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Australian Ombudsmen: A Call to Take Care

Published online by Cambridge University Press:  01 January 2025

Anita Stuhmcke
Anita Stuhmcke*
Affiliation:
Faculty of Law, University of Technology Sydney
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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.

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Article
Information
Federal Law Review , Volume 44 , Issue 3 , September 2016 , pp. 531 - 556
Copyright
Copyright © 2016 The Australian National University

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Footnotes

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.

References

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 Ombudsmen 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) 44 Australian Institute of Administrative Law Forum 17; Chris Field ‘Recent Evolutions in Australian Ombudsmen’ (2010) 63 Australian Institute of Administrative Law Forum 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 and see Financial Services Complaints Limited v Wakem [2016] NZHC 634. See also Chen, Mai, ‘New Zealand's Ombudsmen Legislation: The Need for Amendment After (almost) 50 years?’ (2010) 41 Victoria University of Wellington Law Review 723.CrossRefGoogle Scholar 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, 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 World Bank (23 January 2016) <http://web.worldbank.org/WEBSITE/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) ss 5, 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) Australian Institute of Administrative Law Forum 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: Stuhmcke, Anita ‘The Evolution of the Classical Ombudsman: A View from the Antipodes’ (2012) 2(1) International Journal of Public Law and Policy, 83–95.CrossRefGoogle Scholar There are of course other ways of categorising ombudsmen, 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 Stuhmcke, Anita, ‘Ombudsmen and Integrity Review’ in Pearson, Linda, Harlow, Carol and Taggart, Michael (eds), Administrative Law in a Changing State (Hart Publishing, 2008) 375.Google Scholar

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 (Qld) (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), Ombudsman SA, ‘Ombudsman SA Annual Report 2014/2015’ (Annual Report, Ombudsman SA) 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 (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, 2014–2015, 5.

27 NSW Ombudsman, ‘NSW Ombudsman Annual Report 2012–13’ (Annual Report, NSW Ombudsman, 30 October 2013) 3.

28 Even the Ombudsman Act 1972 (SA) s 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) 119 SASR 1; Forestry Tasmania v Ombudsman [No 2] [2010] TASSC 52 (11 November 2010).

31 See, eg, Spigelman CJ in a case dismissing a claim for individual liability of the NSW Ombudsman in The Ombudsman v Laughton [2005] NSWCA 339 (30 September 2005) [25].

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

33 (1995) 37 NSWLR 357.

34 Ibid 367–8, [37] (Kirby P), with Sheller and Powell JJA agreeing.

35 Del Villar, Katrine, ‘Who Guards the Guardians? Recent Developments Concerning the Jurisdiction and Accountability of Ombudsmen’ (2003) 36 Australian Institute of Administrative Law Forum 25Google Scholar, arguing this is in tension with existing judicial limitations imposed on ombudsmen.

36 [2000] NSWSC 771 (1 August 2000).

37 Ibid [44].

38 Ibid [61].

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

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

41 Lane, William and Young, Simon, Administrative Law in Australia (Thomson LawBook, 2007).Google Scholar

42 [1976] VR 434.

43 [1976] VR 550.

44 [1976] VR 434.

45 [1976] VR 550.

46 (1990) 54 SASR 117.

47 [1976] VR 291.

48 (2007) 16 VR 296.

49 [2016] VSC 507 (26 August 2016).

50 Ibid [238].

51 (1995) 37 NSWLR 357. Thank you to Rick Snell and Chris Wheeler for the debate in this paragraph. As noted above all errors are my own.

52 Wheeler, above n 15, 34.

53 See, eg, other jurisdictions such as Tasmania: Anti-Discrimination Commissioner v Acting Ombudsman [2002] TASSC 24 (9 May 2002) [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.’

54 See, eg, the recent decision of City of Port Adelaide Enfield v Bingham (2014) 119 SASR 1 where the decision of the SA Ombudsman was found to be manifestly unreasonable by the court. See also Hu v Commonwealth Ombudsman [2009] FCA 1516 (17 December 2009) [12] (Collier J).

55 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.

56 Deborah Glass, Affidavit, SCI 201600284, 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>.

57 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>.

58 Zervos, Kevin, ‘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.CrossRefGoogle Scholar

59 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.

