ADMINISTRATIVE LAW

TEACHING NOTES - Ombudsman

Introduction to the Topic

The origin of the word Ombudsman is found in the Old Norse umboosmaor or in the Swedish language as umbuds man, meaning representative. The first preserved use in Swedish is from 1552.

The Commonwealth Ombudsman originally advertised in 1977 that the office was created to help those trampled underfoot by officialdom, strangled by bureaucratic red tape, or having their problems swept under the carpet.

The concept of an ombudsman is of ancient origin, dating back at least to Roman times. It was rejuvenated in 1809 when the Office of Ombudsman was created in Sweden. The office has been described as:

...an office provided for by the constitution or by action of the legislature or parliament and headed by an independent high level public official who is responsible to the legislature or parliament, who receives complaints from aggrieved persons against Government agencies, officials, and employees, or who acts on his own motion, and who has the power to investigate, recommend corrective action, and issue reports.

This first ombudsman was established in Sweden in 1809 to check the legality of public officials' behaviour.

Yet, even earlier in 1713, Swedens monarch Charles XII, had established the office of His Majestys Supreme Ombudsman, entrusted with the task of ensuring that judges and public officials acted in accordance with the laws in force and appropriately discharged their duties. If the Ombudsman found that this was not the case, he was empowered to initiate legal proceedings against them for dereliction of their duties.

In the words of the 1809 Instrument of Government, the Parliament (the Riksdag) was to appoint a man known for his knowledge of the law and exemplary probity as Parliamentary Ombudsman. The focus was to be on the protection of citizens rights and the encouragement of uniform application of the law, through inspections and inquiries into complaints.

It is an understatement to say that this body was ahead of its time.

During the next century and a half, just two more countries established ombudsmen with general competence: Finland in 1919 and Denmark in 1955.

In the 1960s and through the 70s, there was a first wave of global expansion to older democracies such as Norway, New Zealand, Australia, the UK and France. New Zealand was the first English-speaking country and the first outside Scandinavia to set up an Ombudsman Office.

These countries adopted the ombudsman in order to tackle citizens' problems with public administration, which expanded and took on new roles in the 20th Century, especially after the Second World War, as the social role of the State grew exponentially.

In two subsequent waves, ombudsmen were established in many newer democracies as part of a commitment to respect human rights and the principle of democracy: Between 1974 and 1989, this occurred in post-authoritarian states, such as Greece, Spain and Portugal in Europe and in many countries of Latin America. After 1989, many post-communist states set up ombudsmen.

In Africa, a number of countries set up Ombudsman schemes, often as part of gaining independence from colonial powers.

The situation in the European Union is that it has the worlds oldest national ombudsman office (Sweden) and one of the youngest (Luxembourg). The European Ombudsman is a relative latecomer, having taken office only in September 1995.

However, the institution of the Ombudsman now exists at the national level in 29 of the European Union Members States. There are also national Ombudsmen in three countries applying for European Union membership.

There are also 61 regional level Ombudsmen in 7 European Union countries.

The European Network of Ombudsmen, established in 1996, consists of over 90 offices in 32 European countries. The Network includes the national and regional ombudsmen and similar bodies of the Member States of the European Union, the candidate countries for EU membership, and certain other European countries.

The spread of the Ombudsman model internationally over the last thirty years has been phenomenal. Whereas fewer than 20 jurisdictions had an Ombudsman in 1970, over 100 countries have now established an office by one name or another. It is perhaps the fastest growing (or widely copied) institution in the modern era. Viewed in that light, the establishment of a large number of Ombudsman offices in Australia has been part of a global trend that crosses political, cultural and language barriers.

In Australia, apart from the Commonwealth and State Ombudsmen, there are private sector Ombudsmen covering:

Private Health Insurance

Mining Industry

Banking and Financial Services

Energy and Water

General Insurance

Mortgage Industry

Telecommunications

Superannuation

Credit Services

Produce and Grocery Industry,

to name but a few.

In the United Kingdom, there are private sector Ombudsmen covering:

Estate Agents

Housing

Legal Services

Pensions

Removals Industry.

The Ombudsman ensures that decisions are made fairly, rationally and efficiently. The process offered by the Ombudsman also provides a facility for interested parties to participate in government decision-making, and makes it easier for government decisions to be scrutinised.

The term ombudsman is widely used to describe any form of complaint-handler. In this sense, there is a wide array of ombudsman schemes in existence, in both the public and private sectors. From the financial sector to local government and from the removals industry to the prisons and probation service, ombudsman-type institutions have sprung up in a great many spheres in many countries.

Since 1994 there has been a proliferation in use of the term ombudsman.

Many local councils and universities have created an internal ombudsman, sometimes called by that name. Examples are the Sutherland Shire Council, Warringah Shire Council, Wollongong Shire Council, University of New England, and University of Technology Sydney. The ombudsman designate is often a staff member of the organisation - sometimes with other part-time duties in the organisation - who reports to other senior officers in the organisation.

Some companies - such as Westpac, Synergy and AAMI - have likewise created an internal ombudsman.

There are ombudsmen created by industry bodies, such as the Produce and Grocery Industry Ombudsman. The function of that particular office is not to resolve complaints from the public but to mediate industry disputes over the supply of produce to markets and retailers. There is a $50 application fee to engage the services of the Ombudsman.

There are government ombudsmen that do not follow traditional principles: an example is the Private Health Insurance Ombudsman, established by statute, but who is appointed by the Minister for Health, can be dismissed by the Minister for misbehaviour, and can be directed by the Minister to investigate and report to the Minister.

Almost every month in the media the government is called on to create a new specialised ombudsman office. Over the last few years there have been at least thirty such proposals, including a sports ombudsman, medical ombudsman, aged care ombudsman, superannuation ombudsman, student ombudsman, youth ombudsman, research ombudsman, crimes victim ombudsman, franchising ombudsman, arts ombudsman, motor industry ombudsman, airport ombudsman, sports doping ombudsman, gambling ombudsman - and to add colour to the list - strata title ombudsman, online auction ombudsman, grains ombudsman, drinking ombudsman, and funeral ombudsman.

