Stuhmcke, Anita --- "Australian Ombudsmen: A Call to Take Care" [2016] UTSLRS 21; (2016) 44 Federal Law Review 531

Last Updated: 10 April 2017

AUSTRALIAN OMBUDSMEN: A CALL TO TAKE CARE

Anita Stuhmcke^[*]

This is a pre-publication version of an article forthcoming in (2016) 44 Federal Law Review 531

ABSTRACT

Resolution of disputes in Australia is frequently achieved by ombudsmen. Yet there is no uniform model of an ombudsman. Consequently, across Australian jurisdictions, the development of the institution has been ad hoc and fragmented. What has followed, however, has been the transformation of the institution to apply to new contexts, to the extent that it is questionable in some instances as to whether ‘ombudsman’ remains the appropriate descriptor for the institution. This article explains and critiques these developments, observes that the conditions which have created such change are set to continue and argues that care must be taken to protect citizen trust in the ombudsman brand.

1. INTRODUCTION

The ombudsman institution is the most commonly utilised complaint handling mechanism across government.^[1] However, government ombudsmen are more disparate, and their functions much more complex than other dispute resolution mechanisms such as courts or tribunals. Disparity between ombudsmen occurs largely because of specific jurisdictional requirements, resulting in ombudsman operating differentially across the Commonwealth, States and Territories. Today ombudsmen have functions which depart significantly from their traditional core role of taking direct complaints from individual citizens concerning administrative action by government. Government ombudsmen may stand in the shoes of the ‘nominal complainant’ when the public simply do not know enough to complain such as is the case with the covert targeting and interception of citizen’s cyber lives,^[2] they have increasing functions of audit and compliance and even act as industry ombudsmen to give binding decisions and deliver ‘private’ dispute handling services for consumer contracts.^[3] Consequently, ombudsmen in Australia are being requested by their respective governments to rely heavily upon the ombudsman brand name to perform functions which have little or nothing to do with their traditional role of accountability of public administration and the direct handling of citizen complaints.

While ombudsmen have themselves attributed this divergence to a natural evolution of the office,^[4] this article argues there is a need to improve protections for ombudsman against incursions from the administration they hold accountable as well as to promote public scrutiny of their operations. This article proceeds in three sections. First, Part II provides an outline of the changes to the institution that flow from increasing ombudsmen differentiation. Parts III and IV identify trends and concerns about the ongoing and future operation of ombudsmen, namely, that the rapid growth of non-traditional ombudsmen functions signals an office increasingly filling a niche left vacant by other dispute resolution mechanisms such as courts and that the non-traditional functions may impact the independence and reputation of an Ombudsman. Part V observes that the conditions that have created the change in functions of ombudsman look set to continue unabated. The political-economic reform agenda of neoliberalism has changed government, rendering the attributes of Ombudsman the ideal vessel for creative solutions to difficult problems. However difficulties arise not from using ombudsmen in different ways, but rather because these new non-traditional roles may be under resourced, granted through ad hoc need rather than through a ‘future proofing’ plan that parliament has for the effectiveness of ombudsmen. It follows that in order to both protect the Ombudsman institution and to render it accountable, any grant of non-traditional functions requires careful consideration of the institutional changes which must be made to ensure delivery of administrative justice. This article calls for care and for future empirical investigation into protecting and promoting public trust in the ombudsman brand.

2. WHEN IS AN OMBUDSMAN NOT AN OMBUDSMAN?

This is a difficult question. Traditionally, an ombudsman was a complaint-handling institution, perhaps supplemented by a wider role of own motion (or systemic) investigation. This dual role, generally attributed to the ‘classical ombudsman’, was the original Australian model, where the ombudsman acts to remedy government maladministration, such as error or the tardy, rude or ineffectual services of government employees rather than to investigate corruption, illegal or inhumane government conduct. This model for an ombudsman is identifiable through a shared Scandinavian heritage. Here particular attribution is afforded to the ‘traditional’ model of the Swedish Parliamentary Ombudsman (SPO), with that institution being characterised as a ‘grundnorm’ for offices which have now spread worldwide. However this claim quickly becomes complicated. The role and functions of ombudsmen shift over time and ombudsmen mutate upon transplantation. For example, over its 200 year plus history the SPO now performs its role differently so that the ‘... task of forestalling error and general endeavours to ensure the correct application of the law have taken precedence over the role of prosecutor.’^[5] And, Australian ombudsmen, while historically claiming legitimacy through this Scandinavian heritage,^[6] have always been idiosyncratic and, as outlined, in this article, have undergone significant transformation.

So what then is an Ombudsman? In the absence of legislation to govern the use of the title ‘Ombudsman’,^[7] criteria which aim to answer this question have been variously developed by: professional organisations of ombudsmen; scholars and by individual Ombudsman. The result is unsatisfactory. For example the Australian and New Zealand Ombudsman Association (ANZOA) states that the term ‘Ombudsman’ should only be used if six key criteria are met: independence, jurisdiction, powers, accessibility, procedural fairness and accountability.^[8] These criteria are re-phrased and re-packaged by similar international organisations such as the British and Irish Ombudsman Association (BIOA) which states that the institution must demonstrate ‘independence of the Ombudsman from those whom the Ombudsman has the power to investigate; effectiveness; fairness; openness and transparency and public accountability’.^[9] These differences, while nuanced, underscore the absence of singular definition or criteria by which one may unerringly identify an ombudsman.

Such disparity is appropriate and reflective of the global differentiation of ombudsmen. There is no universal model of an ombudsman. Globally the ombudsmen of today perform a wide variety of functions. For example the World Bank has divided ombudsmen into four categories: classical, human rights, anti-corruption or auditing, with Australian ombudsmen being mentioned as belonging to the latter as well as to the category of classical ombudsman.^[10]

This World Bank categorisation belies the variability of Australian ombudsmen. The institution, as introduced across all Australian jurisdictions from the 1970s,^[11] was intended as an addition to the doctrine of ministerial responsibility and the existence of an independent judiciary, to assist in the goal of government being accountable to the people.^[12] This model primarily focused upon individual complaint-handling,^[13] with power to conduct ‘own motion’ investigations, which an Ombudsman may use to investigate defective administrative problems even where no specific complaint has been made.^[14] However parliament began augmenting the ‘traditional’ role of Australian Ombudsman soon after their introduction. For example, established in 1974 it was only five years later, in 1979, that the NSW Ombudsman was granted an oversight role in relation to complaints about police, all Australian Ombudsman took on telecommunications interception auditing roles in the 1980s and a number took on Freedom of Information roles then as well. For the NSW Ombudsman in particular, this trend has now led to an office where the majority of staff now work in areas outside the ‘traditional’ role.^[15]

This (r)evolution means that while all Australian Ombudsman have classical or traditional functions they are not ‘classical’. ^[16] Legislative grants of jurisdiction have increased both the scale and scope of all ombudsmen institutions well beyond directly handing citizen complaints and instigating own motion investigations. In this article these functions are very loosely termed the ‘non-traditional functions’ of Ombudsman. For example, the Tasmanian Ombudsman is not only the State’s Parliamentary Ombudsman, the office also deals with consumer complaints as the Ombudsman is also the Health Complaints Commissioner, dealing with complaints about any health service provider in Tasmania in both public and private sectors and similarly, performs the role of the Energy Ombudsman. The Tasmanian Ombudsman is also the Principal Mental Health Official Visitor and Coordinator of the Prison Official Visitor Scheme, allowing the Ombudsman to visit and monitor approved facilities. The Ombudsman is the inspection entity under the Police Powers (Controlled Operations Act) 2006, the Police Powers (Surveillance Devices) Act 2006 and the Telecommunications (Interception) Tasmania Act 1999. The Ombudsman is also an ex officio member of the Board of the Integrity Commission.^[17] Of course the grant of such roles to the Tasmanian Ombudsman may be justified as falling within the scope of the purpose of the office to either improve public administration or to assist in information gathering for the purpose of improved complaint handling. Across Australian jurisdictions such additions of functions have occurred differentially.^[18]

The term ‘non-traditional’ is thus applied to these additional functions to signify a departure of Australian Ombudsman in both scale and scope from the traditional ombudsman model. This change is worthy of discussion as,

[A]t best then a growth in functions may position the ombudsmen institution upon a more legalistic and determinative footing; at worst it may place ombudsmen upon a slippery slope of supplying a convenient managerial tool for executive government rather than accommodation of the needs of citizens.^[19]

Unabated recent escalation in the legislative grant of new roles to Australian Ombudsman adds to, or alters, the above concern, inviting debate as to the institutional diversity of Australian ombudsmen. Increase in the scale and scope of functions is rapid and ongoing,^[20] with Australian ombudsmen experiencing disparate and ad hoc jurisdiction creep.^[21] For example, in the 2004–05 Annual Report of the Commonwealth Ombudsman three functions of the office are identified: compliance auditing; complaint investigation and own motion investigations.^[22] Ten years later in the 2014-2015 Annual Report, the Commonwealth Ombudsman states that it has five major statutory functions: complaint investigations; own-motion investigations; compliance audits; immigration detention oversight; and the Commonwealth Public Interest Disclosure scheme.^[23]

Australian ombudsmen are no longer primarily reactive complaint handling bodies. For example, the NSW Ombudsman now both embeds complaint-handling as a core function of the office while also emphasising functions other than that of reactive complaint-handling.^[24] This is the only office to depart so overtly and significantly from the traditional model of Australian ombudsmen. The NSW Ombudsman states that its primary role is that of ‘independent review’ and summarises its work as being of three types: administrative review; compliance review and legislative review.^[25] Indeed the NSW Ombudsman has recently been granted expansive investigative functions which do not involve the direct handling of administrative disputes of individual complainants. For example, the Disability Inclusion Act 2014 (NSW) which commenced in December 2014 is the first piece of Australian legislation which gives a government ombudsman oversight of the handling of allegations of reportable incidents in disability support accommodation.^[26] Further, in 2012 the NSW Ombudsman commenced Operation Prospect to investigate certain allegations relating to officers of the NSW Police Force, Police Integrity Commission and NSW Crime Commission. This investigation is ongoing,^[27] granting the NSW Ombudsman functions which are ‘non-traditional’ in that they significantly increase the scale and scope of investigative operations of the office. Operation Prospect is the largest and most expensive investigation undertaken in the history of the Office — expanding the scale and scope of the traditional functions that office has to investigate corrupt or criminal conduct.

