06 Feb 1998: The comments and reflections of the outgoing Ombudsman

Commonwealth Ombudsman Philippa Smith finishes her appointment on Friday 6 February.

After nearly five years as Ombudsman Ms Smith has some strong feelings for the office and some thoughts about how the Ombudsman institution should continue as one of the few truly accessible and independent forms of redress open to Australian citizens.

Ms Smith has documented her comments and reflections, and the values she believes should be enshrined in the Ombudsman institution in the following media statement …

The Commonwealth Ombudsman — along with the Auditor General — has a special reporting role and relationship to Parliament. The Ombudsman’s role provides a particular oversight of all government agencies, and as the independent and most accessible investigator of citizens’ complaints, the Ombudsman also has a special responsibility to citizens.

When the office was established in 1977, the Prime Minister of the day, Malcolm Fraser, said:

‘The establishment of the office is directed towards ensuring that departments and authorities are responsive, adaptive and sensitive to the needs of citizens.’

That same ‘sensitivity’ and watch is needed today. The new and complicated ways in which government is structuring its relations with citizens mean that the Ombudsman’s role is essential.

The priorities of an Ombudsman

Resolution of individual complaints is a fundamental part of the Ombudsman’s charter. Complaint resolution is also particularly important to individuals trying to take on what can seem like an all powerful and uncaring bureaucracy.

Last year around 50,000 people came to the Ombudsman’s office, and the number of citizens seeking the Ombudsman’s assistance soared by around 60 per cent over the past three years.

It is at times of great policy and administrative change that the Ombudsman’s role and statutory reporting function to Parliament becomes even more critical.

Particular priorities

Since becoming Ombudsman, complaint prevention has been my priority. By looking beyond individual complaints, through the pattern of complaints, we have been able to use the own motion powers in the Ombudsman Act to investigate and identify the systemic problems causing many complaints.

I am particularly proud of our achievements in systemic investigations and reporting. In many cases we have directly improved public administration and/or triggered wide ranging debate about service standards and administrative procedures. This debate has been constructive for agencies and citizens.

Just some of our own motion investigation reports have included:

• Treatment of whistleblowers in the AFP—complaints from AFP whistleblowers prompted an investigation which recommended a series of improvements to the management and treatment of whistleblowers.
• ATSIC (New Burnt Bridge Report)—led to improved funding procedures and principles to guard against conflicts of interest. The Federal Court challenge re-affirmed the Ombudsman’s right to report on matters in the public interest.
• DSS service to Alice Springs Town Camps, after learning that a large proportion of Aborigines in and around Alice Springs were not receiving benefits, the Ombudsman investigated and recommended a series of changes to DSS procedures.
• Oral Advice, the Ombudsman investigated a series of complaints from people who received incorrect advice and recommended changes to procedures for delivering and recording advice and new compensation measures for disadvantaged clients.
• How the Australian Defence Force responds to allegations of serious incidents, the Chief of the Defence Force asked the Ombudsman to investigate and recommend improvements to Defence investigations.
• Contracting Out in the Public Sector, the Ombudsman initiated debate and investigated the public accountability aspects of government services contracted out to the private sector. The debate is still continuing.
• Survey of internal complaint procedures, only 20 per cent of agencies had internal complaint handling arrangements which met the Australian Standard, and the Ombudsman’s office has been working with agencies to improve complaint handling.
• Detention Centres, the Ombudsman investigated after learning that a number of Immigration detainees were being held for long periods in the State prison system as a consequence of administrative rather than judicial decisions.

The Ombudsman’s own motion work is critical if the office is to have more than a bandaid role in complaint resolution, because this work can actually prevent further problems.

To my mind, attention to these systemic issues is an important—and cost effective—feature of the Ombudsman’s office.

Major projects and policy work currently represents between 10 and 20 per cent of the Ombudsman’s overall activity. We have estimated that through our major projects and policy work alone, the Ombudsman’s office has delivered around $35 million worth of investigations to the Government—this has happened with a current appropriation of only $7.5 million.

