Australian Ombudsmen: A Call to Take Care
| Date | 01 September 2016 |
| Author | Anita Stuhmcke |
| Published date | 01 September 2016 |
| DOI | 10.1177/0067205X1604400308 |
| Subject Matter | Article |
Anita Stuhmcke*
ABSTRACT
Resolution of disputes in Australia is frequently achieved by ombudsmen. Yet there is
no uniform model of an ombudsman. Consequently, across Australian jurisdictions, the
development of the institution has been ad hoc and fragmented. What has followed,
however, has been the transformation of the institution to apply to new contexts, to the
extent that it is questionable in some instances as to whether ‘ombudsman’ remains the
appropriate descriptor for the institution. This article explains and critiques these
developments, observes that the conditions which have created such change are set to
continue and argues that care must be taken to protect citizen trust in the ombudsman
brand.
I INTRODUCTION
The ombudsman institution is the most commonly utilised complaint handling
mechanism across government. 1 However, government ombudsmen are more
disparate, and their functions much more complex than other dispute resolution
mechanisms such as courts or tribunals. Disparities between ombudsmen occur largely
because of specific jurisdictional requirements, resulting in ombudsmen operating
differentially across the Commonwealth, States and Territories. Today ombudsmen
have functions which depart significantly from their traditional core role of taking direct
complaints from individual citizens concerning administrative action by government.
Government ombudsmen may stand in the shoes of the ‘nominal complainant’ when
the public simply do not know enough to complain, such as is the case with the covert
targeting and interception of citizens’ cyber lives. 2 Ombudsmen have increasing
*
Professor, Faculty of Law, University of Technology Sydney. I would like to thank both
anonymous reviewers for their comments and also to thank Chris Wheeler, Chris Gill and
Rick Snell for comments on earlier versions of this article. The views in this article, as with
any errors, are my own.
1 ‘According to the Productivity Commission report, ombudsmen in Australia resolve more
than three-quarters of a million (773,000) disputes each year. That compares to just over
370,000 by various tribunals and more than 670,000 in courts’ see Colin Neave,
Commonwealth Ombudsman with Professor Ron Paterson, New Zealand Ombudsman,
‘Access to Justice—Where Do Ombudsmen Fit in?’ (Speech delivered at the ANZOA
Conference, New Zealand, 30 April 2014). This figure includes public and private industry
ombudsman.
2 See Richard Glenn, ‘Improving public administration through oversight’ (Speech delivered
at the 2016 Australian Institute of Administrative Law Conference, Brisbane, 22 July 2016)
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functions of audit and compliance and even act as industry ombudsmen to give binding
decisions and deliver ‘private’ dispute handling services for consumer contracts. 3
Consequently, ombudsmen in Australia are being requested by their respective
governments to rely heavily upon the ombudsman brand name to perform functions
which have little or nothing to do with their traditional role of accountability of public
administration and the direct handling of citizen complaints.
While ombudsmen have themselves attributed this divergence to a natural evolution
of the office,4 this article argues there is a need to improve protections for ombudsmen
against incursions from the administration they hold accountable as well as to promote
public scrutiny of their operations. This article proceeds in three sections. First, Part II
provides an outline of the changes to the institution that flow from increasing
ombudsman differentiation. Parts III and IV identify trends and concerns about the
ongoing and future operation of ombudsmen, namely, that the rapid growth of non-
traditional ombudsman functions signals an office increasingly filling a niche left vacant
by other dispute resolution mechanisms such as courts, and that the non-traditional
functions may impact the independence and reputation of an ombudsman. Part V
observes that the conditions that have created the change in functions of ombudsmen
look set to continue unabated. The political-economic reform agenda of neoliberalism
has changed government, rendering the attributes of ombudsmen the ideal vessel for
creative solutions to difficult problems. However, difficulties arise not from using
ombudsmen in different ways, but rather because these new non-traditional roles may
be under resourced, granted through ad hoc need rather than through a ‘future proofing’
plan that parliaments have for the effectiveness of ombudsmen. It follows that in order
to both protect the ombudsman institution and to render it accountable, any grant of
non-traditional functions requires careful consideration of the institutional changes
which must be made to ensure delivery of administrative justice. This article calls for
care and for future empirical investigation into protecting and promoting public trust in
the ombudsman brand.
