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Published online by Cambridge University Press: 01 January 2025
The statutory office of Commonwealth Ombudsman was created in 1977, as part of the new federal administrative law. In this article, marking the 40th anniversary of the appointment of the first Commonwealth Ombudsman, Professor Jack Richardson, the author describes the early history, including the resistance in some quarters to the model adapted from Sweden. He describes the innovations of the first ten ombudsmen and the frustrations and difficulties they faced. He then identifies ten issues on the future of the office: (1) whether it should be directly linked to the Parliament; (2) whether it should be served by a select committee; (3) how its funding should be maintained; (4) protecting the Ombudsman title; (5) retaining ministerial support in circumstances of differences; (6) overcoming official resistance; (7) addressing judicial hostility; (8) embracing new technology and generic reform; (9) embracing self-criticism and human rights analysis; and (10) engaging with comparative and international outreach and innovation.
Text for an address to the 40th anniversary conference of the Commonwealth Ombudsman, Old Parliament House, Canberra, 5 April 2017. The author acknowledges the editorial assistance of Emma Boland.
Justice of the High Court of Australia (1996–2009); Chairman of the Australian Law Reform Commission (1975–84); Member of the Administrative Review Council (Australia) (1976–84).
1 Created by Swedish legislation of 1809. G Palmer and M Palmer, Bridled Power—New Zealand Government under MMP (Oxford University Press, 1979), 225.
2 J E, Richardson, ‘The Ombudsman's Place Among the Institutions of Government—Past, Present and Future’ (2001) 8 Australian Journal of Administrative Law 183Google Scholar.
3 Sir Guy Powles described the ‘strangeness, isolation and challenge’ when he took office and said it took two years before the office was fully accepted by the public service: SirGuy, Powles, ‘The New Zealand Ombudsman—the Early Days’ (1982) 12 Victoria University of Wellington Law Review 207Google Scholar. See also Geoffrey, Palmer, ‘Constitutional Reflections on Fifty Years of the Ombudsman in New Zealand’ (2013) 25 New Zealand Universities Law Review 780Google Scholar for a discussion of the development of the office of the Ombudsman in New Zealand.
4 Law Reform Commission Act 1973 (Cth); Administrative Appeals Tribunal Act 1975 (Cth); Administrative Decisions (Judicial Review) Act 1977 (Cth); Freedom of Information Act 1982 (Cth); Privacy Act 1988 (Cth).
5 Administrative Review Council, Federal Judicial Review in Australia, Report No 50 (2012) 28.
6 Administrative Review Council, Overview of the Commonwealth System of Administrative Review <https://www.arc.ag.gov.au/Aboutus/Pages/OverviewoftheCommonwealthSystemofAdminReview.aspx>.
7 Under the Parliamentary Commissioner Act 1971 (WA), Parliamentary Commissioner Act 1974 (Qld), Ombudsman Act 1972 (SA), Ombudsman Act 1973 (Vic) and the Ombudsman Act 1974 (NSW). See Boyd v Ombudsman [1983] 1 NSWLR 620.
8 Richardson, above n 2, 183.
9 J C Campbell, ‘Obituary: George Gurney Masterman QC (1929–2016)’ [2016] (Summer) Bar News 59. See also A, Payne and J C, Campbell, ‘George Masterman QC’ (2017) 91 Australian Law Journal 155, 155–6Google Scholar: ‘By dealing with a number of smaller complaints about departments each year [he] made the process of Government in New South Wales a better one … The people … were well served by [him] working as “a disturbing element in the system” in their interests.’
10 Richardson, above n 2, 183.
11 Michael, Kirby, ‘Three Law Deans and What They Teach About Deanship’ (2014) 42 Federal Law Review 589Google Scholar.
12 Secretary of the Federal Attorney-General's Department (1970–9).
13 First Assistant Secretary of the Federal Attorney-General's Department (1972–80).
14 Deputy Secretary of the Federal Attorney-General's Department (1970–9).
15 Solicitor-General of the Commonwealth (1969–73); Attorney-General of the Commonwealth (1975–7); Chairman of the Ellicott Committee; Judge, Federal Court of Australia (1981–3); Barrister (1950–2017). Appointed Companion of the Order of Australia in 2017.
16 Judge, Federal Court of Australia (1977–81); First President of the Administrative Appeals Tribunal and Chairman of the ARC (1976–9); later Justice (1981–95) and Chief Justice (1995–8) of the High Court of Australia.