There are another 30 major projects investigations in progress, and in assessing the real value of an effective Ombudsman’s office, one must also take into account the ‘demonstration’ or qualitative impact that this major projects work has on better government.

Disappointments

Despite these achievements, I am disappointed by the apparent marginalisation of the office, both in terms of its resources and ensuring a commitment to accountability.

From its recent actions, it appears the Government does not want to fund a fully effective Ombudsman’s office, and in its bid to ‘streamline’ and free up the bureaucracy, I am concerned that the scrutiny of the Ombudsman’s office may be discounted to the status of ‘red tape’.

Such a view is short sighted if the needs of citizens, service standards and values of probity in the use of government powers or use of public money are to be kept in balance and used properly.

The checks and balances of an effective Ombudsman amount to ‘good red tape’.

If novel arrangements such as using third parties or contractors to deliver government services are to be effective, accountable and have citizens’ confidence, they will need careful monitoring, especially during their implementation stages.

The Government still needs to clarify the Ombudsman’s jurisdiction in cases involving contracted service delivery, and put the matter beyond argument.

This is a time of great change in administrative policy and service delivery, and it is at times like these that citizens need a strong Ombudsman. Yet at a time when complaints to the Ombudsman have significantly increased, the office has had to cope with a 19 per cent budget cut.

These cuts have already forced the office to cut back on some important functions and it faces some additional viability issues if it is to fulfil its statutory role and maintain the quality of investigations and scrutiny expected of it.

I have written to the Prime Minister about this.

Office staffing has now been reduced from 100 to 85, yet the office must still serve the geographic spread of Australia, and be available to investigate complaints about more than 100 agencies like DSS, DEETYA, DIMA, CSA, CentreLink and the police. The office must also provide specialist functions like the Tax Ombudsman, the Defence Ombudsman and the intercept audit functions of the National Crime Authority and the Australian Federal Police.

It is easy to understand that the office can strike problems trying to provide the geographic and specialist spread required for effective investigations and scrutiny.

I am proud of what the office—through the efforts of its staff—has achieved, but the viability of the office is very shaky and we are currently only able to investigate about 40 per cent of all complaints presented to the office.

The Government needs to show its commitment to the office. Financial support is needed to ensure a reasonable financial infrastructure.

A decision is also pending on whether the office will receive support for the legislative framework and resources required to undertake more pro-active scrutiny of police complaints.

Independence

It is the Ombudsman’s job to throw light onto defective administration and the problems it can cause for citizens, however, an Ombudsman investigation is often not welcomed by an agency or the government of the day.

This is precisely why the independence of the Ombudsman’s office must be assured. The Ombudsman must be independent of those being investigated.

While not wishing to cast aspersions on my successor, I am concerned that the Government did not advertise. It filled the position as part of a ‘department head reshuffle’. This is a serious breach of tradition which could undermine the independence and statutory role of the office.

It is perhaps timely to reconsider the legislative and constitutional requirements of other states and countries which require that an Ombudsman is appointed by a joint parliamentary selection process.

Work in progress

In leaving as Ombudsman there is inevitably a range of uncompleted business. Some of these important reports and issues still in progress include:

• contracting out – and the need to ensure adequate accountability mechanisms for government services being provided by third parties
• compensation cover for unemployed people involved in programs such as work-for-the-dole schemes
• police search procedures and current ambiguities and inconsistencies in the law
• immigration search powers
• Austudy – simplification of administration rules
• Departure Certificates – and compensation for people affected by defective administration.
• a section 16 report is currently with the Prime Minister, and
• the need for a fair and rational system for compensation for defective administration

It has been a privilege to be Ombudsman for the last almost five years. My experiences have deepened my commitment and belief as to the importance of the Ombudsman’s role.

Media Contact

Media 02 6276 3759
Email – Media@ombudsman.gov.au

Date of release: 6 February 1998