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Administrative discretions - Committee on Administrative Discretions - Reports - 19 January 1973 (Interim)


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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

1973—Parliamentary Paper No. 53

COMMITTEE ON ADMINISTRATIVE DISCRETIONS

INTERIM REPORT January 1973

Presented by Command 29 May 1973 Ordered to be printed 31 May 1973

THE GOVERNMENT PRINTER OF AUSTRALIA CANBERRA: :1973

Printed by Authority by the Government Printer of the Commonwealth of Australia

COMMITTEE ON ADMINISTRATIVE DISCRETIONS

Members

Sir Henry Bland, C.B.E. (Chairman) (Formerly Secretary to the Departments of Defence, and of Labour and National Service)

Professor H. Whitmore

(Professor of Law, University of N.S.W. and formerly Dean of the Faculty of Law, School of General Studies, Australian National University)

P. H. Bailey, Esq., O.B.E.

(Deputy Secretary, Department of the Prime Minister and Cabinet)

Secretary

Ernst Willheim, Esq.

(Principal Legal Officer, Attorney-General’s Department)

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CONTENTS

Introduction . . . Paragraphs 1-5

Procedure followed . . . . . 6-16

The scope and character of discretionary powers 17-26

The Kerr Committee view of a grievance man . 27-29 Ombudsmen today . . . . . 30- 3

Ombudsmen in New Zealand, the United King­ dom, Western Australia and South Australia 33-62 A Commonwealth Ombudsman . . . 63-67

Qualities needed of an Ombudsman . . 68-70

Avoiding overloading the Ombudsman in the initial s t a g e s ................................................ 71-81

Matters in respect of which an Ombudsman should not have jurisdiction . . . 82-101

Powers of an Ombudsman . . . . 102-112

Security issues . . . . . . 113-119

Access to the Ombudsman . . . . 120-130

Conclusion . . . . . . . 131-133

S u m m a r y .......................................................... 134

A c k n o w le d g m e n ts ....................................... 135

Appendix A: Persons invited to make Sub­ missions . . . . . pages 33-38

Appendix B: Comparative Table of New Zealand, United Kingdom, Western Austra­ lian and South Australian legislation pages 39-52 Appendix C: Statistical Summary of Complaints

Received by New Zealand Ombudsman pages 53-54

Senator the Honourable L. K. Murphy, Q.C., Attorney-General, Parliament House, Canberra, A.C.T. 2600

In late 1971 your predecessor appointed us to make an examination of existing administrative discretions under Commonwealth Statutes and regulations and to advise as to those in respect of which it appeared that a review on the merits should be provided. This gave effect to a statement of intent made by the then Prime Minister when, on 14 October 1972, he presented to the House of Represen­ tatives the Report of the ‘Commonwealth Administrative Review Committee’

presided over by the Honourable Mr Justice Kerr. That statement received the support of the present Prime Minister, then the Leader of the Opposition. (Hansard, pp. 2356 et seq.).

2. Just twelve months later, you were told by our Chairman of the progress of our work and of some problems we had encountered with our Terms of Reference. You were also told of our conclusion that, side by side with more formal tribunal type review processes which appeared warranted in some cases, there should be

an Ombudsman type process to review a fairly extensive sweep of administrative discretions. You thereupon indicated that you wished us to report on those administrative discretions, under Commonwealth Statutes and regulations, in respect of which we considered there should be some external review and on the

character of the review we considered appropriate in each case. You also asked that, because you wished to bring forward legislation providing for an Ombuds­ man, we should submit urgently an interim Report of our views on the Ombudsman type process and the discretions to which it should apply and, thereafter, return

to complete our examination and submit a final Report.

3. This, then, is the interim Report you sought. It contains no more than is neces­ sary for its particular purpose and the detail of its content has been influenced by your wish for a report in short time.

4. At the outset, it must be emphasised that the views that follow:

(а) may not be read as applying to discretions under Ordinances or sub­ ordinate legislation applying solely to the Australian Capital Territory or under legislation applying solely to the Northern Territory. This for the reason that we have not yet examined such Ordinances and legislation.

We would also wish to consider whether separate Ombudsmen were called for. Questions of work load, overlap between jurisdictions if there were to be separate Ombudsmen and the role of the Legislative Council in the Northern Territory would call for examination.

(б) may not be read as applying to Papua New Guinea because, early in our work, we took the deliberate decision that it should be left to the House of Assembly and the Government of that Territory to determine what, if any, measures should be adopted to review administrative discretions

under legislation and regulations applicable in that Territory.

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(c) are based on our examination of the legislation and regulations adminis­ tered by the undernamed Departments (as they were functioning prior to the recent changes in the Administrative Arrangements Order) and consideration of other material that we have received or studied to date. The Departments are:

Army Civil Aviation Customs and Excise Defence

Education and Science External Territories Environment, Aborigines and the Arts Foreign Affairs Health Housing Immigration Labour and National Service Postmaster-General Prime Minister and Cabinet

Shipping and Transport Social Services Supply.

5. Thus, the remaining Departments (stating them as they were known before the recently announced changes), whose legislation and regulations we have not yet examined are:

Air Attorney-General Interior National Development Navy

Primary Industry Repatriation Trade and Industry Treasury

Works.

Despite this, we feel confident that what follows in this interim Report will not call for review when we have completed our examination and submit our final Report.

Procedure followed

6. At this point we should say something of the procedure we have been following.

7. Letters were addressed to:

(a) the Leaders of each of the Parties in Parliament (the Deputy Leader in the case of the Liberal Party);

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(b) a wide range of persons who by virtue of the positions they occupy were thought to be interested or concerned in our assignment. A list of those addressed appears in Appendix A.

These letters drew attention to the task assigned to us and invited submission of views that would help us.

8. Concurrently notices were published in the metropolitan daily press directed to the same end.

9. To date, submissions have been received from a number of the addressees in Appendix A and others.

10. The staff assigned by the Secretary, Attorney-General’s Department to aid us then proceeded to schedule, in convenient form, all the Statutes and regulations administered by each Department containing discretionary powers and functions. With the exceptions noted below, to each of the Permanent Heads in turn was

sent a letter inviting first, a check of the schedules and second, a response to a series of detailed questions which we had formulated. Having studied the legislation against the schedules and the departmental reply, we then sat down with the Per­ manent Head for a detailed discussion. The exceptions were the Departments of Defence, External Territories, Environment, Aborigines and the Arts, Foreign Affairs and Prime Minister and Cabinet whose legislation the Committee had studied from which it was concluded that personal discussion with the Permanent

Head was unnecessary.

11. On each occasion, the Permanent Head was accompanied by his senior staff and most useful and enlightening discussions ensued.

12. We also met with the Chairman of the Australian Broadcasting Control Board and his senior staff. In the course of our examination and discussions with Depart­ ments, we took account of the activities of such instrumentalities and bodies as the Australian National Airlines Commission, the Australian National Shipping Commission, the Commonwealth Film Censorship Board, the Commonwealth Railways, the Film Board of Review, the Housing Loans Insurance Corporation,

the National Literature Board of Review, the Tariff Board, the various tribunals that function under the Conciliation and Arbitration Act and the Public Service Arbitration Act and the many tribunals, committees and advisory bodies for which the legislation and regulations examined provide.

13. During the course of a private visit to New Zealand, our Chairman took the opportunity to meet with the New Zealand Ombudsman, Sir Guy Powles, and discuss his work and some of our preliminary thinking.

14. Before passing to some comments on the process described, we would wish to express our appreciation of the diligent, painstaking and co-operative way in which Permanent Heads, and their staffs, without exception, approached our

requests and our overall task.

15. Not one of the Departments or Authorities had any criticism to offer against the concept of review of administrative discretions. Rather did they welcome the concept. This is not to say that no reservations were expressed but such as were contributed to our thinking. They were concerned with the type and subject matter

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of a review. Second, a number of Departments, sometimes stimulated by our appointment, had begun to review their legislation with a view to introducing review processes in certain circumstances and to review their own internal arrange­ ments for considering the grievances of complainants. There is room for believing

that our discussions with Departments aided their thinking and sometimes sparked off or accelerated departmental approaches to the importance of review processes. Altogether, it may be said with some confidence, that, irrespective of the outcome of our work, the Departments as a whole are now far more conscious of the need for:

(a) more information more widely available to acquaint the public of their rights and entitlements under legislation and of the means of securing them where conditions of eligibility exist; (b) improved processes within Departments for ensuring that persons

aggrieved by decisions of less senior officials may have their grievances reviewed at more senior levels; (c) ensuring that external processes of review should be more widely available if for no better reason than to achieve the result that justice is seen to be

done;

(d) reviewing legislation so that, wherever possible, the scope of discretionary powers is delimited more precisely.

