‘Each for Themselves’ or ‘One for all’? the Changing Emphasis of the Commonwealth Ombudsman
| Date | 01 March 2010 |
| Published date | 01 March 2010 |
| DOI | 10.22145/flr.38.1.5 |
| Author | Anita Stuhmcke |
| Subject Matter | Article |
'EACH FOR THEMSELVES' OR 'ONE FOR ALL'? THE
CHANGING EMPHASIS OF THE COMMONWEALTH
OMBUDSMAN
Anita Stuhmcke*
INTRODUCTION
In the Australian liberal democratic tradition, the expectation that government be
accountable to the people is a product of the electorate's grant of power to government.
As government becomes more complex due to the expansion of human activity it
regulates there is increased reliance upon official means of facilitating democratic
accountability. Indicative of this development is the 20th century supplementation of
traditional Westminster1 mechanisms of accountability with administrative law
institutions such as the Commonwealth Ombudsman. These supplementary review
processes and institutions of 'new administrative law' aim to render the application of
discretionary decision-making by government administrators transparent and fair to
the individual citizen. This was the primary vision of the Kerr and Bland Committees
which framed the need for administrative review agencies against the background of
the protection and promotion of individual citizen rights.2
Three decades later and administrative law agencies such as the Commonwealth
Ombudsman continue to encourage good administration and therefore to act for, and
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* Associate Professor, Faculty of Law, University of Technology Sydney. I would like to
thank the referees involved in this process for their helpful insights. I would also like to
thank Professor Dennis Pearce for the inspiration for this piece.
1 It has been suggested that the Westminster system is now without 'clarity or credence':
Elizabeth Harman, 'The Impact of Public Sector Reforms on Australian Government' in
Patrick Weller, John Forster and Glyn Davis (eds), Reforming the Public Service (1993) 16, 33.
Indeed as Mason J states, 'the doctrine of ministerial responsibility is not in itself an
adequate safeguard for the citizen whose rights are affected. This is now generally accepted
and its acceptance underlies the comprehensive system of judicial review of administrative
action which now prevails in Australia': The Queen v Toohey; Ex parte Northern Land Council
(1980–81) 151 CLR 170, 222.
2 Commonwealth, Commonwealth Administrative Review Committee Report, Parl Paper No 144
(1971); Commonwealth, Interim Report of the Committee on Administrative Discretions, Parl
Paper No 53 (1973); Commonwealth, Final Report of the Committee on Administrative
Discretions, Parl Paper No 316 (1973) (see for specific examples the Commonwealth
Administrative Review Committee Report, Parl Paper No 144 (1971) [11], [354], [363]).
144 Federal Law Review Volume 38
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on behalf of, the public.3 While this objective of improving public administration has
remained constant since the Office commenced operations in 1977, a close examination
of the history of the Commonwealth Ombudsman reveals operational changes. One
such critical change is that the individual complaint-handling operation of the
Commonwealth Ombudsman has dramatically altered. While current Annual Reports
of the Commonwealth Ombudsman confirm that the 'primary function of the
Ombudsman's office is to handle complaints and enquiries from members of the public
about government administrative action',4 the data used in this article shows that the
Commonwealth Ombudsman has increased its use of discretion to now refer large
numbers of individual complainants away from its own complaint-handling services.
At first blush, such usage of discretion suggest that when evaluated against its original
objectives of protecting the individual's rights of review of discretionary decision-
making, the Commonwealth Ombudsman is failing the persons for which it was
established.
This article argues that administrative review agencies should not remain static
while the system of government and administration changes. Today the
Commonwealth Ombudsman has three clear functions — individual complaint-
handling, systemic investigation and audit — reflecting a change in emphasis towards
what may be broadly termed the quality control of government administration.5 An
increase in the use of own motion and audit powers to improve the quality and
efficiency of administrative decision-making need not conflict with the objective of the
Commonwealth Ombudsman to provide an individual citizen with rights to review.
Administrative law which regulates the relationship between the governors and the
governed does not just take place in courts, Parliament, Cabinet, tribunals and in
ombudsmen offices — discretionary decisions applying to individual citizens are made
primarily by administrators. Indeed, the history of the 'new administrative law'
includes an acknowledgement that administrative review need not be only reactive
and critical of processes and discretionary decision-making, but that it can, and should,
be proactive and constructive, and act to improve decision-making by individual
government administrators.
More difficult to evaluate is the impact which promoting improvements to overall
administrative decision-making and increasing audit functions will have upon the role
the Ombudsman plays in protecting individual review rights and therefore upon
notions of democratic accountability. Is it optimal to achieve accountability through
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3 See Hot Holdings v Creasy (2002) 210 CLR 438, 467 (Kirby J), citing Paul Finn's three forms of
accountability as follows:
One form is accountability to official superiors and peers. This is the preferred, but most
diluted, method of accountability favoured in Westminster systems. Another is accountability
to agencies such as the Auditor-General, the Ombudsman and to Parliament. These agencies
act, or should act, for and on behalf of the public. The final form of accountability is to
members of the public directly, either as individuals (as through administrative law
mechanisms) or as a community (as through elections).
4 Commonwealth Ombudsman, Annua l Report (2008–09) 2.
5 This general movement has been noted by peak bodies such as the Administrative Review
Council. See Administrative Review Council, Commonwealth Parliament, Better Decisions:
Review of Commonwealth Merits Review Tribunals Report No 39 (1995).
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