17 First Assistant Secretary of the Federal Attorney-General's Department who played an important part in education of the new administrative law principles in the federal administration and preparing the public service for the new legal regime.
18 Chairman of the Public Service Board of the Commonwealth (1978–83), Secretary of the Federal Department of Finance (1976–8).
19 Secretary of the Federal Department of the Treasury (1979–84) and later Senator of the Commonwealth for Queensland, National Party (1987–90).
20 See also Michael Kirby, ‘Jack Richardson, the First and Perfect Commonwealth Ombudsman’ (Speech delivered at the Jack Richardson Oration on the Public Lawyer and Public Governance, Canberra, 12 September 2012).
21 Member, Administrative Review Council (1976–82); later a Judge of the Federal Court of Australia (1999–2008).
22 See Commonwealth, Parl Paper No 109 (2016) 65 and Moira Coombs, Abolition of the Administrative Review Council (May 2015) Parliament of Australia <http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/BudgetReview201516/ARC>.
23 Richardson, above n 2, 184.
24 Ibid.
25 Professor Jack Richardson (apptd 17 March 1977 served to 23 September 1985); Geoffrey Kolts (apptd 1 July 1986 served to 31 October 1987); Professor Dennis Pearce (apptd 1 February 1988 served to 31 January 1991); Alan Cameron (apptd 1 April 1991 served to 31 December 1992); Philippa Smith (apptd 17 May 1993 served to 6 February 1998); Ron McLeod (apptd 18 February 1988 served to 28 February 2003); Professor John McMillan (apptd 3 March 2003 served to 3 June 2010); Allan Asher (apptd 30 August 2010 served to 28 October 2011); Colin Neave (apptd 17 September 2012 served to 13 January 2017). On 8 May 2017 the present Commonwealth Ombudsman, Michael Manthorpe PSM, formerly Deputy Secretary of the Department of Immigration and Border Protection, was appointed. See generally Carmel, Meiklejohn, Making a Difference—40 Years of the Commonwealth Ombudsman (Bytes ‘n Colours, 2017)Google Scholar for more information on the successive Commonwealth Ombudsmen and their experiences.
26 M D, Kirby, ‘The Decline and Fall of Australia's Law Reform Institutions—and the Prospects of Revival’ (2017) 91 Australian Law Journal (forthcoming)Google Scholar.
27 Federal Attorney-General's Department (1955–66); Office of Parliamentary Counsel (1962–86); Member, Administrative Review Council (1977–82).
28 Richardson, above n 2, 187.
29 D, Pearce, ‘Who Needs an Ombudsman’ in Commonwealth Ombudsman, Twenty Years of the Commonwealth Ombudsman 1977–1997 (Commonwealth Ombudsman's Office, 1997) 47, 50Google Scholar.
30 Philippa, Smith, ‘Foreword’ in Commonwealth Ombudsman, Twenty Years of the Commonwealth Ombudsman 1977–1997, (Commonwealth Ombudsman's Office, 1997) 1, 3Google Scholar.
31 Richardson, above n 2, 187.
32 Ibid 190.
33 Colin Neave, ‘The Commonwealth Ombudsman—Future Vision’ (Speech delivered at the 2015 Australian Institute of Administrative Law Conference, Canberra, 28 July 2015).
34 Commonwealth Ombudsman, The Administration of Section 501 of the Migration Act 1958, Report No 8 (2016).
35 Editorial, ‘Hard to Ignore Ombudsman's Detention Blast’, New Zealand Herald (Auckland), 12 January 2017.
36 Ibid.
37 Ibid.
38 See also Re Patterson; Ex parte Taylor (2001) 207 CLR 391, 488 [290] (Kirby J).
39 Even this may not necessarily be so. In 2017 the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 was introduced into the Federal Parliament. It would expand the power of Australian Immigration Ministers to overrule the independent decisions of the Administrative Appeals Tribunal in such cases. The proposed legislation was criticised by the Law Council of Australia: see Law Council of Australia, Submission No 464 to Senate Legal and Constitutional Affairs Committee, Parliament of Australia, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, 21 July 2017.
40 Richardson, above n 2, 184.
41 Ibid 184–5. By 1984, oral complaints reached 10000 per year. By 1999 they had risen to 17000. Complaints which were initiated originally in writing were steadily about 3000–3700. Note that Ombudsmen continue to undertake investigations on their own initiative (as opposed to only in response to a complaint) to assist in the reduction of systematic public administration issues—see Cady, Simpson, ‘Effective Ombudsman Own-Initiative Investigations: Ideas from Ombudsman Own-Initiative Investigations, Auditor-General Performance Audits and Law Reform Commission Projects’ (2014) 21 Australian Journal of Administrative Law 156Google Scholar.