16. This latter point deserves some illumination. Clearly when new legislation breaking new ground and introducing novel concepts is enacted, uncertainties about its scope and the circumstances in which it will operate lead the Parliament to express discretions in wide terms, leaving it to the donee of the discretion, be the Minister or Permanent Head or some other official, to detail through minis­ terial directions and departmental handbooks of instructions the manner and cir­ cumstances in which particular discretions are to be exercised. As time goes on and experience of the legislation is gained, the need for widely expressed discre­ tionary powers diminishes. It becomes possible to identify in the legislation itself, for example, the pre-conditions to apply to, or the actual classes of persons eligible for, this or that benefit. The Departments accepted this and we hope that, as legislation is reviewed, broadly worded discretions will, wherever possible, be reframed to narrow the character of the discretion. Sometimes the discretion may be eliminated altogether. We will have more to say on this topic in our final Report.

The Scope and Character of Discretionary Powers 17. Discretions may be vested in a Minister or an official or an instrumentality constituted to discharge some function. The Parliament has, over the years since Federation, followed no readily identifiable principle in determining who should

be the donee of a discretion. For example, the Social Services Act confers enor­ mously wide discretions on the Director-General of Social Services. It is in his hands that the Parliament conferred the general administration of the Act subject to any direction of the Minister. In other legislation, it is the Minister who has discretions ranging often to matters of seemingly trivial detail. To attempt a broad generalisation, in whose hands the discretion lies appears to depend partly

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on the period in which the legislation was enacted. Legislation of the earlier Parliaments tends to give the discretions largely to the Minister. Maybe this was because so many of the earlier Acts were scissors and paste derivatives of State legislation under which the Minister was the donee. Maybe in the first decade or so when Departments were smaller and their range of responsibilities less, Minis­

ters were considered to be capable of a more direct surveillance of the affairs of their Departments. In later years, the Parliament appears to have chosen officials as donees of extremely wide discretions, perhaps because the Parliament recog­ nised the practical fact that, were a Minister given the powers, he would have had

to delegate them, and perhaps sometimes, because of deliberate decision to remove the exercise of powers from political considerations. 18. Literally ten of thousands of discretionary powers are to be found in our Statutes and subordinate legislation. Confining ourselves to those we have so far

examined, there are several thousand alone in the legislation administered by the Departments of Postmaster-General and Shipping and Transport. The exercise of some discretions vested in Ministers may have the quality of ‘Acts of State’ or have a high political content, in that they give effect to decisions of Cabinet.

There are discretions that bear on relationships with other countries and with the States and some of our Territories. There are discretionary powers given to Permanent Heads in full recognition that they will be delegated; powers given to nominated officials, sometimes of relatively low level without power of dele­ gation; and powers given to instrumentalities specially constituted to deal with

specific but limited subject areas often with a high public interest or professional or technical element. 19. Viewed from another aspect, the exercise of some discretions may have far reaching consequences in the sense that they will apply to large numbers in the

community, sometimes with no great variation in detail and at other times with an infinite variety of variations in detail. By contrast, discretions may be exercised in relatively circumscribed situations for the benefit of few. The exercise of some discretions may have profound economic consequences, for example, in the

customs by-law area, where judgments have to be made as to whether suitably equivalent goods are made in Australia, as to the current domestic value of goods that are imported and as to the rates of duties that components should carry. In the quarantine area, discretionary powers are directed to the health of the

community and the safeguarding of our animal husbandry and our crops. In the process, individuals may suffer great inconvenience and sometimes financial loss. Discretions may, as well, depend on the existence of a series of pre-conditions being established to the satisfaction of the person having the power. These pre­

conditions may relate to readily ascertainable facts, or have elements that raise intricate questions of law, embrace very vague considerations such as whether an applicant for a pension is of good character and deserving of a pension or raise questions calling for extremely delicate judgments such as whether a woman has

been deserted without just cause. Entitlements to some benefits may be specifically excluded, unless the person with the discretion thinks it would be unfair for this to happen. There are powers to admit or accept and to refuse or reject claims; powers to grant less than the maximum of a prescribed benefit; powers

to determine degrees of disablement; powers to select beneficiaries for benefits;

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powers to seize and forfeit goods; powers to exempt persons from statutory obligations; powers to remit and make rebates; powers to authorise what is otherwise explicitly prohibited by legislation; powers whose exercise can advance

or prejudice a career, a livelihood or a cherished ambition; and there are powers whose exercise may impinge deeply on property rights, with sometimes no redress for the person affected.

20. Many discretionary powers call for the application of scientific, engineering, medical and other professional and technical skills and expertise of the highest order. Sometimes the discretions are directed to safety considerations of the greatest importance to the community (quarantine) and to large numbers of the travelling public and those who serve on or are concerned in the operation of air­ craft, ships and railways. Others may be concerned with the fine technicalities of radio, television and wireless telegraphy. Illustrations are to be found in legislation under which the Departments of Civil Aviation, Health, Postmaster-General and Shipping and Transport and the Australian Broadcasting Control Board operate. To enable them to discharge their functions, agencies such as these have estab­ lished inter-disciplinary groups of highly competent staff.

21. From our observations, different philosophies may influence the exercise of discretionary powers. For example, in the social services field, discretions tend to be exercised beneficently and with great flexibility so as to give the maximum advantage to the claimant. On the other hand, in the regulatory area or where safety considerations intrude, discretions tend to be exercised within much stricter criteria.

22. Not every discretionary power affects the citizen nor the relationships between the governors and the governed. A great many provisions take the form of a discretion precisely because they cannot be expressed in mandatory terms. Examples are provisions detailing the scope of the functions of an agency, the type

of services it may perform, the manner in which it shall conduct its internal affairs and providing for appointments to offices.

23. Needless to say, the exercise of these vast discretionary powers is not com­ pletely unfettered. The Courts have jurisdiction enabling some forms of review by means of declaratory judgments, injunctions and prerogative writs, though these are limited as the Kerr Committee Report makes clear. There are provisions, applicable in differing situations, for review by Courts, Boards and other Tribunals. Checks exist per medium of the work of various Parliamentary Committees such as the Public Accounts Committee, the Public Works Committee, the Parliamentary Publications Committee which recently examined the Telephone Book Pink Pages

Contract, the Senate Standing Committee on Regulations and Ordinances and more recently established Standing Committees of the Senate. Then there are the devices of Royal Commissions, Committees of Inquiry and the like. And there are arrangements for internal reviews, sometimes sanctified by Parliament in legisla­ tion, such as the social services legislation. As well, reviews and satisfaction of grievances occur through normal departmental processes, as a consequence of representations by Members of Parliament and others to Ministers and Depart­ ments, and through the question and answer and other procedures of the Parlia­ ment itself.

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24. Sufficient has been said to establish the importance from the view point of this Report of the character and quality of the myriad discretionary powers to be found in our Statutes and subordinate legislation. Many of the powers have no significance in the sense that they can personally affect the citizen. Those that do

personally affect the citizen do not all have the same significance. So, it follows that if these call for some sort of review process, then not all of them call for the same sort of process. Review on the merits, depending on the interpretation placed on that phrase, may not in some cases be warranted or appropriate, or, in other

cases, practicable or meaningful. Yet that is not to say that there should be no review at all in any of these cases.

25. ‘Review on the merits’ can be interpreted to involve, in effect, a reconsidera­ tion of a decision entitling the reviewing body to substitute its decision for that reviewed. This broadly seems to have been the view taken by the Kerr Com­ mittee. There are, of course, other possible forms of review where consideration

may be given to questions such as whether the action under review was reasonable, whether it had or had not been influenced by irrelevant or relevant factors as the case may be and whether the power has been exercised for the wrong reasons, and where the end result of the review may be reference back for reconsideration

or recommendatory. And, of course, a recommendatory power may have appended to it persuasive elements calculated to secure acceptance of the recommendation unless there is very good reason for ignoring it.