Across Federal, State and Territory jurisdictions there is an absence of constitutional protection or sanction for either the traditional functions of the office or for this ongoing transformation of ombudsmen function.^[28] In Australia it falls to courts and tribunals to review Ombudsman jurisdiction.^[29] Such review is limited. Australian courts have had rare opportunity to scrutinise the validity of legislative grants of jurisdiction to ombudsmen. Disputes before the courts generally concern the exercise of jurisdiction, such as the legality of Ombudsman decisions,^[30] or the immunity of the Ombudsman and staff from suit.^[31]

The resulting judicial determinations embrace a broad reading of ombudsman legislation and have facilitated growth in ombudsman roles.^[32] NSW courts broadly interpret the ability of the Ombudsman to investigate the conduct of a public authority. The following dicta from Botany Council v Ombudsman (1995) 37 NSWLR 357, frequently cited with approval, is indicative of this judicial approach:

Those powers, as the Ombudsman Act reveals, are, as they ought to be, extremely wide. They are not powers which this Court should read down. They are beneficial provisions designed in the public interest for the important object of improving public administration and increasing its accountability, including to ordinary citizens such as [the original FOI applicants here]. Sadly, the experience of the past (and not only the past) has been of the occasional misuse and even oppressive use of administrative power. One modern remedy against such wrongs has been the creation by Parliaments in all jurisdictions of Australia of the office of Ombudsman. Whilst it may be expected that the Ombudsman will conform to the statute establishing office, a large power is intended. The words of the Ombudsman Act should be given ample meaning.^[33]

The NSW Ombudsman may therefore employ largely unfettered discretion to investigate any administrative action. Of course the NSW Ombudsman is restricted to acting within statutory powers.^[34] For example, the NSW Supreme Court in “K” v NSW Ombudsman and Anor [2000] NSWSC 771 concerned Part 3A of the Ombudsman Act 1974 under which the NSW Ombudsman re-opened an investigation by the then Department of Education and Training into child sexual abuse by the plaintiff teacher “K”. “K” argued that the NSW Ombudsman Act ‘should be narrowly construed so as to make it clear that the section does not have the effect of extending the Ombudsman's jurisdiction into allegations of child abuse per se’.^[35] This argument was rejected by the court. Whealy J found the extension of powers to be valid on the basis of statutory interpretation,^[36] observing that the Ombudsman was able to investigate as ‘the powers conferred on the Ombudsman under s 25G appear in a context of the widest import in relation to the question of child abuse.’^[37]

Victorian courts have taken a less expansive approach to the term ‘administrative action’ in the Victorian Ombudsman Act 1973 than those in NSW.^[38] Victorian courts infer a separation of powers argument to categorise the Victorian Ombudsman as having jurisdiction over functions belonging to the executive arm of government rather than to parliament or the courts.^[39] This approach was adopted in Booth v Dillon [1976] VicRp 42; [1976] VR 434 and Glenister v Dillon [1976] VicRp 57; [1976] VR 550. In Booth v Dillon [1976] VicRp 42; [1976] VR 434 the Victorian Ombudsman was restricted to investigating matters of administration, not policy. In Glenister v Dillon [1976] VicRp 57; [1976] VR 550 the Court suggested that ‘matters of administration’ did not extend to the ombudsman having jurisdiction over matters related to the legislative and judicial functions of government. This approach was later followed in Salisbury City Council v Biganovsky (1990) 54 SASR 117 and most recently, Booth v Dillon (No 1) [1976] VicRp 23; [1976] VR 291 was approved in Nisselle v Brouwer [2007] VSC 147; (2007) 16 VR 296 where the court held that the convenor of a medical panel had performed his statutory duty as a function of the executive arm of government (rather than legislative or judicial) and had therefore performed an ‘administrative action’ within the meaning of the Victorian Ombudsman Act.

Given the changing functions of Australian Ombudsman, and the NSW Ombudsman in particular, the approach adopted by Kirby P (as he then was) in Botany Council v Ombudsman may not hold today.^[40] Essentially the approach of the NSW courts has been to defer, or at least not overtly challenge and contain, the powers of the Ombudsman. Such deferment has been to a body which had non-determinative powers and a major focus on rectifying administrative error for the citizen. Of course by 1995 the NSW Ombudsman had already undergone significant change in terms of increasing and varied jurisdiction,^[41] however in the twenty years since the office is markedly different in both scope and range of its role. Arguably NSW courts may now be more willing to constrain an office with a large array of roles and replace the loose approach in Botany Council v Ombudsman with the more constrained Victorian approach to the jurisdiction of the office. On other hand it could be argued that the key issue influencing the court in Botany Council v Ombudsman was that the NSW Ombudsman did not exercise a determinative role with the strength of the office being it is one of recommendation only — and that this remains a constant.

Australia wide,^[42] there are thus limited constitutional and legal checks upon the expansion and diversity of legislative roles given by parliaments to Australian ombudsmen.^[43] However all Australian Ombudsman do have legislative power to apply to the courts to determine their own jurisdiction.^[44] Interestingly, to the knowledge of this author, the first exercise of this power by any Ombudsman occurred this year. The Victorian Ombudsman filed an application to the Victorian Supreme Court pursuant to s 27 of the Ombudsman Act 1973 seeking a determination as to whether or not she has jurisdiction to carry out an investigation of a referral by the Legislative Council of Victoria.^[45] The referral by parliament concerns allegations that ALP members of the Victorian Parliament misused staff budget entitlements. The Victorian Government objects to the referral. The reasons for the application by the Ombudsman being ‘The Plaintiff is aware of controversy of substance as to whether the Act provides her with jurisdiction to investigate the subject matter of the referral’ and ‘The Plaintiff wishes to avoid the use of public resources which would result if she proceeds with her investigation but it later transpires she has no jurisdiction to do so.’ In light of the increasing tendency of the executive and legislative arms of government to use ombudsman for non-traditional functions the timing of this application may signal the only independent avenue available for an Ombudsman to protect itself against any unwanted grants of jurisdiction.^[46]

3. THE TRANSFORMATION OF OMBUDSMEN: FROM DISPUTE RESOLVER TO MANAGER?

It is thus the escalating rate of jurisdictional change conferred upon ombudsmen by parliaments which significantly contributes to the ongoing ad hoc transformation of the institution. This Part suggests this transformation is characterised by Australian government ombudsmen firstly, evolving the judicial characterisation of their traditional dispute resolution role of handling individual citizen complaints and secondly, parliaments gathering momentum in conferring jurisdiction to ombudsmen over the managerial functions of government.

1. Evolving the Historical ‘Judicial’ Function of Dispute Resolution

Like tribunals, ombudsmen are not institutions of the judicial arm of government being creatures of the legislative arm of government. However while Australian ombudsmen do not make decisions or affect the legal status of individuals, in the conduct of some investigations they do share some similarities with the judicial process.^[47] This binary role is well-captured by the Queensland Premier, Sir Joh Bjelke-Petersen, who stated when introducing the Parliamentary Commissioner Bill in 1974:

He [the Ombudsman] is somewhat like a judge — part of the democratic process but to one side of it with special powers and immunities to examine and correct administrative mistakes and wrongs. I point out here than an Ombudsman works both ways. He also serves to safeguard the reputation and probity of the public service.^[48]

Like courts, ombudsmen act impartially, compelling answers to questions and the production of documents and share some key features of the judicial arm of government including reactive dispute resolution, independence and impartiality. This similarity may act to promote public trust in the institution.

Further, ombudsmen, like courts, have a supervisory function over public administration. Halliday observes that courts have a regulatory function in relation to the goals of administrative law,^[49] and while ombudsmen are not regulatory bodies,^[50] they have, as contributors to the regulatory system of government oversight, been aptly constructed as regulation within government.^[51] Both courts and ombudsmen use citizen disputes as a mechanism to ensure government governs well and conforms to the rule of law. It is also not a stretch to suggest that the Ombudsman own motion role which may result in systemic reform has a loose judicial style precedent setting function. In this sense ombudsmen have a ‘quasi-judicial’ role confirmed by judicial review of ombudsmen jurisdiction.

Similarity between courts and ombudsmen ends quite quickly. In resolving disputes of administrative law courts look to procedure not substance, deciding on the legality of matters whereas ombudsman examine what is ‘fair and reasonable’ in relation to the complaint before them.^[52] Of course court decisions are binding, expensive and slow whereas Ombudsman decisions are not binding, comparatively fast and are free. Further, traditional investigative proceedings by ombudsmen are nothing like court proceedings. In court proceedings there is a right of representation, the issues are clearly defined in advance, and the evidence to be called, particularly in a serious criminal trial, is known by the person accused. This is very different from an ombudsman, where as Mr Brouwer, the former Victorian Ombudsman has observed ‘[M]y investigative role is inquisitorial, not adversarial like our Courts’.^[53]

This divergence from the judicial function is accentuated by the growth of non-traditional ombudsman functions. These functions may only incidentally govern the relationship between the citizen and government and are non-judicial in character. For example, the Commonwealth Ombudsman in receiving complaints and investigating pubic interest disclosure under the Public Interest Disclosure Act 2013 (PID Act) is not triggered by a citizen complainant but rather investigates complaints made by government employees about the Commonwealth public sector. While powers of audit are incidentally in the citizen interest they are distinguishable from the traditional roles of complaint investigation or own motion investigation insofar as such functions are prescribed by government with directed outcomes.

Non-traditional functions may also place the ombudsman in an altered relationship with government. Snell has characterised the non-traditional functions as falling into a category he describes as ‘fire prevention’.^[54] Snell argues that these functions are disengaged from the complainant as they are not ‘based solely or primarily on intelligence gained from previous complainants’.^[55] These functions position the ombudsman as a government appointed independent and impartial manager where the trigger for ombudsman action is neither the citizen (as it is in individual complaints) nor the Ombudsman’s own discretion (as it is in own motion investigations). Importantly these roles do not place the ombudsman as a supervisor over and above the authority of government. Instead the ombudsman independently acts as a monitoring agent for government about government.

However any bold assertion, such that the new functions parliament grants to ombudsmen cement the place of the institution as non-judicial, should be nuanced. There are two reasons for this, firstly the terms ‘administration’, executive’ and ‘judicial’ are fluid and notoriously difficult to define. As Gillard J states in Nisselle v Brouwer [2007] VSC 147; (2007) 16 VR 296 at [86]:

It is impossible to lay down a satisfactory definition of “administrative action”. The authorities do provide a guideline, namely, that “administrative action” is conduct other than the performance of a legislative or judicial function. However, this is merely a starting point and does not provide the solution. It is well recognised that often it is very difficult to draw the distinction between administrative functions on the one hand, and legislative or judicial functions on the other. See Hamblin v Duffy, where Lockhart J observed that it was difficult to define the expressions legislative, judicial, ministerial or administrative decisions. His Honour pointed out that the difficulty is “compounded by the fact that a particular category of decision tends to overlap or emerge into another.”

