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Role of the Commonwealth Ombudsman of AustraliaIn 2007 the office of the Commonwealth Ombudsman of Australia celebrated its thirtieth year of service to the public. During that time the office has dealt with hundreds of thousands of complaints from all areas of Australian society, about all facets of government administration. While the concept of Ombudsmanship is well-established in many countries, each office is unique in its scope, methods of operation, and focus. These characteristics are based on the system of government; the governing legislation for the office; the size of the office; and the nature of its relationships with the agencies it oversights, with the other arms of government, and with related organisations. In this paper I outline the role of the Commonwealth Ombudsman of Australia. I first describe the Australian system of government, and where the Ombudsman fits within that system. The next section provides details of my role and jurisdiction. I then describe in more detail how my office undertakes its primary role of dealing with complaints and seeking to improve public administration. This is followed by a summary of the relationships between my office and other organisations. I finish with a discussion about how the work of my office helps safeguard human rights in Australia. Australia’s system of governmentAustralia’s system of government is founded in the liberal democratic tradition. It is based on the values of the rule of law, religious tolerance, and freedom of speech and association. Australia has a federal system of government, with a national government, six state (regional) governments, and two territory governments. The national government (called the ‘Commonwealth Government’ or ‘Australian Government’) is responsible for matters such as defence, foreign relations, trade, immigration, a national social welfare system, and most taxation matters. The state and territory governments are responsible for matters such as education, health, transport and law enforcement. State/territory parliaments are subject to the Australian Constitution, and a national law overrides any state law not consistent with it. Under the Australian Constitution, there is a separation of powers between the legislature (Parliament), the executive and the judiciary. The Australian Parliament comprises a House of Representatives and a Senate. National elections are required to be held every three years, and all Australian citizens over the age of 18 must vote. The laws enacted by the Parliament are applied by the executive. If there is a dispute about the meaning or application of a law, the judiciary independently decides the matter. Australian government is modelled on the Westminster (or parliamentary) system. The Prime Minister and other government ministers are members of parliament. Each department of state is headed by a minister. There are as well many independent statutory bodies that undertake regulation, provide government services to the public, and scrutinise the actions of the executive government. A fundamental feature of Australian democracy is that people have a right to complain about government agencies, to an independent ombudsman, without hindrance or reprisal, and to have their complaint resolved on its merits. This helps ensure that government agencies are accountable, and it assists agencies improve their administration. In keeping with Australia’s federal system, there is an independent Ombudsman office at the national level (the Commonwealth Ombudsman) and in each of the states and territories. They handle complaints from the public against all government activities, including policing and defence. Australia also has a growing number of industry ombudsman offices, handling complaints in areas such as telecommunications, banking, and energy supply. The office of Commonwealth Ombudsman was established by the Ombudsman Act 1976 (Ombudsman Act). The office was created as part of a comprehensive reform of Australian administrative law in the 1970s. The Ombudsman plays a part, along with courts and administrative tribunals, in examining government administrative action and protecting the public.
The Commonwealth Ombudsman has three major statutory roles directed at safeguarding the community in their dealings with Australian Government agencies.
The first role, under the Ombudsman Act, is to investigate complaints from individuals, groups or organisations about the administrative actions of Australian Government officials and agencies. The second role, also under the Ombudsman Act, is to undertake investigations of administrative action on an ‘own motion’ basis—that is, on the initiative of the Ombudsman, though prompted often by the insight gained from handling individual complaints. In either case, the Ombudsman can recommend that remedial action be taken by an agency, either specifically in an individual case, or generally by a change to legislation or administrative policies or procedures.
The third role is to inspect the records of the Australian Federal Police and other law enforcement bodies to ensure compliance with legislative requirements applying to selected covert law enforcement and regulatory activities, such as telecommunications interception. This role is specified in legislation. Reports from these inspections are provided to the Parliament. This compliance auditing function is an effective way of maintaining regular oversight of legal compliance in the use of coercive and intrusive government powers.
