Clark's Chapter 11: The Ombudsman

A Summary.


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.
  • 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.