Secondly, Ombudsman themselves assert that these new functions emulate the traditional core functions of the office. For example Colin Neave has characterised the Commonwealth Ombudsman’s monitoring role of the Australian Federal Police’s administration of Part 5 of the Australian Federal Police Act as being ‘most closely aligned to our core complaint-management business’.^[56]

Non-traditional functions may therefore be a good fit with the ombudsmen role. Indeed many of these functions do capture a complaint handling role, although one that can more correctly be described as an indirect complaint handling role. Ombudsmen promote better public administration, hence it may be argued that whether improvement is triggered through individual complaint-handling or indirect complaint handling is irrelevant as the institution continues to serve the citizen through better government.^[57] Indeed ombudsmen seek to transform management functions into outcomes which include recommendation and improvement to the system of administrative justice.^[58] For example the Commonwealth Ombudsman, under the Migration Act 1958, is required to review the cases of people held in immigration detention for two years or more, requiring the Ombudsman to ‘give an assessment of the appropriateness of the arrangements for the detention of the person’ to be tabled in Parliament by the Minister.^[59] The Commonwealth Ombudsman describes use of these reports to provide a mixture of audit and recommendation,^[60] thus serving the goals of administrative law through promoting fair administration.

2. Conferral of Managerial Functions

Irrespective that the end goal is fair administration, most (if not all) of the newer functions are managerial. ‘Managerial’ here is intended a loose description — an umbrella term which describes more what the functions are not. The ‘managerial’ descriptor, while not entirely satisfactory, accords with the movement of government administration first coined ‘New Public Management’ by Hood in 1991.^[61] This term describes an ideology which is based upon competition and where public decision-making emulates private organisations.^[62] Changes it has wrought have resulted in ombudsmen seeking out viable alternatives to supplement resources in a growing assisted dispute resolution arena and to prove efficiency in the face of shrinking governance by government. Such accumulation of non-traditional functions creates a ‘downwards and outward accountability’ rather than an individual complaint driven ‘upwards accountability’ to determine and enhance public interest in good government.^[63]

It is within this context that the ombudsman institution may be captured by this ‘New Public Management’ descriptor as having a managerial oversight of government. No longer solely a democratic corrective for the individual citizen, Australian ombudsman increasingly provide services to the public for and on behalf of government. This role is of course non-judicial in nature. This is significant as Australian government ombudsmen have been historically construed as constitutional misfits.^[64] Writing in 1991 Dennis Pearce, formerly the Commonwealth Ombudsman stated of that office that ‘During my period as Commonwealth Ombudsman, I felt that I stood in a position that was part-way between the Executive and the Judiciary’. ^[65] Courts actively participate in promoting a blurred constitutional construction of Ombudsman, referring to the NSW Ombudsman as ‘a unique institution’,^[66] observing that it has ‘a unique role to play in scrutinising the conduct of government agencies, reporting to Parliament on the results of investigations and proposing such remedial action as may be required’.^[67] Such ambiguity is also seen in the recent Australian debate as to whether the ombudsman institution is or should be part of an integrity branch of government.^[68]

This debate is worthy of close analysis as there is strength in the institution being placed outside the three arms of government. Here the grant of non-traditional functions may pose a dilemma. On the one hand the new roles evidence Australian ombudsmen as nimble and flexible. Open to change and generally amenable to an evolving jurisdiction they ensure that they ‘make themselves politically and managerially indispensable’.^[69] However as the ‘... viability of the institution rests upon the perception of its own accountability and transparency of operations within a democratic system of government’^[70] the question is whether the institution may be perceived as part of the machinery of government rather than advancing the political autonomy of the ability of a citizen to argue against government decision-making.

This growth in both the scale and scope of a multi-functioned institution is fundamentally changing Australian ombudsmen thus altering the traditional conceptualisation of the institution.^[71] As Professor John McMillan, the current NSW Ombudsman observes in his most recent Annual Report, the growth of non-traditional functions has allowed the NSW Ombudsman to double in size and has led to a particular budgetary challenge in ‘that traditional core functions of complaint handling and investigation are not earmarked as requisite functions. They fall within the discretionary budget of the office. Clearly, they are vital functions in the work of a parliamentary Ombudsman and must be discharged effectively’.^[72] Indeed the reference made by Professor McMillan to the complaint handling function being ‘vital’, is confirmation of the traditional place of the Ombudsman to redress grievances of the individual against government.^[73] The ever present challenge for ombudsmen is to carry out all roles effectively in a budgetary climate of increased demand with ever diminishing resources.^[74]

This challenge presents the core issue. Australian ombudsmen are increasingly being granted jurisdiction to act as the citizens’ defender — the defender of citizens generally — rather than the ‘citizen’s defender’ whose role is to defend the individual citizen against the might of the state.^[75] Does this matter? Indeed is this a balancing act or do the new roles supplement the existing traditional functions, indicating that the institution is evolving with changing government? Should ombudsmen be preserved as an institution for the individual citizen seeking justice against the state? As discussed above Australian Ombudsman refers to non-traditional functions as contributing to public administration thus ensuring that ‘public management arrangements not only deliver public services, but also enshrine governance values’.^[76] Thus Australian ombudsmen currently respond to the grant of non-traditional roles through ensuring that the institution — regardless of acting as a citizen’s defender or the citizens’ defender — serves and improves administrative justice.

An unknown concern, which requires empirical investigation, is whether this approach inspires public trust and preserves the legitimacy of the institution. The response to that question requires careful empirical evaluation. For example, Creutzfeldt,^[77] in a United Kingdom study of the individual’s experience of public and private ombudsman and levels of trust found that public ombudsman were far more negatively regarded than private industry ombudsman with 57% of people stating that the overall satisfaction with the procedure was ‘unfair’ or ‘very unfair’ compared to 25% of dissatisfaction with private schemes. This study raises questions concerning the ongoing legitimacy of the institution, at least in the UK context. Legitimacy or public trust in the institution has not been the subject of empirical evaluation in Australia.

4. NON-TRADITIONAL FUNCTIONS AND THE INDEPENDENCE AND REPUTATION OF OMBUDSMAN

In the absence of empirical evaluation, close analysis must begin with the impact of non-traditional functions upon the independence and reputation of ombudsmen. Independence and reputation are crucial currency for ombudsmen. The two concepts are not the same. For example while loss of independence may lead to a loss of reputation, an office can be independent and still suffer reputation loss. The issue discussed in this Part is whether the non-traditional roles adversely impact the independence and reputation of Australian Ombudsman. This issue is discussed through the lens of a recent and unparalleled event in the history of Australian Ombudsman, the two recent NSW parliamentary inquiries into Operation Prospect, an investigation by the NSW Ombudsman. The investigation concerned allegations of misconduct within the NSW Police Force, the NSW Crime Commission and the Police Integrity Commission for events which occurred between 1998 and 2002 including looking at individuals who were allegedly improperly ‘bugged’ and the leaking of government documents.^[78] Operation Prospect is classified here as ‘non-traditional’ as it is an investigation on a scale and scope never before undertaken by the NSW Ombudsman. Operation Prospect concerns powers the NSW Ombudsman has exercised since the mid-1980s, when the NSW Police Regulation (Allegations of Misconduct) Act 1978 was introduced as a result of the recommendation of the Royal Commission into Drug Trafficking, allowing the NSW Ombudsman to conduct investigations into police conduct once police had provided reports of their own investigations.

1. Independence

Independence of an Ombudsman is a ‘cherished norm’,^[79] which has long been considered central to the conceptualisation and effective operation of Ombudsman. The independence of an Ombudsman allows a powerless individual to question a powerful government on an equal footing. Without independence, or the perception of independence, this ethical or therapeutic element of an Ombudsman’s role is diminished. As long ago as 1969, shortly before the first Ombudsman office was introduced into Australia, the American Bar Association defined 12 requirements for ombudsman independence.^[80] Despite such clearly stated requirements the independence of ombudsmen is not straightforward, as Thompson states:

The Ombudsman holds the executive branch to account through investigation and resolution of complaints but also supports the executive with its suggestions on how to improve delivery of public services. The Ombudsman supports the legislature in holding the executive to account and is in turn subject to oversight by elected representatives. The ombudsman’s relationship with the courts have them supporting each other in providing redress for injustice and the courts conducting scrutiny of the ombudsman through judicial review.^[81]

Thompson thus alludes to a ‘compromised independence’ of an ombudsman or, perhaps more positively, an independence dependent upon balance and delicate care.

The fragility of this independence is evident in the traditional core role of complaint-handling. Here the challenge of maintaining independence is due to the ‘split role’ where an Ombudsman must satisfy the requirement of reaching a fair and reasonable decision for the complainant, and do so in a way that is acceptable to Ministers and administrative decision-makers.^[82] This is because as an Ombudsman has only powers of recommendation it is important that the investigative process be fair and reasonable — the end aim being that Ministers and decision-makers will accept the Ombudsman recommendations, indeed even when adverse. Ombudsmen investigate a split executive — a political and elected government and an un-elected and ‘ongoing’ civil administration — the latter being relatively unaccountable to the people. It is here that the ombudsman renders the unaccountable accountable.^[83] For this to work citizens’ must share belief in the independence of the Ombudsman. Citizens must trust ombudsmen. They must do so as investigations are usually carried out in the absence of the public and the credibility of ombudsmen therefore is related to an ability to be perceived as separate from the state.