The Ombudsman Act also confers a number of specialist roles on the Ombudsman:
The Ombudsman can investigate the administrative actions of most Australian Government departments and agencies. The term ‘administrative action’ is not defined under the Ombudsman Act and, consistent with the beneficial nature of the legislation, it is interpreted in its broad sense. For example, matters investigated can include policy development, commercial conduct, the exercise of statutory responsibilities, law enforcement activities, decisions on applications for benefits or concessions, compensation decisions, and decisions on applications made under the Freedom of Information Act 1982.
The Ombudsman can also investigate the actions of ‘Australian Government service providers’—that is, a contractor who provides goods or services to the public or on behalf of an Australian Government agency.
The Ombudsman does not have jurisdiction to review the decisions of courts and many tribunals. Similarly, the Ombudsman cannot investigate the actions and decisions of members of parliament, senators or ministers. The suitability and correctness of ministerial decision-making is a matter to be examined in other forums, notably the Parliament and the broader political process. Nevertheless, the Ombudsman can examine the quality of advice given by an agency to a minister, and whether a minister’s decision is faithfully implemented by an agency.
A key element of the Ombudsman’s role is that he or she is impartial and independent. The Ombudsman is neither an advocate for complainants nor a spokesperson for government agencies.
This independence is secured in three principal ways—the office is established by law; the Ombudsman is appointed for a fixed term and can only be removed by the Parliament; and the Ombudsman has strong coercive powers to obtain access to documents, examine witnesses, enter premises, and extend protection and immunity to witnesses.
The Ombudsman can recommend changes to remedy a problem, but has no authority to force an agency to take a particular course of action. This respects the democratic balance. The principal authority of the Ombudsman is to persuade and to publish, leaving the ultimate responsibility for policy development and implementation with the elected government.
The Ombudsman’s office receives over 30,000 complaints and other approaches each year. They can be made orally (by telephone or in person), in writing (by letter, email, fax or SMS), or over the internet, by any person or organisation.
Under the Ombudsman Act, the Ombudsman has a broad discretion not to investigate a complaint. On average, 65–75% of complaints that are in jurisdiction are not investigated upon initial receipt of a complaint. The most common reason for not investigating a complaint is that the person has not yet raised the matter with the agency. There can be advantages for both the complainant and the agency if an attempt is made to resolve the problem before external intervention, and many agencies have well-developed complaint-handling mechanisms.
Over the past ten years, there has been substantial effort amongst Australian Government agencies to develop service charters and effective complaint-handling systems, with considerable assistance and prompting by the Ombudsman. A service charter is a public commitment by an agency as to the principles and service standards it will observe. It provides a positive definition of the principles of good administrative conduct and service delivery, and tells the public what to expect, and where to complain when things go wrong.
The Ombudsman’s office works closely with government agencies to ensure that their internal complaint handling is professional and complies with best-practice standards. We are much more likely to refer a complainant to the agency in the first instance if we have confidence in their complaint-handling processes. Periodically the office investigates the efficacy of those processes.
Within the Ombudsman’s office, complaints are allocated to investigation staff on the basis of the complexity of the issues, and the nature of the subject area. This is backed up by separate teams in the office that are dedicated to dealing with complaints about specialist areas or high-volume areas such as law enforcement, defence, immigration, social support, taxation, and postal matters.
The Ombudsman has coercive powers to require a person or agency to provide information or documents or give evidence under oath. These powers underpin the Ombudsman’s authority, although the vast majority of complaints are resolved without using these formal powers. Resolving complaints through a voluntary and cooperative approach with the minimum of formality enables speedier resolution of complaints, and is efficient both for the Ombudsman’s office and for agencies.
Most investigations are conducted informally, and may entail telephone and/or email contact between the Ombudsman investigation officer and the agency contact officer. An investigation can be as simple as one or two telephone calls, or as complex as requiring review of many agency files and documents, formal interviews, and the obtaining of independent specialist advice.
The Ombudsman Act provides protection against civil or criminal proceedings for an agency or person who gives the Ombudsman information when requested, or because it reasonably appears relevant to an investigation. Information given to the Ombudsman’s office cannot be used in evidence against the person (other than for giving false or misleading information).
The Ombudsman Act provides a high degree of flexibility as to how an investigation will be conducted. The Act states simply that an investigation ‘shall be conducted in private and … in such manner as the Ombudsman thinks fit’ (s 8(2)).