26. One form of review is the Ombudsman type process to which we will now turn our attention.

The Kerr Committee view of a grievance man

27. The Kerr Committee devoted itself to some examples of the Ombudsman type process e.g. in the United Kingdom and New Zealand. Within the framework of the elaborate and ‘comprehensive system of administrative law for Australia’ which it propounded, the Kerr Committee favoured the idea of ‘locating a griev­

ance man within the system of administrative review rather than in the Parliament- executive context’. It contemplated a General Counsel for Grievances. He would consider ‘whether in a particular matter action should be taken in the Administra­ tive Court or in the Administrative Review Tribunal or a specialised tribunal by

or on behalf of a complainant but in many cases . . . such action may not be necessary as the grounds of complaint may be removed as a result of his investi­ gation. The General Counsel would be entitled to act:

(i) on complaint from a citizen;

(ii) on complaint referred by a Minister or a Member of Parliament; and

(iii) of his own volition’ (para. 313).

To be noted is that the Administrative Court and Administrative Review Tribunal were new institutions proposed by the Kerr Committee.

28. Chapter 15 of the Kerr Committee Report develops the Committee’s argu­ ments. We mention only one of the Committee’s proposals. It was that if the

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General Counsel reported that a complaint before him was justified and was not remedied by the department or instrumentality concerned, the General Counsel should be empowered:

(a) to advise the complainant of his rights to proceed for review before the Administrative Court, the Administrative Review Tribunal or other administrative tribunal which the Report proposed, and/or (b) to proceed, on behalf of the complainant, for review of the matter before

any of these bodies where ‘because of the importance of the principle involved in the matter, or for any other reason, he is of opinion that his intervention is warranted’.

29. With the great advantage granted us of making a detailed study of the Statutes and with the enormous benefit of detailed discussions with the Depart­ ments, we have come to somewhat different conclusions from those of the Kerr Committee about the role and functions of a grievance man, as will be seen as this Report proceeds. We agree that he would work in the context of adminis­

trative review, but feel that he should do so with the maximum of informality and a minimum of legal formalities and procedures and should have no role in relation to any court or tribunal. This role had been proposed by the Kerr Com­ mittee in relation to its approach to questions of legal aid. We will be dealing with the question of legal aid in another context in our final Report.

Ombudsmen today

30. The Ombudsman type process of review is now no novelty. It had its origin in Scandinavia; indeed in Sweden as long ago as 1809. Finland followed in 1919 and Denmark in 1954. New Zealand established its Ombudsman in 1962 and the United Kingdom its Parliamentary Commissioner for Administration in 1967. In recent years, the Ombudsman concept has spread to many countries. In Australia, as lately as 1971 the Western Australian Parliament legislated for a Parliamentary Commissioner for Administrative Investigations and, last year, the South Australian Parliament legislated for an Ombudsman. For the sake of simplicity we will refer to all these offices as Ombudsmen.

31. Perhaps it may be said that the New Zealand arrangements and the practice of Sir Guy Powles, the New Zealand Ombudsman, have heavily influenced much of the later legislation, and that the United Kingdom legislation was, prior to its enactment, the subject of the most searching and intellectually satisfying examination of underlying concepts, principles and philosophies. This started in

1957 and continued intensively outside and in Parliament. The account in Staceys ‘The British Ombudsman’ is thoroughly rewarding.

32. At the risk of gross oversimplification, the Scandinavian Ombudsmen appear to have been basically concerned with maladministration. According to Keith, ‘The Ombudsman and “Wrong” Decisions’, New Zealand Universities Law Review, Vol. 4 No. 4 October 1971, the Swedish official ‘will not take up complaints

about the way in which a civil servant has exercised his discretion unless it appears that the discretion has been so abused as not to amount to an exercise of discretion at all’. This is the more interesting for our purposes because, in

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Sweden, the doctrine of ministerial responsibility has no place, partly perhaps because of the Swedish habit of constituting virtually autonomous agencies to administer policies determined in fairly broad terms by the legislature.

Ombudsmen in New Zealand and United Kingdom and Australian States

33. But though the Ombudsman type process had its origin in Scandinavia, it is thought that more is to be gained by a study of the legislation of Parliaments in the setting of the Westminster Parliamentary democracy and of the conventions that continue to govern the relationships between the Parliament, the Ministers

and the Civil Service. To aid discussion, there is attached, as Appendix B, a comparative analysis of the relevant United Kingdom, New Zealand, Western Australian and South Australian Acts.

34. The first thing to note is that, under each of the four Statutes, the

Ombudsman’ has a direct responsibility to Parliament and may only be removed from office upon address of Parliament. In New Zealand and Western Australia, Parliament may make Rules for his guidance.

35. Second, the jurisdiction of the Ombudsmen does not extend to all departments and agencies but only those specified in the Acts and does not extend to all func­ tions of those departments and agencies that are specified.

36. Third, the New Zealand and Western Australian Acts give the Ombudsman jurisdiction in respect of any decision or recommendation (including one to a Minister) or act done or omitted relating to a matter of administration and affecting any person or body in his or its personal capacity in or by the specified

departments or agencies, in the exercise of any power or function conferred by or arising under any enactment. By contrast, the South Australian Act does not require that the ‘administrative act’ be in exercise of a power or function under an enactment.

37. The United Kingdom Act proceeds from quite different premises. It focuses on maladministration in relation to a decision, not on the discretionary power con­ ferred by Statute. This rests on the view that if an Ombudsman could review every decision it would mean in the words of the then Financial Secretary, in the House

of Commons debate on the legislation, ‘not government by the Government, but government by the Commissioner’. Put another way, it would be a perfect example of power without responsibility and of giving power to someone who carried no responsibility for the making of policy to judge the desirability of that policy.

38. So the United Kingdom legislation authorises investigation of any action taken by or on behalf of specified departments or agencies, ‘being action taken in the exercise of administrative functions’ of the departments or agencies, where a member of the public ‘claims to have sustained injustice in consequence of mal­

administration in connection with the action so taken’. But there can be no questioning of the merits of a decision taken without maladministration in the exercise of a discretion. Of major significance is that references to Departments include references to Ministers so that the administrative, as distinct from the

policy, actions of Ministers are reviewable.

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39. Nowhere in the United Kingdom Act is maladministration defined.

40. The Leader of the United Kingdom House of Commons, Mr Richard Cross­ man, when introducing the Parliamentary Commissioner Bill, raised rhetorically the definition of maladministration. He said that it could be defined negatively: it did not extend to policy which remained a matter for Parliament nor include discretionary decisions when complainants disliked the decisions but could not fault the manner in which they were taken. He said that a positive definition of maladministration would be more difficult but would include bias, neglect, inatten­ tion, delay, incompetence, ineptitude, perversity, turpitude and arbitrariness.

41. The Commissioner for Complaints of Northern Ireland, who functions under an Act on lines similar to the United Kingdom Act, issued his own definition of maladministration in an explanatory leaflet and in his first Annual Report— ‘Administrative action (or inaction) based on or influenced by improper con­

siderations or conduct. Arbitrariness, malice or bias, including discrimination, are examples of improper considerations. Neglect, unjustifiable delay, failure to observe relevant rules or procedures, failure to take relevant considerations into account, failure to establish or review procedures where there is a duty or obliga­ tion on a body to do so, are examples of improper conduct.’

42. In 1968, the jurisdiction of the New Zealand Ombudsman was extended to cover investigation of any decision or recommendation or act done or omitted affecting any person or body of persons in his or its personal capacity by an officer or employee of education or hospital boards. It will be seen that the require­ ment of the original legislation that the matter investigated must relate to adminis­ tration does not appear. However, the amending Act excludes acts of teachers and of doctors and dentists in relation to the professional treatment of patients.