II WHEN IS AN OMBUDSMAN NOT AN OMBUDSMAN?
This is a difficult question. Traditionally, an ombudsman was a complaint-handling
institution, perhaps supplemented by a wider role of own-motion (or systemic)
investigation. This dual role, generally attributed to the ‘classical ombudsman’, was the
original Australian model, where the ombudsman acts to remedy government
maladministration, such as error or the tardy, rude or ineffectual services of government
employees, rather than to investigate corruption, illegal or inhumane government
conduct. This model for an ombudsman is identifiable through a shared Scandinavian
heritage. Here particular attribution is afforded to the ‘traditional’ model of the Swedish
2016-Australian-Institute-of-Administrative-Law-Conference-Speech-final.pdf>.
3 See Parliamentary Commissioner Act 1971 (WA) s 34. It may be argued that all such roles fit
comfortably under the notion of accountability and/or can be framed as having an indirect
complaint handling role (such as ensuring bodies with jurisdiction deal properly with
complaints made to them), such argument is based upon a broad view of the traditional scope
and breadth of the role of an Ombudsman. This point is returned to below.
4 Bruce Barbour, ‘The Ombudsman and the Rule of Law’ (2005) 44 Australian Institute of
Administrative Law Forum 17; Chris Field ‘Recent Evolutions in Australian Ombudsmen’
(2010) 63 Australian Institute of Administrative Law Forum 4.
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Australian Ombudsmen: A Call to Take Care
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Parliamentary Ombudsman (SPO), with that institution being characterised as a
‘grundnorm’ for offices which have now spread worldwide. However, this claim quickly
becomes complicated. The role and functions of ombudsmen shift over time and
ombudsmen mutate upon transplantation. For example, over its 200 year plus history
the SPO now performs its role differently so that the ‘task of forestalling error and
general endeavours to ensure the correct application of the law have taken precedence
over the role of prosecutor.’5 And, Australian ombudsmen, while historically claiming
legitimacy through this Scandinavian heritage,6 have always been idiosyncratic and, as
outlined in this article, have undergone significant transformation.
So what then is an ombudsman? In the absence of legislation to govern the use of the
title ‘ombudsman’,7 criteria which aim to answer this question have been variously
developed by professional organisations of ombudsmen, scholars and individual
ombudsmen. The result is unsatisfactory. For example, the Australian and New Zealand
Ombudsman Association (ANZOA) states that the term ‘Ombudsman’ should only be
used if six key criteria are met: independence, jurisdiction, powers, accessibility,
procedural fairness and accountability.8 These criteria are re-phrased and re-packaged
by similar international organisations such as the British and Irish Ombudsman
Association (BIOA) which states that the institution must demonstrate ‘independence of
the Ombudsman from those whom the Ombudsman has the power to investigate;
effectiveness; fairness; openness and transparency and public accountability’.9 These
differences, while nuanced, underscore the absence of singular definition or criteria by
which one may unerringly identify an ombudsman.
Such disparity is appropriate and reflective of the global differentiation of
ombudsmen. There is no universal model of an ombudsman. Globally the ombudsmen
of today perform a wide variety of functions. For example the World Bank, up until early
5 The Parliamentary Ombudsmen (JO), About JO (18 September 2013) JO
.
6 The model for the Australian Ombudsman was adapted from the New Zealand Ombudsman
which is a Westminster variant of the Danish Ombudsman itself adapted from the Swedish
Ombudsman.
7 There are protections in New Zealand see: Ombudsmen Act 1975 (NZ) s 28A and see Financial
Services Complaints Limited v Wakem [2016] NZHC 634. See also Mai Chen, ‘New Zealand’s
Ombudsmen Legislation: The Need for Amendment After (almost) 50 years?’ (2010) 41
Victoria University of Wellington Law Review 723. In NSW it is an offence to purport to be the
NSW Ombudsman, however, this does not protect the use
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