In one sense it is a pleasing development that there are now so many offices described as ombudsman. The term ombudsman has become a mark of public respect, associated with fair and independent resolution of grievances. In a short period the ombudsman model has become a popular and fast growing method of dispute resolution.

Chris Field, the Western Australian Ombudsman, recently referred to a veritable cradle to grave offering of Ombudsmen, from a Childrens Ombudsman to an Aged Care Ombudsman and everything in between.

His personal favourite is the Florida Sinkhole Ombudsman and he also notes that the US Fox News television program that uses a comedian to provide an impartial, balanced summing up of the shows commentators is called the Ombudsman.

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.

Professor John McMillan, the former Commonwealth Ombudsman, prior to his appointment as Information Commissioner, is of the following view:

On one view, therefore, labels do not matter. Call a body what you will - a commissioner, an inspector-general, a complaint authority, or an ombudsman. Nomenclature, this argument runs, is unimportant: we should look instead at defining criteria for complaint investigation and to benchmark performance.

There is force in that view, as illustrated by the recent growth in complaint handling and oversight mechanisms throughout the public and private sector. If the institution and the name ombudsman has been a catalyst in that change, well and good.

In 1994, the Access to Justice Advisory Committee prepared a major report on the Australian justice system. The Committee devoted a chapter to administrative law and the ombudsman, recommending as follows:

Care should be taken in the naming of complaints bodies and, in particular, the use of the term ombudsman. This term has come to be associated with accessible, independent and impartial review. 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. If used loosely, the term ombudsman could mislead the public, rather than protect them. The government standards should prohibit use of the term, unless the body meets specified criteria of the kind to which we have referred.

Something will be gained by defining and safeguarding the term Ombudsman, whenever possible. What can be gained?

Stimulus to good practice in complaint handling and oversight: The term ombudsman has become popular, as the Access to Justice Committee observed, because it has become associated with independent, accessible, impartial review. In both government and industry we now have a system of complaint-handling bodies across the country that are accessible to the public, that go about their work in an independent manner, and that produce outcomes that are respected for their fairness and impartiality.

Public awareness of the right to complain: Public awareness surveys conducted by my office confirm that the right to complain has become deeply embedded in community thinking. When asked an unprompted question about what they would do when faced with a particular problem, 75% of respondents in one survey said I will complain. When asked where?, close to 60% said to a parliamentarian or an ombudsman. It is significant that the community knows they have a right to complain about government to an independent body, and not to face obstruction or reprisal for exercising that fundamental human right.

Guidance in our own work: There are more than 700 people employed in ombudsman offices across the country, handling in excess of 400,000 complaints from the public each year. The integrity of that work depends on the large number of ombudsman offices and staff having a clear understanding of how they should go about their work. It is easier to ensure consistency and professionalism in ombudsman work if there is a clear model to work from, and a set of agreed principles.

Professor McMillan does warn that there is something to be lost if the Name Ombudsman is not properly guarded. For example:

Public confusion: Ombudsman is a brand name that has gained traction. Like any valuable brand name, it will only retain value if there are controls on how it is used. Public confusion about what to expect when you approach an ombudsmans office will undermine its value. Ombudsmen work hard, for example, to convey the subtle message that they are forceful in pursuing legitimate complaints but do not act as advocates for complainants. Equally, it is part of their role to explain at times why a government or business agency acted reasonably, but they are not their spokesperson. The office of Ombudsman relies principally upon persuasion, cooperation and recommendation, rather than upon coercion, litigation or aggression. Those are subtle messages that become harder to convey if the terrain is populated by offices, called ombudsman offices, which play more of an advocacy or combat role.

Public deception: When someone approaches an ombudsman office believing it to be independent and impartial, that trust must not be misplaced. We strive to reassure the public that it is safe to complain and that we have no conflicting agenda. This is especially important in inviting whistleblower allegations, anonymous complaints and the supply of confidential personal information. The concept of an internal ombudsman is flatly inconsistent with that promise. There is a great danger that the misuse of the term ombudsman will deceive people who call on the ombudsman for help. This can also hamper the work of a body that is wrongly described as an ombudsman, if people approach it with an erroneous expectation as to the assistance they will receive.

Ill considered change: Every ombudsman office is created by some other body, such as a parliament or industry members. It is always open to the creator to alter the constitution and functions of the ombudsman, possibly in a way that damages its integrity as an ombudsman institution. It will be easier to prevent damage occurring if there are minimum standards that must be met before an office can rightly be called an ombudsman office. Safeguarding the concept of an ombudsman is a protection against inappropriate changes being made to individual offices.

Reasons for the Expansion of Ombudsmen

First, despite considerable deregulation and privatization, there has nonetheless been growth in government including increasing complexity in government services.

A growing recognition of the likelihood of error occurring with new government powers has no doubt supported the growth and development of oversight agencies such as Ombudsmen. Some commentators, including Professor John McMillan, the former Commonwealth Ombudsman, even talk of a fourth branch of government, the integrity branch, to sit alongside the legislature, the executive and the judiciary.

It is suggested that this integrity branch of government has been vested with the responsibility to oversight, investigate and educate the public sector in relation to corruption, misconduct, good decision-making, avoiding conflicts of interest and the like, with the Ombudsman being the central pillar in this integrity structure.

A second reason for the expansion has been the paralleled growth in concerns regarding access to justice and the need for fast, low-cost resolution of disputes. As such, Ombudsmen of all types are well placed to provide an alternative pathway for the resolution of disputes. Also, Ombudsmen have been able to offer various methodologies of dispute resolution that has delivered timely, cost-effective justice.

Thirdly, the term Ombudsman has become a unique and trusted brand name. It connotes impartiality, independence and fairness in dispute resolution and scrutiny. It is not seen as a passing fad or recent invention and receives bipartisan political support.

