25 Years of the Office of the Tasmanian Ombudsman

On 31st January 1979 Royal Assent was given to the Ombudsman Bill passed by the

Tasmanian Parliament, leading to the creation of the Ombudsman that has for 25 years provided an independent office for the investigation of complaints concerning administrative actions of government. It was therefore twenty-five years ago that

Tasmania completed the circle by which the Australasian adaptation of the Swedish concept of Justitie-ombudsman, begun with the appointment of Sir Guy Powles in New

Zealand in 1962, was extended to all Australian governments. Western appointed a Parliamentary Commissioner for Administrative Investigations in 1971, followed by the appointment of an Ombudsman in Victoria and South Australia in 1972,

New South Wales and Queensland in 1974. The Commonwealth Ombudsman, appointed in 1977, also had responsibility for investigating complaints relating to the administration of the Australian Capital, and an Ombudsman for the Northern Territory commenced operations in 1978.

Rarely, however, has an Act of parliament had such a long and tortuous process within the legislative system. From June 1970 to January 1979, the concept in various forms, was considered within parliament; and for most of that nine years, a Legislative Council

Select Committee operated as an Ombudsman committee. Various individuals have claimed the credit for bringing to the attention of (Sir) Angus Bethune the New Zealand system for the investigation of administrative complaints, but it is undeniable that the creation of such an office was a plank in the election platform of the Liberal Party that formed Government (in coalition with the Central Party) under the premiership of Mr

Bethune following the election of 1970. Under this mandate, the Attorney-General, (Sir)

Max Bingham introduced the Parliamentary Commissioner Bill 1970 to the House of

Assembly on 17 June 1970. Having passed the lower house, the bill was debated in the

Legislative Council on 16 and 17 September 1970, after which the bill suffered the ultimate humiliation (in parliamentary terms) when the Council passed a resolution “bill be read a second time on this day six months” (a parliamentary devise effectively shelving the measure indefinitely). Newspaper accounts of the debate indicate that there were concerns as to the necessity for such an office and the likely expense of such an office. The Government persisted, and re-introduced the measure as the Parliamentary

Commissioners Bill 1971. In the face of this determination, the Legislative Council adopted another tactic, appointing a Select Committee to “enquire and report upon the bill and such complaints of administrative actions against authorities specified in the schedule of the bill as might be made to the committee within twelve months”. The

Legislative Council thus established a Select Committee on Complaints of Administrative

Actions, which became known as the Ombudsman Committee, and in the following six months, received and began the process of investigating complaints. With the proroguing of parliament in February 1972 to provide for the general election the bill and the committee lapsed. This lead to the intriguing situation whereby complaints had been received by the Legislative Council and it became necessary to re-establish the committee in order to investigate the complaints received.

Overall the Committee was to remain in force until 1979, publishing reports as parliamentary papers on completed cases and generally upon the operation of the committee and of complaints about administrative actions generally. Meanwhile the

Labor Party, having opposed the concept in 1970 and 1971, reconsidered the idea both in the light of the work of the experience of the Legislative Council and, perhaps more importantly, a consideration of issues of administrative law reform whereby citizens could be provided with a realistic and affordable means for citizens to test administrative actions or decisions.

A tentative step was taken in 1975 with the Administrative Complaints Committee Bill

1975 designed to establish a Statutory Standing Complaints Committee of the Legislative

Council but that measure lapsed with the proroguing of parliament in December 1975 before the General Election and was not reintroduced following the election. It was not until 7 November 1978 that the measure was reintroduced as the Administrative

Complaints Bill 1978 only to be withdrawn and replaced by the Ombudsman Bill 1978 on

28 November 1978. The House of Assembly agreed to amendments suggested by the

Legislative Council on 14 December 1978, Royal Assent was given on 31 January 1979 and the Government advertised in May 1979 for an Ombudsman for .

In the words of a newspaper editorial (Mercury 9 November 1978) it was the “dogmatic insistence that the Committee could be just as efficient and cheap and for the Labor

Government took so long to come round to the Liberals’ thinking” and caused Tasmania to be the last Australian parliament to enact Ombudsman legislation rather than the first.