Independence of Ombudsman has therefore always been significant to maintain and difficult to ensure. As yet there is no evidenced-based answer to the question as to whether the independence of ombudsmen is impacted in any way by the escalation of non-traditional functions. However a recent Australian event flags this as a question worth pursuing. This event concerns two NSW parliamentary inquiries into the NSW Ombudsman. Events which recently forced the current NSW Ombudsman, Professor John McMillan to defend his office against allegations of bias, with Professor McMillan describing the events concerned as reaching the status of ‘public notoriety’.^[84]

The inquiries concerned were into the handling of ‘Operation Prospect’, the biggest investigation in the history of the NSW Ombudsman.^[85] Beginning in 2012 Operation Prospect involved the NSW Ombudsman using its statutory royal commission jurisdiction to investigate ‘serious and extensive misconduct’.^[86] A six month timeframe was promised,^[87] this time frame being established prior to the scale and scope of the investigation becoming apparent which ultimately involved 78 days of hearings and interviews and over 1 million pages of documents to review. On November 12, 2014 almost two years later, the upper house of the NSW Parliament, established a Select Committee which reported on 25 February 2015 to inquire into and report on the conduct and progress of the Ombudsman’s inquiry “Operation Prospect”. The Legislative Council attributed its inquiry as being caused by the Ombudsman investigation ‘taking too long, being held in “secret” ... focusing too much on the “whistle-blowers” who leaked documents and brought these serious concerns to light’.^[88] While commending the ombudsman on a complex and difficult task, the Select Committee reported on 25 February 2015,^[89] dividing 4:3 down party political lines and suggesting Ombudsman error in combining ‘two investigations’ — corruption and leaks of information. Further, a second inquiry titled ‘Progress of the Ombudsman’s investigation “Operation Prospect”’ established on 2 June 2015, conducted by the General Purpose Standing Committee No. 4, reported to Parliament in August 2015.^[90] This second parliamentary inquiry investigated the impact of the then NSW Ombudsman, Mr Barbour’s, departure from the Office on the Operation Prospect investigation and the leaking of documents during the first inquiry. The inquiry found that ‘the delay and other difficulties in completing Operation Prospect has significantly damaged the inquiry and undermined confidence in the integrity of any final report it delivers’.^[91] Arguably of course there was also room for the inquiry to find that there had been no delay as the scope of the investigation had to be increased due to the sheer amount of information which had to be covered to ensure the outcome was fair and reasonable.

As noted above Operation Prospect is classified here as non-traditional due to its scale and scope. The Royal Commission or anti-corruption body type powers for the investigation exist in the Ombudsman Act (NSW) in section 19.^[92] Refinement of this jurisdiction for the purposes of the investigation was made through legislative amendment particularly ss 19A, 19B and 19C,of the Ombudsman Act 1974 whereby the NSW Ombudsman may make non-disclosure directions to witnesses who give evidence, or persons who receive production notices and summons. The maximum penalty for contravening such directions includes 12 months imprisonment.

Interestingly, both parliamentary inquiries identified the grant of jurisdiction to oversight police as the cause of the perceived problems with the Ombudsman investigation. This confirms a longstanding opinion that police oversight has always been problematic for both police and for ombudsman.^[93] Indeed the NSW Government is now committed to creating a single agency responsible for police oversight, the Law Enforcement Conduct Committee (LECC), to be implemented following the completion of Operation Prospect.^[94] However on leaving office prior to the completion of Operation Prospect Mr Barbour, the former NSW Ombudsman

rejected a call for a single watchdog to oversee NSW police following a long-running bugging scandal, warning it could reduce public confidence in the force. Mr Barbour has also dismissed the benefits of a single police oversight agency as “largely illusory”, in a rebuke to a parliamentary committee that recommended the move.^[95]

This is not the first time the recommendation has been made to remove the oversight of police from the jurisdiction of the Ombudsman. At a Commonwealth level both the Senate Committee and the Australian Law Reform Commission recommended that police complaints be removed from the Ombudsman’s jurisdiction, because of resource considerations and the serious nature of the complaints.^[96]

The creation of a parliamentary committee to oversight Operation Prospect was, on the one hand, appropriate. Parliament, is after all the body that holds the Ombudsman accountable in NSW. The Ombudsman is an officer of the Parliament and is independent of the executive government. Essentially Parliament must effectively oversight the Ombudsman. Without such Parliamentary oversight the Ombudsman is free from accountability to the Parliament.

On the other hand both the parliamentary inquiries into Operation Prospect could be viewed as partisan, or at least unrepresentative of the view of Parliament as a whole, with their impact compromising the ability of the office to undertake its work. Each inquiry forced the Ombudsman to ‘walk a very fine line’ between helping the committee and jeopardising the offices investigation.^[97] Speculative and unsubstantiated reasons for the parliamentary inquiries into Operation Prospect may include that the influence of political factors and contingency planning is never far away from the role of an Ombudsman and that Australian ombudsman may be suffering from a loss of public deference, similar to that we see in the UK. Perhaps the most that can accurately be said is that the investigation into Operation Prospect by the parliamentary committees confirms both the impact of the political process in the precarious balance of protection and the veracious scrutiny which may be afforded to the NSW Ombudsman by Parliament.

Operation Prospect suggests that there may be a need for closer attention to be applied to the grants of functions to ombudsmen and to their proper resourcing and oversight by parliament. Scrutiny by the legislature of grants of jurisdiction to ombudsman — both in terms of the passage of legislation and the accountability oversight is an important democratic check. The real problem is whether the NSW Ombudsman was sufficiently resourced to enable the office to undertake the investigation in the first place. This highlights the concern with grants of jurisdiction. While Ombudsman have clear boundaries around roles they will not take on — they will not be advocates for example — declining new functions which change the scale and scope of the office may be neither possible nor desirable. This was the case for the NSW Ombudsman as there was no other alternative body who could conduct the investigation. There is neither a legislative nor constitutional protection for Ombudsman to refuse roles. To choose to do so is not an autonomous decision but rather one flavoured by many considerations such as political pressure, lack of alternatives, budget and even personal interest.

2. Reputation

The parliamentary inquiries into Operation Prospect highlight the significance and fragility of Ombudsman reputation. Mr Barbour’s second 7 year term was up (as well as a one year extension for Operation Prospect), and he also cited the public interest as a reason to leave the office.^[98] When questioned as to why he was leaving before the completion of Operation Prospect Mr Barbour noted ‘I’m not cutting and running,’ rather ‘[b]ecause I’m criticised either way and because it’s not in the best interests of the office’.^[99] Further Mr Barbour stated that he did not seek an extension from his completed term as Ombudsman as ‘I made the decision given the nature of the appalling comments that have been made about me, about my office and about the length of my term that it was in the best interests of my office for me not to seek a further term’. ^[100]

Embodied in these comments is the conception of the institution as greater than the individual Ombudsman, underscoring the institution as apolitical. Also present is conflict and tension. Tensions between the Ombudsman and Government may be viewed as an indication that the Ombudsman is doing their job and indicative of healthy, well-oiled government. Occasional conflict may do no harm. But if tension persists, it damages the public interest. For example if the Ombudsman is continually criticised, the authority of their role may be undermined and public confidence in the integrity and impartiality of the Ombudsman may be diminished. Continuing conflict is also likely to induce the Executive Government to prevail on the legislature to review, reduce or abolish jurisdiction of Ombudsman with the result that the rule of law may be undermined.

The parliamentary inquiry into Operation Prospect resulted in quite extraordinary attacks on the NSW Ombudsman.^[101] For example the Greens MP and Police Spokesperson David Shoebridge claimed that:

From start to finish the Prospect Inquiry has been a monumental stuff — up and there are very real concerns it will ever produce a viable report ... While the Ombudsman’s office has many positive attributes, it is clearly not designed to undertake such a complex and contested quasi-criminal inquiry ...^[102]

Such negative public comment,^[103] invites question as to whether Operation Prospect was just an aberration — an unusual situation of strong personalities with a complex history or whether reputation will be impacted by changes to the scale and scope of jurisdiction. Indeed the importance of reputation is traditionally framed around the traditional roles of the office. Chris Wheeler, then Acting NSW Ombudsman observes that ‘[t]he confidence of Parliament, and of the broader community, in this office is built on its reputation. It is this same reputation that encourages complainants to come forward and raise issues with us, and also means the agencies are accepting of the vast majority of recommendations the office makes’.^[104]

On the one hand reputational damage may always be inevitable with ombudsmen. The ombudsman institution does not legally hold the executive to account — it politically does so. This fits with the Westminster system which has been described as ‘a highly politically based system ... it traditionally calls on politics to resolve differences or chart non-traditional courses of action, unimpeded by artificial separations of powers, anachronistic constitutions or ...’.^[105] If the reason for the investigations by parliamentary committees into Operation Prospect were political it is the committees which have positioned the Ombudsman as a player in politics rather than as an outsider. Ombudsman of course desire to be apolitical and clearly the function of the NSW Ombudsman in investigation of police corruption, or indeed any aspect of maladministration, positions the Ombudsman within and responding to the machinery of government as part of the executive’s self-scrutiny machinery.^[106] All ombudsmen functions, both non-traditional and traditional are sanctioned by a democratically elected parliament. The issue is whether with respect to non-traditional functions Ombudsman can less easily claim a quasi-judicial dispute resolution role as a ‘democratic corrective’ in investigating alleged state maladministration against an individual, and in turn if this changes their role as an independent reviewer of matters in the public interest.

On the other hand, the ‘error’ with Operation Prospect may rest neither with the Ombudsman, nor the police, nor politics, nor the functions granted to the office. Arguably, the cause of this partisan style parliamentary investigation into the NSW Ombudsman may instead be attributed to the width and breadth of the anti-corruption investigation — one which grew on a scale not envisaged at commencement. The Ombudsman, was constrained by the nature of the office, here the importance of ensuring anti-corruption agencies have very sharp teeth with big enforceable sticks has been internationally proven.^[107] Like many anti-corruption agencies the grant of jurisdiction to the Ombudsman was ‘born out of a broad political consensus in a context of scandal and crisis’ and was seen as ‘the ultimate institutional response to corruption’^[108] and many of the reasons for the conduct of Operation Prospect are also similar — such as the external lack of political will/support, unsustainable budgets, tense relationship with the public and the media in particular.^[109] Indeed it may be that the office would have been more successful in avoiding parliamentary scrutiny of Operation Prospect if resourcing had matched the size of the task.

5. PROTECTING THE OMBUDSMAN BRANDNAME

Here is the call to take care. The challenge for ombudsmen is to remain relevant without losing the large bank of credibility and trust built up over a generation.

The Government Ombudsman of today is a different creature to that conceptualised 40 years ago. Indeed it is paradoxical that almost immediately following the introduction of the Australian Government Ombudsman institution in the 1970s, neoliberalism ‘emerged and gathered strength as a major structural reform ideology that has enormously influenced the reshaping of public institutions and policy frameworks undertaken by a succession of “reformist” state and Commonwealth governments’.^[110] Neoliberalism is described as the ‘dominant global public policy paradigm of the 1980s and 1990s’^[111] which has used a political-economic reform agenda to economise ‘everything and everyone’.^[112] Both its opponents and its proponents seem to agree that neoliberalism is best debated as an ensemble of practices (such as free trade, privatization, deregulation, competitiveness, social-spending cutbacks and deficit reduction) that emphasise the primacy of the free market in and for the arrangement of social and political orders.^[113] Whether one agrees with neoliberalism as an ideology or a term for a collection of economic practices this reform agenda has resulted in significant Government change and therefore, not surprisingly, in changes to its watchdogs institutions such as the Ombudsman.