Fourthly, the Office of the Ombudsman has expanded because Ombudsmen themselves have been prepared to accept new functions that governments propose.

Fifth, the Ombudsman has become an important contributor to the maintenance of the rule of law. This provides greater permanency to the office of the Ombudsman in countries which already observe the rule of law and makes it more likely that those countries which are moving to this observance will establish an office of the Ombudsman. An Ombudsman model can also more easily fit with a more protective, interventionist welfare state approach. Indeed, the growth of Ombudsmen institutions parallels the growth of the welfare state. It just as easily fits into a political approach that favours more limited government.

Defining a Code of Ombudsman Principles

A helpful and workable definition of the term ombudsman must be relatively brief, and not too detailed or prescriptive; the definition should contain objective criteria, and not aspirations or objectives; and the definition should neither be too narrow nor try to cover every base.

Independence: The office of ombudsman must be established in a way that makes it independent of the agencies being investigated; the person appointed as ombudsman must be appointed for a fixed term, and removable only for misconduct or incapacity according to a clearly defined process; the ombudsman must not be subject to direction; the ombudsman must not be viewed as an advocate for a special interest group; and the ombudsman must have an unconditional right to make public reports and statements on the findings of investigations undertaken by the office.

Jurisdiction: The jurisdiction of the ombudsman should be clearly defined in legislation or in the document establishing the office; the jurisdiction should extend generally to the administrative actions of bodies falling within the ombudsmans jurisdiction; and, subject to judicial oversight, the ombudsman should rule on whether a matter falls within jurisdiction.

Powers: The ombudsman must be able to investigate the fairness of the administrative actions relevant to a complaint; there must be an obligation on those within the ombudsmans jurisdiction to respond to an ombudsman question; the ombudsman must have power to inspect the records of a body relevant to a complaint; and the ombudsman must have the authority at the conclusion of an investigation to prepare a report that is provided to the complainant, containing the ombudsmans findings and recommendations.

Accessibility: There must be no charge for approaching the ombudsman; a person must be able to approach the ombudsman directly; it must be for the ombudsman to decide whether to investigate a complaint; and complaints must be investigated in private, unless there is a reasonable justification for details of the investigation to be reported publicly by the ombudsman (for example, in an annual report, or on other public interest grounds).

Procedural fairness: The procedures that govern the investigation work of the ombudsman must embody a commitment to three fundamental requirements of procedural fairness: the complainant, the agency and any person directly or indirectly criticised by the ombudsman in a report must be given an opportunity to be heard before the investigation is concluded; the actions of the ombudsman and staff must not give rise to a reasonable apprehension of partiality, bias or prejudgment; and reasons must be given by the ombudsman in support of any findings or recommendations.

Accountability: The ombudsman must be required to publish an annual report on the work of the office; and the ombudsman must be responsible - if a parliamentary ombudsman, to the Parliament; and if an industry ombudsman, to an independent board comprising industry and client representatives.

These essential criteria for describing a body as an Ombudsman were endorsed on 5 February 2010 by the Executive Committee of the Australian and New Zealand Ombudsman Association (ANZOA), the peak body for Australian and New Zealand Ombudsmen.

Those essential criteria can be supplemented by best practice guidelines. An ombudsman office should aspire to be efficient and effective and to stimulate systemic improvements in the area of the ombudsmans jurisdiction.

There is scope in guidelines for dealing with issues that are desirable yet contentious and not fundamental to the definition. For example, contentious issues are sometimes excluded from the jurisdiction of particular ombudsman offices, even though similar issues fall within the jurisdiction of other offices.

An example is that parliamentary ombudsman can generally investigate penalties imposed by agencies, either individually or as a policy issue, while some industry ombudsman cannot investigate penalties that are imposed on customers for late payment of an account, provided the penalty is imposed according to approved rules. This is an appropriate topic on which generic guidelines could state that an ombudsmans jurisdiction should not be restricted so as to exclude complaint issues that can cause great adversity to members of the public.

We will concentrate on the Commonwealth Ombudsman under the Ombudsman Act 1976 (Cth) and touch upon the NSW Ombudsman under the Ombudsman Act 1974 (NSW).

Ombudsmen investigate defective administration, or maladministration, which gives them a very wide brief to report on a range of defects which both overlap and go beyond the matters which can be remedied in courts and appellate tribunals.

Maladministration can be defined as an open-ended concept describing a situation where a public body fails to act in accordance with a rule or principle that is binding on it, extends beyond legality and also encompasses the assumption that, in their daily dealings with the public, public administrations need to observe norms and rules of behaviour designed to ensure that citizens (and, more generally, users) are properly treated and enjoy their rights fully.

Since its first Annual Report in 1995, the European Ombudsman has consistently taken the view that three kinds of failure may give rise to a finding of maladministration:

- failure to respect a legal rule or principle- failure to respect the principles of good administration, or- failure to respect human or fundamental rights.

Ombudsmen can also initiate their own investigation for example where systemic problems become apparent. As will be seen, other values of ombudsman review include the independence of the office; that it is easily accessible, very inexpensive and potentially speedy; that the complainant is not required to establish standing; and very importantly, that the ombudsman has extensive investigative powers.

In contrast with tribunals such as the AAT, ombudsmen investigations are generally informal and private. Ultimately the ombudsman can only make recommendations. The Ombudsman has no determinative powers, unlike courts and appellate tribunals. Ombudsmen do however have the power of embarrassment in their ability to make public reports to Parliament.

Institutional Acceptance of Ombudsmen

Ombudsman offices have now been established for thirty years in Australia, handling complaints against every tier of government national, State, Territory and local. The number of complaints handled each year is an impressive total.

The Commonwealth Ombudsman, for example, in 2005-06 received 28,322 complaints; in 2006-07, 33,322 complaints and in 2007-08, 39,932 complaints. In the 2007-2008 Annual Report of the Commonwealth Ombudsman, nearly 40,000 people contacted the Commonwealth Ombudsman for assistance concerning 110 separate Government Departments and agencies. This was a 20% increase on the previous year.

