Commonwealth Ombudsman - Annual Report 2009-2010 - Chapter 2

Chapter 2

On This Page

1. History
2. The Ombudsman in Australia
3. Role and functions
4. Organisation and structure
5. Program and outcome structure
6. Feature: Connecting with Indigenous communities

Organisation review

Organisation review

History

The idea of an ombudsman-like office, to protect citizens against government mistreatment, is not new. Such institutions have been around since the Roman Empire, and in ancient Chinese, Indian and Islamic societies.

However, the concept of an Ombudsman as an independent arbiter of disputes between the citizen and government, enshrined in law and in the context of the nation-state, is a more recent development.

The modern form of an Ombudsman office began in Sweden in June 1809, but more than a century passed before the next Ombudsman was created in Finland.

Events surrounding World War II provided the impetus for the much wider adoption of 0mbudsman functions in countries around the world. Internationally there was a greater focus on the protection of human rights and freedoms following the depredations of World War II. At the same time, the growth of welfare state models in many countries meant government activities expanded in the social and economic fields, and reached into citizens' daily lives in new ways.

This led to an increased desire to protect citizens from failings and maladministration of the bureaucracy, beyond that offered through court processes. Finally, the move towards independence and democracy in many countries provided the opportunity to consider alternative forms of government that included systems of protection for citizens.

Denmark and Norway implemented 0mbudsman systems in the mid 1950s.

New Zealand became the first English-speaking country to set up an Ombudsman in 1962. Other regions establishing ombudsman offices in the mid to late 1960s included African nations and the Americas, Pacific islands, United Kingdom, Canada and the USA.

A host of other countries followed suit in the 1970s: Papua New Guinea, Fiji, India, France, Spain, Portugal, Austria, Switzerland and many Asian countries.

Ireland and the Netherlands established ombudsmen in the early 1980s.The European Ombudsman (for the EU) began in 1995, and many smaller Pacific nations have been exploring options for an ombudsman function in the Pacific Ombudsman Alliance.

The modern concept of an ombudsman office has become a worldwide phenomenon. It has been adopted by countries that are newly independent, moving to democracy, or that have had a long tradition of stable government.

The focus and role of various ombudsman offices will vary, in line with the form of government and the specific characteristics of the country. Nevertheless, the growth in ombudsman offices, and the adoption of the concept in many other areas of human endeavour show that it has stood the test of time.

In some countries the ombudsman office plays a strong role in the protection of human rights, while in other countries, such as Australia, a separate body (the Australian Human Rights Commission) performs that role.

The Ombudsman in Australia

Various state government ombudsman offices (as well as the Northern Territory) were established throughout the 1970s in Australia.

The Australian Capital Territory (ACT) Ombudsman commenced in 1989 when the ACT became self-governing.

The office of the Commonwealth Ombudsman commenced operation on 1 July 1977 under the Ombudsman Act 1976 (Ombudsman Act) and is presently in the portfolio administered by the Prime Minister.

The statutory responsibilities of the Ombudsman have expanded as follows:

• 1981—handling complaints about the Australian Federal Police (AFP)
• 1982—handling complaints about freedom of information
• 1983—Defence Force Ombudsman
• 1988—compliance auditing of AFP and National Crime Authority (now Australian Crime Commission (ACC)) telecommunications interception records, with added responsibilities of monitoring controlled operations in 2001 and auditing of surveillance device records in 2004
• 1989—ACT Ombudsman
• 1993—Telecommunications Industry Ombudsman (since transferred to a private sector Industry Ombudsman)
• 1995—Taxation Ombudsman
• 2005—assessing and reporting on the detention of long-term (two years or more) immigration detainees
• 2005—Immigration Ombudsman
• 2005—handling complaints about Commonwealth service providers
• 2006—Postal Industry Ombudsman
• 2006—compliance auditing of access to stored communications by the AFP, ACC, Australian Commission for Law Enforcement Integrity and other enforcement agencies (such as the Australian Customs and Border Protection Service), and the use of surveillance devices by state law enforcement agencies under Commonwealth legislation
• 2006—Law Enforcement Ombudsman, with a specific responsibility to review the adequacy and comprehensiveness of the AFP complaint-handling system.

Role and functions

The office of Commonwealth Ombudsman exists to safeguard the community in its dealings with government agencies, and to ensure that administrative action by Australian Government agencies is fair and accountable. The Ombudsman has three major statutory roles:

• complaint investigation: investigating and reviewing the administrative actions of Australian Government officials and agencies, upon receipt of complaints from members of the public, groups and organisations
• own motion investigation: investigating, on the initiative or 'own motion' of the Ombudsman, the administrative actions of Australian Government agencies—often arising from insights gained from handling individual complaints
• compliance auditing: inspecting the records of agencies such as the AFP and ACC, to ensure compliance with legislative requirements applying to selected law enforcement and regulatory agencies.

