Reflections on the Role of an Ombudsman

Pacific Ombudsman Alliance Conference, Vanuatu 15 July 2014

Colin Neave, Commonwealth of Australia Ombudsman.

In this presentation I will refer briefly to the history of the Ombudsman offices in Australia. I want to give you some of my thoughts on International developments for parliamentary ombudsmen. I also want to talk about future challenges and refer to some other matters of concern about the Ombudsman role at the moment and give you some of my thoughts on how those concerns and issues might be addressed. 

I am talking in the Australian context: what I have to say may not be appropriate for all cultures or jurisdictions. 

In Australia, the role of Ombudsman initially came across as being very “combative”. However, and this is essentially my thesis, Ombudsman offices have developed into being “powerfully influential” and able to work in collaboration with other agencies and departments subject to the jurisdiction of the Ombudsman, with the objective of continually improving the quality of public administration.

The Commonwealth Ombudsman in Australia commenced operations in 1977. Dealing with the Commonwealth Ombudsman was a new experience for Commonwealth public servants. Indeed what the Ombudsman did initially may well have come as a shock to what were then called “permanent heads” of government departments and leaders of agencies. Those permanent heads no doubt saw themselves as running the country: the effect of the Ombudsman’s scrutiny of administrative acts of their departments, may well have been interpreted by them as reducing their power. 

The first Australian Ombudsman Prof Jack Richardson was not backward in coming forward in his approach to the role. He engaged in considerable publicity for the existence of the Office of the Ombudsman, suggesting that citizens disturbed about administrative acts performed for them, should come to him in order to obtain appropriate redress. That publicity included paying for an advertisement for his Office on milk cartons in the Australian Capital Territory. One can imagine a permanent head of a government department confronting a smiling picture of Jack Richardson on a milk carton with an advertisement, and contact details for his office, as that permanent head poured milk on his breakfast cereal. In short, there was quite a deal of conflict between the first Ombudsman and senior members of the bureaucracy in Canberra initially. Around the time of the establishment of the Commonwealth Government Ombudsman, other State Ombudsmen were being established. Some were established before the Commonwealth Ombudsman. In 1989 the first Industry Ombudsman was announced by the banking industry. This was followed shortly thereafter by the establishment of organisations handling complaints about telecommunications, general insurance, investment products, energy and water (“The Industry Ombudsman”). 

The Industry Ombudsmen were established essentially in order to redress what was seen to be a power imbalance between individuals and consumers when many organisations were privatised as part of asset sale initiatives by various state governments or as a result of “freeing up” markets. The Government owned telecommunications company was sold. And the market for financial services was deregulated from around 1987. 

The Industry Ombudsmen, along with the Government Ombudsmen, as they have developed, have been seen as important “access to justice” mechanisms, given that their services are free to all consumers and, generally, small businesses. 

They also have extensive public awareness programs in place which have had the effect of making the Ombudsman “name” readily recognised in the Australian community. 

I now turn to developments about the role of an Ombudsman in other parts of the world and particularly Europe.

I recently read a publication produced by the Catalan Ombudsman (Spain) to which contributions were also made by a professor and lecturer in constitutional law at the University of Barcelona. This publication, “International Framework of the Ombudsman Institution” 1 , describes the growing interest among international organisations including the Council of Europe and the United Nations in the implementation and strengthening of the Ombudsman Institution as an institutional mechanism to guarantee human rights. In this publication the strong connection is made between maladministration, the hiding or nondisclosure of that maladministration, and the development of corrupt practices flowing from that maladministration and its non-disclosure. It follows that the institution of Ombudsman is therefore important not only to protect human rights but more broadly. The publication also refers to the Ombudsman being appropriately and doctrinally referred to as a “magistrate of persuasion”. In other words the impact of the Ombudsman institution’s final decisions are not derived from the non- existent (normally) binding or coercive competencies, but from the rigour, objectivity and independence with which they conduct their activities: in other words from their implied authority or as one could say, their “gravitas”.

Indeed international studies and the International Ombudsman Institute have stressed of late the relevance of the ombudsman as a mechanism essential and necessary for the strengthening of democracy and the guarantee of rights especially in times of economic crisis. In Australia too, this is relevant not only in relation to Government Ombudsmen but also to the Industry Ombudsmen to which I referred above. 

Internationally, the Ombudsman role has continued to develop and be recognised as an important part of a democratic state. 

I now turn to some of the future challenges for the Offices of Ombudsmen. 

An overall concern I have at present is the move on the part in some jurisdictions to limit the operations of Ombudsmen and to establish new bodies using the good name of “Ombudsman”, but which in fact perform regulatory and advocacy roles. The justification for the creation of such bodies is, sometimes, that there needs to be a degree of “specialisation” in such offices. The argument is that it is more appropriate to have a “specialist” office than the generalist approach taken by traditional Ombudsman staff and advisors, even though, of course, some specialization develops in generalist offices.