In the 2009 2010 Annual Report, 37,468 persons contacted the Office for assistance ( a drop of 18% on the previous year) but involving 150 different agencies, an increase of 30 agencies over the previous year.

In 2009 - 2010, approximately 78% of these complaints related to six Government entities: Australia Post (14%), Australian Taxation Office (ATO) (10%), Centrelink (28%), Child Support Agency (CSA) (12%), the Department of Immigration and Citizenship (DIAC) (9%).

In 2012, there were just under 39,000 complaints to the Commonwealth Ombudsman.

Across Australia, the public sector Ombudsmen receive close to 100,000 complaints each year against government.

These figures are important in their own right, as an indication of the frequency with which people turn to the Ombudsman for assistance and the number of queries and grievances against government that are addressed each year. In jurisprudential terms the total is significant in another way. It signifies that, through the mechanism of the Ombudsman, the notion is now embedded in Australia that people have a right to complain against government, to an independent agency, without hindrance or reprisal, and to have their complaint resolved on its merits according to the applicable rules and the evidence. Acceptance of this notion permeates both popular thinking and the practice of government.

In 2009 2010, the majority (77%) of the complaint issues finalised were about the correctness, propriety or timeliness of agencies decisions or actions. Of the 77 recommendations made in published reports, 75% were accepted in full and 8% in part.

Recent Awareness Issue

A recent public awareness survey conducted by the Commonwealth Ombudsman, showed that less than one-third of people under 35 years of age, and a similar number of people who speak a language other than English, have heard of the Ombudsmans Office. Only 60% of women and 72% of men were aware of the existence of the Ombudsmans Office.

The survey also found that a substantial number of persons under 35 years of age, some 14%, were not even sure if they had been treated unfairly by a government agency. This was seven times more than those aged 65 years and older.

Prior to the introduction of the Commonwealth Ombudsmans Indigenous Outreach Program, virtually no Indigenous persons complained to the Ombudsmans Office. The survey found that they were unlikely to complain because:

They did not know that it was possible or acceptable to complain, or who to complain to

They believed they must accept their lot in life

They fear reprisal

They dislike confrontation

There are language issues

Complaining brings with it a sense of shame

They have poor self-esteem

They believe that complaining in itself will not achieve anything.

The research also found that many Indigenous people prefer to use an intermediary whom they know to discuss problems or issues, preferably face-to-face in a familiar location, and only after they have come to trust the impartiality and effectiveness of the complaints-handling process.

Despite this, there are continuing signs of institutional acceptance of the right to complain, particularly in the private sector, as mentioned earlier.

Major utilities and public services are subject to oversight by to name a few:

Credit Ombudsman The Credit Ombudsman Service Limited (COSL) is the external dispute resolution scheme for the non bank credit industry, approved by the Australian Securities and Investments Commission (ASIC).

Employee Ombudsman (SA) Provides advice and assistance to South Australian employees.

Energy and Water Ombudsman NSW Provides an independent way of resolving customer complaints about all electricity and gas suppliers in New South Wales and some water suppliers.

Energy and Water Ombudsman Victoria EWOV has the power to investigate and resolve disputes between Victorian consumers and their electricity, gas and water companies.

Energy Ombudsman Queensland Provides complaint investigation and dispute resolution services to Queensland's domestic and small business energy consumers.

Energy Industry Ombudsman SA Investigates and resolves disputes between South Australian electricity and gas customers and their providers.

Energy Ombudsman TAS Investigates and resolves disputes between Tasmanian energy customers and their providers.

Energy Ombudsman WA Investigates and facilitates the resolution of complaints from residential and small business customers in Western Australia about their electricity or gas company.

Financial Ombudsman ServiceFOS is an independent External Dispute Resolution service which you can use if you are unable to resolve your dispute through your financial service provider's Internal Dispute Resolution process. FOS independent dispute resolution processes cover complaints about financial services including banking, credit, loans, general insurance, life insurance, financial planning, investments, stock broking, managed funds and pooled superannuation trusts.

Private Health Insurance Industry Ombudsman Provides an independent service to help consumers with health insurance problems and enquiries.

Produce and Grocery Industry Ombudsman Resolves disputes over supply of fresh produce and processed foods to markets and retailers.

Public Transport Ombudsman VIC Deals with complaints about Victorian public transport that members of the community have been unable to resolve directly with the public transport operators.

Superannuation Complaints Tribunal An independent Tribunal set up by the Australian Government to deal with complaints about superannuation funds, annuities and deferred annuities, and Retirement Savings Accounts.

Telecommunications Industry Ombudsman Deals with complaints that consumers have not been able to resolve with their telephone or internet company.

The most recent Ombudsmen to be set up in Australia were the Federal Fair Work Ombudsman in 2009; the Aircraft Noise Ombudsman in 2010 and the Energy and Water Ombudsman Queensland in 2011.

Commonwealth Jurisdiction

The office of Commonwealth Ombudsman is created by the Ombudsman Act 1976.

Appointment of Commonwealth Ombudsman

Mr Colin Neave AM was formally appointed as the Commonwealth Ombudsman on 17 September 2012, following the resignation of the former Commonwealth Ombudsman, Mr Allan Asher.

Mr Neave is was formerly President of the Administrative Review Council, Vice Chair of the Australian Press Council, Chairperson of the Legal Services Board of Victoria and Chairman of the Commonwealth Consumer Affairs Advisory Council.

He was appointed a Member of the Order of Australia in June 2005 for service to public administration and to the banking and finance industry, particularly through dispute resolution.

Previously Mr Neave has served as the Chief Ombudsman of the Financial Ombudsman Service and as the Australian Banking Industry Ombudsman.