43. The Western Australian Act specifically withholds from the Ombudsman power to investigate any decision made by Cabinet or a Minister or to question the merits of any such decision. Except that the United Kingdom Act specifically allows for investigation of administrative decisions of Ministers, the other Acts imply this same withholding by not referring to decisions of Ministers, though they make certain recommendations to Ministers examinable. Certainly the New Zealand

Ombudsman so construes his Act. All the Acts protect proceedings in Cabinet; the New Zealand Act on a certificate by the Attorney-General; the United Kingdom Act on a certificate by the Secretary of the Cabinet with the approval of the Prime Minister; the Western Australian Act on a certificate by the Under Secretary, Premiers Department with the approval of the Premier; and the South Australian Act on a certificate by the Minister.

44. Among matters excluded from the jurisdiction of the Ombudsmen are, in the case of the:

(a) New Zealand Act, matters relating to any person who is or was a member of the New Zealand Defence Forces dealing with terms and conditions of service and any order, command, decision, penalty or punishment given to or affecting him as a member.

(b) United Kingdom Act, a list of matters appearing in schedule 3 to the Act which, broadly put, include the matters just mentioned and also

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matters certified to affect international relations or dealings, actions for the purpose of investigating crimes or protecting the security of the State, contractual or other commercial transactions other than land acquisition and disposal, and defined personnel matters affecting those in the civil

service and other types of employment under the Crown.

(c) South Australian Act, complaints by an employee relating to adminis­ trative acts done by an employer of the employee in his capacity as an employer, and matters relating to a member of the police force in his capacity as such a member. The United Kingdom Act has effect so as

to exclude the functioning of a police force in carrying out its duties of preserving the peace.

45. All the Acts exclude jurisdiction where the aggrieved person has a right of appeal, objection or review by some court or tribunal but, with the exception of the New Zealand Act, the Ombudsman may investigate if satisfied that it was not reasonable to expect the aggrieved person to exercise his right.

46. The New Zealand Act excludes from investigation acts of trustees under a specified Statute and of Crown legal advisers and counsel under certain circum­ stances. The Western Australian Act excludes any action taken by a person acting as a legal adviser or as counsel and the South Australian Act where the person is

adviser or counsel to the Crown.

47. Under the United Kingdom Act, complaints to the Ombudsman must go from a Member of the House of Commons. Under the other Acts, the complaint may be made direct.

48. All the Acts, except the United Kingdom Act, lay down the circumstances in which the Ombudsman may refuse or decide to investigate a complaint. The United Kingdom Act gives an unfettered discretion to the Ombudsman.

49. All the Acts require the Ombudsman, before proceeding, to notify the depart­ ment involved of his intention to investigate. Under the United Kingdom Act, the Department has the opportunity to comment. Where the Ombudsman con­ cludes that his report may adversely affect a department, he must, except under

the United Kingdom Act, give the department the chance to comment. The New Zealand and Western Australian Acts require the Ombudsman to consult a Minister, when the latter so requests, before forming a final opinion on certain matters.

50. As to secrecy, the New Zealand Act precludes the giving of information to the Ombudsman by a person bound to secrecy (otherwise than by the Public Service or Official Secrets Acts) but if the complainant consents the Ombudsman may require a person bound to secrecy to supply information relating only to

the complainant. The Ombudsman is bound by the Official Secrets Act and there are restrictions on what he may report. The other Acts require full disclosure but under the United Kingdom Act, the Ombudsman is bound by the Official Secrets Act and there are restrictions on what he may report. The absence of

corresponding provisions from the two State Acts is understandable.

51. Under the New Zealand Act, the Ombudsman is precluded from access to information or documents when the Attorney-General certifies that the giving of

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such information or production of documents might prejudice the security, defence or international relations of New Zealand or the investigation or detection of offences.

52. None of the Acts gives the Ombudsman definitive power in the sense that his decision is substituted for that the subject of a complaint. The powers given under each Act deserve detailed mention.

53. In the case of the New Zealand Act, the action that the Ombudsman may take derives from his being of opinion that the decision, recommendation, act or omission investigated:

(a) appears to have been contrary to law; (b) was unreasonable, unjust, oppressive or improperly discriminatory or was in accordance with a rale of law or a statute or a practice that has or may have those qualities; (c) was based, wholly or partly, on a mistake of law or fact; (d ) was wrong; or from his being of opinion that a discretionary power was exercised for an improper purpose or on irrelevant grounds or on the taking into account of irelevant considerations, or that reasons should have been given for a decision.

54. The Ombudsman is required to report to the department concerned, with a copy to the Minister, if the Ombudsman thinks the matter should be further considered; that an omission should be rectified, a decision be cancelled or varied, or practice be altered or a law be reconsidered; that reasons should have been given for a decision; or that any other steps should be taken. He may make such recommendations as he thinks fit and may request advice, within a specified time, of the steps the department proposes to take. If dissatisfied with the outcome, he may send a copy of his report to the Prime Minister, with a copy of any comments from the department, and he may thereafter make such report to Parliament on the matter as he sees fit.

55. The power to propose reconsideration of a Statute is to be noted: it has been exercised. The Ombudsman has even made representations about a pro­ vision in a Bill before Parliament on the grounds that, if it were enacted, it could give rise to complaints which he might feel should be sustained.

56. As well, the Ombudsman follows the practice of including in his Annual Report to Parliament a digest of the major cases he has dealt with and what transpired.

57. The Ombudsman is required:

(«) to inform the complainant of his recommendation, with such comments as he thinks fit, if no action considered by the Ombudsman to be ade­ quate and appropriate is taken thereon within a reasonable time.

(b) to inform, at such time as he thinks proper, the complainant of the result of the investigation.

(c) to refer the matter to the appropriate authority if he thinks there is evidence of any breach of duty or misconduct on the part of any official.

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58. The United Kingdom Act merely requires the Ombudsman to report the results of his investigations to the Member of the House of Commons requesting the investigation, with a copy to the department. However, if he considers that injustice has been caused in consequence of maladministration and that the injustice

has not been, or will not be, remedied, he may lay before both Houses of Parlia­ ment a special Report on the case.

59. The United Kingdom Act also declares that the conduct of an investigation shall not affect any action taken by a department or any power or duty of that department to take further action with respect to any matter under investigation. But when the person aggrieved has been removed from the United Kingdom

under the Aliens Restriction or the Commonwealth Immigrants Acts, he may be permitted to return to the United Kingdom under controlled conditions, if the Ombudsman so directs.

60. The Western Australian and South Australian Acts, to all intents and pur­ poses, follow the New Zealand provisions.

61. The New Zealand and Western Australian Acts require the Ombudsman, before making any comment that is adverse to any person, to give that person the opportunity to be heard.

62. To be specially noted is that all the Acts require the investigation of the Ombudsman to be conducted in private and leave the procedure in his hands. The United Kingdom and South Australian Acts permit the Ombudsman to allow for representation of a complainant. The Western Australian Act gives this

as of right.

A Commonwealth Ombudsman

63. Our consideration of the matters upon which we have been asked to report leaves us in no doubt of the desirability of introducing an Ombudsman type review process in respect of those decisions, recommendations or acts done or omitted relating to a matter of administration, which it is appropriate to subject

to review, affecting any person or body in his or its personal capacity in or by the departments of the Commonwealth, and perhaps some of its instrumentalities, in the exercise of any power or function conferred by or arising under any enact­ ment. Whether or not the review process should be limited to circumstances in which the words in italics are apposite is not, having regard to our Terms of

Reference, a matter on which we are called upon to express a view. C.f. the United Kingdom and South Australian provisions referred to in paragraph 36 et seq.

64. There is no need, we think, to elaborate the reasons for the major conclusion just stated. Suffice to say that our experience in Public Service administration confirms that no matter how efficient departments and instrumentalities are or how carefully procedures are devised to avoid them, mistakes and errors and

delays in dealing with matters do occur and wrong decisions are made. This is inevitable, and perhaps more so, when, because departments and instrumentalities are represented over a continent the size of ours, delegation of powers must necessarily extend to officials far removed from their Head Office administrations

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and, in the interests of the public, so many decisions must be given speedily. Not an insignificant benefit of the Ombudsman as an institution is, according to many commentators, the improvement that occurs in administrative procedures and in the care with which officials handle their relations with the public.