Relevantly, neoliberalism means much more than just a shrinking state.^[114] Governments have expanded into areas which were not imagined in the 1970s such as protection of whistleblowers and off-shore detention centres while simultaneously retracting from traditional public service delivery areas such as disability care and telecommunications. Government across Australia has embarked on this path of change at varying rates and in different formats and have responded to the issue of accountability of service provision in a rainbow like fashion.^[115] For example, some jurisdictions have created new accountability agencies while others have focused upon moulding existing agencies such as ombudsman to cover new government and non-government activities. Thus the role of law and the shape and function of accountability agencies has shifted as the very meaning of the public and the private sector themselves change. Law, traditionally viewed as the main source of regulation has been replaced by a continuum of regulation provided by both government and private corporations. Neoliberalism thus means a new form of social ordering where public and private distinctions are less relevant than the application of law in the promotion of economic objectives.

This shift in governance models is of central concern to administrative law and thus to the ombudsman institution. Administrative law has historically been predicated upon a public and a private modality of governance. Today this premise is fragile. Institutions of administrative law, created with the understanding that the state is the primary producer of dispute resolution, have undergone change to accommodate this shift. Changes to the government ombudsman institution confirm that the 1970s certainties of administrative law are diffusing.^[116] Legislative change to ombudsman jurisdiction illustrate how administrative law and concepts of administrative justice have shifted to accommodate the fact that ‘... the exercise of public power is now taking place in sites outside the formal structures of governmental power, a process which decentres and fragments the state’.^[117] For example, section 10(c) of the Queensland Ombudsman Act 2001 deliberately captures private organisations by stating the office may investigate ‘an administrative action taken for, or in the performance of functions conferred on, an agency, by an entity that is not an agency’. This includes service providers engaged by agencies.^[118]

The call to take care for the Ombudsman brand name arises not because administrative law is forced to incrementally become cognizant of private interests. Indeed given the change to government service delivery legislative amendment to instruments such as the Queensland Ombudsman Act 2001 are necessary. Rather this call to take care is holistic and entails a wide and inclusive view of the role of the institution. As Arthur states:

As neoliberalism reverses previous social democratic tendencies, administrative law — ‘the entire normative regime that animates, organizes, and regulates the administration of the state’ — becomes an inversion of its former self. The purpose of regulation is now to facilitate rather than to constrain private conduct, of enforcement agencies to negotiate remedies rather than to impose them, of social security systems to motivate recipients to support themselves rather than relying on state funding, of public service providers to discourage, not facilitate, recourse to their services ... Over time, the substantive and procedural rules of administrative law are likely to change, both formally and informally, to reflect these new values and policy goals. Formally, change will manifest itself in amendments to legislation, new regulations, and ministerial policy statements; informally, it will become evident in new interpretations of existing legislation, in new approaches to the organization of hearings, in new rules of thumb that are applied to ensure consistency in the handling of recurring instances, and in new approaches to the exercise of discretion in atypical cases. ^[119]

Arthur’s warning applies to ombudsmen internationally as well as nationally. Recently, O’Brien, with respect to the UK Parliamentary Ombudsman, argued that ‘“maladministration” has been largely superseded by “poor service” as the target of an ombudsman’s ire, the ambition of sustaining a democratically authentic public realm displaced in favour of boosting confidence in “the market”’.^[120] Australian ombudsmen have not yet been reduced to a focus upon ‘poor service’. Instead the Australian story is one of expansion and adaptation to changing service delivery with ombudsmen moving to ensure public and private organisations which deliver services act reasonably and lawfully. This then includes expansive roles of audit, review, advice, guidance and training. So for example, the NSW Ombudsman now has jurisdiction to handle complaints over a large number of organisations which care for the vulnerable and the disadvantaged — a result of the NSW Government shifting such services to not-for-profit NGOs and private organisations.^[121] Unlike what O’Brien describes in the UK, the challenge for Australian government ombudsman which has arisen through neoliberalism is not one of boosting confidence in the market by improving service, rather the challenge is how to work across shifting boundaries of government service delivery — to be the ‘in-between’ operator — while maintaining public trust and confidence.

To date, despite growing differentiation from each other and from the original model of an Ombudsman today all Australian ombudsmen maintain an individual complaint-handling function and an own motion investigation role. Further, all ombudsmen perform, to some degree, non-traditional functions. It is the intersection or more accurately, the balance of these functions which raises the need for discussion as to the protection of the ombudsman brand name. This is exemplified by three issues. Firstly, while the expectation may be that ombudsmen maintain the primary focus upon dispute resolution this is an increasingly difficult challenge. Dispute resolution is a soft unspecified role which must be funded against an ad hoc accumulation of acquired regulatory tasks.^[122] Moreover as is clear from the above discussion, there is neither a legal nor constitutional requirement for Australian ombudsmen to retain a primary focus on individual citizen dispute resolution. Secondly, while it may be assumed that there is careful legislative evaluation in crafting the ‘fit’ of new functions with the normative value(s) of the institution, the case of Operation Prospect shows that adequate resourcing and public support is required for any grant of functions for an ombudsman to undertake such a large investigation. Finally, while the traditional normative contribution of ombudsmen is one of providing redress of ‘administrative action’ in the promotion of government accountability today this has shifted to a more managerial role. The subsequent impact of that, as discussed above, is that the guiding contribution of ombudsmen is emerging to be more executive/legislative than judicial.

Key to continued institutional success is citizen trust in the Ombudsman brand. This is increasingly challenging. Citizens have always faced barriers to effective complaint about government — the small individual against the might of the state. Transformation of ombudsmen may mean some citizens lose opportunity to access free, informal, efficient and impartial dispute resolution services for their complaint against government after which any avenue of dispute becomes protracted, expensive and formal. Moreover it may be perceived that government gains a useful regulatory tool to improve its own systems of administration rather than administrative justice for citizens more generally. As the NSW Ombudsman stated in a recent submission to the Australian Productivity Commissions’ inquiry into Access to Justice, despite differences between ombudsmen the ‘common factor in all is that they are aimed at improving the level of service provided to the community, as well as ensuring government agencies and non-government organisations providing certain services are acting in the public interest’.^[123] The common challenge for Australian ombudsmen remains one of how to maintain the goal of themselves acting in the public interest when the interests and preferences of government and other stakeholders are not consistent with interests of the citizen.

6. CONCLUSION

This is a call to take care. Since inception all government Ombudsmen have undergone major change. It is not contended that such change should stop. Indeed it appears that the momentum is unstoppable. However the role the institution performs in the context of promoting good administration, adherence to the implementation of policy and as a quasi-regulatory body between the executive, the legislature and citizens is changing in an ad hoc manner. This approach to reforming ombudsmen jurisdiction has resulted in instances where the institution is used as a solution for difficult political issues. While this may be appropriate, after all ombudsmen have proven to be an effective and useful defender of the citizen and administrative system improver, Australian ombudsmen must be subject to scrutiny but also must be afforded effective protections against growing incursions from the non-judicial arms of government. This is a call for a systematic review to implement evidence-based reforms,^[124] to promote ombudsmen as a mechanism of democratic accountability; facilitate the institution in its role to scrutinise government on behalf of the individual citizen and improve the capacity of the office in enhancing the rule of law.

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^[*] Professor of Law, University of Technology Sydney, Faculty of Law. I would like to thank both anonymous reviewers for their comments and also to thank Chris Wheeler, Chris Gill and Rick Snell for comments on earlier versions of this article. The views in this article, as with any errors, are my own.

^[1] ‘According to the Productivity Commission report, ombudsmen in Australia resolve more than three-quarters of a million (773,000) disputes each year. That compares to just over 370,000 by various tribunals and more than 670,000 in courts’ see Colin Neave, Commonwealth Ombudsman with Professor Ron Paterson, New Zealand Ombudsman, ‘Access to Justice – where do Ombudsman fit in?’ (Speech delivered at the ANZOA Conference, New Zealand, 30 April 2014). This figure includes public and private industry ombudsman.

^[2] See Richard Glenn, ‘Improving public administration through oversight’ (Speech delivered at the 2016 Australian Institute of Administrative Law Conference, Brisbane, 22 July 2016) <http://www.ombudsman.gov.au/__data/assets/pdf_file/0007/40300/Ombudsman-2016-Australian-Institute-of-Administrative-Law-Conference-Speech-final.pdf> .

^[3] See Parliamentary Commissioner Act 1971 (WA) s 34. It may be argued that all such roles fit comfortably under the notion of accountability and/or can be framed as having an indirect complaint handling role (such as ensuring bodies with jurisdiction deal properly with complaints made to them), such argument is based upon a broad view of the traditional scope and breadth of the role of an Ombudsman. This point is returned to below.

^[4] Bruce Barbour, ‘The Ombudsman and the Rule of Law’ (2005) AIAL Forum No 44, 17; Chris Field ‘Recent Evolutions in Australian Ombudsmen’ (2010) AIAL Forum No 63, 4.

^[5] The Parliamentary Ombudsmen (JO), About JO (18 September 2013) JO <http://www.jo.se/en/About-JO/History/> .

^[6] The model for the Australian Ombudsman was adapted from the New Zealand Ombudsman which is a Westminster variant of the Danish Ombudsman itself adapted from the Swedish Ombudsman.

^[7] There are protections in New Zealand see: Ombudsmen Act 1975 (NZ) s 28A. See also Mai Chen, ‘New Zealand’s Ombudsmen Legislation: The Need for Amendment After (almost) 50 years?’ (2010) 41 Victoria University of Wellington Law Review 723. In NSW it is an offence to purport to be the NSW Ombudsman however this does not protect the use of the title: Ombudsman Act 1974 s 37.

^[8] The criteria were republished on 18 May 2010. The original six criteria were independence, accessibility, fairness, public accountability, effectiveness and efficiency, See ANZOA, Rules and Criteria (18 July 2009) <www.anzoa.com.au>. The original six criteria originate from ADR schemes which comply with the Australian Benchmarks for Industry-Based Customer Dispute Resolution Schemes and the Australian Standards on Complaint Handling and Dispute Resolution. There are two standards which are applicable to private industry dispute resolution: AS4269-1995 states that it is a standard ‘which sets out the essential elements for the management of complaints from inception to satisfaction of final determination’ (AS 4269-1995 at 4); and AS4608-1999 a standard which is a ‘guide for the prevention, handling and resolution of disputes’. It aims to ‘improve existing approaches and practices’ to disputes and conflicts within and between businesses.

