CHAPTER 1 | year in review

DEFINING THE OMBUDSMAN'S ROLE IN A CONTEMPORARY SETTING

The Ombudsman's office, though well established, is part of a system of government that is undergoing constant change. Some of those changes impact on the work of the Ombudsman, requiring the office to reflect on its role in government. Several aspects of change arose in 2003–04.

The legislation establishing the office of the Commonwealth Ombudsman was enacted in 1976, and has not been reviewed in any comprehensive fashion. A review is currently being undertaken by the office to improve and modernise the legislative framework, with a view to putting proposals to government for the enactment of a new Ombudsman Act. It is not proposed to change the role of the Ombudsman.

'A review is currently being undertaken by the office to improve and modernise the legislative framework …'

Work on the legislative framework review progressed substantially during 2003–04, but it will be some months into the coming year before we are ready to submit a final position to the Prime Minister. Some of the issues to be addressed include:

• a single drafting style to avoid apparent inconsistencies
  
  
• legislative acceptance of the government's decision that the Ombudsman should have jurisdiction over the actions of certain Australian Government contractors
  
  
• bringing the Ombudsman's jurisdiction to investigate AFP complaints under the Ombudsman Act, with features that recognise the special need of police actions for external oversight and accountability.

A major role of the Ombudsman is to handle complaints about the AFP, both at a national level and in relation to the performance of the AFP's community policing role in the ACT. The legislative basis for the Ombudsman's role is the Complaints Act. Reform of that legislative framework was proposed in a report in 2003 by the Hon. William Fisher AO QC, A Review of Professional Standards in the Australian Federal Police. The Ombudsman's office is contributing to a review within government of the Fisher Report and the framework for investigation of complaints against the police.

The Ombudsman's role in relation to policing also arose in a different light during the year. In June 2004 the Australian Government announced that it would establish an agency to investigate corruption in law enforcement agencies, including the AFP. An issue raised in public debate was the role of the Ombudsman in this respect. Our position, in broad terms, is that the Ombudsman should not be the chief agency responsible for investigating corruption allegations. However, there is a thread that links administrative misbehaviour and official corruption, and complaints about law enforcement action are sometimes made in strong and accusatory language. The Ombudsman's office, both in its Commonwealth and ACT guises, is contributing to the discussions within government about the framework for investigation of corruption allegations.

Yet another aspect of the Ombudsman's role under discussion in the past year was the role of Postal Industry Ombudsman (PIO). Drafting was carried out to amend the Commonwealth Ombudsman legislation to incorporate the role of PIO. This role is distinctive, in conferring jurisdiction upon a single ombudsman to investigate complaints about the actions of both public and private sector postal operators. Jurisdiction over the private sector poses a new challenge for the Ombudsman.

The office of the PIO will take over the existing role of the Commonwealth Ombudsman of investigating postal complaints against Australia Post. A costing regime will be developed in accordance with regulations for a self-funding scheme and for the cost of investigations to be charged on a proportionate basis to participants in the scheme. The PIO will have the normal powers of an ombudsman to require information or documents and to publish findings. The PIO will be required to observe procedural fairness in investigations. The scheme is expected to commence within six months of the PIO legislation being enacted by Parliament.

In December 2003, a Joint Standing Committee report on Norfolk Island Governance proposed that Norfolk Island should establish an office of Ombudsman. It was proposed that the Commonwealth Ombudsman take on the role, under an arrangement similar to that with the ACT Government. To explore the Committee's recommendation the Ombudsman visited Norfolk Island early in 2004 and held discussions with the Legislative Assembly, officers of the Executive Government, and the Administrator. Discussions on the issue are proceeding, and a further visit by a representative of the Commonwealth Ombudsman is planned for late 2004.

Another new function was recently given to the Commonwealth Ombudsman to conduct an annual review of new information-gathering powers conferred on the Building Industry Taskforce. This is a result of a Senate amendment to workplace relations legislation enacted in 2004.