He has held senior management positions in the public sectors of several jurisdictions including as Deputy Secretary of the Commonwealth Attorney-Generals Department, Managing Director of the Legal Aid Commission of NSW, Secretary of the Victorian Attorney-Generals Department and Director-General of the South Australian Department of Public and Consumer Affairs.

Broad Functions

Complaint Handling This is the core function of the Office. In the 2011-2012 reporting year, the Office received just under 39,000 complaints and investigated just under 4000.

Own Motion Inquiries On average, the Office publishes 20 reports annually on areas as diverse as: visa processing, mail redirection, departure prohibition orders, administrative compensation, executive schemes, use of interpreters, immigration detention, industry grant schemes, disability support and use of coercive powers.

Statutory Audit Activity The Office inspects the records of law enforcement agencies to ensure compliance with the record keeping requirements of laws relating to telephone interceptions, use of surveillance devices, controlled operations and access to stored communications. Other compliance audit activity of the Office includes an audit of complaint handling by the Australian Federal Police and audit inspection of the records of quarantine investigations.

Promoting Good Administration The Office publishes many guides and manuals directed at improving public administration, such as Better Practice Guides on Complaint Handling, Managing Unreasonable Complainant Conduct and Automated Complaint Handling; Fact Sheets on topics such as Providing Remedies and Principles for Good Administration; and e-bulletins containing case studies of administrative problems. The Office also provides submissions to Parliamentary and other inquiries, as well as presentations to public and agency seminars.

Other Specialist Functions Reports prepared and tabled in Parliament on each person held in immigration detention for more than two years some 580 in the last 5 years. Together with other specialist functions conferred by the parliament on the Office, for example: Immigration Ombudsman, Defence Force Ombudsman, Taxation Ombudsman and Postal Industry Ombudsman.

The Ombudsman Act provides that the Ombudsman is to investigate the administrative actions of Australian Government departments and agencies and sets out the limits on his jurisdiction. For example, the Ombudsman may not investigate some actions related to Australian Government employment, or the actions of judges and ministers.

The Act provides the Ombudsman with an extensive range of powers to investigate actions following complaints or on his own motion and permits him, in some circumstances, to decline to investigate; for example, the Ombudsman may decline to investigate until a matter has been raised with the relevant agency.

The Ombudsman Act enables the Ombudsman to report in a number of ways following an investigation, although it requires the investigation itself to be conducted in private and with fairness to anyone likely to be criticised. There are clear indicators which demonstrate the expansion of the Commonwealth Ombudsmans jurisdiction.

What the Ombudsman Cannot Investigate

The main agencies that are excluded from the Ombudsmans jurisdiction include ASIO, the Commonwealth Grants Commission, the Defence Force Remuneration Tribunal and the Remuneration Tribunal. Nor does it have jurisdiction to review the decisions of courts, although it can review the administrative actions of court and tribunal registries.

The Ombudsman cannot investigate the actions and decisions of Members of Parliament, Senators or Ministers. However, the Ombudsman can investigate the advice provided by agencies to Ministers, for example, whether the agency provided accurate, balanced, comprehensive advice to a Minister on a particular issue.

Employment-related matters within the APS such as complaints about promotion, termination, discipline or remuneration are also outside the Ombudsmans jurisdiction.

Commonwealth Services Providers

Changes to the Ombudsman Act 1976 in December 2005 gave the Commonwealth Ombudsman jurisdiction to investigate the actions of Commonwealth Service providers as if the relevant department or authority had taken those actions.

This means that the Ombudsman may investigate the delivery of goods or services by a contractor to members of the public.

Defence Force Ombudsman (1983)

Section 19C of the Ombudsman Act 1976 gives the Ombudsman the function of Defence Force Ombudsman (DFO).

The DFO can investigate complaints about administrative actions and Defence Force employment matters. The DFO cannot investigate actions connected with disciplinary proceedings or the grant or refusal of an honour or award to an individual. The DFO investigates complaints from serving members only after they have exhausted internal grievance mechanisms, unless there are exceptional circumstances. The DFO also investigates complaints from ex-service personnel or their families.

Immigration Ombudsman (2005)

Under changes to the Ombudsman Act 1976 in 2005, the Commonwealth Ombudsman, in performing functions in relation to immigration and detention, may use the title Immigration Ombudsman. This authority falls under Section 4(4).

In addition to the general approaches received regarding immigration matters, the Ombudsman also has enhanced responsibilities in relation to immigration, including:

assessing long-term immigration detainees and providing reports to the Minister for Immigration

reviewing possible wrongful immigration detention matters, which commenced in July 2005 with the referral of 201 cases for investigation.

Postal Industry Ombudsman (2006)

Legislation to create a separate office of Postal Industry Ombudsman (PIO) within the office of the Commonwealth Ombudsman was passed by Parliament on 29 March 2006. Section 19L provides this authority.

The jurisdiction of the Postal Industry Ombudsman extends to private sector postal operators who register to participate in the scheme. The PIO has the normal powers of an ombudsman to require information or documents and to publish findings. The PIO is required to observe procedural fairness in investigations.

Telecommunications Interception Powers (1988)

The Telecommunications (Interception and Access) Act 1979 and the Surveillance Devices Act 2004 give the Ombudsman the role of inspecting the records of telephone interceptions by Commonwealth law enforcement agencies (the Australian Federal Police; the Australian Crime Commission and the Australian Commission for Law Enforcement Integrity). Interceptions can interfere with personal privacy and the Ombudsman ensures that they are conducted lawfully and properly, reporting to the Attorney-General.

Taxation Ombudsman (1995)

Under Section 4(3), the Commonwealth Ombudsman may be designated as the Taxation Ombudsman when dealing with matters relating to the Australian taxation Office.

Law Enforcement Ombudsman (2006)

Under Section 4(5), a major new function the office acquired in 1988 was to inspect the records of law enforcement agencies relating to telecommunications interception, and to report to the Attorney-General. This function has since been extended to cover inspection of records relating to stored communications, controlled operations and the use of surveillance devices. The number of enforcement agencies that have access to those intrusive powers has increased.