In my opinion there is great danger in establishing an Ombudsman-type body which has sole responsibility for looking after complaints about a single agency or government department. The risk in so doing is that either a specialist “Ombudsman” will be “captured” and overly “influenced” by that single agency, or may find itself unable to work collaboratively and appropriately with that agency, because there is too much conflict between the single agency and the single organisation handling complaints about it. There have been some proposals in this regard recently in various places in Australia. I believe that there are great risks in proceeding along that path at least for the two reasons mentioned above but also because there is a potential for confusion of citizens as a result of establishing several Ombudsman bodies either with that name or performing a similar role. Citizens can be confused about where they should go with their problem, and therefore do not proceed to complain.

Other challenges come as a result of budget decisions, which can for small offices such as an Ombudsman have a devastating effect on the level of services available. Large departments and agencies can move people around, for example, or quickly change the focus of their activities in response to challenges. Small offices such as the Ombudsman, with staff numbers of 120 or less (often) do not have the flexibility that large agencies have. The only alternative for them in order to meet stringent budget requirements is to have fewer people; spending on “optional” activities having been reduced already in order to meet the difficult circumstances of the recent past. 

There is a fundamentally important requirement of Ombudsmen to prove their worth. This sometimes means taking greater “risks” in reports in order to establish the real worth of the organisation rather than taking a safer course which is sometimes tempting in order to avoid controversy. How one balances these requirements is a matter of judgement and sometimes difficult to keep front of mind especially when the resources available are more and more limited.

It is important for Ombudsman offices to have an appropriate engagement with members of the parliament to which they may report, either directly or through some other mechanism. The Ombudsman should, where appropriate, for example, call upon and explain his or her role to all new members of a Parliament.

The media needs to be involved to ensure that appropriate information is provided publicly to those who can use the Ombudsman’s services, as well as of course, producing an annual report. However, the manner in which the media approaches are structured needs to be carefully handled and an appropriate strategy developed. Every word in a press release needs to be thought through. I recall whilst working for a major marketer of consumer durables some years ago, having contact with one of the Directors of the parent company 4 based overseas. That person saw a draft of a press release I had prepared, on behalf of my employer. That employer was under attack from one of its shareholders. That press release used the word “nonsense” which that Director considered inappropriate. He felt that the words “no sense” were more appropriate, as the word “nonsense” had an emotional overtone to it, whereas the phrase “no sense” was more accurate in any event when talking about a proposal from that dissident shareholder which was illogical. In short, what this means is that every word in a press release and every word (or phrase) used by the Ombudsman, commenting on any matter or used in one of his or her reports, needs to be thought through carefully in order to ensure any published material has a positive impact. 

Reports prepared by an Ombudsman should be relatively short, and thus quick and easy to read. In relation to major issues, it might well be preferable to break the report up into a series of reports related to a large issue by dealing with aspects of it and getting those reports out quickly rather than waiting to have the perfect lengthy report available. 

An Ombudsman also needs to have good evidence on which to make any findings or recommendations. Assumptions about facts or circumstances should never be made; it is always preferable to be more conservative and correct, rather than advancing “a good idea at the time” which may prove to be based proved to be inaccurate on subsequent careful examination. 

An Ombudsman needs to develop his office into a good working “team”. Organisations which are often attacked for either doing something or doing nothing, are at risk of having a culture which is itself not optimal. The Ombudsman needs to be a leader who exhibits exemplary leadership skills, especially when extensive and important reports are released and where the Ombudsman is publicly taking a stance on an issue which is of importance to the community, of which in a sense, he or she is a leader as well. 

As far as possible an Ombudsman should work collaboratively with departments and advise leaders of those departments when a report is likely to be adverse. Avoid surprises and work as collaboratively as possible. 

An Ombudsman needs to be aware of the good things that can be available to his or her office from the use of social media, but also be aware that if it is used, it needs to be monitored. The Ombudsman also needs be aware of the fact that social media might make his or her office less relevant or important and accordingly, needs to use it appropriately for the purposes of that office. 

Finally, let me stress that Ombudsmen should not be averse to the idea of praising departments and agencies when giving messages about the good elements of administration. In other words, give examples of when administrative duties are handled well. 

The question of whether what I have said today is of assistance depends, of course, on the culture within different jurisdictions represented at this Conference. Many of the points I have made are self-evident and appropriate in the Australian environment and may well be useful in other jurisdictions should those who are present, care to make use of them.

