited, Submission to the Victorian Law Reform Civil Justice Enquiry, 6 August 2007.
[77] Evidence to House of Commons Public Administration Select Committee, n 49, 37 (Bernard Jenkin).
[78] This point was made by Bernard Jenkin in House of Commons Public Administration Select Committee, n 49.
[79] McMillan, n 2.
[80] Bertil Von Friesen, The Institution of the Swedish Ombudsman, a Means for Ensuring Citizens’ Rights (Inter-Parliamentary Bulletin No I, 1968) 16.
[81] Productivity Commission, n 7, 50: recommended that government ombudsman be modelled on the private ombudsman “fee for service” where: “governments should consider where it might be appropriate to impose a fee on government agencies for ombudsman services, particularly to encourage improved in-house complaint resolution”.
[82] The case of Financial Ombudsman Service Ltd v Pioneer Credit Acquisition Services Pty Ltd [2014] VSC 172 decided that FOS is not required to correctly decide a question of law which it is required to decide and can determine disputes by referring to matters beyond the applicable law. “...in common law jurisdictions the role of an arbiter of disputes (a court) is to interpret the law, not to make it. From a lawyer’s perspective, the role of FOS seems to encompass both the role of courts and the role of the legislature” from ‘The Financial Ombudsman’s DR service – time for a new model?’ 20 May 2014, http://www.kwm.com/en/au/knowledge/insights/financial-ombudsman-dr-service-time-for-new-model-.
[83] Parliamentary Commissioner Act 1971 (WA) s 5(2).
[84] Ombudsman Act 1973 (Vic) s 3.
[85] Ombudsman Act 1978 (Tas) s 5.
[86] Ombudsman Act 2001 (Qld) ss 58, 59.
[87] Ombudsman Act 1972 (SA) s 6.
[88] Ombudsman Act 1974 (NSW) ss 6, 6A.
[89] Ombudsman Act 2009 (NT) s 132.
[90] Ombudsman Act 1989 (ACT) s 22.
[91] Ombudsman Act 1976 (Cth) s 21.
[92] See, eg, Office of the Ombudsman (Ireland), Submission on Constitutional Recognition of the Office of the Ombudsman, Office of the Ombudsman <https://www.ombudsman.gov.ie/en/About-Us/Policies-and-Strategies/Submissions-and-Proposals/Constitutional-recognition-Ombudsman/> for the recent call for constitutional recognition by the Irish Ombudsman arguing it will increase public confidence as well as requiring the public service to ensure its engagement with the Office is genuinely co-operative and that “the symbolism of the term ‘constitutional’ should also not be underestimated. Whether a matter or institution has constitutional status or not can affect the behaviour and decisions of those able to make and implement decisions – be it politicians, officials or others”. While constitutional recognition for all ombudsmen is desirable it is highly unlikely that this will occur given that the only Australian Ombudsman who is a constitutionally entrenched independent officer of Parliament is the Victorian Ombudsman: Constitution Act 1975 (Vic) ss 18(1B)(o), 94E. Indeed as Weeks has noted the constitutional protections are minimal as the powers of the Ombudsman are subject to legislative amendment: Greg Weeks, Soft Law and Public Authorities: Remedies and Reform (Hart Publishing, 2016).
[93] Kenneth Wiltshire, An Introduction to Australian Public Administration (Cassell Australia, 1974) 89. Note the more modern observation that a significant problem is that even if given a legislative mandate for the role of overseeing Ombudsmen that Parliamentary chambers and committees may be unable (due to over commitments) to give the serious focus and attention to Ombudsman issues. Thank you to an anonymous reviewer for this point.
[94] David Solomon, “The Integrity Branch – Parliament’s Failure or Opportunity?” (2013) 28(2) Australasian Parliamentary Review 36, 41.
[95] Richard Mulgan, “The Processes of Public Accountability” (1997) 56(1) Australian Journal of Public Administration 25, 34. Mulgan notes however that the power of Parliament to enforce its criticisms through controlling and directing is weak – such power is confined to situations where the opposition parties in the senate will combine and force legislative amendment upon the Government.
[96] Michelle Grattan, “Embattled Ombudsman Allan Asher Resigns” Sydney Morning Herald, 20 October 2011 <http://www.smh.com.au/national/embattled-ombudsman-allan-asher-resigns-20111020-1m9hf.html> .
