This is the seventh in a special series of posts on the 50th anniversary of the Kerr Report, examining whether Australian administrative law is still fit for purpose. To see other posts in this series, click here.

BY ANITA STUHMCKE

This series celebrates and analyses the ‘new administrative law’ as it has developed in Australia since the Kerr Committee’s report 50 years ago. The focus of this blog is the Commonwealth Ombudsman. My argument is that the institution is no longer fit for purpose.

What is an ombudsman and why was it introduced?

In its modern form the institution was introduced in 1809, in the civil law jurisdiction of Sweden.

The Justitieombudsmannen emerged alongside the development of the ‘modern bureaucracy’ in Europe in the late 18th century. This modern bureaucracy, which implemented government decision making, differed from previous types of administration such as custom and patronage. It used formal records, standardised rules and relied upon obedience to authority. The administrative decision makers who comprise this bureaucracy in effect govern the governed (the citizen).

The role of the Ombudsman is to humanise this administration; to provide a forum for citizens to complain about this modern bureaucracy. In doing so the ombudsman institution functions as a circuit breaker between the government decision maker and the citizen – a free, informal, independent and impartial institution with no power except for that of persuasion. Without an ombudsman, the only recourse left to a citizen to pursue is the courts (expensive and slow), tribunals or media.

The success of modern bureaucracy is evidenced by the fact that today ombudsman are a common place global phenomenon. Over 200 ‘independent’  ombudsman with jurisdiction to investigate complaints of maladministration by citizens currently exist in over 100 countries. In what has been coined ‘ombudsmania’, variations upon the institution are both numerous and diverse, and include private industry and organisational ombudsman.

Globally each ombudsman is different. This is an obvious consequence of the needs and context of the jurisdiction they operate within. However each shares the Swedish grundnorm and is part of a modern global success story.

How did the Ombudsman institution come into focus for the Kerr Committee?

By the 1970s a handful of international and Australian common law jurisdictions had adopted the civil law Ombudsman model: New Zealand (1962), the United Kingdom (1967), Western Australia (1971), South Australia (1972), Victoria (1973), Queensland (1974) and New South Wales (1974). The Commonwealth Ombudsman joined these – operating from 1977.

The New Zealand Ombudsman was the first introduced into a common law system of government. The following year (1963) the first Australian federal parliamentary questions concerning the creation of an Ombudsman by the Opposition to the Government of the day were asked. In an internal Treasury report provided to the Secretary of the Prime Minister’s Department in 1967, it was claimed that political leaders at a federal level were ‘lukewarm or opposed to Ombudsmen’ for three reasons (see references to archival material here):

  1. Parliament provides sufficient access for individual grievances and administrative problems;
  2. the population is too large in relation to Commonwealth functions with the special difficulty of vast geographical spread; and
  3. difficulties associated with the federal system.

But timing is everything. The Kerr Committee was established in 1968, and by October 1971 had recommended a new system of administrative law which included an Ombudsman.

Why did the Ombudsman become one of the Kerr Committee’s recommendations?

Clearly by the 1960s opposition had given way. Notably this giving way was a political and legal movement rather than a populist one, a process of evolution rather than revolution.

The political movement is oft attributed to a widespread recognition that Westminster accountability was failing; that ministerial responsibility and individual parliamentarians pursuing citizen complaints had ceased to be effective for citizens checking government action. However there are other reasons. Academic support for the Ombudsman concept was growing in Australia in the 1960s with significant articles and monographs by Geoffrey Sawer and Naomi Caiden urging the establishment of ombudsman offices. Further reasons include that Guy Powles – the first New Zealand Ombudsman who was described in the First Annual Report of the South Australian Ombudsman as ‘the doyen of Ombudsman in the English speaking world’ – was influential in Australia. His visit here in 1971 stirred political ombudsman dust. Finally, it has been somewhat cheekily observed that ‘things of a foreign origin have always commanded much mystique and assumed superiority in Australia (particularly if they come from Scandinavia)’ .

Was it the Kerr Committee proposal for the Ombudsman which was adopted?

No and yes.

The 1971 proposal of the Kerr Committee to embed a Commonwealth Ombudsman into the Australian system of administrative law was both bold and different. Bold – given the Commonwealth Ombudsman would be the first federal common law ombudsman in the world.  Different – as the Kerr Committee vision of the ombudsman model was not adopted by the Ombudsman Act 1976 (Cth).