1 ‘International Framework of the Ombudsman Institute’ Sindie de Grenges de Catalinya 1st Edition May 2014

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      15 July 2014: Pacific Ombudsman Alliance Conference

      Reflections on the Role of an Ombudsman

      Pacific Ombudsman Alliance Conference, Vanuatu 15 July 2014

      Colin Neave, Commonwealth of Australia Ombudsman.

      In this presentation I will refer briefly to the history of the Ombudsman offices in Australia. I want to give you some of my thoughts on International developments for parliamentary ombudsmen. I also want to talk about future challenges and refer to some other matters of concern about the Ombudsman role at the moment and give you some of my thoughts on how those concerns and issues might be addressed. 

      I am talking in the Australian context: what I have to say may not be appropriate for all cultures or jurisdictions. 

      In Australia, the role of Ombudsman initially came across as being very “combative”. However, and this is essentially my thesis, Ombudsman offices have developed into being “powerfully influential” and able to work in collaboration with other agencies and departments subject to the jurisdiction of the Ombudsman, with the objective of continually improving the quality of public administration.

      The Commonwealth Ombudsman in Australia commenced operations in 1977. Dealing with the Commonwealth Ombudsman was a new experience for Commonwealth public servants. Indeed what the Ombudsman did initially may well have come as a shock to what were then called “permanent heads” of government departments and leaders of agencies. Those permanent heads no doubt saw themselves as running the country: the effect of the Ombudsman’s scrutiny of administrative acts of their departments, may well have been interpreted by them as reducing their power. 

      The first Australian Ombudsman Prof Jack Richardson was not backward in coming forward in his approach to the role. He engaged in considerable publicity for the existence of the Office of the Ombudsman, suggesting that citizens disturbed about administrative acts performed for them, should come to him in order to obtain appropriate redress. That publicity included paying for an advertisement for his Office on milk cartons in the Australian Capital Territory. One can imagine a permanent head of a government department confronting a smiling picture of Jack Richardson on a milk carton with an advertisement, and contact details for his office, as that permanent head poured milk on his breakfast cereal. In short, there was quite a deal of conflict between the first Ombudsman and senior members of the bureaucracy in Canberra initially. Around the time of the establishment of the Commonwealth Government Ombudsman, other State Ombudsmen were being established. Some were established before the Commonwealth Ombudsman. In 1989 the first Industry Ombudsman was announced by the banking industry. This was followed shortly thereafter by the establishment of organisations handling complaints about telecommunications, general insurance, investment products, energy and water (“The Industry Ombudsman”). 

      The Industry Ombudsmen were established essentially in order to redress what was seen to be a power imbalance between individuals and consumers when many organisations were privatised as part of asset sale initiatives by various state governments or as a result of “freeing up” markets. The Government owned telecommunications company was sold. And the market for financial services was deregulated from around 1987. 

      The Industry Ombudsmen, along with the Government Ombudsmen, as they have developed, have been seen as important “access to justice” mechanisms, given that their services are free to all consumers and, generally, small businesses. 

      They also have extensive public awareness programs in place which have had the effect of making the Ombudsman “name” readily recognised in the Australian community. 

      I now turn to developments about the role of an Ombudsman in other parts of the world and particularly Europe.

      I recently read a publication produced by the Catalan Ombudsman (Spain) to which contributions were also made by a professor and lecturer in constitutional law at the University of Barcelona. This publication, “International Framework of the Ombudsman Institution” 1 , describes the growing interest among international organisations including the Council of Europe and the United Nations in the implementation and strengthening of the Ombudsman Institution as an institutional mechanism to guarantee human rights. In this publication the strong connection is made between maladministration, the hiding or nondisclosure of that maladministration, and the development of corrupt practices flowing from that maladministration and its non-disclosure. It follows that the institution of Ombudsman is therefore important not only to protect human rights but more broadly. The publication also refers to the Ombudsman being appropriately and doctrinally referred to as a “magistrate of persuasion”. In other words the impact of the Ombudsman institution’s final decisions are not derived from the non- existent (normally) binding or coercive competencies, but from the rigour, objectivity and independence with which they conduct their activities: in other words from their implied authority or as one could say, their “gravitas”.

      Indeed international studies and the International Ombudsman Institute have stressed of late the relevance of the ombudsman as a mechanism essential and necessary for the strengthening of democracy and the guarantee of rights especially in times of economic crisis. In Australia too, this is relevant not only in relation to Government Ombudsmen but also to the Industry Ombudsmen to which I referred above. 

      Internationally, the Ombudsman role has continued to develop and be recognised as an important part of a democratic state. 

      I now turn to some of the future challenges for the Offices of Ombudsmen. 

      An overall concern I have at present is the move on the part in some jurisdictions to limit the operations of Ombudsmen and to establish new bodies using the good name of “Ombudsman”, but which in fact perform regulatory and advocacy roles. The justification for the creation of such bodies is, sometimes, that there needs to be a degree of “specialisation” in such offices. The argument is that it is more appropriate to have a “specialist” office than the generalist approach taken by traditional Ombudsman staff and advisors, even though, of course, some specialization develops in generalist offices.