[97] Although this point has been raised: see Ben Eltham, Why the Ombudsman is Being Punished (20 October 2011) New Matilda <https://newmatilda.com/2011/10/20/why-ombudsman-being-punished/>.
[98] It was characterised as not necessary: see Stephen Bartos, Who Will Guard the Guard Themselves? (17 October 2011) ABC News <http://www.abc.net.au/news/2011-10-17/bartos-who-will-guard-the-guard-themselves/3575150> .
[99]Phillip Coorey, “Question Ploy Unwise” Sydney Morning Herald, 14 October 2011 <http://www.smh.com.au/national/question-ploy-unwise-ombudsman-20111013-1ln4f.html> .
[100] Australian Broadcasting Corporation, “Hanson-Young Defends Pre-scripted Questioning” Lateline, 20 October 2011 (Sarah Hanson-Young) <http://www.abc.net.au/lateline/content/2011/s3344736.htm> .
[101] Matthew Franklin, “How the Ombudsman Allan Asher and Senator Hanson-Young Cooked up an Estimates Fix” The Australian 13 October 2011, reproduced at Michael Smith, “TA (that’s Travelling Allowance! Sorry PM TA for Confusion) Claims for Parliamentary Sittings that didn’t Happen and Conversations with ABC Journos” (2 October 2013) Michael Smtih News http://www.michaelsmithnews.com/2013/10/ta-claims-for-parliamentary-sittings-that-didnt-happen-and-meetings-with-abc-journo.html. >.
[102] John Wood, “Time for an Independent Ombudsman” 20 October 2011, Inside Story <http://insidestory.org.au/time-for-an-independent-ombudsman> .
[103] See, eg, Parliamentary Commissioner Act 1971 (WA).
[104] New South Wales Ombudsman, Operation Prospect <https://www.ombo.nsw.gov.au/what-we-do/our-work/operation-prospect>.
[105] For commentary on the expansive powers of this committee see: Beverly Duffy and Sharon Ohnesorge, “Out of step? The New South Wales Parliamentary Evidence Act 1901” (Paper presented at the Australasian Study of Parliament Group, 2015 National Conference, Wellington, 2 October 2015).
[106] See, eg, Ombudsman Act 2001 (Qld) s 13.
[107] Roger Wettenhall, “Integrity Agencies: The Significance of the Parliamentary Relationship” (2012) 33 Policy Studies 65, 67–68.
[108] This occurs in New Zealand and South Australia.
[109] Note this is not uniformly the case among Australian ombudsmen: Parliamentary Commissioner Act 1971 (WA) s 5(2), appointed by the Governor; Ombudsman Act 1973 (Vic) s 3, Governor in Council; Ombudsman Act 2001 (Qld) s 58, by Governor in Council the Minister must consult with a parliamentary committee, see s 59; Ombudsman Act 1972 (SA) s 6, Governor may, on a recommendation made by resolution of both Houses of Parliament; Ombudsman Act 1974 (NSW) s 6, by Governor upon address of both Houses of Parliament and s 6A veto given to Joint Committee; Ombudsman Act 1978 (Tas) s 5, the Governor may appoint an Ombudsman; Ombudsman Act 2009 (NT) s 132, a recommendation of the Legislative Assembly; Ombudsman Act 1989 (ACT) s 22, Speaker Legislative Assembly; Ombudsman Act 1976 (Cth) s 21, Governor-General.
[110] Parliamentary Commissioner Act 1971 (WA) s 5 (five-year term with possibility for reappointment, the Commissioner vacates office on attaining the age of 67 years); Ombudsman Act 1972 (SA) s 10(1) (“shall be appointed for a term expiring on the day on which he or she attains the age of 65 years”); Ombudsman Act 1973 (Vic) s 3 (10 years and is not eligible to be reappointed); Ombudsman Act 2001 (Qld) s 6 (provides that the ombudsman holds office for a term of not more than five years and may be reappointed), s 61(2) (provides that any reappointment should not be for a total of more than 10 years); Ombudsman Act 1974 (NSW) s 6 (seven-year term and eligible for reappointment not eligible if above 65, the former NSW Ombudsman Bruce Barbour’s 15-year term is one of the longest terms of any Ombudsman, he was continuously reappointed for three terms); Ombudsman Act 1978 (Tas) s 5(1A) (for a term not exceeding five years “and may from time to time be reappointed for a further term, not exceeding five years, as may be so specified”); Ombudsman Act 2009 (NT) s 134(1) (the Ombudsman is appointed for seven years and under s 134(2) is not eligible for re-appointment); Ombudsman Act 1989 (ACT) s 23 (seven years and may be reappointed); Ombudsman Act 1976 (Cth) s 22 (not exceeding seven years, as is specified in the instrument of his or her appointment, but is eligible for re-appointment).