65. At the same time, there can be no assumption that the institution of an Ombudsman will mean that thereafter there will be no persons aggrieved by decisions taken under discretionary powers or that all persons who have grievances will take them to the Ombudsman. Nor can it be asserted that only advantages and benefits might be expected to flow from the introduction of an Ombudsman type review process. We can foresee, particularly in the welfare area, the possi­ bility of the decision making process taking longer as lower level officials take greater care to ensure that the file is in order; of departments, which are always anxious to avoid imputations affecting their reputation, pressing for extra staff or staff of higher levels for decision taking responsibilities; of consequent delays where none had occurred; of extra administrative costs; and of some rigidities creeping in as precedents are established where earlier an infinite flexibility was brought to a beneficent consideration of eligibility for benefits and the like. In short, there is a price for having an Ombudsman. Moreover, there is a question as to the impact of an Ombudsman on the functions of Members of Parliament in the redress of grievances. And experience of countries having Ombudsmen does not suggest that the load of electorate representations to Members of Parlia­ ment is lessened.

66. But much more is required than to state our general conclusion. In passing, it must be reiterated that, for the reasons given earlier, the conclusion does not extend to the Australian Capital Territory or the Northern Territory, at least at this stage, nor to Papua New Guinea (paragraph 4).

67. Given the desirability of an Ombudsman type review process, it is critically important that the institution should itself succeed and fit well in our parliamentary and administrative system.

Qualities needed of an Ombudsman 68. Finding the right man for the Ombudsman post could well prove even more difficult than drawing the legislation constituting his office and detailing his powers and functions. He must not see himself as the scourge of departments, a super administrator or a super censor, nor attempt to usurp the role of Parliament. Nor imagine himself the donee of some God given capabilities to reach a more ‘right’ conclusion than that under review. He has no role permitting him to take over the responsibilities of departments; he must never forget that accountability, particularly financial accountability, remains with them and their Ministers nor that political accountability rests with Ministers. While he has a role akin to that of an auditor, he must be on the lookout for means of removing grievances through improved procedures. He will rarely be in a position to halt departmental processes: he will generally deal with matters ex post facto. While his dedication to the protection of the rights of the citizen and the attainment by eligible persons of their entitlements under the law must be indubitable, he can be no policy maker or social reformer in his own cast. He must have great humility and be devoid

14

of prejudices and convictions: his role is to draw attention to defects in process and questionable decisions, not to make fresh decisions however much he may prefer alternatives.

69. Prima facie, an Ombudsman, who must necessarily be a generalist and cannot be provided with professional and technical resources matching those in a relevant agency, could hardly be well placed to challenge a specialist in the area of his own speciality. This seems to have come to be accepted by the Scandinavian Ombuds­

men and those in New Zealand and the United Kingdom. This does not mean that the Ombudsman does not have any role where specialists have been involved. His role is fundamentally to satisfy himself about proper process and that proper consideration has been given to all relevant considerations. Nor, for that matter,

do we convey that a decision involving professional and like judgments could under no circumstances whatever be questioned.

70. In the context we see for a Commonwealth Ombudsman, he need not be a practising lawyer or for that matter have been trained in the law, yet such train­ ing could be a decided advantage. True, Ombudsmen in Scandinavia appear to have always had legal training, many having been judges. The Danish holder of the

office is a professor of law. Sir Guy Powles, the New Zealand Ombudsman, was trained as a lawyer but he had also been an administrator, soldier and diplomat. The first holder of the United Kingdom post, Sir Edmund Compton, an Oxford First in Greats, has been Comptroller and Auditor-General. His successor, Sir Alan

Marre, with a Cambridge First in Classical Tripos, came from the office of Second Permanent Under Secretary of State, Department of Health and Social Security. The Western Australian Office is held by Mr O. F. Dixon who was formerly Chief

Crown Prosecutor in that State. That in South Australia is held by Mr G. D. Combe, for twenty years Clerk of the South Australian House of Assembly and a qualified accountant and chartered secretary.

Avoiding overloading the Ombudsman in the initial stages

71. If the new institution is to be assured of success, it must not be overloaded in the early stages. Assembling the necessary supporting staff, some at least of whom should desirably have qualities matching those of the Ombudsman, will be no easy business nor speedily accomplished. Even with the exclusions from the jurisdiction of an Ombudsman which we will later propose, if all the Common­

wealth’s present 37 departments and far more numerous instrumentalities were to be immediately subject to his jurisdiction, there is, in our view, a very great risk that the institution would be overloaded. The distribution of the Head Offices of the departments and instrumentalities among Canberra, Sydney and Melbourne

and the very immenseness of our continent are other relevant factors.

72. The Committee tried persistently, but unsuccessfully, to form some judgment about the number of complaints that might be made to an Ombudsman. To take five Departments alone— Customs and Excise, Health, Immigration, Social Services and Postmaster-General’s— literally tens of thousands of letters of complaint and

representations are received annually through Members of Parliament and direct by the Ministers and the departments concerned. The frequency of resort to

15

an Ombudsman could be less if it were the practice of departments and instru­ mentalities, where this is not already the case, to give fullest possible information to the public about their rights and entitlements and the procedures to be followed, the maximum possible opportunity to present claims, and at least brief reasons for decisions that go against a citizen.

73. In New Zealand, the Ombudsman received some 7,500 complaints in his first nine and a half years: 1,275 in the year ended 31 March 1972. Ninety-nine of the 7,500 related to education and hospital boards brought into his jurisdiction in 1968 and 1,547 related to organisations not within his jurisdiction. In the five years 1967-1971, the United Kingdom counterpart received 4,143 complaints. Comparisons are difficult. The populations of the two countries are enormously different. In the United Kingdom the screening through Members of the House of Commons and the more restricted character of the jurisdiction have to be taken into account. How these balance against the New Zealand requirement that every complaint to the Ombudsman must be accompanied by a fee of $2.00 is a matter for conjecture. The Western Australian Ombudsman received 580 com­ plaints between 25 April 1972 and the end of 1972. The South Australian Ombudsman received three dozen odd in the few weeks after his appointment in mid December 1972.

74. Appendix C which shows the departments and agencies in respect of whose decisions complaints were made to the New Zealand Ombudsman up to 31 March last and the distribution among the departments and agencies has some interest.

75. Just how far the experience of the load carried by the Ombudsmen referred to has any relevance to a Commonwealth Ombudsman is a matter for conjecture. The legislation of the Commonwealth does not bear on the citizen as extensively as does the legislation of New Zealand or the United Kingdom, simply because of our federal system. And much legislation of the Australian States has no counterpart in Commonwealth legislation. On the other hand, we are considering the introduction of a Commonwealth Ombudsman at a time when not merely is greater emphasis being placed on the protection of the rights of individuals but the arts of organising protest and complaint are more practised. There is no means of telling what this might mean in terms of volume of complaints that might be addressed to a Commonwealth Ombudsman.

76. It should not be taken for granted that overloading, if it occurs, can be met by a proliferation of Ombudsmen, whether by assignment of individuals to par­ ticular groups of departments or instrumentalities based on homogeneity of func­ tion or to take account of the geography of the Commonwealth. Not merely would such a move compound the problem of finding the right men, more than anything it seems to us that establishing the institution, getting it off the ground in its methods of working and procedures and gaining acceptability by Parlaiment, Ministers, departments and the public at large are more likely to be successful if,

at least to start with, the one right man is found and if he is not overloaded in the formative period.

77. So it would seem to us prudent not to take, at this stage, a definitive decision that provision should be made for multiple Ombudsmen and their assignment to

16

particular spheres or for others who might have the subordinate role of deputy. The advantages of comity of approach to the task may point in this latter direction. Relevant too are the views we might put to you in our final Report with regard to the review of decisions taken under legislation applying in the mainland

Territories and particularly the Australian Capital Territory. Depending on your time-table this Report might well be in your hands before any legislation is introduced.

78. Because we place such emphasis on the successful inauguration of the institu­ tion, we urge a stage by stage approach. The United Kingdom Act points to the mechanics of doing this. The second schedule to the Act lists the departments and authorities to which the Act applied ab initio but Section 4 authorises Her

Majesty by Order in Council to amend the schedule, either by way of alteration, subtraction or addition, the Order being subject to annulment by a resolution of either House of Parliament.