      In my opinion there is great danger in establishing an Ombudsman-type body which has sole responsibility for looking after complaints about a single agency or government department. The risk in so doing is that either a specialist “Ombudsman” will be “captured” and overly “influenced” by that single agency, or may find itself unable to work collaboratively and appropriately with that agency, because there is too much conflict between the single agency and the single organisation handling complaints about it. There have been some proposals in this regard recently in various places in Australia. I believe that there are great risks in proceeding along that path at least for the two reasons mentioned above but also because there is a potential for confusion of citizens as a result of establishing several Ombudsman bodies either with that name or performing a similar role. Citizens can be confused about where they should go with their problem, and therefore do not proceed to complain.

      Other challenges come as a result of budget decisions, which can for small offices such as an Ombudsman have a devastating effect on the level of services available. Large departments and agencies can move people around, for example, or quickly change the focus of their activities in response to challenges. Small offices such as the Ombudsman, with staff numbers of 120 or less (often) do not have the flexibility that large agencies have. The only alternative for them in order to meet stringent budget requirements is to have fewer people; spending on “optional” activities having been reduced already in order to meet the difficult circumstances of the recent past. 

      There is a fundamentally important requirement of Ombudsmen to prove their worth. This sometimes means taking greater “risks” in reports in order to establish the real worth of the organisation rather than taking a safer course which is sometimes tempting in order to avoid controversy. How one balances these requirements is a matter of judgement and sometimes difficult to keep front of mind especially when the resources available are more and more limited.

      It is important for Ombudsman offices to have an appropriate engagement with members of the parliament to which they may report, either directly or through some other mechanism. The Ombudsman should, where appropriate, for example, call upon and explain his or her role to all new members of a Parliament.

      The media needs to be involved to ensure that appropriate information is provided publicly to those who can use the Ombudsman’s services, as well as of course, producing an annual report. However, the manner in which the media approaches are structured needs to be carefully handled and an appropriate strategy developed. Every word in a press release needs to be thought through. I recall whilst working for a major marketer of consumer durables some years ago, having contact with one of the Directors of the parent company 4 based overseas. That person saw a draft of a press release I had prepared, on behalf of my employer. That employer was under attack from one of its shareholders. That press release used the word “nonsense” which that Director considered inappropriate. He felt that the words “no sense” were more appropriate, as the word “nonsense” had an emotional overtone to it, whereas the phrase “no sense” was more accurate in any event when talking about a proposal from that dissident shareholder which was illogical. In short, what this means is that every word in a press release and every word (or phrase) used by the Ombudsman, commenting on any matter or used in one of his or her reports, needs to be thought through carefully in order to ensure any published material has a positive impact. 

      Reports prepared by an Ombudsman should be relatively short, and thus quick and easy to read. In relation to major issues, it might well be preferable to break the report up into a series of reports related to a large issue by dealing with aspects of it and getting those reports out quickly rather than waiting to have the perfect lengthy report available. 

      An Ombudsman also needs to have good evidence on which to make any findings or recommendations. Assumptions about facts or circumstances should never be made; it is always preferable to be more conservative and correct, rather than advancing “a good idea at the time” which may prove to be based proved to be inaccurate on subsequent careful examination. 

      An Ombudsman needs to develop his office into a good working “team”. Organisations which are often attacked for either doing something or doing nothing, are at risk of having a culture which is itself not optimal. The Ombudsman needs to be a leader who exhibits exemplary leadership skills, especially when extensive and important reports are released and where the Ombudsman is publicly taking a stance on an issue which is of importance to the community, of which in a sense, he or she is a leader as well. 

      As far as possible an Ombudsman should work collaboratively with departments and advise leaders of those departments when a report is likely to be adverse. Avoid surprises and work as collaboratively as possible. 

      An Ombudsman needs to be aware of the good things that can be available to his or her office from the use of social media, but also be aware that if it is used, it needs to be monitored. The Ombudsman also needs be aware of the fact that social media might make his or her office less relevant or important and accordingly, needs to use it appropriately for the purposes of that office. 

      Finally, let me stress that Ombudsmen should not be averse to the idea of praising departments and agencies when giving messages about the good elements of administration. In other words, give examples of when administrative duties are handled well. 

      The question of whether what I have said today is of assistance depends, of course, on the culture within different jurisdictions represented at this Conference. Many of the points I have made are self-evident and appropriate in the Australian environment and may well be useful in other jurisdictions should those who are present, care to make use of them.

      1 ‘International Framework of the Ombudsman Institute’ Sindie de Grenges de Catalinya 1st Edition May 2014