[111] Charles Manga Fombda, “The Enhancement of Good Governance in Botswana: A Critical Assessment of the Ombudsman Act, 1995” (2001) 27 Journal of Southern African Studies 57, 63.
[112] Public Accounts and Estimates Committee, Parliament of Victoria, Report on a Legislative Framework for Independent Officers of Parliament (2006) 72.
[113] For an overview see Michael Frahm, Australasia and Pacific Ombudsman Institutions: Mandates, Competences and Good Practice (Springer, 2013); Parliamentary Commissioner Act 1971 (WA) s 6, by the Governor on addresses from both Houses of Parliament; Ombudsman Act 1972 (SA) s 10; Ombudsman Act 1973 (Vic), ss 3(5)(b), 4(1); Ombudsman Act 2001 (Qld) Pt 7 Div 2; Ombudsman Act 1974 (NSW) s 6(5), removed from office by the Governor upon the address of both Houses of Parliament; Ombudsman Act 1978 (Tas) s 6, removed from office by the Governor on addresses from both Houses of Parliament; Ombudsman Act 2009 (NT) Pt 9 s 140; Ombudsman Act 1989 (ACT) s 28A; Ombudsman Act 1976 (Cth) s 28, on address to the Governor-General by each House of Parliament.
[114] Ombudsman Act 1972 (SA) s 10.
[115] See also Victoria – both jurisdictions allowing for reinstatement by both Houses of Parliament: Ombudsman Act 1973 (Vic) s 4.
[116] Professor Denis Pearce cited in Roger Wettenhall, “Integrity Agencies: The Significance of the Parliamentary Relationship” (2012) 33 Policy Studies 65, 66. See also Dennis Pearce, “The Commonwealth Ombudsman: Present Operation and Future Developments” (Papers on Parliament No 7, Parliamentary Library, Commonwealth Parliament, 1990).
[117] Roger Wettenhall, “Parliaments Executives and Integrity Agencies” (2007) 22(1) Australasian Parliamentary Review 115, 128
[118] Ombudsman Act 2001 (Qld) Div 4.
[119] Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) s 128(9).
[120] For example, industry ombudsmen face a continuing decline in numbers of complaints This is attributed to industry improvement and changes in rules to protect consumers, see Allie Coyne, “Australia’s Telco Ombudsman Cuts Workforce by 10 Percent” IT News, 15 April 2015 <http://www.itnews.com.au/news/australias-telco-ombudsman-cuts-workforce-by-10-percent-402759> .
[121] Wayne Martin, “Forewarned and Four-armed: Administrative Law Values and the Fourth Arm of Government” (2014) 88 ALJ 106.
[122] Chris Wheeler, “Response to the 2013 Whitmore Lecture by the Hon Wayne Martin AC, Chief Justice of Western Australia” (2014) 88 ALJ 740, 742: “The Whitmore Lecture sparked considerable concern across Australian integrity agencies that their purpose and the value they add to our system of government had been misunderstood and unfairly devalued.”
[123] Chief Justice James Jacob Spigelman, “Judicial Review and the Integrity Branch of Government” (Speech delivered at the World Jurist Association Congress, Shanghai, 8 September 2004); James Jacob Spigelman, “The Integrity Branch of Government” (2004) 78 ALJ 724.
[124] Chief Justice (New Zealand) Sian Elias, “Life Beyond Legality” (Speech delivered at the Australian and New Zealand Ombudsman Association, Wellington, 6 May 2010).
[125] Anita Stuhmcke and Ann Tran, “The Commonwealth Ombudsman – An Integrity Branch of Government” (2007) 32(4) Alternative Law Journal 233.
[126] John McMillan, “Future Directions – The Ombudsman” (Speech delivered at the AIAL National Administrative Law Forum, Canberra, July 2005).
[127] Peter Wilkins, John Phillimore and David Gilchrist, “Collaboration between Watchdogs: Learnings from the Western Australian Experience” (John Curtin Institute of Public Policy, 2015) <http://www.curtin.edu.au/research/jcipp/local/docs/collaboration-between-watchdogs-report-nov-2015.pdf> .