60 Halliday, Simon, Compliance with Administrative Law (Hart Publishing, 2004).Google Scholar

61 Note here that ANZOA rejects categorising an Ombudsman as a regulatory body: Australian and New Zealand Ombudsman Association, Ombudsman: A Particular Model of Alternative Dispute Resolution ANZOA <http://www.anzoa.com.au/about-ombudsmen.html>.

62 Hood, Christopher et al, Regulation Inside Government: Waste-Watchers, Quality Police, and Sleazebusters (Oxford University Press, 1999).CrossRefGoogle Scholar

63 Stuhmcke, Anita, ‘The Ombudsman’ in Groves, Matthew (ed) Modern Administrative Law in Australia (Cambridge University Press, 2014) 326.CrossRefGoogle Scholar

64 Victorian Ombudsman, ‘Victorian Ombudsman Annual Report 2013’ (Annual Report, Victorian Ombudsman, 20 August 2013) 5.

65 Snell, Rick, ‘Australian Ombudsman’ in Groves, Matthew and Lee, H. P. (eds) Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 104.Google Scholar 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 Harlow, Carol and Rawlings, Richard, Law and Administration (3rd ed, Cambridge University Press, 2009) 528.CrossRefGoogle Scholar

66 Snell, Rick, ‘Australian Ombudsman’ in Groves, Matthew and Lee, H. P. (eds) Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 104.Google Scholar

67 (2007) 16 VR 296, 314 [86].

68 Commonwealth, Exploring the Role of the Commonwealth Ombudsman in Relation to Parliament, Parl Paper No 63 (2015) 48. Note the use of the term ‘business’ here.

69 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>.

70 Ibid.

71 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>.

72 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>.

73 Hood, Christopher, ‘A Public Management for all Seasons?’ (1991) 69 Public Administration 3.CrossRefGoogle Scholar 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.

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

75 Podger, Andrew and Wanna, John, ‘Putting the Citizens at the Centre: Making Government More Responsive’ (2012) 71(2) The Australian Journal of Public Administration 101, 107.CrossRefGoogle Scholar

76 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.

77 Pearce, Dennis, ‘Executive versus Judiciary’ (1991) 2 Public Law Review 179.Google Scholar

78 Ainsworth v The Ombudsman (1988) 17 NSWLR 276, 283 (Enderby J).

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

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

81 Lane and Young, above n 41, 474.

82 Stuhmcke, above n 19, 371.

83 Pearce, Dennis, ‘The Jurisdiction of Australian Government Ombudsman’ in Groves, Matthew (ed), Law and Government in Australia (Federation Press, 2005) 110.Google Scholar

84 Ombudsman, NSW, ‘NSW Ombudsman 2014–2015 Annual Report’ (Annual Report, NSW Ombudsman, 26 October 2015) 3.Google Scholar

85 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.’

86 Dennis Pearce, ‘Keeping an Eye on the Reviewing Process’, Canberra Times (Canberra), 4 March 1992, cited in Wettenhall, Roger, ‘Integrity Agencies: The Significance of the Parliamentary Relationship’ (2012) 33(1) Policy Studies 65, 66.CrossRefGoogle Scholar

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

88 O’Flynn, Janine, ‘From New Public Management to Public Value: Paradigmatic Change and Managerial Implications’ (2007) 66(3) The Journal of Public Administration 353, 357–8Google Scholar, quoting OECD, ‘Public Sector Modernisation’ (Policy Brief, OECD, October).

89 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 (i.e. commercial aspect of industry complaints as opposed to the complexity of complaints to public ombudsmen).

90 Holding Redlich, ‘NSW Government Bulletin’ (Bulletin, 9 September 2015).

91 Waseem, Mohammad, ‘Independence of Ombudsman’ in Carmona, George V et al (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.Google Scholar

92 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 Rowat, DC, ‘The American Distortion of the Ombudsman Concept and its Influence on Canada’ (2007) 50(1) Canadian Public Administration 42.CrossRefGoogle Scholar Thank you to an anonymous reviewer for this point.

93 Thompson, Brian, ‘The Courts’ Relationship to Ombudsmen—Supervisor and Partner?’ (2015) 37(1) Journal of Welfare and Family Law 137, 142.CrossRefGoogle Scholar

94 Johnston, Peter, ‘Recent Developments Concerning Tribunals in Australia’ (1996) 24(2) Federal Law Review 323.CrossRefGoogle Scholar While Johnston was referring to tribunals his comments are apposite to Ombudsman.