The Ombudsman inspection role means activities that by nature are secret and unknown to most people are subject to regular independent oversight. Parliament and the community can be reassured that law enforcement agencies exercise those powers lawfully and with propriety.

The Ombudsman role of inspecting agency records has been extended to other areas. On an own motion basis, the office has examined agency records to evaluate such matters as freedom of information administration and child support change of assessment.

Administrative audits of this kind can assess agency compliance with core administrative law values of legality, rationality, fairness and transparency. A new task of the office, in the role of Law Enforcement Ombudsman, is to undertake an annual audit of Australian Federal Police (AFP) complaint handling.

ACT Ombudsman (1988)

The Commonwealth Ombudsman is also the ACT Ombudsman under Section 28 of the ACT Self-Government (Consequential Provisions) Act 1988 (Cth).

Playing a Role in an Age of Terrorism

Parliaments response to terrorism included special mention of the Ombudsmans independent oversight role. The Ombudsman is to be notified if a person is taken into custody under a preventative detention order, in response to a perceived or imminent terrorist threat. The Ombudsman is to be given a copy of the initial preventative detention order, and the person detained must be advised of their right to complain to the Ombudsman. Similarly, a person detained by police for questioning by the Australian Security Intelligence Organisation (ASIO) is to be informed of their right to complain to the Ombudsman about the actions of the AFP.

The oversight role of ASIO is undertaken by a different statutory office, the Inspector-General of Intelligence and Security (IGIS). The IGIS or his staff sit in on the first day of every questioning detention session by ASIO; and the IGIS has a compliance audit role in relation to ASIO records that is similar to the Ombudsmans role in relation to law enforcement records. The Ombudsman and the IGIS have signed a memorandum of understanding and established administrative protocols to facilitate cooperation and integration in discharging their oversight of policing and national security agencies.

Challenges for the Commonwealth Ombudsman

There is no doubt that the Commonwealth Ombudsman has been affected by the transformation of government and the consequent changes to the public sector. For example, in relation to jurisdiction, the contracting out of government services has raised questions for the office over lack of investigatory powers. While it must be acknowledged that the overall jurisdiction of the Commonwealth Ombudsman has decreased in some areas since the introduction of industry ombudsman, it had increased in others.

Arguably, the challenges confronting the Commonwealth Ombudsman are not due to industry ombudsman nor the sharing of the title ombudsman across a variety of sectors including universities and local councils. Instead, they are the result of larger factors such as government transformation; the lack of funding for the public ombudsman; and the failure of government to act on ombudsman reports.

Traditionally, it has been suggested that classifying industry ombudsman as ombudsman will lead to an erosion of the public model. However, there is no reason why the opposite cannot also be true, with the plethora of industry and other ombudsman assisting to raise the profile and public understanding of the ombudsman office. From this perspective it is possible to conceptualise the private industry ombudsman as reinforcing the success of the Commonwealth Ombudsman through making the concept of ombudsman more widely available and hopefully better understood.

Finding a Remedy for Governmental Error

A standard comment made about the Ombudsman, in legal literature in particular, is that its effectiveness is undermined by its absence of determinative powers. The description toothless tiger was often applied.

There is no denying that that restriction inhibits the ability of the Ombudsman to provide relief as easily or assuredly as a court or tribunal could. Recognising that point, the office will often suggest to a complainant that an issue in dispute can more appropriately be addressed in judicial or tribunal review; sometimes the office will decline to investigate on that basis.

Nevertheless, the significance of this restriction in evaluating the effectiveness of Ombudsman review is too easily overstated. Examples demonstrate that agencies are prepared to accept a reasoned argument that a decision or agency practice is contrary to law and should be altered.

Indeed, nearly all formal recommendations made by the Ombudsman are accepted by agencies; my experience is that there is a similarly high rate of acceptance of other suggestions and less formal recommendations. Even in urgent situations where a coercive judicial remedy might be thought more appropriate, there is a preparedness by agencies (as to some decisions at least) to accede to an Ombudsman request that implementation of a decision be deferred pending investigation of a complaint. For example, on a number of occasions the Defence Force has accepted an Ombudsman request to suspend impending executive action to discharge a member of the Defence Force until completion of an investigation.

Another recent example was a decision by a maritime authority to defer demolition of a structure that was the subject of a heritage dispute until a fuller investigation could be conducted. A further point as to remedies is that the Ombudsman style of investigation, resting largely on inquisitorial method and consultation with agencies, is amenable to resourcefulness in deciding how best to resolve a problem. Not infrequently the difficulties that people encounter with government can be approached from different angles: the remedy that will satisfy a person is not necessarily the remedy they had in mind in lodging a complaint.

A foremost example of this point is that compensation for administrative error is a remedy commonly adopted under the government-approved scheme for Compensation for Detriment Caused by Defective Administration (CDDA). The Ombudsmans office played a key role in the development of this scheme, which currently provides that a recommendation by the Ombudsman for payment of compensation is a sufficient basis for making a payment.

The aim of a CDDA payment is to restore a person to the position they would have been in if there had been no defective administration.

Common examples of CDDA payments include: when a person incurs losses or expenses or loses eligibility for a benefit because of incorrect agency advice; a penalty or debt is wrongly imposed; personal property is damages or documents are lost by an agency; or computer error causes delayed payment or unreasonable delay in approving an application.

A recent example of a payment made under the scheme illustrates the flexibility it offers for finding a fitting remedy for governmental error. An agency had declined on legal and administrative grounds to discharge a debt owed to the agency by a member of the public. Later, the agency accepted that an administrative lapse played a part in the debt being incurred, and the agency agreed to make a CDDA payment to the person of an equivalent amount, thus effectively extinguishing the debt.

The same flexibility can be used in other areas to circumvent legal obstacles. For example, a vexed administrative problem is whether a decision can be re-made if it appears there was a legal or factual error in the original decision.