There were advantages in being the last – the experiences of Ombudsman in other jurisdictions as well as the Legislative Council’s Ombudsman Committee could be incorporated into the Tasmanian legislation, and the first appointee could call upon the experiences of colleagues in other states for guidance. The Act should also be seen in the context of commonwealth/state relationships of the day as provision was made for the

Tasmanian Ombudsman to act as delegate of the Commonwealth Ombudsman and for the

Commonwealth to contribute to the financing of the office; a variation on

Commonwealth/State cooperation that in some other states had seen the sharing of office and other resources, but not delegation. Thus Tasmanians were provided with a ‘one-stop shop’ providing Ombudsman-type services for Commonwealth, State and Local

Government, an arrangement that continued until 1995

At the end of May 1979, the Government announced the appointment of C R (Dick)

Woodhouse as Ombudsman, and he set about the task of creating an office, selecting staff, and actually receiving complaints almost from the first day of the announcement of his appointment. Having established his office (on the sixth floor of the Reserve Bank building) and selected his staff, all was in readiness for the proclamation of the Act on 10

September 1979 and the commencement of the Office of the Ombudsman. Based on the experience of other jurisdictions, Mr Woodhouse estimated that he would be likely to receive 400 complaints in his first year – in fact he received 588 plus 60 uncompleted cases transferred from the Legislative Council.

In public statements, addresses and annual reports, Ombudsman right from the start have emphasised the essential features of the legislation. Independence of the office, the ability to investigate impartially and to make recommendations for remedial action where the

Ombudsman forms an opinion that there is defective administration. The Ombudsman’s strong powers of investigation are balanced with powers only to make recommendations, and to make reports where those recommendations are not carried out. “Ultimately it is the scrutiny of Parliament which is brought to bear on the complaint.”

Mr Woodhouse retired from the position of Ombudsman on 31 December 1984, the deputy, Mr Michael Dixon, acting as Ombudsman until the appointment of Mr Roger

Willee in September 1985. The Ombudsman Act 1978 contained a ‘Sunset Clause’, a provision designed to ensure parliamentary scrutiny of the legislation after it had been in operation for a nominated period. Such sunset clauses have now been replaced by provision in legislation for review and report to parliament such as contained in the

Health Complaints Act 1995 but the existence of the sunset clause in the Ombudsman Act

1978 meant that an amendment was required in order that the office could continue beyond September 1984. The sixth Annual Report of the Ombudsman bemoaned the fact that the Act, having expired one month before the re-establishment act was debated, prevented the parliament from taking the opportunity to vigorously review the operation of the office. With the appointment of Mr Willee as Ombudsman, the government of the day decided to extend, rather than abolish, the sunset clause, and the issue was well and truly flagged prior to the expiration of the second period. Mr Willee argued that the experience of the office over almost ten years had demonstrated the need and value of the office and urged the Government to make the office permanent. Initially the Government announced a further extension of the sunset clause, but ultimately determined that the continuing need for the office had been established, and legislated to remove the sunset clause.

Having determined that the office was to be ‘permanent’, the Government decided to advertise the position of Ombudsman rather than renew the appointment of the incumbent. This decision, combined with political events following the General Election held in May 1989, was to involve considerable controversy and much discussion of aspects of the role of the Ombudsman. The selection process following advertisement of the position had not been finalised before the State Election, following which the

Premier, Mr Robin Gray, no longer commanded a majority in the House of Assembly.

Subsequently the Government was defeated on the floor of the House of Assembly and, following the resignation of Mr Gray as Premier, Mr Michael Field, as parliamentary leader of the Labor Party, was commissioned to form a Government with support of the

Independent “Green” members of parliament – the Labor/Green Accord. On the 9 August

1989, and before parliament sessions resumed, Mr Field announced the appointment of

Mr Neil Batt, a former parliamentarian, as Ombudsman.