95 Waseem, above n 91.

96 Kirsty Needham, ‘Police Bugging Inquiry into Operation Prospect to Cost $10m by End’, Sun-Herald (Sydney), 3 April 2016.

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

98 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.

99 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) <http://23.101.218.132/prod/parlment/committee.nsf/0/8d6b68ac3538a022ca257df6007a38bf/$FILE/Final%20report%20-%20%2025.2.15.pdf>.

100 Ibid.

101 Ibid.

102 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>.

103 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>.

104 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 (NSW), schedule 1. Select Committee on the Conduct and Progress of the Ombudsman's Inquiry “Operation Prospect”, above n 99, 22.

105 Page, Robert W and Swanton, Bruce, ‘Complaints Against Police in New South Wales: Administrative and Political Dimensions’ (1983) 42(4) Australian Journal of Public Administration 503, 517CrossRefGoogle Scholar 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.’

106 ‘New law enforcement watchdog for NSW’ (26 November 2015) <http://www.justice.nsw.gov.au/Pages/media-news/media-releases/2015/New-law-enforcement-watchdog-for-NSW.aspx>.

107 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>.

108 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).

109 Select Committee on the Conduct and Progress of the Ombudsman's Inquiry “Operation Prospect”, Evidence, NSW Ombudsman, 3 February 2015, 7.

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

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

112 Evidence to General Purpose Standing Committee No. 4, Parliament of New South Wales, Sydney, 19 June 2015, 29 (Bruce Barbour), quoted in General Purpose Standing Committee No. 4, above n 102.

113 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.

114 David Shoebridge, NSW Ombudsman Powers should be Cut, Says Police Bugging Inquiry (26 August 2015) David Shoebridge: Greens Member of the NSW Parliament <http://davidshoebridge.org.au/2015/08/26/nsw-ombudsman-powers-should-be-cut-says-police-bugging-inquiry/>.

115 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 Carlota, Salvador T, ‘The Ombudsman: Its Effectivity and Visibility Amidst Bureaucratic Abuse and Irregularity’ (1990) 65 Philippine Law Journal 12, 20.Google Scholar By contrast the press may paint unflattering pictures: see headlines such as Mark Coultan ‘Bruce Barbour's Legacy of Untidy and Unfinished Business’, The Australian (Sydney), 1 July 2015.

116 Correspondence from Chris Wheeler to the Hon Robert Borsak MLC, 20 July 2015.

117 Wanna, John, ‘Australia's Future as a “Westminster Democracy”—Threats to Combat, Stark Choices to Make …’ (2014) 73 Australian Journal of Public Administration 19, 21.CrossRefGoogle Scholar

118 Chris Gill, ‘The Evolving Role of the Ombudsman: A Conceptual and Constitutional Analysis of the “Scottish Solution” to Administrative Justice’ [2014] Public Law Review 662.

119 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>.

120 de Sousa, Luis, ‘Anti-Corruption Agencies: Between Empowerment and Irrelevance’ (2010) 53(1) Crime, Law and Social Change 5, 6.CrossRefGoogle Scholar

121 Ibid 21.

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

123 Clark, David, ‘Neoliberalism and Public Service Reform: Canada in Comparative Perspective’ (2002) 35(4) Canadian Journal of Political Science 771, 771.CrossRefGoogle Scholar

124 Cruz, Katie and Brown, Wendy, ‘Feminism, Law, and Neoliberalism: An Interview and Discussion with Wendy Brown’ (2016) 24(1) Feminist Legal Studies 69, 72.CrossRefGoogle Scholar

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

126 Linder, Stephen H, ‘Coming to Terms With the Public–Private Partnership’ (1999) 43(1) American Behavioural Scientist 35, 36.CrossRefGoogle Scholar

127 Thank you to Chris Wheeler for this point (although I claim the word ‘rainbow’ as my own).

128 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 Weeks, Greg, Soft Law and Public Authorities: Remedies and Reform (Hart Publishing, 2016).Google Scholar

129 Ibid.

130 Ombudsman, Queensland, ‘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.Google Scholar

131 Arthurs, H W, ‘The Administrative State Goes to Market’ (2005) 55(3) University of Toronto Law Journal 797, 809.CrossRefGoogle Scholar

132 O’Brien, Nick, ‘What Future for the Ombudsman?’ (2015) 86(1) Political Quarterly 72, 74.CrossRefGoogle Scholar

133 Podger and Wanna, above n 75, 107.

134 Thank you to Rick Snell for this point.

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

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