This flexibility enables the most relevant, practicable and efficient approach to be selected. It is also up to the Ombudsman’s office to decide which issues in a complaint will be investigated. Not all concerns raised by a complainant will be taken up, or other issues not identified by them may be investigated. This is important, as members of the public can be overwhelmed by the complexity of government systems and not fully appreciate the legal and factual issues that need to be addressed.
The emphasis of Ombudsman work is on achieving remedies for complainants and on improving public administration. As noted above, the Ombudsman has no power to force an agency to change a decision or provide a service. The Ombudsman relies on agencies to cooperate in resolving problems, and the vast majority of recommendations made by the Ombudsman are accepted by agencies.
An additional benefit of the flexible style of Ombudsman investigation is that it enables problems to be approached from different angles, and resolved in the most suitable way. The remedy that will satisfy a person is not necessarily the remedy they had in mind when lodging a complaint.
A core objective of the Ombudsman’s office is to move beyond the individual problems highlighted in individual complaints, and to foster good public administration that is accountable, lawful, fair, transparent and responsive.
An individual complaint may highlight issues that are systemic in nature, such as inadequate or misleading advice being provided to the public about a government benefit, or a policy being applied inconsistently with legislation. An issue that arises in an individual complaint about a specific agency may also open a window onto similar issues in other areas of government administration.
Through over thirty years of experience in dealing with individual complaints, the Ombudsman’s office has built a broad base of knowledge about government administration and the ways in which good and poor administration can have an impact on people. We draw on this experience to promote improvements in public administration.
A key way of doing this is for the Ombudsman to use the ‘own motion’ power to initiate an investigation. This will often follow the receipt of several complaints on the same issue, indicating a recurring problem. An own motion investigation can look more comprehensively at the scale of a problem, the likely causes, and possible remedial action.
It is customary for the Ombudsman to publish the reports on these investigations, that are available on our website www.ombudsman.gov.au.
Other ways the Ombudsman can work to improve public administration include the publication of better practice guides, and discussion and consultation with agencies as they develop or seek to improve particular policies or service delivery processes.
Connecting with the public, especially with communities that are socially marginalised, has always been a challenge facing the office. We must be mindful that sometimes the people most in need of assistance from the office—those with physical or mental health problems, language difficulties, poor educational levels, or living in isolated areas—may not be aware of the office’s existence and capacity to assist them.
The Ombudsman’s office has an active outreach program to reach both the broader community and ‘gatekeepers’—community leaders and organisations that are a local source of information and advice. The scope of the outreach program has varied with the resources available over the years, but the challenge remains the same—to communicate with existing and emerging target audiences. In recent years the main outreach focus has been on rural and regional communities; Aboriginal and Torres Strait Islanders communities; and younger people.
The office has worked hard to ensure that it is known to and accessible to people. This is done in many ways:
There are principally three ways in which the Ombudsman works with members of parliament—investigating individual complaints referred by members of parliament, making submissions to parliamentary inquiries, and publishing reports that are of interest to parliament.
Members of parliament sometimes find it useful to enlist the assistance of the Ombudsman in dealing with a complaint, especially where the issue is complex or an impasse has developed with an agency.
We often make submissions to, and appear before, inquiries conducted by parliamentary committees. My observation is that committees welcome the insight that an Ombudsman’s office can bring to an issue, stemming from the experience of the office in handling complaints across all areas of government, arising from all corners of Australia, and received from a broad cross-section of Australian residents and businesses. The office strives for balance and objectivity in presenting its views, which can be a welcome voice in a parliamentary inquiry that broaches controversial or sensitive issues.
The annual reports of the Ombudsman, which are tabled in parliament, draw attention to the range of individual and systemic problems that people encounter in dealing with government. These reports discuss our work with the major government agencies, and themes and issues that arose during the year. The Ombudsman’s office also publishes special reports on selected issues, often arising from own motion investigations undertaken by the office. All these reports are available at www.ombudsman.gov.au.
