The Evolution of the Role of Ombudsmen in Australia

Write about the Role of Ombudsman for Human Rights Protection.

Anita Stuhmcke in her article ‘Australian Ombudsmen Drafting a Blueprint for Reform” talks about the role of Ombudsmen and that has changed gradually over time. Initially, the conception of Ombudsmen was thought to be an individualistic approach which undergone a sea change to include a collective approach for the benefit of the public[1]. The aim of the article is to understand the wider ambit of the role played by Ombudsmen. In its early inception, the role of the Ombudsmen was limited to the role of playing the “guardian” of the public. By resolving government complaint, the aim was to enhance government accountability. Post 1970, there has been a sea change in the role played by Ombudsmen. Endorsed by the Australian Government, the role of the Ombudsmen has also evolved to include areas of concern such as human rights protection, disability protection and whistle blowing. The article argues regarding the benefit of the new role played by Ombudsman and how the reform needs further action and discussion.

The change in the role played by the Australian Government to gauge the change can be analyzed by understanding three shifting timelines. In the early 1970, the office of the Ombudsman was that of a redress mechanism, which assuaged the conflicts of the citizen. During 1989, the shift was towards making the industries accountable – that is, telecommunication, gas industries so as to make the citizens feel safe and secure[2]. The third timeline saw that both public and private sectors were made accountable so as to ensure the faith of the citizens in the society. This change has been initiated keeping in mind the changing political, social and legal atmosphere in the society and with the fast growing society, the role of the Ombudsmen also need to get overhauled[3]. Therefore, initially the role of the Government was to ensure individual’s rights but with the passage of time, the attention has shifted to ensuring citizen’s rights as a whole, that is, a collective approach to mitigate citizen’s concerns. The three timeline of change in the role of the Ombudsman go ahead to prove that though initially Ombudsmen played the role of an individual caretaker of rights, it has now changed to a collective interest protector of the citizens. Thought the role played by the Ombudsman has changed over time, the factor that has remained constant is the intention of the Government to utilize the Ombudsman in promoting the welfare of the citizens. This dispute resolution mechanism has undergone this change due to the growing disinterest of the citizens and a mentality of revolt against the existing Government. After conducting a survey on the consumers, reasoning has been found as to the change in the role of Ombudsmen. The work area of the Ombudsmen has shifted to consumer protection because the consumers are losing their trust and therefore the Australian Government has tried to engage the Ombudsmen in trying to resolve their disputes. Though the intention of the Government is well founded, there is wide scale confusion in their minds because the role of the Ombudsmen is disjointed and lacks uniformity[4]. The Ombudsmen is divided into few roles- Health Ombudsmen, Government Ombudsmen, Housing Ombudsmen etc. These are done so that there is effective remedy of citizens’ problems.

The Three Timelines of Change in Ombudsman Role

In the year of 2014, a report was published by the Australian Government that tried to analyze the role of the Government in relation to the Ombudsmen. This report said that the move by the Government was in the light of the holistic growth of the citizens and it was a good initiative because all the problems could be resolved under one roof. This move ensured a better handling of disputed and complaints and an overall betterment of the service. The criteria that need to be met by Ombudsmen is that of accessibility, fairness, efficiency, effectiveness, investigation, public accountability etc. The varying problems of the Ombudsmen are  regarding the jurisdiction assessment and the minor communities find it difficult to gauge the jurisdiction of these Ombudsmen[5]. Though there have been many good sides of the reform, there are a few policy errors regarding the reform of the role of the Ombudsmen. The Government has tried to intervene in this matter of growing concern but ended up in selective participation without any due regard given to the role of the Ombudsmen. Ombudsmen have to undergo various changes with regards to the jurisdiction which has cast a prolonged problem on the enforcement on the role of the Ombudsmen. This varying jurisdiction has led to badly constructed policy towards the Ombudsmen.

The article after reviewing the role of the Ombudsmen has tried to suggest a few reformations that can be implemented to ensure that there are no disparities. These recommendations are made keeping in mind both long term and short term policies. The reforms shall effectively try to promote better service delivery to the individuals and make the Ombudsmen more easily accessible to the common people, ensuring a simplified process of policy making and also ensure that the Ombudsmen is free from the clutches of the government.

Alan Cameron in his Report 1991-1992 recommended that the title of the Ombudsmen should be state protected and enhanced so that they do not lose their authenticity and credibility[6]. The titles held by the Ombudsmen are very confusing and instill an emotion of confusion because the citizens find it difficult to relate to the roles played by the Ombudsmen. The institution holds that the Ombudsmen hold specific roles and therefore these roles played by the Ombudsmen are very confusing so as to cause damage to the repute of the institution. The common law countries face the problem of not getting adequate protection from the State. Every private industry has come up with personal Ombudsmen. They have hired their Ombudsmen thereby creating more confusion regarding who to approach for resolving conflicts.  The problem has been regarding the division of work between the Tribunal and the Ombudsmen. Whereas on one hand the Tribunal cannot conduct their own investigation, and they need to follow proper procedure to start an investigation, the Ombudsmen can do so. The Tribunal ahs to make an application to that effect that he needs to start an investigation. The Ombudsmen can initiate their own investigation and come to decisions which are binding in nature