The law on this topic is not altogether clear or easy to apply, resting as it does on concepts such as whether the allegedly defective decision was a nullity, was infected by jurisdictional error, or was a decision without legal effect under the statute under which it was purportedly made.

Although the Ombudsmans office has to work within that doctrinal framework, we are often in a position to prompt an agency to approach the legal problem in a different way. There are examples in the 2003-04 annual report of how an agency was persuaded to take executive action to revise an obvious error or misnomer in a persons application, so as to validate the intent of the applicant and the legislation.

This effectively circumvented the problem initially raised by the agency, that it lacked statutory authority to revise its initial decision to reject the persons application. It is important also to remember that the problems people have with government are more commonly about procedural justice than about the substantive correctness of decisions.

The prevalent issues raised in complaints to the Ombudsman are matters such as delay, misleading advice, inexplicable reasons, lost paperwork and discourtesy. Rarely will the remedy for such a grievance be the reversal of a decision by a determinative decree, or a declaratory, mandatory or injunctive order of the kind granted in judicial review.

Often, the more appropriate and accepted remedy is an explanation or an apology. Those remedies do not find a niche in rule of law theory, but nor should their importance be overlooked in evaluating how to civilise a system of government and make it attuned to its accountability and responsibility to the public.

Complaints Provide a Window on Systemic Problems

In marking the 39th Anniversary of the Commonwealth Ombudsman in August 2007, the then Ombudsman, John McMillan stated as follows:

Complaint problems are sometimes one-off and exceptional, but as often as they are not unique and point to a recurring difficulty in an agency program. If staff misunderstood a legislative or policy rule in one case, it is likely that the rule was misapplied in similar cases. Equally, if misleading or defective reasons were given to one client, it is likely that other clients were treated as poorly.

The lesson emerged tellingly from the immigration detention cases that were recently investigated by my office. Put simply, the individual cases of Cornelia Rau and Vivian Alvarez sharply portrayed deeper problems that needed to be addressed. The government responded by referring another 247 cases to my office, which led to eight further reports showing that the problems were systemic and worrying. In short, the two individual cases of Rau and Alvarez were more powerful in portraying the problems to be addressed, than twenty years of intensive immigration litigation and countless inquiries and reports by parliamentary committees and other bodies.

There were legal and factual errors in almost all of the 247 cases. Twenty-six of those who were wrongly detained were Australian citizens and the length of detention, were as high as 6 years in one case and months and years in other cases.

Errors and mistakes had been made in individual cases yet the core of the findings was that those errors stemmed from systemic administrative problems. Poor administrative systems produce bad decisions; conversely, well-developed systems will minimize problems and result in better decision-making.

In light of the Cornelia Rau and Vivian Alvarez cases and subsequent investigations, the Commonwealth Ombudsman published eight reports as a result of thoseinvestigations.

In August 2007, the Ombudsmans office published a further report Lessons for public administration: Ombudsman investigation of referred immigration cases (Report No11/2007). This report drew together ten lessons from the referred immigration reports that are relevant to all areas of government in guarding against administrative errors that can be harmful to members of the public. As the report noted:

At the end of every administrative process is a person who can be affected, beneficially or adversely. It is therefore important in all areas of government administration that the exercise of significant powers is underpinned by high quality internal systems, rigorous decision making, clear policy guidance, effective training, active oversight and quality assurance, and efficient internal and external information exchange.

The report was released jointly by the Ombudsman and Mr Andrew Metcalfe, the Secretary of the Department of Immigration and Citizenship, at a seminar held by the Institute of Public Administration Australia. Speaking at the release, Mr Metcalfe said:

The events we are speaking about today were a watershed for my organisation and for the public sector as a whole, andwe should take every opportunity topromote the lessons learned to a wider audience.

The ten lessons are:

1. Maintain accurate, comprehensive and accessible records

An error as simple as misspelling someones name, misstating their date of birth or misfiling their application for a benefit or authorisation can have serious consequences. A mistaken record can result in a person being wrongly detained, incurring a penalty, losing or being denied a benefit, or having legal proceedings initiated against them.

Agencies must ensure that a strong agency culture supports good records management as essential to high quality decision-making. Administrative systems must accurately record client details. Staff should be well trained and supported in good records management practices with clear, accessible and current policy guidelines.

2. Place adequate controls on the exercise of coercive powers

Government officials can have authority under legislation to enter premises, detain people, confiscate property, impose penalties, summon people and compel them to provide information. For practical reasons, these coercive powers are often delegated to lower-level officials. The risk is that mistakes will be made unless those officials are properly trained, supported and receive ongoing supervision.

There must be strong checks and controls on the use of coercive powers and they should only be delegated to staff with the required skills. The use of the powers should also be well documented, including the name of the official exercising the power and the reason for doing so. There should be regular monitoring and auditing of how the powers are used.

3. Actively manage unresolved and difficult cases

Difficult cases can often challenge the skills of even the most experienced officials. Such cases should be assigned to officials with the right skills and understanding. Unresolved cases or cases that are more difficult than first appreciated should be escalated to more senior officials.

Such difficult and complex cases should also be controlled by quality assurance, oversight and review of decisions, particularly in large volume areas where decisions are made under tight pressure. Risk areas in decision-making should be reviewed periodically.

4. Heed the limitations of information technology systems

In trusting technology, there is a need to recognise that automated systems are no better or more reliable than the data entered on them. Staff must not assume that information on their system about a persons status is always correct or that conflicting information received from a person is false or dubious.

It is always possible that information on the system is incorrect, was wrongly entered or was not retrieved fully because the wrong search parameters were used.

Agencies need to ensure that IT systems reflect their business processes and the legislation they administer and that they support accurate decision-making. Where there are different systems for different business processes, they should be properly integrated. Staff training must emphasise the need for caution when entering or retrieving data and basing decisions on the data in the system.