Bold: The proposal of the Kerr Committee was for the world’s first federal Ombudsman

The Commonwealth Ombudsman would be the world’s first federal ombudsman. Today they remain a rarity. Australia remains the only federation apart from Belgium to have such an office. While there have been proposals for other federal Ombudsmen, such as in the United States (when in 1969 the American Bar Association proposed a federal Ombudsman), to date no others have emerged.

Different: The ombudsman model adopted was not the Kerr model

The Commonwealth Ombudsman which threw open its doors in 1975 was not the institution proposed in the Kerr Report.

The Ombudsman initially envisaged by the Kerr Committee included the function of complainant advice. The Ombudsman would have the power to advise complainants of their rights of review before courts or tribunals, and also to proceed on their behalf. The Kerr Report framed this as a ‘General Counsel for Grievances’ with the ‘grievance man’ being ‘within the system of administrative review rather than in the parliament-executive context’ (at [313]). This would accommodate an advocacy role that was not performed by the traditional Ombudsman model.

This proposal was rejected. The Office broadly conceived of as a citizens’ advocate in the Kerr Report was revised by the Bland Committee, which ‘saw a less extensive role for the Ombudsman than the Kerr Committee’. The Bland Committee followed the Kerr Committee and produced the Interim Report of the Committee on Administrative Discretions, Parl Paper No 53 (1973) and the Final Report of the Committee on Administrative Discretions, Parl Paper No 316 (1973). The Bland proposals were ‘for an Ombudsman located outside the administrative review system, oriented towards the resolution of individual complaints and generally better at swatting flies than hunting lions’ (1991 Review of the Office of the Commonwealth Ombudsman, 14). It was this model which was adopted.

In terms of implementation of the Commonwealth Ombudsman, it is noteworthy that Australian ombudsmen are always promised by the opposition (much like the integrity debate we are now seeing). Before becoming Prime Minister, Gough Whitlam said in his 13 November 1972 policy speech that

[A]n Ombudsman will be appointed to act as the guardian of the people. He will investigate complaints of unjust treatment by Government departments and agencies, and report directly to Parliament.

Once he became Prime Minister it was difficult (at that point in political historical culture) to retreat from such a promise.

The modern office of the Commonwealth Ombudsman

The modern Commonwealth Ombudsman is not the same office as the Commonwealth Ombudsman which threw open its doors in 1975.

  1. There is a shift in operations

Most fundamentally, there is a statistical reduction in the investigation of individual complaints and an increased focus on systemic issues – suggesting change to improve the underlying problems of government administration.

Interestingly the most recent 2019-2020 Annual Report states there were 54,633 contacts made in 2019-2020 – how many were investigated is not reported. This is a divergence in reporting from past office practice (although, perhaps as a neoliberal form of compensation, there are copious statistics as to surveys of customer satisfaction).

  1. There is an addition of functions

The office has cycled in and out of different additional titles with the following separate titles being currently held: Defence Force Ombudsman, Overseas Student Ombudsman,  Postal Industry Ombudsman, the ACT Ombudsman and VET Student Loans Ombudsman.

The office also now oversees private sector activities, including private health insurers, and has growing audit functions such as inspections of covert and intrusive powers by law enforcement bodies – to name just a few.

Is today’s office fit for purpose?

I think not.

We have arrived near the point at which the Commonwealth Ombudsman institution is transformed so much that it risks credibility in stating that its primary purpose is the protection of the interests and rights of an individual citizen. When evaluated against the Office’s original objectives of protecting an individual’s rights of review of discretionary decision making, the Commonwealth Ombudsman is failing the individuals for which it was established.

Below I explain the following five reasons to evidence this conclusion:

  1. The location of the office within the executive in the system of government
    (OR, I call this compromising independence/limiting resourcing/reducing transparency/marginalising interference).
  2. The ‘new’ auditing statutory functions of the office
    (OR, in my words, rubber stamping).
  3. The complainant profile
    (OR, the people who use the office are the white middle-aged middle income males).
  4. The fact that, of 10 Ombudsmen who have been appointed, only one has been a woman, and there has been an absence of intersectionality in appointments
    (…no more needs to be said).
  1. The changed landscape of complaint handling
    (OR …industry and organisational ombudsman leading the way).

I now turn to elaborating on why I see the five points above as current problems and suggest ways forward.