79. Pursuing this and considering the Departments whose legislation we have already examined, it is our view that, to start with, the jurisdiction of the Ombudsman should extend to only the following Departments (using the names by which they were known when we saw them), namely, Customs and Excise, Education and Science, Health, Housing, Immigration, Postmaster-General’s and

Social Services. The activities of these Departments clearly bear most heavily on the individual citizen.

80. And because we have not yet seen enough of the instrumentalities, we would suggest that, though power to schedule instrumentalities as subject to the jurisdic­ tion of the Ombudsman should be given, none should be scheduled initially.

81. When we come to our final Report, we will be suggesting the scheduling of other departments and some instrumentalities. In any event, on our approach, other departments and appropriate instrumentalities could, as the institution was

able to cope, be scheduled by amendment of the initial schedule.

Matters in respect of which an Ombudsman should not have jurisdiction

82. We turn now to the matters which we feel should not be within a Common­ wealth Ombudsman’s jurisdiction. But first, we direct ourselves to three important questions. They are:

(a) should decisions of Ministers be examinable; (b) should recommendations to Ministers be examinable; (c) should decisions of officials that stem from policy determinations of Ministers and Cabinet be examinable.

83. It will have been noted that under the United Kingdom Act a Minister’s deci­ sion, in exercise of an administrative function, is examinable and so too is a related recommendation to a Minister. In the other Acts, recommendations to a Minister relating to matters of administration are examinable but not the decisions

of a Minister. In the New Zealand and Western Australian Acts, the recommenda­ tion has to be one that is in exercise of a statutory power or function. Three points arise here. They are the extremely tenuous and disputable dividing strand between

17

policy and administration, the distribution of discretionary powers that Parliament has made among Ministers and their officials and the relationships between a Minister and his officials.

84. To deal first with the last point. In the context of a private investigation by an Ombudsman of the character, with the powers and functions, and in the circumstances envisaged, one might deduce that the four Legislatures enacting the Statutes under review considered that to subject to examination recommenda­ tions of officials to Ministers involved no critical irruption upon the special rela­ tionship that generally accepted convention in countries following the Westminster style of government and administration stamps upon communications between a Minister and his senior officials. Yet, if this is the case, it is odd that by contrast with the logical approach of the United Kingdom Act, communications downwards from a Minister and decisions of a Minister should not have been made subject to scrutiny by the other three Acts. It appears to imply that another well established convention— that a Minister is responsible to Parliament— should not be subjected to any qualification. With this we would not disagree. But if Ministers’ acts are not to be examinable, it would seem to follow that equally the recommendations of officials to Ministers ought not to be subject to scrutiny. In saying this we are influenced by more than long established convention.

85. What if the Ombudsman finds a recommendation impeccable but is unable to question the Minister’s rejection of the recommendation? Maybe the provi­ sions authorising scrutiny of officials’ recommendations started from two premises. First that the last official act, short of ministerial decision, should be examinable to ensure that the Minister had before him a completely impeccable presentation of all relevant facts and circumstances. In other words, the Legislatures while adhering to the concept of Ministerial responsibility to Parliament have minimised the chances of a Minister having to account for a decision based on faulty advice, as a consequence of an Ombudsman’s report. And second, that the Legislatures conceived the Ombudsman’s activities as being directed to the actions of the bureaucracy.

86. A Minister is, of course, thoroughly entitled not to accept his official’s recommendation. It may be a case simply of judgment: the facts and circum­ stances admit of alternative courses and a Minister may elect to choose another from that recommended. In another case, the Minister’s rejection may stem from political considerations, again the affair of an individual Minister, or the rejection may derive from policy determinations imposed or approved by Cabinet and

sometimes publicly revealed. In this latter area, there would be less likelihood of a Minister rejecting a recommendation because his officials would know of, and be directing themselves to, the policy. Where rejection occurred, it might more likely be on the basis of judgment adverted to above. Yet there may be other cases where rejection was on grounds or for reasons which could not be in the knowledge of the official preparing the recommendation or might not be made known to the official after the Minister made his decision.

87. Next, assume that Parliament has given a discretionary power to a Minister who, in turn, has delegated it to an official, and given policy directions as to how the discretion is to be exercised. If the Minister’s act is not to be examinable,

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the examination stops at the official’s exercise of the power. However, if his official’s recommendation is to be subject to scrutiny, the Minister might well decide not to delegate so as to avoid public disclosure of his having rejected his official’s recommendation. As paragraph 17 makes clear, this is no matter of

esoteric argument.

88. So we are led back to the problem of distinguishing decisions which are acts of policy from those decisions which give effect to policy. Of all the Acts, the United Kingdom Act alone appears to recognise this problem. It focuses in decisions taken in the exercise of administrative functions where injustice has

been sustained in consequence of maladministration and excludes consideration of the merits of a decision taken without maladministration. All the other Acts are concerned with a decision relating to a matter of administration and affecting a person in his personal capacity. Their net is obviously much wider.

89. Sir Guy Powles appears to believe that a distinction between policy and administrative decisions can be drawn on common sense grounds yet takes the view that so long as a complaint relates to a matter of administration he is not excluded from dealing with it if it also relates to a matter of policy. Some support

for this view comes, it would seem, from his power to recommend that a law should be reconsidered. (Incidentally, the South Australian Act permits a recom­ mendation that a law be amended or repealed.) These provisions are quite extra­ ordinary. They cannot but leave one questioning whether the implications of the

Ombudsman’s role in relation to the functions of Parliament were thought through. We will return to this later.

90. Professor Gellhorn— Ombudsman and Others’— has two comments. First that ‘agreement upon what is common sense is about as rare as agreement upon what is a matter of administration’, and ‘Perhaps a “policy” is transmuted into a “matter of administration” when when a general principle is administratively

applied to a specific “person or body of persons in his or its personal capacity” . . . When however an issue is of concern to the public at large, as distinct from identifiable individuals upon whom it particularly focuses, then possibly it should be left to political controls rather than to the Ombudsman’s evaluation’.

It is clearly not difficult to find situations where this type of test would not hold. There is too the comment of the New Zealand Minister for Justice, who intro­ duced the New Zealand Bill, that it was not intended that the Ombudsman should assume a general supervision over Government administration.

91. A perusal of the Annual Reports of the New Zealand Ombudsman leaves no doubt with a reader that, in number of cases, the Ombudsman has entered the policy decision field and that he has followed no clear and consistent rule in his approach to cases involving policy considerations. He has, of course,

recommended reconsideration of legislation. A useful review of his attitude to ‘matters of administration’ and ‘policy’ is to be found in Keiths’s article— ‘The Ombudsman and “Wrong” Decisions’ to which reference has already been made.

92. If one starts from the premise that policy decisions of Ministers should not be examinable, then, subject to the problem of determining whether a decision is one of policy or of administration only, the United Kingdom Act alone has any

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basis in logic. It provides that administrative decisions whether of a Minister or an official are examinable. It excludes decisions of Cabinet presumably as likely to be directed to policy.

93. On the other hand, the other three Statutes exclude from examination, either in positive terms or by clear implication, any decisions of Ministers or of Cabinet but authorise the Ombudsman to make judgments about legislation and to recom­ mend changes in legislation which are the affair of Ministers, Cabinets and Parlia­ ments, and to examine certain recommendations to Ministers.

94. If no decisions of Ministers are to be examinable, a power to make judg­ ments about, and to recommend changes in, legislation fits oddly. We will return to this. And, having regard to the argument above, it is equally odd to make any recommendations to Ministers examinable.

95. If recommendations to Ministers are to be examinable but Ministers’ decisions are not, the justification presumably lies in the points made in para­ graph 85: even though it is accepted that the Minister may quite properly take a decision contrary to a recommendation.

96. That awkward situations could confront an Ombudsman as a consequence of his being able to examine recommendations to, but not decisions of, Ministers was recognised in the New Zealand legislation. This is apparent from the require­ ment that the Ombudsman must consult the Minister wherever his investigation relates to a recommendation to a Minister, after concluding his investigation and

before forming a final opinion.

97. In light of the foregoing discussion we now return to the questions we posed above. They are:

0a) should decisions of Ministers be examinable under an Ombudsman type process?

