25 Years of the Office of the Tasmanian Ombudsman
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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 Australia 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 Tasmania. 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,