Problems and Recommendations for Reform

I believe the Office of Commonwealth Ombudsman remains necessary in 2021. My recommendations below have the goal of reorienting the office back to its original purpose: to return the Ombudsman, albeit a changed model of the Ombudsman, to the Kerr Report’s vision of its place in the Australian system of administrative justice.

My first suggestion is that the Ombudsman be an officer of Parliament and be properly resourced. Both the Kerr and Bland Committees recommended the Office be located within the government not Parliament, in a departure from the classical European formulation of the Ombudsman. As Pearce points out, it was the adoption of this point of similarity between the models advocated by the Kerr and the Bland Committees which is of ‘major importance to the development of the office’ (‘The Commonwealth Ombudsman: The Right Office in the Wrong Place’ in Robin Creyke & John McMillan (eds), The Kerr Vision of Australian Administrative Law — At the Twenty-Five Year Mark (1999) 54). Annual Reports of the Commonwealth Ombudsman, especially those in the first two decades of operation, reiterate as a constant theme the need for better funding and increased staff levels to deal with the rising number of complaints. Without an adequate budget the ombudsman institution has four available responses: to reduce individual complaint handling; to reduce staff; to create alternate revenue sources; and to expand functions which secures additional resources for internal reallocation. It is no surprise that all these have come to pass.

Most critically the ongoing absence of formal constitutional or legislative protections for the Commonwealth Ombudsman should be reviewed. Here I suggest we revisit the New Zealand Ombudsman model to learn how to protect the Commonwealth Ombudsman by (a) increasing independence and (b) ensuring adequate resources. In particular, we should consider appropriating the New Zealand model of dividing Ombudsman parliamentary oversight between three parliamentary committees for budget, strategy and oversight. This not only makes government and parliamentary direction of the Ombudsman almost impossible, it also is more likely to result in adequate resourcing.

My second suggestion is to review the oversight or audit function of the office. There is a bright line between using an ombudsman to ‘rubber stamp’ government policy and allowing the ombudsman to interrogate complaints. Naturally the jurisdiction of the Ombudsman will move with government policy. As government policy becomes more dehumanising, so too will the Ombudsman. For example if there was no offshore detention there would be no need for Ombudsman oversight. While an Ombudsman cannot change government policy, it can be utilised by government to make inhumane practices seem humane. Another recent example of this is the Ombudsman’s response to Robodebt, which – while it usefully suggested improving the rollout – failed to question the systemic need for the scheme itself.

My third suggestion addresses the fact that the existence of a possibility to complain does not translate into equal opportunity to do so. Complaints made to government ombudsman are rarely made by people who are socially disadvantaged. They are made by people who are from older, middle-class backgrounds rather than from the lower-class, young or minority groups. For example, in Australia the Winangali Reportfound barriers to making a complaint to the Commonwealth Ombudsman by Indigenous people include: favouritism; inter-family rivalries; fear of reprisals; and the belief that this is their lot in life. This exclusion of marginalised groups confirms the privilege of the autonomous independent liberal male such that today the reality remains that observed in 1974 by HS Doi: that the Ombudsman really is ‘…the little man’s corridor of access to the seat of power’.

My fourth suggestion focuses upon increasing the diversity of individuals appointed to be Ombudsman. Ironically in Australia the gendered nature of the title has largely been unproblematic given that 9 out of the 10 appointments to the Commonwealth Ombudsman have been male. Further, the males have been all of a certain age and background. Only a handful of Ombudsmen have been appointed from a consumer background. In terms of appointment processes, there is a marked absence of transparency. Increasingly recent appointments are made from trusted individuals within the public service. Section 21 of the Ombudsman Act states simply that the Ombudsman shall be appointed by the Governor-General.

Secrecy in Ombudsman appointments has been rejected by the United Nations. On 16 December 2020, the UN adopted ‘The Role of the Ombudsman and Mediator Institutions in the Promotion and Protection of Human Rights, Good Governance and the Rule of Law’ (A/RES/75/186). Known as ‘The Venice Principles,’ this statement recognises the importance of the institution of Ombudsman as an integral part of a democratic system. The Venice Principles, the equivalent of the Paris Principles for National Human Rights Institutions, are 25 principles that protect and promote the Ombudsman institution. The principles state that ‘the procedure for selection of [Ombudsman] candidates shall include a public call and be public, merit-based, objective, and provided for by the law’.