The complaint and own motion investigation roles of the ombudsman are the more traditional ombudsman roles and make up most of the work of the office. The guiding principle in an ombudsman investigation is to examine whether the administrative action under investigation is unlawful, unreasonable, unjust, oppressive, improperly discriminatory, factually deficient, or otherwise wrong. At the conclusion of the investigation, the Ombudsman can recommend that corrective action be taken by an agency. This may occur either specifically in an individual case or more generally by a change to relevant legislation, administrative policies or procedures.

A key objective of the Ombudsman is to foster good public administration within Australian Government agencies, ensuring that the principles and practices of public administration are sensitive, responsive and adaptive to the interests of members of the public.

The Ombudsman is impartial and independent and is not an advocate for complainants or for agencies.

The Commonwealth Ombudsman can consider complaints about almost all Australian Government departments and agencies, and most contractors delivering services to the community for, or on behalf of, the Australian Government.

In addition, the Ombudsman Act confers five specialist roles on the Ombudsman:

• Defence Force Ombudsman - handling complaints by serving and former members of the Australian Defence Force relating to their service
• Immigration Ombudsman - dealing with matters relating to immigration
• Law Enforcement Ombudsman - handling complaints about the conduct and practices of the AFP and its members
• Postal Industry Ombudsman - handling complaints about Australia Post and private postal operators registered with the Postal Industry Ombudsman scheme
• Taxation Ombudsman - dealing with matters relating to the Australian Taxation Office.

The Commonwealth Ombudsman is also the ACT Ombudsman in accordance with s 28 of the ACT Self-Government (Consequential Provisions) Act 1988 (Cth). The role of ACT Ombudsman is performed under the Ombudsman Act 1989 (ACT), and is funded under a services agreement between the Commonwealth Ombudsman and the ACT Government. The ACT Ombudsman submits an annual report to the ACT Legislative Assembly on the performance of the ACT Ombudsman function.

Organisation and structure

The national office of the Commonwealth Ombudsman and the office of the ACT Ombudsman are co-located in Canberra. The Commonwealth Ombudsman also has offices in Adelaide, Brisbane, Darwin, Hobart, Melbourne, Perth and Sydney.

The Ombudsman and two Deputy Ombudsmen are statutory officers appointed under the Ombudsman Act, with one Deputy Ombudsman position left vacant from March 2010. Ombudsman office staff are employed under the Public Service Act 1999 (Public Service Act) . Senior Assistant Ombudsmen are Senior Executive Service Band 1 staff.

Details of the office's senior executive and their responsibilities are set out in the Management and accountability—Corporate Governance section in Chapter 4 of this report.

Figure 2.1 illustrates the organisational structure of the Ombudsman's office.

Program and outcome structure

The Portfolio Budget Statements for 2009–10 defined one outcome for the office.

The outcome was:

• Fair and accountable administrative action by Australian Government agencies by investigating complaints, reviewing administrative action and inspecting statutory compliance by law enforcement agencies.

This annual report describes our performance against this outcome.

Figure 2.1: Commonwealth Ombudsman organisational structure and senior executive at 30 June 2010

Feature: Connecting with Indigenous communities

In our engagement with Indigenous Australians in the Northern Territory we see each community as unique and, therefore, need to be aware of factors like the views, needs and history of the people.

Indigenous Australians rarely lodge complaints through the usual means. This can be for a variety of reasons (some of which are currently being researched), such as complaining is difficult for them for cultural and/or language reasons or due to communication technology limitations. Visits by the Ombudsman's office are the only reliable way to provide access to our complaint services, which is both resource-intensive and costly.

Through consultation with Tangentyere Council, we heard of a successful internet computer room in the Papunya community, north-west of Alice Springs, which offered an alternative. Residents had set up the computer room to develop computer skills and increase their communication networks and access to services. With help from Tangentyere Council, the computer room support worker and a local Indigenous interpreter, we looked into this as an opportunity for contact with the community between visits.

This strategy proved effective. We have been able to discuss issues with complainants via skype and obtain the help of the computer room support worker to provide information to complainants via email.

It helpes these people connect with us, and allows us to provide information to them. We hope to identify similar opportunities in 2010–11, but note the limited number of communities that have internet access and system support.

Mrs Mildred Mamarika of the Umbakumba Community Board and now the Indigenous Engagement Officer for Umbakumba, assisted the Indigenous Unit during their May visit to the NT Groote Eylandt community. This photo was taken outside the Community Store, a good place to meet the people.