5. Guard against erroneous assumptions

Experienced decision-makers frequently rely on their knowledge and practical judgement. This contributes to efficient, sensible and consistent decision-making. Yet, there is a risk that officials who are accustomed to dealing with particular problems will be unthinkingly influenced by assumptions that lead to error. At one extreme there is a risk on unintended bias.

There is an equal and more subtle risk of being too hasty and discounting relevant information or lines of enquiry, or giving undue weight to unconvincing information. A simple and common but erroneous preconception is that someone with a foreign accent was born overseas, that a child has the same citizenship status as its parents, or that an application presented in a muddled fashion is not well founded.

Strategies need to be put in place in areas of potential risk in decision-making. Agency guidelines must give clear practical guidance on what to consider when making a discretionary decision. Training courses on decision-making should point out how officials can be wrongly influenced by stereotypes and cultural habits. Reasons for decisions must be given.

6. Control administrative drift

Delay is sometimes unavoidable, yet at times, matters are simply allowed to drift. In short, delay and procrastination will occur unless there are procedures in place to stop that happening.

Timeframes need to be built in to decision-making processes, supplemented by formal procedures for reviewing and escalating cases that breach those timeframes. Agencies should regularly appraise the time taken to make individual decisions and examine those that took too long to ascertain if there is a systemic problem. Areas of potential delay should be identified and strategies put in place to guard against that risk.

7. Remove unnecessary obstacles to prudent information exchange with other agencies and bodies

Government agencies often need to exchange information with each other and with other organisations and individuals. There are restrictions on what can be disclosed and to whom, for legal and privacy reasons. It is important that those information controls are not misapplied for to do so can impede good decision-making.

Where appropriate, agencies should have memorandums of understanding with other agencies to promote effective information exchange. So too, government contractors that provide services to the public must understand that relevant information they hold may also be passed to the responsible agency. Staff should be particularly instructed about how to apply Information Privacy Principles and the need for caution when basing decisions on unverified information.

8. Promote effective communication within your own agency

Good internal communication becomes even more important as agencies grow larger, functions become more complex and decisions are made at separate offices in Australia and overseas,

Administrative manuals that provide guidance to staff on applying the agencys legislation must be easy to use and up-to-date. Staff should be promptly informed of important court and tribunal decisions. There must also be regular monitoring, quality assurance and review of decisions to ensure consistency with policy and procedural guidelines.

9. Manage complexity in decision making

There is no doubt that complexity now permeates many areas of government activities. Laws relating to taxation, customs, social security, superannuation, health insurance, child support, immigration, workplace relations, crime and anti-terrorism can and do throw up many complex issues. Proper training and clear lines of responsibility for resolving difficult and complex cases need to be in place.

10. Check for warning signs of bigger problems

Sometimes, problems in decision-making are one-off and exceptional but more often than not, a problematic case is not unique and points to a recurring difficulty in the agency. Internal monitoring and quality control can pick up warning signs and initiate reform.

Section 15 of the Ombudsman Act lists the grounds on which the Ombudsman can formally make a report to an agency, and ultimately to the Prime Minister and Parliament. Only a few such reports are made each year to agencies, and more rarely to the Prime Minister or Parliament.

Most complaints to the Ombudsman can be resolved informally, and without the need to reach a firm view on whether an agencys conduct was defective. This reflects the emphasis of our work on achieving remedies for complainants, and improving agency complaint-handling processes and public administration generally.

The following additional examples illustrate the administrative deficiencies recorded during any given year.

Factual error. A persons application for a benefit was wrongly refused on the basis of an incorrect assessment as to whether they met a particular eligibility criterion. This was caused by a wrong assessment of the date of the persons enrolment in a particular course.

Human error. A tribunal remitted an application to an agency. The liaison area in the agency did not identify that further action was required on the case, leading to long delays in deciding the application.

Legal error. A person requested a review of an agency decision. The agency wrongly decided that his request was invalid and out of time. The agency decision was not in accordance with the legislation.

Inadequate advice, explanation or reasons. A person rang an agency seeking information about how to make a complaint against a third party. The agency staff did not ask sufficient questions to determine his circumstances and sent him the wrong information, leading to substantial problems for the person when he made his complaint.

Unreasonable delay. A person applied for a benefit. The officer handling her application went on urgent unplanned leave for some months. The case was not allocated to another officer and the agency did not respond to contacts from the person, resulting in long delays in deciding the application.

Procedural deficiency. A person was denied a benefit on the basis of an assessment of their medical condition. The initial medical assessment was inconclusive, but was amended by an agency staff member following a call to a doctor who did not have the persons medical records. The proper procedure would have been for the staff member to arrange a fresh medical assessment.

Flawed administrative process. An agencys information technology system was unable to reconcile different payments when a persons eligibility for various payments changed throughout the year, and the agency had to manually reconcile the payments. The agency was aware of the systems shortcoming, but had not made enough effort to identify people affected by this problem and to manage the issue better.

Unreasonable or harsh agency action. An agency sent formal notices to a persons employer seeking details of his earnings on three occasions, without seeking the information from the person in the first instance. After apologising to the person, the agency then sent a fourth notice to the employer, although the agency appeared to have all the information it needed and was aware that the relationship between the person and his employer was poor.

Resource deficiency in agency. A persons request for review of an agencys decision was not finalised until well beyond the statutory time period because the agency had received a large number of requests and had a staff shortage. This delay led to the person accruing a debt and to the relationship between the person and the agency deteriorating badly.

Inadequate knowledge/training of staff. Problems in a procurement process probably occurred because the agency staff in charge of the process were subject area specialists, not procurement experts. For example, they allowed the successful tenderer to deviate from the requirements outlined in the request for quotation, without giving other potential tenderers the capacity to bid on the same basis. Hence there was no assurance that the agency obtained value for money.

Breach of duty/misconduct by an officer. Agency officers did not follow appropriate guidelines and procedures for managing a real or perceived conflict of interest in awarding a contract.