Upon the announcement of his appointment to the position by a Labor Government, a number of issue arose and were extensively discussed. It was revealed that following his defeat as a Labor candidate in the election of May 1989, Mr Neil Batt had expressed to the Liberal Premier Gray his interest in the position of Ombudsman, and arrangements were made to have his candidature considered by the committee set up to make a recommendation to Cabinet as to the appointment of an Ombudsman. Thus the re- opening of the position to allow consideration of Mr Batt’s candidature became one issue; the propriety of a former parliamentarian as Ombudsman was another; and the role of the selection committee and its recommendation was yet another. In relation to the non-renewal of Mr Willee’s appointment there was the issue of the loss of accumulated knowledge gained while exercising the office of Ombudsman and the inherent problems of independence of the Ombudsman and the maintenance of a proper standard of investigation in situations where the Ombudsman is reliant upon Government for renewal of appointment. Despite the controversy, Mr Batt’s appointment went ahead, and he took up the position from 10 September 1989.

Subsequently other issues arose leading to a criminal prosecution, dismissed at the committal stage, in relation to the negotiations of conditions for Mr Batt’s appointment as

Ombudsman. Mr Batt had resigned as Ombudsman effective from 25 September 1991, before that case went to hearing. In spite of all the controversy, the office continued to fulfil its role, the Ombudsman’s Annual Reports reporting a considerable increase in the number of complaints received and claiming increased effectiveness in resolving complaints. Perhaps as a result of the controversy the office had a heightened profile, but the Ombudsman considered that there was still a need to make the office better known and accessible, especially to minority groups, and that there was a need to continually restate the impartial role of the office.

The Deputy Ombudsman, Mr R F X Green, acted in the position following Mr Batt’s resignation, and was subsequently confirmed as Ombudsman from 30 October 1992. The role of the Ombudsman was expanded to incorporate a significant role in the Freedom of

Information from 1 January 1993, but at a time when staff resources were being restricted. The role of the Ombudsman was expanded further under the next Ombudsman,

Mr Damon Thomas, (appointed in October 1996) when the Ombudsman was also appointed as Health Complaints Commissioner under the Health Complaints Act 1995 from 1 March 1997 and as Electricity Ombudsman from I July 1998 Mr Thomas assumed the role of an ”industry ombudsman” in relation to the various commercial identities made up from the former Hydro Electric Commission which had been subject to the traditional Government Ombudsman jurisdiction. This combination of Ombudsman for investigating administrative complaints of the bureaucracy, Health Complaints

Commissioner charged with the resolution by mediation or investigation of health complaints, and industry ‘ombudsman’ with limited but nevertheless substantial powers to award settlements, which having many common features especially in relation to the conduct of investigations is nevertheless interesting.

The role of the Ombudsman is variously described as ‘representative of the people’; a

‘watchdog’, or as a person who can direct a light on otherwise dark areas of administration. The idea of a light was also used by a senior bureaucrat in an address at the opening of the Australasian and Pacific Ombudsman conference held in in

November 1986. Bob Annells, told this story as a word of encouragement for the assembled ombudsmen (it was in fact one of the last occasion that such was an all male assembly!). His story of two lights closing on a dark sea had a particular relevance in that the USS Missouri, the battleship upon which General MacArthur accepted the Japanese surrender, was berthed at Macquarie Wharf at the time.

The first set of lights signalled ‘Reverse engines and pull to starboard we are on

collision course’. The second set of lights signalled back ‘You reverse engines

and pull to starboard’.

The first set then signalled ‘I am a Rear Admiral in the U S Fleet with 25 years

experience. I am one of the most senior officers in the Command. Reverse engines

and pull to starboard’. The second set of lights signalled back ‘I am simply filling

in here for the bloke who normally does the job, but nevertheless you reverse

engines and pull to starboard.’

The first set then signalled ‘I am a guided missile battleship with the capacity to

obliterate half the population in the Southern Hemisphere. Reverse engines and

pull to starboard at once.’ The second set of lights then signalled back. ‘Very

impressive I’m sure, however I still suggest you reverse engines and pull to

starboard. I am a lighthouse!’