[128] Wheeler, n 122, 742.
[129] Wilkins, Phillimore and Gilchrist, n 127.
[130] Chris Field, “The Fourth Branch of Government: The Evolution of Integrity Agencies and Enhanced Government Accountability” [2013] AIAdminLawF 4; (2012) 72 AIAL Forum 24, 27.
[131] Spigelman, n 127, “The Integrity Branch of Government”.
[132] This has recently been the case in Victoria.
[133] Chris Gill, “The Evolving Role of the Ombudsman: A Conceptual and Constitutional Analysis of the ‘Scottish Solution’ to Administrative Justice” (2014) 7 Public Law 662.
[134] Focusing on the strategic review of the office in 2006, recommendation 12 stated: “Consideration be given to amending the Ombudsman Act 2001 to provide the necessary power and authority for the Ombudsman to develop and set appropriate complaint management standards governing complaint management systems and for the monitoring thereof”; recommendation 13: Consideration also be given to establishing a Complaints Standards Authority within the Office of the Ombudsman to develop, implement and monitor the standards set. See Smerdon, n 50, Strategic Review of the Office of the Queensland Ombudsman (2006).
[135] These decisions may be explicit and implicit. For example, explicit recognition of increased complaints to the Queensland Ombudsman office following the abolition of the Queensland Commission for Children and Young People and Child Guardian is stated in the 2015-2016 Queensland Ombudsman Annual Report page 36. Clearly administrative reform in one area can have consequences affecting administrative practices in another. [AQ: Can you please advise a source for this?]
[136] “Our work on complaints, inspections and detention review enables the office to undertake an integrated approach to the oversight of immigration administration. The range of functions allows for flexibility in the way we take up issues, including through own motion investigations, informal dialogue with DIAC, engagement in various DIAC client forums and sharing a systemic issues register with DIAC”: Commonwealth Ombudsman, Submission No 33 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry Into Migration Amendment (Immigration Detention Reform) Bill 2009 (July 2009).
[137] Anita Stuhmcke, “Ombudsmen and Integrity Review” in Linda Pearson, Carol Harlow and Michael Taggart (eds), Administrative Law in a Changing State (Hart Publishing, 2008) 354.
[138] Spigelman, n 127, “The Integrity Branch of Government”.
[139] This approach has been criticised in the Australian context see: University of Queensland, Submission No 006 to Legal Affairs and Community Safety Committee, Strategic Review of the Office of the Queensland Ombudsman, 10 August 2012. Note other factors which may be worth discussing more fully elsewhere such as the contradictions in the role of an Ombudsman, where most Australian ombudsmen train and offer specialist courses in complaint-handling to the same government officials they investigate.
[140] Lance Tibbles, “The Ombudsman: Who Needs Him?” (1970) 47 Journal of Urban Law 1, 44–45 lists four limitations: not a reformer; does not shape legislative policy; is not a super-administrator; cannot settle factual disputes; see also Tao Pai-Chuan, “The Chinese Ombudsman and the Control System” (1966–1967) 41 St John’s Law Review 362.
[141] John McMillan, “How Ombudsmen Review and Influence Public Administration” (Paper presented at the International Intelligence Review Agencies Conference, Sydney, 10 March 2010) 6.
[142] There is interesting research being undertaken in the UK into “examining activist consumer groups who – based on negative experiences with ombudsman schemes – have set up online protest groups to highlight their concerns about the operation of ombudsman schemes and campaign for change”: see Naomi Creutzfeldt and Chris Gill, Online Critics of the Ombudsmen Oxford Faculty of Law <https://www.law.ox.ac.uk/research-and-subject-groups/online-critics-ombudsmen>.
[143] Philippa Smith, “Red Tape and the Ombudsman” (Speech delivered to the Australian Senate’s Occasional Lecture Series, Canberra, 17 April 1998) 13; see Cromwell Securities Ltd v Financial Ombudsman Services Ltd [2013] VSC 333.
[144] DZ and Commonwealth Ombudsman [2014] AICmr 137, [13].
[145] Christopher Knaus, “Scheme Set to Prevent Cover-up of Institutional Child Abuse in ACT” Canberra Times, 9 June 2016.
[146] Scott Prasser, “Australian integrity agencies in critical perspective” (2012) 33 Policy Studies 21, 29.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/UTSLRS/2016/20.html