We do not believe that policy decisions should be, whether they are in the positive and personal exercise of a discretionary power conferred by legislation or are by way of directions to officials (whatever the authority for giving these directions) as to how they should exercise their powers and functions (whether under delegations from the Minister or

not).

Policy considerations constitute, or are likely to constitute, a large ele­ ment in decisions or directions of Ministers. They may not be confined to matters within a Minister’s portfolio. They can, as well, be dictated or circumscribed by the availability of funds which itself reflects policy factors of the highest order. There ought, for example, to be no scope for scrutiny of a failure to develop a programme which Parliament has

authorised, if the funds it has voted clearly restrict the kind of develop­ ment a Minister or department may hopefully desire.

Next, there is the question whether other decisions of Ministers should be examinable. There are two sides to the argument that such decisions should be examinable. But very briefly, they are these. On the

one hand, whatever qualifications it might be argued are legitimately

2 0

attachable in this modern age to the doctrine of ministerial responsibility, it is difficult to suggest that there should be any qualification in relation to a decision of the Minister himself. On the other hand, such are the pressures on the Parliament nowadays that the doctrine of ministerial

responsibility can often be meaningless.

Wherever the balance of the argument lies, straightaway we come up against the problem of whether a decision relates to policy or administra­ tion. Our own experience leaves us doubting whether any defensible line of demarcation can be drawn between decisions of policy and of adminis­ tration. If the decisions of Ministers are not examinable, the problem

of attempting to distinguish policy, from administrative, decisions will not arise.

There are a number of alternatives. First to say dogmatically that no decision should be examinable. Second to take the pragmatic line that since it is impossible to separate precisely decisions of policy from decisions of administration, no decision should be examinable. Third to

say that a decision should be examinable, if the Minister considers that his decision is not one of policy and he consents.

As already explained, decisions of Ministers are not examinable under the New Zealand, Western Australian and South Australian Acts. Whether this approach should be followed in our legislation, or whether administrative decisions of Ministers should be examinable is essentially

a matter of highest policy for determination by your Government. If the decision is that administrative decisions of Ministers should be examinable, this could be given effect to by a provision which gave the Ombudsman jurisdiction where a Minister consented. Such consent would presumably not be given where a Minister considered a policy

decision was involved.

(6) should recommendations to Ministers by officials be examinable?

The answer to this question is linked to the decision your Government elects to take as regards the decisions of Ministers.

Logically, if policy decisions of Ministers are not to be examinable, neither should recommendations to Ministers related thereto. This accords with the four Statutes studied. If the administrative decisions of Ministers are to be examinable where Ministers consent, obviously so should any

recommendation to a Minister related thereto. If they are not, the choice is between the logical consequence that such recommendations should not be examinable and the New Zealand approach which is that a recommendation is examinable but only if it relates to a matter of

administration and if it is made in exercise of a statutory power or function. As well, the Ombudsman must consult with the Minister before making his report.

(c) should any legislation exclude from examination decisions, etc., of officials that stem from policy determinations of Ministers and Cabinet? We answer this affirmatively. We suggest that a Minister should be

21

authorised to give a certificate that a decision under review is in accord­ ance with a policy decision of himself or the Cabinet. He would so certify if there was any doubt that this was the case. Subject to any such certificate, the Ombudsman would discharge his normal function.

98. In the list that follows, we have had regard to the views expressed in the pre­ vious paragraph and to the matters in relation to which the Ombudsman does not have jurisdiction under the four Statutes we have closely studied. Fundamentally we have seen the role of the Ombudsman, at least in the early stages of the institution, as one of primary concern with protection of the rights of the citizen in his relations with the bureaucracy in its exercise of legislative discretionary powers. There may be room for argument in detail about some of our suggestions but the advantages of concentrating the primary focus, at least in the early stages, where we suggest seems a sufficient rebuttal.

99. In our view, a Commonwealth Ombudsman should not have jurisdiction in relation to:

(a) matters, certified by the appropriate Minister, to affect relations or dealings between the Government of the Commonwealth and the Govern­ ment of another country or an international organisation. (b) matters, certified by the appropriate Minister, to affect relations or dealings

between the Government of the Commonwealth and the Government of a State or Territory. (c) matters arising under legislation solely applicable to a Territory of the Commonwealth. (d) policy decisions of Ministers, matters involving Cabinet’s deliberations or

its papers, and decisions of officials when a Minister certifies that the decision under review is in accordance with a policy decision of himself or of Cabinet. The questions whether administrative decisions of Ministers and recommendations to Ministers should be included in the exclusion from jurisdiction just stated are dealt with in paragraph 97 (a) and (b). (e) matters relating to the terms and conditions of service of employees in the

employment of the Commonwealth and its instrumentalities, including, e.g. appointment, promotions, pay and discipline. (/) matters relating to the terms and conditions of service of members of the Defence Forces including their appointment, administration, organisa­

tion, operation and discipline. (g) matters relating to the preservation of the peace and the investigation and detection of offences or the commencement and conduct of civil or criminal proceedings. (h) matters relating to contractual arrangements or to commercial or trading

dealings by departments or instrumentalities charged with conducting businesses of types comparable with those conducted by other organisa­ tions, public or private. (i) any decision, recommendation, act or omission in respect of:

(i) which there is a right of appeal or objection or to apply for a review, save where the Ombudsman considers it would be unreasonable to require the complainant to pursue his right;

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(ii) any person in his capacity as trustee under Statute; (iii) any person acting as legal adviser to the Commonwealth or one of its departments or instrumentalities;

(iv) any Court, Commission or Tribunal under any Statute.

(/) matters relating to action certified by the Attorney-General as required for the purposes of the security of the Commonwealth.

(k ) matters related to appointments to offices under Statutes and matters related thereto.

100. Most of the foregoing require no comment. For the remainder the following comments are offered:

(c) The reasons appear in paragraph 4.

(e) We feel that, even if there were a case for employer/employee relation­ ships being dealt with by an Ombudsman, the legislation under which Commonwealth employing authorities operate provides safeguards for employees, e.g., promotions and disciplinary appeals tribunals. Terms

and conditions are substantially covered by the arbitral tribunals and intrusion by an Ombudsman would not be helpful. As well, there are the ever alert unions and employee associations to look after employees’ interests. The United Kingdom and South Australian Acts are consistent with our view. We wish to reserve our position for our final Report on questions:

(i) where health grounds intrude on appointments, retirements etc.

(ii) in respect of pension issues, though grievances in this area appear to relate to the content of the legislation itself rather than its administration.

(iii) in respect of furlough and the Commonwealth Employees’ Com­ pensation Act.

We deal later with the problem of the intrusion of security considerations on appointments etc. (/) Our proposal is consistent with the New Zealand and United Kingdom Acts: which is not to deny that cogent arguments can be developed to

support the concept of a special Ombudsman to operate in the military field and in the military context. We understand that the Minister for Defence has this whole question under attention. (g) While the functioning of the Police Force is excluded from the jurisdiction

of the United Kingdom and South Australian Ombudsmen, we wish to leave this question in abeyance until we have examined the legislation relating to the Commonwealth Police. Incidentally the New Zealand Ombudsman has investigated and reported upon complaints about the

conduct of police in handling a demonstration on the occasion of the visit of the United States Vice-President Mr Spiro Agnew. (h) We would not include under this head matters arising prior to the con­ clusion of contractual arrangements or involving compulsory acquisition

and irruptions on property rights and related matters of compensation. It

23

is likely that in our final Report we will be suggesting that these latter matters should be dealt with by some formal tribunal.

We think it inappropriate that either the amplitude or the minutiae of commercial and trading dealings with individuals or such matters as the terms and conditions of mortgages and like documents for which the housing and war service homes legislation provides should be examinable:

the more so when such activities are conducted by other organisations, public or private and perhaps in a competitive situation. So, of the instru­ mentalities we have so far considered, we would exclude from an Ombudsman’s jurisdiction bodies like the Housing Loans Insurance Corporation, the Commonwealth’s airlines, shipping, railway and tele­ communications services and the Australian Broadcasting Commission.

