Clark's Chapter 11: The Ombudsman
A Summary.
11.1
The office of the Ombudsman has its origins in Sweden. There are different kinds:
- The ‘classic’ Ombudsman, an independent public office
- Investigates non-legal complaints about actions taken by government departments, statutory bodies or local government.
- Specialist Ombudsmen
- Concerned with particular areas i.e. electricity, legal services, defence, gas industry and industrial/employee relations.
- Also other institutions which work similarly, such as Health Complaints Commissioners and Police Complaint Authorities.
- Private sector Ombudsmen
- Constituted by an industry for handling of complaints related to that industry
- Not based in legislation, do not have the same powers as statute-based Ombudsmen.
- also under legislation dealing with the supervision of other agencies and public organisations.
11.2-6 Origins
- First instituted in Sweden 1809, called the “Justitieombudsman”
- Then spread to other Scandanavian countries, like Denmark in 1953.
- Was a representative of parliament
- Had powers to investigate complaints as well as prosecute public servants who committed offences or neglected legal duties
- Represented the legislature as part of supervision of Executive
- Has evolved to become more independent of the parliament
- Now focuses on handling complaints by citizens about the administration
- The office has spread worldwide, though rare in the US.
- Many deal with human rights issues.
- Office first entered common law jurisdiction with the Ombudsman Act 1962 (NZ).
- UK adopted it in 1967 but called it the Parliamentary Commissioner for Administration
- Attempts to install an Ombudsman in Australia started in 1963 in WA, but did not come to fruition until 1971.
- Following this, all Aus. states and internal Territories (as well as the Commonwealth) adopted the institution.
- There are said to be 3 defining characteristics:
- Appointed by legislature to receive, investigate and resolve complaints from citizens about administrative action/inaction. Not confined to legal acts but may consider injustice and maladministration, and actions that are simply wrong
- Independent of executive and other branches of government. Can only be removed in exceptional circumstances. Similar tenure to that of a judge.
- Has the power to investigate, criticise and publicise, but not reverse administrative action.
- The case for Ombudsmen arises from modern bureaucracy and lack of responsiveness to indiv. cases
- As well as the failure of parliamentary processes to enact administrative justice in individual cases.
11.7 Appointment, term of office and removal
- All Ombudsmen are appointed by the executive
- Terms and conditions of service determined by the Governor
- Obliged to take no other employment
- unless with permission of the minister responsible for the Act.
- Members of Parliament within the last 3 years may not be appointed
- While Ombudsman, they will cease to hold office if they nominate for election to parliament.
- Like judges, they can only be removed by the Governor
- upon resolution of both Houses of Parliament
- There are no grounds required to be proved or established in a resolution in WA, SA, NSW, Vic. and Tas.
- No Aus. Ombudsman has been removed from office
- It’s unclear what grounds for a resolution for removal could be.
- Grounds for vacating the office include:
- Bankruptcy
- Conviction of an indictable offence
- Becoming a member of any parliament in Australia
- Becoming in (the opinion of the Governor) mentally or physically incapable of satisfactorily carrying out the duties of the office.
- In QLD:
- The Act requires that the Legislative Assembly removes the Ombudsman on the ground of proved incapacity, incompetence or misconduct
- Or if convicted of an indictable offence
- Only the Premier may move such an address
- Must give the Ombudsmen a statement of reasons for the motion
- The matter may only proceed after the Ombudsman has been allowed to respond.
- The Act requires that the Legislative Assembly removes the Ombudsman on the ground of proved incapacity, incompetence or misconduct
- In NT, the Ombudsman may be suspended for misbehaviour or incapacity
- These grounds must be conveyed to the Legislative Assembly
- If the LA does not act, the Administrator may remove the Ombudsman.
11.10 How Investigations Start
- Any person affected by an administrative decision telephones the Ombudsman
- May be also instigated at the insistence of a House or committee of the parliament
- Sometimes by others such as a member of parliament or the Governor
- Ombudsman also has power to initiate an investigation
- In one case there is a mechanism imposing a legal duty on a public officer to report certain matters to the Ombudsman
- They may refuse to investigate a matter if it is:
- outside their jurisdiction
- trivial, frivolous, vexatious or in bad faith
- the applicant lacks sufficient interest in the matter
- the matter is out of time
- Most Acts restrict investigations to within 12 months of the matter arising
- There is a discretion to take older complaints if the delay has been justified by the complainant.
11.11-14 Jurisdiction
- In Australia, the Ombudsman’s jurisdiction is confined to the investigation of administrative action of specified departments or agencies.
- In each case the specific statute should be consulted
- These agencies include other organisations that handle complaints
- Certain agencies are excluded
- the Ombudsman can only investigate administrative actions.
- Excluded agencies include those exercising responsibilities of a judicial nature, the governor, the parliament and law officers
- Each Act has its own list, some of which are very specific.
- Some exclusions relate to non-administrative functions
- Crown law officers, eg, would be subject to investigation if they took an administrative action.
- In respect of the included agencies, administrative action includes:
- a decision and an act
- a failure to make a decision
- the formulation of a proposal or intention
- the making of a recommendation
- In all cases the office has jurisdiction over local government, public authorities and State or Territory departments.
- The office investigates the executive branch of government
- Not matters relating to judicial functions.
- “a matter of administration” (the phrase”) has come before the courts.
- It has proved to be elusive
- Judges are reluctant to define it closely.
- There is a distinction between matters of administration and matters of policy (policy is not within the jurisdiction of the office)
11.15 Powers
- The formal powers of Ombudsmen are extensive but rarely invoked
- It works effectively without needing to use all its powers
- Agencies cooperate and voluntarily comply with the Ombudsman and most of their recommendations.
- Formal powers are the same as a Royal Commission (in some states). Most can:
- enter premises
- seize documents
- summon persons to give evidence on oath
- compel the production of documents
- The investigation is private and information cannot be disclosed or used in a court of law.
11.16 To investigate
- Ombudsmen make preliminary decisions whether or not to investigate a matter.
- Refusal to investigate is not normally subject to judicial review
11.17 Determinations
- Ombudsmen of Australia do not have coercive powers to implement their decisions
- The sole power is to make a recommendation, to inform the complainant of the result, and sometimes to report to parliament.
- Proved very effective
- The Ombudsman may conclude that the act or conduct is wrong (reasons include unjust, unreasonable, oppressive, contrary to law)
- May also recommend changes, reasons to be given for the decision, changes made in law or practice, compensation paid, or any other step.
- Cannot substitute their decisions for the agencies’ decisions.
- Does not act as a court or tribunal
- The complainant may resort to admin. law remedies if an agency refuses to accept the recommendations of the Ombudsman
11.18 Review by the courts
- Ombudsmen and staff are immune from civil and criminal proceedings in respect of actions in official capacity
- courts may review decisions (the office is subject to judicial review by the Supreme Courts)
- Determines whether the Ombudsman has the jurisdiction to conduct the investigation
- The decisions are not coercive.
11.19 Practice
- The formal powers of the office are rarely invoked
- There is widespread acceptance by public and public service
- One of the key roles of the office is an educational one
- Powers lie not in the formal provisions but the culture of cooperation.
- The recommendations of the Ombudsmen often lead to policy and administrative changes.
page revision: 4, last edited: 04 Mar 2011 00:15