42 Charles, Darwin, The Origin of Species (George Murray, London, 1859)Google Scholar.
43 Ibid ch 5.
44 In John McMillan, ‘Future Directions for Ombudsman offices—Four Trends, Two Reflections’ (Speech delivered at the Australian and New Zealand Ombudsman Association (ANZOA) Conference, Wellington, 30 April 2014), John McMillan commented on the need for ombudsman offices to continue to evolve and adapt: ‘Ombudsman offices must aim to evolve, adapt and re-model themselves as needed to keep pace with changes in government, business and the community’.
45 Richardson, above n 2, 189.
46 Ibid 190.
47 SirDavid, Lloyd Jones, ‘The Law Commission and the Implementation of Law Reform’ (2013) 94 Amicus Curiae 2Google Scholar. Commencing in 2009 under the Law Commission Act 2009 (UK), the Lord Chancellor was obliged as soon as practicable after the end of each reporting year to report on proposals and their implementation.
48 Richardson, above n 2, 190.
49 Ibid.
50 See, eg, Marita, Wall, ‘Resolving the Issue’ (2014) 393 Superfunds Magazine 42Google Scholar; M, Saleh Jaberi, ‘Solving Securities Exchange Disputes by means of Ombudsmen: Does it Work?’ (2014) 25 Australian Dispute Resolution Journal 55Google Scholar.
51 See, eg, Chris, Field, ‘Consumer Dealings: The Role of the Western Australian Energy Ombudsman and its Relationship with Regulators, Industry and Consumers’ (2013) 41 Australian Business Law Review 43Google Scholar.
52 See ‘A new Ombudsman to Focus on Small Business’ (2015) 11 The Baxt Report 5.
53 See also Anita, Stuhmcke, ‘Australian Ombudsmen: Drafting a Blueprint for Reform’ (2017) 24 Australian Journal of Administrative Law 43Google Scholar.
54 Davis v Commonwealth (1988) 166 CLR 79 (‘Bicentennial Authority Case’).
55 Coleman v Power (2004) 220 CLR 1, 54 [105] (McHugh J), 78 [197] (Gummow and Hayne JJ); 97–8 [253] (Kirby J).
56 The incident is described in AJ, Brown, Michael Kirby: Paradoxes and Principles (Federation Press, 2011) 333–5Google Scholar.
57 See Darwin, above n 42.
58 Retirement of the Chief Justice (1952) 85 CLR vii, ix.
59 (1986) 159 CLR 656. See also Osmond v Public Service Board (NSW) [1984] 3 NSWLR 447.
60 (2003) 216 CLR 277, 323–5.
61 (2005) 221 CLR 99, 151–6.
62 (1990) 170 CLR 1.
63 Justice Duncan Kerr (Speech delivered at the launch of Administrative Law—The Laws of Australia, Sydney, 22 March 2017). See Mark, Robinson, Administrative Law—The Laws of Australia (Thomson Reuters, 2016)Google Scholar [2.7.790], citing Glenister v Dillon [1976] VR 550; Booth v Dillon (No 2) [1976] VR 434.
64 See, eg, McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, 427–33 [1]–[20] (Gleeson CJ and Kirby J).
65 See generally Justice Melissa Perry, ‘iDecide: The Legal Implications of Automated Decision-Making’ (Speech delivered at the Cambridge Centre for Public Law Conference 2014, University of Cambridge, 15–17 September 2014); Richard Susskind, ‘Online Courts and Online Dispute Resolution’ (Speech delivered at the Word Bar Conference 2016, Edinburgh, 14–16 April 2017).
66 Angela Moscaritolo, H&R Block enlists IBM Watson to Find Tax Deductions (3 February 2017) PC Magazine <http://au.pcmag.com/software/46348/news/hr-block-enlists-ibm-watson-to-find-tax-deductions>.
67 Amalgamated Society of Engineers v Adelaide Steamship Company Ltd (1920) 28 CLR 129 (‘Engineers’ Case’).
68 (1992) 175 CLR 1.
69 Commonwealth, Exploring the Role of the Commonwealth Ombudsman in Relation to Parliament, Parl Paper No 63 (2015) 53.
70 Ibid.
71 Such as, for example, the provision of financial remedies for at least some instances of poor public administration. See, eg, Commonwealth and Defence Force Ombudsman, Annual Report (1991–92).