Chapter 2

Organisation overview

Role and functions

The office of the Commonwealth Ombudsman exists to safeguard the community in its dealings with Australian Government agencies, and to ensure that administrative action by those 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 Australian Federal Police and the Australian Crime Commission, 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.

We cannot override the decisions of the agencies we deal with, nor issue directions to their staff. Instead, we resolve disputes through consultation and negotiation, and if necessary, by making formal recommendations to the most senior levels of government.

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 has six specialist roles:

• 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
• Overseas Students Ombudsman—investigates complaints about problems that overseas students have with private education and training in Australia
• 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, Melbourne, Perth and Sydney. Services are provided by State and Territory ombudsman on behalf of the office in Alice Springs, Darwin and Hobart.

The Ombudsman and Deputy Ombudsman are statutory officers appointed under the Ombudsman Act 1976 . Ombudsman’s office staff are employed under the Public Service Act 1999 . Senior Assistant Ombudsmen are Senior Executive Service Band 1 staff.

Details of the office’s senior executive and their responsibilities are set out in Chapter 4—Management and accountability.

Figure 2.1: Commonwealth Ombudsman organisational structure and senior executive at 30 June 2011

More information is available on the Commonwealth Ombudsman website: www.ombudsman.gov.au

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 existed in ancient Chinese, Indian and Islamic societies.

However, it wasn’t until 1809 that Sweden became the first country to create an ombudsman in the modern sense, namely an independent arbiter of disputes between the citizen and government, enshrined in law and in the context of the nation-state. More than a century passed before the next ombudsman was created in Finland.

Ombudsman functions expanded around the world following World War II. This was due in part to a greater international focus on the protection of human rights and freedoms as well a move towards independence and democracy in many developing nations. The growth of the welfare state also meant that government activities began to reach into citizens’ daily lives in new ways.

Denmark and Norway implemented ombudsman systems in the mid-1950s.

New Zealand became the first English-speaking country to set up an ombudsman in 1962.

Other regions established ombudsman offices in the mid to late 1960s, including nations in Africa, Latin America and the Pacific as well as the 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.

The ombudsman role 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 ombudsman offices will vary, in line with the form of government and the specific characteristics of the country. 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 Office of the Commonwealth Ombudsman began operation on 1 July 1977 under the Ombudsman Act 1976 (Ombudsman Act) and is presently part of the portfolio administered by the Prime Minister.

Since 1977, the statutory responsibilities of the Commonwealth 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 Australian Federal Police (AFP) and the National Crime Authority (now the 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—Australian Capital Territory 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
• 2010—The Office of the Australian Information Commissioner assumes responsibility for investigating actions taken by Australian Government agencies under the Freedom of Information Act 1982 as of 1 November
• 2011—Overseas Students Ombudsman.

Similar organisations

The Commonwealth Ombudsman is a ‘parliamentary ombudsman’, in that it is appointed and funded by government to handle complaints about the administrative actions of government agencies.

Each State and Territory in Australia has a parliamentary ombudsman that handles complaints about actions or decisions made by the government of that jurisdiction.

In addition, Australia has various industry-sponsored ombudsmen that are distinct from parliamentary ombudsmen. They handle complaints for services such as: financial services, employment, public utilities like electricity and water, health insurance, public transport, superannuation, and telecommunications. These operate variously at the State and national level. Companies in these industries are required by law or operating licence to sign up to the relevant scheme, and are then charged for complaint handling.

While the Office of the Commonwealth Ombudsman works cooperatively with industry-based ombudsmen and State and Territory parliamentary ombudsmen, it has no jurisdiction over them.

The office is one of a number of integrity agencies at the national level. These include the Office of the Australian Information Commissioner and the Australian Human Rights Commission, as well as complaint-handling bodies such as the Administrative Appeals Tribunal.

Outcome structure

The Portfolio Budget Statements for 2010–11 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.