Problems with the Jurisdiction of Ombudsmen

Professor John McMillian was an appointed Ombudsman in the year 2005 for a term of 2 years. He was the appointed Ombudsman in New South Wales and in his various speeches have stressed on the importance of a fair government. The Ombudsman has time and again stressed on the imperativeness of a good government that values the strength of independence of the Ombudsman[7]. He has also mentioned the independence of the Ombudsman as has been mandated by the legislation. Prof McMillan has also written an article themed The Role of the Ombudsman in Protecting Human Rights which has emphasised on the importance of human rights and how that can be achieved with the help of the legislature. In his opinion, the Office of the Ombudsman is independent and is beyond the reach of the executive and the legislature. The Ombudsman plays a very vital role in the protection of human rights. The work of the Ombudsman is oversight and overlooking the human rights of the citizens and protecting their rights. The rise of the Ombudsman is due to the lack of accountability and sensitivity by the Government. The legislature and the executive have a very important role to play with regards to preserving the rights of the citizens and implementing rules and laws that are in the best interest of the citizens[8]. The essence of the Ombudsman is that the citizens know where they can file a complaint and how they can be redressed. The citizens appreciate that their rights are protected and that their rights are preserved and given due importance. The Ombudsman work on varied areas and their work is pertained to the areas of human rights, immigration, policing and so and so forth. Citizens go to the Ombudsman regarding help related to child rights, child support enforcement, tax related policies[9].

The essence of the Ombudsman in Australia is the flexibility in their area of work. The huge areas of governmental actions that come under the purview of the Ombudsman are taken care by them. The Ombudsman Act has undergone amendments that have increased the jurisdiction of the Ombudsman. The Ombudsman is considered the protector of human rights and the recent amendments point towards the fact that the increasing jurisdiction brings under its ambit various rights that can be protected through effective remedy[10]. The Ombudsman works in close connection with the Governmental agencies and in cases of any faltering of the Government the Ombudsman takes effective action[11]. The task that the Ombudsman is invested with also includes inspection of the documents that are Government maintained. The Ombudsman tries to make systematic changes which can be done with the help of enquiries. The following up activity of the Ombudsman along with the overseeing of human rights can be brought about with the help of carefully perusing the reports. There is a conflict between the Tribunal, lawyers and the Ombudsman regarding their sphere of work. Being an Ombudsman himself, the author has expressed his own concerns that whenever there is an involvement of a private agency, the Ombudsman faces problems regarding the enforceability of human rights. The importance of the Ombudsman is that they are not under the supervision of the advocates and can function independently. The role of the Ombudsman is also  that of representation because he is mirroring  the rules and regulations of the Government and also trying to effectively work towards the betterment of them[12].

 James Spigelman AC talked about the integrity branch of the Government and tries to draw attention to the constituents of the integrity branch. He said that the integrity branch was concerned with the function of the Government that talked about how the powers conferred on the Government should be carried out the just it is expected to[13]. He said that the executive, judiciary and the Parliament constituted the integrity branch and they carry out the integrity function. In his opinion the integrity branch comprises fairness, openness, diligence and honesty and it is within the realm of the Ombudsman to carry out the function of all these integrity elements[14]. The integrity branch also constituted the Ombudsman which was created in every state of Commonwealth during the 1970s. Their role played by the Ombudsman involved improvement of decision making and the quality of administration[15]. The Parliament in its endeavour to mitigate the conflicts of the citizens tried to make sure that it was done with the help of the Ombudsman. Spigelman has also said in his article that the Ombudsman is better equipped with the redressal of grievances. Therefore, it can be seen that the role of the Ombudsman has evolved considerably and what was initially an individual dispute redress mechanism has brought under its jurisdiction collective rights of individuals[16].

Reference

Articles

 Brown, A. J., and Sandra A. Lawrence. “STRENGTH OF ORGANISATIONAL WHISTLEBLOWING PROCESSES–ANALYSIS FROM AUSTRALIA.” (2017).

 Buck, Trevor, Richard Kirkham, and Brian Thompson. The ombudsman enterprise and administrative justice. Routledge, 2016.

Field, Chris. “The ombudsman in the 21st century.” University of Western Australia Law Review 43.1 (2018): 118.

Singh, Jang B., et al. “Operationalizing Business Ethics in Organizations: The Views of Executives in Australia, Canada and Sweden.” European Business Review just-accepted (2018): 00-00.

Wheeler, Chris, and Deputy NSW Ombudsman. “Judicial Review of Administrative Action: An administrative decision-maker’s perspective–FULL VERSION.” (2016)

Online Sources

https://classic.austlii.edu.au/au/journals/AdminRw/1991/7.pdf.

https://irep.ntu.ac.uk/id/eprint/5024/1/186330_3998%20Seneviratne%20Publisher.pdf.

https://sites.thomsonreuters.com.au/journals/files/2017/03/AJ-Admin-L-Vol-24-No-1-Contents-1.pdf.

https://www.ombudsman.gov.au/__data/assets/pdf_file/0016/31093/21-July-2006-The-role-of-the-Ombudsman-in-protecting-human-rights.pdf.

https://www.aspg.org.au/wp-content/uploads/2017/08/Conference-Paper-David-Solomon.pdf.