LAWS1115 Lecture 11

The Ombudsman
Purpose of Ombudsman Office
(aka Parliamentary Commissioner for Investigation)
• In independent executive agency
• Answerable to Parliament
o Hard to remove (similar to judges)
• Power to investigate complaints
• Power over most administrative in/action.
• Only remedial power to report/recommend, refer and cajole
• Some general oversight role to Parliament (since it has to report to Parliament)
• Roots in Swedish innovation of 19th century
• Exists in all Australian jurisdictions
• Commonwealth Ombudsman: Ombudsman Act 1976 (Cth)
Ombudsman’s Jurisdiction (Commonwealth)
• ‘investigate .. action that relates to a matter of administration … by a Department or prescribed authority’ (s 5(1))
o Exclusions:
 Named agencies/actions (eg. judges, Governor, parliament)
 Some of which have their own accountability mechanisms (eg. Judicial action – appeals; Public Service employment – PS Boards; Parliament – its privileges committees and electoral process)
• Judges have their own accountability mechanisms – reason, review (appeals)
 Ministers (but not their delegates)
• Who has standing to complain to the Ombudsman?
• Firstly, Ombudsman can initiate action
• Negative standing rule: may decline complainant lacking ‘sufficient interest … in subject matter’.
Privatisation of ‘government’/public activities
• s 3: Definition of ‘prescribed authority’ fairly wide, including GOC
• But privatisation (eg Telstra) has led to need for specific industry Ombudsmen: some government established, some self-regulatory.
Commonwealth Ombudsman’s Powers
• Procedural
o Initiating a complaint is informal – oral or in writing
o s 6 – may decline to investigate (eg year old/stale; insufficient interest; unwarranted; premature; more appropriate forum)
o s 8 – formal investigation; protection for disclosure; no ‘right to appear’
o s 9 – to require information, subject to A/G certifying disclosure ‘contrary to public interest’
 ss 13-14 power to examine/search
 s 36 offence to not co-operate
 s 37 immunity for complaint or supply of information
• Remedial (What can they actually do?)
o ss 10-11 – refer specific questions about the administrative action to the AAT for advisory opinion
o s 15 – report to agency and Minister on action that was:
 unlawful
 unreasonable, unjust, discriminatory
 improper purpose
 irrelevant considerations or lack of reasons.
o Including recommendations on remedial action, changes to law or administrative practice.
o Complainant only entitled to particulars of investigation.
 s 16 report to PM and Parliament on inaction.
 s 19 annual & ad hoc reports to Parliament.
Ombudsman in Context
• Pros
o Free
o Less formal than legal action
o Independent yet with a degree of expertise (administration) and knowledge (from past investigations)
o Can deal with neglect, rudeness
• Cons
o Discretion to not investigate (fully or at all)
o Independence also means no complainant control
o No binding remedies
o Workload
Commonwealth Statistics
(2010 Annual Report
• 45 719 complaints (78% by phone).
• 19 412 within jurisdiction.
• 5233 investigations (many others referred to internal departmental processes).
• 10% uncovered ‘error or deficiency’:
o unreasonable delay (27%)
o procedural deficiency (18%)
o flawed administrative process (16%)
o human error (13%),
o inadequate advice or reasons (12%).
• A modest number of complaints against Ombudsman itself: occasionally lead to change in original finding/report.
Guest Speakers
• Advantages of ombudsman are that it avoids the length and costliness of the legal process
• Investigation power relieves the onus from the complainant to prove their case on their own.
• Ombudsman most commonly tells people they’re asking in the wrong place or asks them to first investigate/complain to the agency (Centrelink)
• Range of factors taken into account when deciding whether to investigate
• All the powers of a Royal Commission, but in the vast majority of cases, investigations are less serious and drawn-out
• Ombudsman look for:
o i) practical remedies for the complainants; and
o ii) underlying systemic problems to minimise the incidence of problems in the future.
• Problems that Ombudsman has only powers of persuasion and so, has to find common ground with the agency; it cannot make arbitrary decisions.

• Telecommunications Ombudsman scheme an example of industry-based Ombudsman schemes
• Useful for having complaints investigated and resolutions facilitated once no success has been had into the ‘Tel Co’ itself.
• Telecommunications Ombudsman is funded by the Telco and bank; however, independence remains a hallmark, need to avoid being pressured.
o Similar situation for all industry-based Ombudsman schemes, this is good because the government does not need to fund them through the courts.
• Necessities:
o Independent
o Accessible – no costs, unlike courts
o Accountable
o Fairness
o Efficient
o Effective
• These are benchmarks set by the government
• Government also, in establishing the TIO, made it mandatory that each Telco join and make an effort to work with the Ombudsman.
• Group of 27 people model now used in Ombudsman
o Used to ensure that these requirements be followed.
• TIO constitution sets out what the TIO has jurisdiction to handle.
• Unlike an Act of Parliament, this Constitution is relatively easy to amend.
• Council is responsible for initiating changes
• 250,000 complaints in 2008-2009, 90% dealt with relatively quickly through the provision of a TIO reference number and heading back to the telco.
• The TIO can make decisions that are binding on telcos, but if the consume doesn’t like it, they can take the dispute elsewhere.
• TIO also looks at systemic issues through conducting an analysis of complaints data etc.
• the Constitution provides specific powers to the TIO to investigate systemic problems.
• TIO also uses marketplace regulating mechanisms (eg. the Trade Practices Act 1974 and the ACCC which regulates)