Australia has endorsed the Venice Principles. The resolution was proposed by the Kingdom of Morocco and co-sponsored by 91 countries, including Australia. Indeed Chris Field, the Western Australian Ombudsman and also the President of the International Ombudsman Institute stated: ‘I wish to acknowledge, and sincerely thank, the Australian Government for its support of the resolution.’

Arguably legislative change to s 21 of the Ombudsman Act is now well placed to follow.

My final suggestion (or plea) is that the institution reinvigorate its original purpose. The field of complaint handling is now taken up with a plethora of integrity-type institutions, including, for example, anti-corruption, police complaints, prisons, human rights, anti-discrimination, access to information, privacy, whistleblowing and other integrity, oversight, misconduct and/or complaint handling roles. The office of Ombudsman is under pressure to differentiate itself in this landscape. My suggestion is that rather than compete for an integrity identity, the Commonwealth Ombudsman should change tack and emphasise that it is the Ombudsman’s method of complaint handling – not that it is a complaint handler – that differentiates it from these other institutions. Recent scholarly attention has been directed towards ‘ombudsprudence’ – a focus on what makes the office unique amongst other state institutions.

Conclusion

The operating environment of the Commonwealth Ombudsman has changed radically since its introduction in the 1970s, in ways never contemplated by the Kerr Report. The central example of the response to this changed environment is that the Commonwealth Ombudsman has consciously and steadily reduced its intake of individual complaints.

Yet, as it has done so, its jurisdiction has steadily increased. Today the Commonwealth Ombudsman has three clear functions: individual complaint-handling, systemic investigation, and audit. This is a change in emphasis away from allowing the individual citizen to complain about the government towards the goal of what may be broadly termed the quality control of government. This movement away from providing expert independent attention to the citizen’s complaint is far from the original design of the institution in the Kerr Report and the Bland Report. It also departs from the description of the essential features of the Ombudsman Act in the Explanatory Memorandum which states that ‘[T]he essential function of an Ombudsman is to investigate complaints made to him about administrative functions of officials…’.

This change in focus raises a question that goes to the heart of the institution – is there a danger that the balance has tipped so that the office may now be perceived as a convenient tool of the state? This possibility was flagged 50 years ago by the Kerr Committee when it commented upon the tension between administrative review and administrative efficiency:

We have been mindful that it is essential to achieve a balance between the desirability of achieving justice to the individual and the preservation of efficiency of the administrative process … [A]lthough administrative efficiency is a dominant objective of the administrative process, nevertheless the achievement of that objective should be consistent with the attainment of justice to the individual.

As the Kerr Committee warned, administrative efficiency may come at the expense of the individual. Arguably the chief beneficiary of any administrative efficiency achieved through the changed jurisdiction of the Commonwealth Ombudsman’s Office is the executive branch of Government and not the citizen.

I hasten to add that this is a criticism of neither past nor current Commonwealth Ombudsmen. Over its now long history, the office has proven its worth time and again in addressing citizen concerns and improving government administration. Indeed this has been achieved in the face of ongoing normative barriers to the effective operation of the office, including the structural orientation of the Australian common law legal system towards courts and tribunals.

The issue, as I see it, is not that the Commonwealth Ombudsman is not needed – it is. Government must be held accountable. In this space there is a need for ombudsman review of citizen complaints about poor or rude service through to serious maladministration. There is ongoing need for an independent institution to interrogate administrative decision making – an institution which is free and quick. The socio-political origins of the ombudsman institution, predicated upon the weakness of the individual citizen, have not changed. Access to justice and effective resolution of individual citizen complaints is essential to a healthy democracy.

Rather the issue is that the Commonwealth Ombudsman is slowly and surely vacating the space of citizen complaint resolution. The danger that follows is one of perception, where the Ombudsman serves the underlying administration of the state rather than serving administrative justice. It is from this perspective that I urge a rethink, and perhaps a revival of the Kerr vision for the office – at least in so far as the office be refocused to centre citizen complaints and the attainment of administrative justice for the individual.

Anita Stuhmcke is a Professor and Associate Dean Research in the Law Faculty at the University of Technology Sydney, Australia.

Suggested citation: Anita Stuhmcke, ‘The Commonwealth Ombudsman: still fit for purpose?’ on AUSPUBLAW (17 September 2021) <https://auspublaw.org/2021/09/the-commonwealth-ombudsman-still-fit-for-purpose/>