^[9] See, eg, British and Irish Ombudsman Association, Membership <http://www.ombudsmanassociation.org/association-membership.php> .

^[10] WorldBank (23 January 2016) <http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPUBLICSECTORANDGOVERNANCE/> .

^[11] Ombudsman Act 1976 (Cth); Parliamentary Commissioner Act 1971 (WA); Ombudsman Act 1972 (SA); Ombudsman Act 1973 (Vic); Parliamentary Commissioner Act 1974 now replaced by the Ombudsman Act 2001 (Qld); Ombudsman Act 1974 (NSW); Ombudsman Act 1978 (Tas); Ombudsman (Northern Territory) Act 1978 (NT) now replaced by the Ombudsman Act 2009 (NT); Ombudsman Act 1989 (ACT).

^[12] Commonwealth Administrative Review Committee, Commonwealth, Commonwealth Administrative Review Committee Report (1971) [354], [364].

^[13] Ombudsman Act 1976 (Cth) ss 3, 3A, 5, 6; Parliamentary Commissioner Act 1971 (WA) ss 4, 4A, 13, 14; Ombudsman Act 1972 (SA) ss 3, 5, 13–15; Ombudsman Act 1973 (Vic) ss 2,13,14; Ombudsman Act 2001 (Qld) ss 7–10, 14–16, 18; Ombudsman Act 1974 (NSW) ss5, 12–14; Ombudsman Act 1978 (Tas) ss 3, 4, 12, 14–16; Ombudsman Act (NT) ss 3, 10–14; Ombudsman Act 1989 (ACT) ss 3, 5, 6.

^[14] Ombudsman Act 1976 (Cth) s 15; Parliamentary Commissioner Act 1971 (WA) s 25; Ombudsman Act 1972 (SA) s 25; Ombudsman Act 1973 (Vic) s 23; Ombudsman Act 2001 (Qld) s 49; Ombudsman Act 1974 (NSW) s 26; Ombudsman Act 1978 (Tas) s 28; Ombudsman Act (NT) s 14; Ombudsman Act 1989 (ACT) s 18.

^[15] See Chris Wheeler, ‘Review of Administrative Conduct and Decisions in NSW Since 1974 – An Ad Hoc and Incremental Approach to Radical Change’ (2013) AIAL Forum 71, 34. Of the 220 employees of the NSW Ombudsman, 35 are involved in providing traditional ombudsman functions.

^[16] There are now three models of Australian public law ombudsman: a traditional ombudsman, a variegated ombudsman and a proactive ombudsman see: Anita Stuhmcke ‘The Evolution of the Classical Ombudsman: A View from the Antipodes’ (2012) 2(1) International Journal of Public Law and Policy, 83–95. There are of course other ways of categorising ombudsman, see Chris Gill and Carolyn Hirst, ‘Defining Consumer Ombudsmen: A Report for Ombudsman Services’ (Report, Queen Margaret University, 15 March 2016) <https://www.ombudsman-services.org/downloads/Defining-Consumer-Ombudsmen-Report-2016.pdf>.

^[17] See Ombudsman Tasmania, ‘Ombudsman Tasmania Annual Report 2013-2014’ (Annual Report, Ombudsman Tasmania, 30 October 2015) 1.

^[18] Loosely, ranking the offices from the lowest deviation from the traditional model to the highest, Northern Territory Ombudsman, the South Australian Ombudsman, the Australian Capital Territory Ombudsman, the Victorian Ombudsman, the Western Australian Ombudsman, the Queensland Ombudsman, the Tasmanian Ombudsman, the Commonwealth Ombudsman and the NSW Ombudsman.

^[19] Anita Stuhmcke, ‘Ombudsmen and Integrity Review’ in Linda Pearson, Carol Harlow and Michael Taggart (eds), Administrative Law in a Changing State, (Hart Publishing, 2008) 375.

^[20] In the last 5 years increased functions include: the Western Australian Ombudsman monitoring the Infringement Notices provisions of The Criminal Code (added March 2015): Western Australian Ombudsman, ‘Ombudsman Western Australia Annual Report 2014–2015’ (Annual Report, Ombudsman Western Australia, 24 September 2015) 7; the Queensland Ombudsman Office having oversight of the Public Interest Disclosure Act 2010 (PID Act) (since 1 January 2013) Queensland Ombudsman, ‘Queensland Ombudsman Annual Report 2012–2013’ (Annual Report, Queensland Ombudsman) 9, Phil Clarke; the South Australian Ombudsman handles complaints under The Return to Work Act 2014 (SA) (since 1 July 2015) OmbudsmanSA, ‘Ombudsman SA Annual Report 2014/2015’ (Annual Report, OmbudsmanSA) 9. In the last few years the Commonwealth Ombudsman has assumed responsibility for handling complaints about the processing of freedom of information requests (since 1 November 2014); data retention oversight by the office has increased under the Telecommunications (Interception and Access) Act 1979 (TIA Act) (Cth) (since April 2015); the office has been given responsibility for private health insurance complaints from the Private Health Insurance Ombudsman (since 1 July 2015) Commonwealth Ombudsman, ‘Commonwealth Ombudsman Annual Report 2014-15’, (Annual Report, Commonwealth Ombudsman, 14 October 2015) 5 and will perform the role of Norfolk Island Ombudsman following the passage of the Ombudsman Act 2012 (Norfolk Island) together with a number of recent roles being conferred through the Public Interest Disclosure Act 2013 Commonwealth Ombudsman, ‘Commonwealth Ombudsman Annual Report 2013–2014’ (Annual Report Commonwealth Ombudsman, 26 September 2014) vii.

^[21] For example, Mr Phil Clarke, the Queensland Ombudsman flagged that ‘As the Office celebrates its 40th year of operation in 2014-15, recent changes to the State’s child protection arrangements and the Crime and Corruption Commission mean that the Office is likely to receive increased numbers of, and increasing complexity of, complaints’ Queensland Ombudsman, ‘Queensland Ombudsman Annual Report 2013–2014’ (Annual Report, Queensland Ombudsman) 7.

^[22] Commonwealth Ombudsman, ‘Annual Report 2004–05’ (Annual Report, Commonwealth Ombudsman, 5 October 2005) 1.

^[23] Commonwealth Ombudsman, ‘Annual Report 2014–15’ (Annual Report, Commonwealth Ombudsman, 14 October 2015) 8.

^[24] See, eg, a simple overview of the NSW Ombudsman lists its functions and legislation as: Administrative review (Ombudsman Act 1974); Police (Police Act 1990) Community services (Community Services (Complaints, Reviews and Monitoring) Act 1993); Public interest disclosures (Public Interest Disclosures Act 1994); Witness protection (Witness Protection Act 1995); Telecommunications interception (Telecommunications (Interception) (NSW) Act 1987); Controlled operations (Law Enforcement (Controlled Operations) Act 1997); Employment-related child protection Ombudsman Act 1974 (NSW), Part 3A see <https://www.ombo.nsw.gov.au/what-we-do/about-us/our-legislation>. Note that with the establishment of the Law Enforcement Corruption Commission, early in 2017 the NSW Ombudsman will no longer have the following functions: Police (Police Act 1990); Witness protection (Witness Protection Act 1995); Telecommunications interception (Telecommunications (Interception) (NSW) Act 1987); Controlled operations (Law Enforcement (Controlled Operations) Act 1997.

^[25] New South Wales Ombudsman, ‘Jurisdiction and functions of the Ombudsman’ (Public Sector Agencies Fact Sheet, NSW Ombudsman, March 2012).

^[26] NSW Annual Report, 2012-2013, 3.

^[27] NSW Ombudsman, ‘NSW Ombudsman Annual Report 2012-13’ (Annual Report, NSW Ombudsman, 30 October 2013) 3.

^[28] Even the Ombudsman Act 1972 (SA) section 32 which limits the usage of the term ‘Ombudsman’ by agencies is of limited assistance to the brand name Ombudsman. The only constitutional protection is for the Victorian Ombudsman see the Victorian Ombudsman (Constitution Act 1975 (Vic), ss 18(1B)(o), 94E), this did not prevent the former Victorian Government allowing IBAC (the independent broad-based anti-corruption commission) to direct the Ombudsman to conduct investigations.

^[29] Tribunals are not examined here in close detail but see, eg, QQ v NSW Ombudsman [2012] NSWADT 109 (also dealing with s 35A); Zeqaj v Ombudsman Victoria (General) [2010] VCAT 1204 (document access); Smeaton v Ombudsman Victoria (General) [2009] VCAT 2771 (document access) Rae v State of New South Wales (NSW Ombudsman) [2009] NSWADT 195, [21] (Hennesy N).

^[30] These are discussed below. Indeed, given the lack of success of appeals against private industry ombudsman jurisdiction it is unlikely that appeals against legislative grant of jurisdiction to ombudsman have more chance of success: City of Port Adelaide Enfield v Bingham [2014] SASC 36; Forestry Tasmania v Ombudsman, Kim Booth MHA, Southern Cross Television (THT 9) Pty Ltd (No 2) [2010] TASSC 52.

^[31] See, eg, Spigelman CJ in a case dismissing a claim for individual liability of the NSW Ombudsman in The Ombudsman v Robert Lesley Laughton [2005] NSWCA 339, [25].

^[32] Judicial proclamations which limit the powers of ombudsman are rare see discussion below.

^[33] 367–368 at [37] (Kirby P) (with Sheller and Powell JJA agreeing).

^[34] Katrine Del Villar, ‘Who Guards the Guardians? Recent Developments Concerning the Jurisdiction and Accountability of Ombudsmen’ (2003) AIAL Forum No. 36, arguing this is in tension with existing judicial limitations imposed on ombudsmen.

^[35] “K” v NSW Ombudsman and Anor [2000] NSWSC 771, [44].

^[36] “K” v NSW Ombudsman and Anor [2000] NSWSC 771, [61].

^[37] Judicial approval of an expansive reading of Ombudsman powers has been recently affirmed see City of Port Adelaide Enfield v Bingham [2014] SASC 36; (2014) 119 SASR 1, [35] (Although the outcome of that case was a finding against the decision of the Ombudsman).