The Australian Government has established many other oversight bodies with an accountability and integrity focus. Examples include the Human Rights and Equal Opportunity Commission, the office of the Inspector-General of Intelligence and Security, the office of the Privacy Commissioner, and the Australian Commission for Law Enforcement Integrity.
The functions of those agencies interact in different ways with that of the Ombudsman. Complaints, for example, can raise issues that come within the jurisdiction of more than one agency. A tradition has developed of close consultation and cooperation with other oversight agencies. This enhances the work of all agencies and avoids unnecessary duplication of effort. It also underpins the steady emergence of a sound framework of integrity organisations at the national level in Australia.
Australia, as a federal system, is fortunate in having eight separate Ombudsman offices to oversight government. We speak and meet regularly, to share experiences and insights, and to collaborate on projects. For example, the Australian Ombudsman offices have worked together on joint projects on dealing with difficult or unreasonable conduct by complainants, and designing whistleblower protection laws.
Similarly, Ombudsmen from the public and private sector meet periodically to share their experiences, and to help develop appropriate referral processes between the different organisations.
The Ombudsman office has a strong program of cooperation with colleagues in the Asia-Pacific region. Over the past five years, we have worked with colleagues in Indonesia, Papua New Guinea, Thailand, Fiji, the Cook Islands, Samoa, Solomon Islands, Tonga, and Vanuatu. With special government financial assistance, we have established a Network to facilitate staff exchanges, training, and technical and investigation support.
An example is that we have worked with the Papua New Guinea Ombudsman Commission to look at various models for handling complaints about law enforcement and defence agencies, and liaison arrangements between these agencies and Ombudsman offices. The presentations from a workshop on these issues, held in Port Moresby in September 2007, are available at our website www.ombudsman.gov.au.
The main way that rights are protected in the Australian system of government is by executive action that is oversighted by a system of independent agencies. One of the specialist agencies is the Human Rights and Equal Opportunity Commission. The goal of the Commission is to foster greater understanding and protection of human rights in Australia and to address the human rights concerns of a broad range of individuals and groups. The Commission’s responsibilities include dealing with complaints about human rights and discrimination, looking at human rights compliance, and raising public awareness about human rights issues.
The office of Ombudsman also plays an active role in human rights protection, along with privacy and information commissioners, inspectors-general of different kinds, administrative tribunals, and auditors-general conducting performance audits of executive decision-making and service delivery. This extensive framework of oversight agencies has largely been established in the last twenty years, and has transformed Australian government, in terms of its accountability and sensitivity to individual rights.
The large number of Ombudsman offices in government and the private sector together handle upward of 200,000 complaints from the public each year. This means that government agencies and large corporations are reminded constantly of their need to act lawfully and properly, and to be responsive and accountable to the public. In areas that have recently figured prominently in human rights debate – immigration, policing and the counter-terrorism – my office has played an active and prominent role in complaint handling, own motion investigations and discussion with government agencies.
In addition, as noted above, most Australian Government agencies have established their own professional internal systems for complaint handling. Those agency complaint mechanisms handle tens of thousands of individual complaints and problems each year. The mechanisms have a close proximity to, and regular interaction with, both frontline bureaucrats and senior level managers. As a result, internal complaint handling has a sensitising effect on government that few other review mechanisms can manage.
It is now a foundation principle in Australian government that people have a right to ask questions, and a right to complain when they are unsure or unhappy about a government decision. Members of the public must be able to raise a concern, confident in the knowledge that it will be properly investigated and that they will not suffer any adverse consequence for having lodged a complaint.
The right to complain is a valuable and important right in Australia. It also leads to better government. Complaint handling and investigation makes government better and more accepted by the community, and helps protect human rights. Complaint handling reminds us that our systems do not always work the work the way we expect. It reminds us that all members of the community are different, and that a rule that applies easily to one person might not apply as easily to another. Above all, complaint handling reminds us that people matter—that our commitment to public service and to better government must translate as a commitment to listen and to talk to each member of the community, especially when they express dissatisfaction with government decision making and service delivery.
That is the philosophy that has guided the Commonwealth Ombudsman’s office for over thirty years in Australia.
Prof. John McMillan, Commonwealth Ombudsman, Australia | |
Last updated: 5.05.08
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