^[38] Ombudsman Act 1973 (Vic) s 13(1) states that the ‘... principal function of the Ombudsman is to enquire into or investigate any administrative action’.

^[39] William Lane and Simon Young, Administrative Law in Australia (Thomson LawBook, 2007).

^[40] (1995) 37 NSWLR 357. Thanks to Rick Snell and Chris Wheeler for the debate in this paragraph, as noted above all errors are my own.

^[41] Wheeler, above n 15, 34.

^[42] See, eg, other jurisdictions such as Tasmania: Anti-Discrimination Commissioner v Acting Ombudsman [2002] TASSC 24, [76] (Crawford J): ‘So far as the power given by s12 to investigate is concerned, the power is extremely broad. It is not restricted to investigating only bad, or faulty, or inefficient, or improper, administrative actions, or those which might in some other way be correctly described or categorised as maladministration or in some other noun or adjectival form of similar meaning. The words of s 12(1) are for present purposes, explicit and clear. It is any administrative action taken by or on behalf of a defined public authority that may be investigated.’

^[43] See, eg, the recent decision of City of Port Adelaide Enfield v Bingham [2014] SASC 36 where decision of the SA Ombudsman found to be manifestly unreasonable by the court; see Hu v Commonwealth Ombudsman [2009] FCA 1516,[12] (Collier J).

^[44] Ombudsman Act 1976 (Cth) s 11A; Parliamentary Commissioner Act 1971 (WA) s 29; Ombudsman Act 1972 (SA) s 28; Ombudsman Act 1973 (Vic) s 27; Ombudsman Act 2001 (Qld) s 17; Ombudsman Act 1974 (NSW) s 35B; Ombudsman Act 1978 (Tas) s 32; Ombudsman Act 2009 (NT) s 20; Ombudsman Act 1989 (ACT) s 14.

^[45] Affidavit filed 26 January 2016, <https://www.ombudsman.vic.gov.au/VO/media/VO/Investigations/Ombudsman-files-application-in-Supreme-Court-Originating-motion-and-affidavit-(REDACTED).pdf>.

^[46] Ombudsman rarely refuse powers: but for a recent example see Matt Smith, ‘Push to close right-to-information loophole’ Mercury (online) May 21 2016 <http://www.themercury.com.au/news/push-to-close-rti-loophole/news-story/098ecb67a9a7005576518137ff7633aa> .

^[47] Kevin Zervos, ‘The ICAC: The Role of the Commission in Law Enforcement and the Need for Special Powers’ (1990) 1(2) Current Issues in Criminal Justice 56.

^[48] Queensland Ombudsman, ‘Queensland Ombudsman 2014–15 Annual Report’ (Annual Report, Queensland Ombudsman, 1 September 2015) 6 – Phil Clarke (noting that forty years on this is still true); Queensland, Parliamentary Debates, Legislative Assembly, 22 March 1974, 3158 (Bjelke-Petersen) <http://www.parliament.qld.gov.au/documents/hansard/1974/1974_03_22.pdf> . . Thank you to an anonymous reviewer for this pinpoint.

^[49] Simon Halliday, Compliance with Administrative Law (Hart Publishing, 2004).

^[50] Note here that ANZOA rejects categorising an Ombudsman as a regulatory body: ANZOA, Ombudsman <http://www.anzoa.com.au/about-ombudsmen.html> .

^[51] Christopher Hood, Oliver James, George Jones, Colin Scott, and Tony Travers, Regulation Inside Government: Waste-Watchers, Quality Police, and Sleazebusters (Oxford, 1999).

^[52] Anita Stuhmcke, ‘The Ombudsman’ in Matthew Groves (ed) Modern Administrative Law in Australia (Cambridge University Press, 2014) 326.

^[53] Victorian Ombudsman, ‘Victorian Ombudsman Annual Report 2013’ (Annual Report, Victorian Ombudsman, 20 August 2013) 5.

^[54] Rick Snell, ‘Australian Ombudsman’ in Matthew Groves and H. P. Lee (eds) Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge UP, 2007) 104. This differs from the traditional roles as originally characterised by Harlow and Rawlings as ‘fire-fighting’ and ‘fire-watching’, where ‘fire-fighting’ is the reactive response made by ombudsman to individual complainants and ‘fire-watching’ is a systemic investigation based upon previous individual complaints Carol Harlow and Richard Rawlings, Law and Administration (3rd ed, Cambridge UP, 2009) 528.

^[55] Rick Snell, ‘Australian Ombudsman’ in Matthew Groves and H. P. Lee (eds) Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge UP, 2007) 104.

^[56] Colin Neave, Exploring the Role of the Commonwealth Ombudsman in Relation to Parliament, No 63 Papers on Parliament, Note the use of the term ‘business’ here.

^[57] John McMillan, ‘How Ombudsmen Review and Influence Public Administration’ (Paper presented at the International Intelligence Review Agencies Conference, Sydney, March 2010) 4 <http://www.ombudsman.gov.au/__data/assets/pdf_file/0016/31642/10-March-2010-How-Ombudsmen-review-and-influence-public-administration.pdf> .

^[58] Ibid.

^[59] The fact that the Ombudsman recommendations have not been taken up by the Minister will be returned to below in relation to the usefulness of the Ombudsman role to Government: See Commonwealth Ombudsman, ‘An Analysis of Reports Under s 4860 of the Migration Act 1958 Sent to the Minister by the Ombudsman in 2014/15’ (Immigration Detention Review Report, Commonwealth Ombudsman, August 2015 <http://www.ombudsman.gov.au/__data/assets/pdf_file/0017/29330/an_analysis_of_reports_2_sept_2015.pdf> .

^[60] These may be ignored by Parliament see: Karen Barlow and Eliza Borrello, ‘Ombudsman Finds Long-term Detention Linked to Self Harm’, ABC News (online), 21 May 2013 <http://www.abc.net.au/news/2013-05-21/ombudsman-finds-long-term-detention-linked-to-self-harm/4704424> .

^[61] Christopher Hood, ‘A Public Management for all Seasons?’ (1991) 69 Public Administration 3–19. Note criticisms such as that by BA Weisbrod that the term has reached its use by date see: ‘Public Management, New’ International Encyclopedia of the Social & Behavioral Sciences, 12555.

^[62] B. Guy Peters and John Pierre, ‘Governance Without Government? Rethinking Public Administration’ (1998) 8(2) Journal of Public Administration Research and Theory 223, 232.

^[63] Andrew Podger and John Wanna, ‘Putting the Citizens at the Centre: Making Government More responsive’ (2012) 71(2) The Australian Journal of Public Administration 101, 107.

^[64] Arguably this construction emanates the Swedish origins of the office, and the consequent view that the institution is a ‘graft’ upon a Westminster system of government, being first introduced to the English speaking common law world in New Zealand in 1962.

^[65] Dennis Pearce, ‘Executive versus Judiciary’ (1991) 2 Public Law Review 179.

^[66] Ainsworth v The Ombudsman (1988) 17 NSWLR 276, 283 (Enderby J).

^[67] Commissioner of Police v The Ombudsman (Unreported, Supreme Court of New South Wales, Sackville J, 9 September 1994) 29–30.

^[68] See James Jacob Spigelman, ‘Judicial Review and the Integrity Branch of Government’ (Speech delivered at the World Jurist Association Congress, Shanghai, 8 September 2004); James Jacob Spigelman, ‘The Integrity Branch of Government’ (2004) 78 Australian Law Journal 724; Wayne Martin, ‘Forewarned and Four-armed: Administrative Law Values and the Fourth Arm of Government’ (2014) 88 Australian Law Journal 106; Chris Wheeler, ‘Response to the 2013 Whitmore Lecture by the Hon Wayne Martin AC, Chief Justice of Western Australia’ (2014) 88 Australian Law Journal 740.

^[69] Lane and Young, above n 39, 474.

^[70] Stuhmcke, above n 19, 371.

^[71] Dennis Pearce, ‘The Jurisdiction of Australian Government Ombudsman’ in Matthew Groves (ed), Law and Government in Australia (Federation Press, 2005) 110.

^[72] NSW Ombudsman, ‘NSW Ombudsman 2014-2015 Annual Report’ (Annual Report, NSW Ombudsman, 26 October 2015) 3.

^[73] Commonwealth, Parliamentary Debates, House of Representatives, 28 April 1977, 1395 (Bob Ellicott, Attorney-General). On introducing the Bill for the ADJR Act, the Attorney-General, Mr Ellicott QC said ‘It will thus be seen that the 3 avenues of review, appeal on the merits to the Administrative Appeals Tribunal [‘the AAT’], investigation by the Commonwealth Ombudsman, and judicial review by the Federal Court of Australia, provide different approaches to the remedying of grievances about Commonwealth administrative action. Each has its own place in a comprehensive scheme for the redress of grievances.’

^[74] Professor Denis Pearce cited in Roger Wettenhall, ‘Integrity Agencies: The Significance of the Parliamentary Relationship’ (2012) 33(1) Policy Studies 65, 66.

^[75] Chris Wheeler, Deputy NSW Ombudsman, ‘Being Difficult or Experiencing Difficulty?’ (Paper presented at the Commonwealth Ombudsman National Conference, 24 September 2009) 3 <http://www.ombudsman.gov.au/__data/assets/pdf_file/0020/34436/chris-wheeler-presentation-paper.pdf> .

^[76] Janine O’Flynn, ‘From New Public Management to Public Value: Paradigmatic Change and Managerial Implications’ (2007) 66(3) The Journal of Public Administration 353, 357–358, quoting the OECD, ‘Public Sector Modernisation’ (Policy Brief, OECD, October).

^[77] Naomi Creutzfeldt, ‘What People Expect From Ombudsmen in the UK: a Report on the Findings of the Project on “Trusting the Middle-man: Impact and Legitimacy of the Ombudsmen in Europe”’ (Report, University of Oxford, October 2015). It could be argued that differences between public and industry ombudsmen account for this differential findings (ie: commercial aspect of industry complaints as opposed to the complexity of complaints to public ombudsman).

^[78] Holding Redlich, ‘NSW Government Bulletin’ (Bulletin, 9 September 2015).

^[79] Mohammad Waseem, ‘Independence of Ombudsman’ in George V. Carmona, Mohammad Waseem, Alex B. Ranjani and Gareth Jones (eds), Strengthening the Ombudsman Institution in Asia: Improving Accountability in Public Service Delivery through the Ombudsman (Public Management, Financial Sector and Trade 2011, Asian Development Bank) 57, 60.

^[80] American Bar Association, ‘Standards for the Establishment and Operation of Ombuds Offices’ (Standards, American Bar Association, 21 December 2014) 9 <www.americanbar.org/content/dam/aba/migrated/2011_build/dispute_resolution/attach.authcheckdam.pdf>. “(i) the ability to criticize government officials, (ii) no control from above, (iii) appointment by the legislature, (iv) a lengthy term in office (5 or more years), (v) a high salary, (vi) the authority to employ staff, (vii) investigative powers, (viii) access to public records, (ix) the authority to probe into government inquiries, (x) discretion to pick and choose complaints, (xi) authority to elicit from public employees prior response to criticism, and (xii) immunity from civil liability as a result of official action” American Bar Association, Standards for the Establishment and Operation of Ombuds Offices, 9 (revised Feb. 2004) [hereinafter 2004 ABA Resolution]. Note that the ABA’s 2004 resolution has been criticised as distorting the ombudsman concept: see DC Rowat, ‘The American Distortion of the Ombudsman Concept and its Influence on Canada’ (2007) 50(1) Canadian Public Administration 42. Thank you to an anonymous reviewer for this point.

^[81] Brian Thompson, ‘The Courts’ Relationship to Ombudsmen – Supervisor and Partner?’ (2015) 37(1) Journal of Welfare and Family Law 137, 142.

^[82] Peter Johnston, ‘Recent Developments Concerning Tribunals in Australia’ [1996] FedLawRw 12; (1996) 24(2) Federal Law Review 323. While Johnston was referring to tribunals his comments are apposite to Ombudsman.

^[83] Waseem, above n 79.

^[84] Kirsty Needham ‘Police Bugging Inquiry into Operation Prospect to Cost $10m by End’ The Sun-Herald April 3, 2016.

^[85] NSW Ombudsman, Operation Prospect, (20 April 2016) <http://www.ombo.nsw.gov.au/what-we-do/our-work/operation-prospect> .

^[86] In order to take on the role a number of amendments have been made to the Ombudsman Act 1974, Police Integrity Commission Act 1996 and the Crime Commission Act 2012 to assist Operation Prospect. These amendments include those relating to: referrals from the PIC or NSWCC Inspectors, and the ability to investigate the conduct of members of the NSW Crime Commission and the Police Integrity Commission; restrictions on publishing or disclosing evidence from a hearing; and the setting aside of any duty of secrecy or other restrictions by a former public authority.

^[87] Select Committee on the Conduct and Progress of the Ombudsman’s Inquiry “Operation Prospect”, Parliament of New South Wales, The Conduct and Progress of the Ombudsman’s Inquiry “Operation Prospect” (2015) x <http://23.101.218.132/prod/parlment/committee.nsf/0/8d6b68ac3538a022ca257df6007a38bf/$FILE/Final%20report%20-%20%2025.2.15.pdf> .

^[88] Ibid.

^[89] Ibid.

^[90] General Purpose Standing Committee No. 4, Parliament of New South Wales, Progress of the Ombudsman’s investigation “Operation Prospect” (2015) 13<https://www.parliament.nsw.gov.au/committees/inquiries/Pages/inquiry-details.aspx?pk=2332>..

^[91] Ibid 15. For a clear argument as to why there was no need for the inquiries (and the damage they caused to the reputation of the NSW Ombudsman) see Letter from Chris Wheeler to the Hon Robert Brosak MLC, 20 July 2015 <https://www.parliament.nsw.gov.au/committees/DBAssets/InquiryOther/Transcript/7444/Correspondece%20from%20Acting%20Ombudsman.pdf>.

^[92] Indeed the powers are the same as ones conferred on the Police Integrity Commission and the Independent Commission Against Corruption see: New South Wales, Parliamentary Debates, Legislative Assembly, 20 November 2012, 17099 (Greg Smith); Ombudsman Amendment Act 2012, schedule 1. Select Committee on the Conduct and Progress of the Ombudsman’s Inquiry “Operation Prospect”, above n 87, 22.

^[93] Robert W Page and Bruce Swanton, ‘Complaints Against Police in New South Wales: Administrative and Political Dimensions’ (1983) 42(4) Australian Journal of Public Administration 503, 517 referring to the 1981 resignation of the Assistant Ombudsman who publicly asserted that ‘citizens were being “conned” about the Ombudsman’s capacity to act as an effective watchdog in allegations of misconduct against police.’.

^[94] Government Response, (18 February 2016) <http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/B314B0A5E9407CBFCA257EAC001A5A1A?open & refnavid=CO4> _1.

^[95] Sean Nicholls, ‘Ombudsman Bruce Barbour warns single police watchdog would undermine public confidence’ Sydney Morning Herald (online), 11 July 2015 <http://www.smh.com.au/nsw/ombudsman-bruce-barbour-warns-single-police-watchdog-would-undermine-public-confidence-20150710-gi9fhd.html#ixzz44RiVt6gp> .

^[96] Senate Report, [5.66]. The Australian Law Reform Commission recommended vesting of complaints jurisdiction in a new body, to be called the National Integrity and Investigations Commission: Australian Law Reform Commission, Integrity: But Not by Trust Alone AFP and NCA Complaints and Disciplinary Systems, Report No 82 (1996).

^[97] Select Committee on the Conduct and Progress of the Ombudsman’s Inquiry “Operation Prospect”, Evidence, NSW Ombudsman, 3 February 2015, 7.

^[98] NSW Police Watch (26 August 2015) Facebook<https://www.facebook.com/NswPoliceWatch/posts/597625967041974>.

^[99] Miles Godfrey, ‘NSW Ombudsman Bruce Barbour Denies He is Cutting and Running From Unfinished Police Bugging Investigation’ Daily Telegraph, 19 June 2015.

^[100] Evidence to General Purpose Standing Committee No. 4, Parliament of New South Wales, Sydney, 19 June 2015, 29 (Bruce Barbour), quoted in in General Purpose Standing Committee No. 4, above n 90.

^[101] One of the more worrying aspects of this public discussion was that despite the ‘public notoriety’ of Operation Prospect and the publicity it incited – the events caused almost no public comment. There were no letters to the editor defending the ombudsman and no media speaking to individuals as to their opinion on the institution. There was a void of citizen initiated debate.

^[102] David Shoebridge, NSW Ombudsman Powers should be Cut, Says Police Bugging Inquiry (26 August 2015) <http://davidshoebridge.org.au/2015/08/26/nsw-ombudsman-powers-should-be-cut-says-police-bugging-inquiry/> .

^[103] Note the role of the press, a supportive press may publicise findings and recommendations and provide the stimulus for an enthusiastic exercise of power, see Salvador T Carlota, ‘The Ombudsman: Its Effectivity and Visibility Amidst Bureaucratic Abuse and Irregularity’ (1990) 65 Philippine Law Journal 12, 20, whereas the press may paint unflattering pictures, see headings such as: Mark Coultan ‘Bruce Barbour’s Legacy of Untidy and Unfinished Business’, The Australian, 1 July 2015.

^[104] Correspondence from Chris Wheeler to the Hon Robert Borsak MLC, 20 July 2015.

^[105] John Wanna, ‘Australia’s Future as a ‘Westminster Democracy’ – Threats to Combat, Stark Choices to Make ...’ (2014) 73(1) Australian Journal of Public Administration 19, 21.

^[106] Chris Gill, ‘The Evolving Role of the Ombudsman: A Conceptual and Constitutional Analysis of the “Scottish Solution” to Administrative Justice’ (2014) Public Law Review 7.

^[107] See, eg, Emil P Bolongaita, ‘An Exception to the Rule? Why Indonesia’s Anti-Corruption Commission Succeeds Where Others Don’t – a Comparison with the Philippines’ Ombudsman’ (Research Paper, Anti-Corruption Resource Centre, August 2010) <www.U4.no>.

^[108] Luis de Sousa, ‘Anti-corruption Agencies: Between Empowerment and Irrelevance’ (2010) 53(1) Crime, Law and Social Change 5, 6.

^[109] Ibid 21.

^[110] Brendan Gleeson and Nicholas Low, ‘“Unfinished Business”: Neoliberal Planning Reform in Australia’ (2000) 18(1) Urban Policy and Research 7, 8.

^[111] David Clark, ‘Neoliberalism and Public Service Reform: Canada in Comparative Perspective’ (2002) 35(4) Canadian Journal of Political Science 771, 771.

^[112] Katie Cruz and Wendy Brown, ‘Feminism, Law, and Neoliberalism: An Interview and Discussion with Wendy Brown’ (2016) 24(1) Feminist Legal Studies 69, 72.

^[113] Adam Sitze, Neoliberalism and Legal Theory (Spring 2010) Amherst College <https://www.amherst.edu/academiclife/departments/courses/0910S/LJST/LJST-54-0910S>.

^[114] Stephen H Linder, ‘Coming to Terms With the Public-Private Partnership’ (1999) 43(1) American Behavioural Scientist 35, 36.

^[115] Thanks to XX for this point (although I claim the word ‘rainbow’ as my own).

^[116] Kanishka Jayasuriya, ‘Riding the Accountability Wave? Politics of Global Administrative Law’ (Working Paper No 142, Murdoch University, June 2007) <http://www.murdoch.edu.au/Research-capabilities/Asia-Research-Centre/_document/working-papers/wp142.pdf> . See also Greg Weeks, Soft Law and Public Authorities: Remedies and Reform (Hart Publishing, 2016).

^[117] Ibid.

^[118] Queensland Ombudsman, ‘Executive Summary, Justice on the Inside Report: A Review of Queensland Corrective Service’s Management of Breaches of Discipline by Prisoners’ (Report, Queensland Ombudsman, October 2009) footnote 7.

^[119] H W Arthurs, ‘The Administrative State Goes to Market’ (2005) 55(3) University of Toronto Law Journal 797, 809.

^[120] Nick O’Brien, ‘What Future for the Ombudsman?’ (2015) 86(1) The Political Quarterly 72, 74.

^[121] Podger and Wanna, above n 63, 107.

^[122] Thanks to Rick Snell for this point.

^[123] NSW Ombudsman, Submission No DR195 to Productivity Commission, Access to Justice Arrangements, June 2014 <http://www.pc.gov.au/inquiries/completed/access-justice/submissions> .

^[124] The institutional diversity of ombudsmen renders them attractive to researchers interested in government activity see: Mary Seneviratne, ‘Researching Ombudsman’ in Reza Banaker and Max Travers (eds) Theory and Method in Socio-Legal Research (Oxford: Hart Publishing 2005), 163, and thank you to an anonymous reviewer for this reference.