At this stage, we have some doubts as to whether or to what extent the Ombudsman’s jurisdiction should extend to the Australian Broadcasting Control Board. The really critical discretions affecting its work are vested in the Minister and there is no scope for Ombudsman review in relation to the substance of the technical aspects of the Board’s work. It is in the area of standards of programmes where we have doubts and these might disappear if there were to be some broadly based advisory committee to

the Board to consider such matters. Our final Report may well suggest some areas within the Board’s discretionary powers which should be sub­ ject to some tribunal type of review.

Exclusion of instrumentalities from a Commonwealth Ombudsman’s jurisdiction can be achieved simply by not scheduling them among the departments and instrumentalities in relation to which he is to have jurisdiction.

What we have written is consistent with the United Kingdom Act which excludes even the Post Office function from the Ombudsman as well as the nationalised industries and such bodies as the British Broadcasting Cor­ poration. In New Zealand, while the Electricity Department, the Railways and Post Office are within the Ombudsman’s jurisdiction, other corpora­ tions such as Air New Zealand, the National Airlines Commission, the New Zealand Broadcasting Commission and the Reserve Bank are not. We gather that Sir Guy Powles has doubts about the desirability of the State Advances Corporation and the State Fire and Accident Insurance Office which are within his jurisdiction being so included.

O') This is consistent with the New Zealand and United Kingdom Acts. See also paragraph 113 et seq.

101. Experience might point to the desirability of adding other matters to the list in paragraph 99 or of modifying some items in the list, so reducing or extending the scope of the Ombudsman’s jurisdiction. The United Kingdom Act lists in a schedule functions excluded from its Ombudsman’s jurisdiction but authorises adjustments by Order in Council, which Orders are subject to annulment in pur­ suance of a resolution of either House of Parliament. The same sort of device could be employed in our legislation, with a Proclamation or Regulation by the Governor-General taking the place of an Order in Council.

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Powers of an Ombudsman

102. An Ombudsman must be equipped with the necessary powers to get the evidence and documentation he requires to enable him to make his investigations and complete his report on a complaint before him. Each of the Statutes we have studied contains appropriate provisions set in the context of the indigenous legal system. We feel it can be left to our Parliamentary Counsel to consider this technical problem.

103. Since the Ombudsman will have access to confidential and sometimes secret information and material, appropriate provisions safeguarding this will be needed. There will be a need too for provisions protecting the Ombudsman from legal action.

104. In all the Acts, except that of the United Kingdom, the action the

Ombudsman may take after he makes his investigation turns on his opinion that (inter alia) a decision, recommendation, act or omission is or may be:

(a) in accordance with a statute that is unreasonable, unjust, oppressive or improperly discriminatory.

( b) wrong.

We deal with these in turn.

105. It seems odd in the extreme that an official, however exalted or distinguished, should be given powers entitling him, in effect, to sit in judgment on the Parlia­ ment. And more than odd if such powers were possessed by an official of the public standing we would hope an Ombudsman would acquire but who, none­ theless, could often be uninformed of all relevant considerations.

106. Now, it could not be denied that there are many in the community who would regard some statutory provisions as unreasonable, unjust, oppressive or improperly discriminatory. The experience of protests about our National Service Act is too recent for us to be blind to the simple proposition just stated. And,

one has to contemplate that an Ombudsman, had he been in office at the time, could have held similar views. That aside, it is beyond belief that any holder of the office at any time could not have strong views about some legislative pro­ visions. It is the more quaint that power should be given to form judgments on

Statutes, when the Ombudsmen concerned are denied jurisdiction in relation to the decisions, etc., of Ministers, i.e., the very persons responsible for the initiation of legislation.

107. This point needs no labouring. As we see it, Parliament should remain the guardian of the social conscience when it comes to decisions about legislation and a Commonwealth Ombudsman should have no power to form judgments, or make recommendations, about Statutes. It will suffice that he reports that a

decision, recommendation, act or omission was in accordance with a stated Statute. It will then be for Parliament, without any specific public urging by any official, to decide what, if anything, should be done about the provision.

108. We are equally concerned about the power of an Ombudsman to take action where he considers a decision, etc., to be ‘wrong’. As was succinctly put by Mr Crossman, the Leader of the House of Commons, in the debate on the United

25

Kingdom Bill— the Ombudsman should be seen as an adjunct to existing methods of Parliamentary scrutiny of the executive and as enhancing, but not replacing, existing methods of checking and challenging administration, for example, by Parliamentary questions and answers and by members’ representations to Ministers. We share this view and the views expressed by other commentators that an Ombudsman is not to be thought of as a one man court of appeal against every decision (c./. para. 37) and that there is no certainty or even probability

that an Ombudsman (with incidentally no responsibility for implementing a decision), after reviewing the same material will reach a more satisfactory or ‘right’ decision than the official making the decision under review and carrying the responsibility for implementing it.

109. We have no difficulty with the concept that the Ombudsman should have power to take action were he to conclude that a decision was manifestly wrong because it had the elements of maladministration such as those referred to in paragraphs 40 and 41. We feel that such a construction should be written into

any legislation without attempting to define ‘maladministration’ by a precise form of words. We would imagine that an Ombudsman would himself perceive that the concept of ‘maladministration’ would include: bias, unreasonableness, unfair­ ness (for example in failing to give interested parties a proper hearing), exercise of power to achieve improper purposes, bad faith, unlawful discrimination, failure to observe procedural requirements, basing a decision on irrelevant considerations, failure to take account of relevant considerations, failure to give reasons for a decision when good administration indicates that reasons should be given, undue delay in giving a decision, and refusal to give a decision.

110. Except that we believe that an Ombudsman should not be empowered to express judgments and make recommendations about legislation and that action in respect of decisions an Ombudsman believes wrong should depend on the wrong­ ness having the quality of maladministration, we find ourselves in general agree­ ment with the New Zealand provisions dealing with the proceedings of the Ombudsman and his investigatory and reporting powers. These are succinctly stated under the headings ‘Provisions relating to procedure’, ‘Evidence’, ‘Powers

of Commissioner, Ombudsman’ and ‘Procedure after investigation’ in Appendix B.

111. The South Australian Act has a unique provision entitling the Ombudsman, at his own discretion, to make public a report on a matter he has investigated. (This provision supplements the power to report referred to in paragraph 54 and the requirement of an Annual Report to Parliament.) W'e are opposed to the inclusion of such a provision in a Commonwealth Act. It altogether misconceives the role of the Ombudsman and is the more to be disliked because of the South Australian Ombudsman’s powers to make recommendations about Statutes ( c.f.

paragraphs 104 to 107).

112. All of the Statutes provide in varying forms for delegation by the Ombuds­ man. Clearly any legislation of ours must permit the Ombudsman to use his staff to interview people, make inquiries and conduct investigations on his behalf. But considering the vastness of our continent, it would be desirable to permit him to have access to other Commonwealth, and to State, officers to do these things. Where the Ombudsman wishes to use such officers, he should first have the

26

approval of the Minister administering the Ombudsman Act and that Minister would attend to any necessary arrangements where State officers were concerned. Under no circumstances should there be power to delegate the power to report.

Security issues 113. We turn now to the impact of security considerations upon an Ombudsman’s work.

114. There is, in New Zealand under its Security Intelligence Service Act, a Commissioner of Security Appeals. His function is to inquire into complaints by a person ordinarily resident in New Zealand that his career or livelihood is or has been adversely affected by an act or omission of the Security Intelligence

Service. To the extent to which these arrangements apply, the New Zealand Ombudsman steers clear but security considerations still may intrude into matters that come before him. It is understood that, in these cases, the Ombudsman has access to the Service and deals with matters on a basis that affords adequate

protection of security information and sources.

115. Security problems related to persons employed under the Crown are, in the United Kingdom, dealt with by special machinery first established by the Attlee Government in 1948. The United Kingdom Ombudsman is denied authority to

investigate action taken by or with the authority of the Secretary of State for the purposes of protecting the security of the State. We are unclear as to how the Ombudsman operates if security issues arise in matters before him which he is

entitled to investigate.

116. A Royal Commission on Security in Canada presented its Report in 1969 and proposed machinery applicable to public servants, certain classes of immigrants and applicants for citizenship as well as to others. It proposed a Security Review Board which should review decisions in all appropriate areas because (i.a.) ‘all

security decisions have much in common’. Incidentally, the Royal Commission took the view that applicants for employment should not have access to the Review Board, arguing that ‘there is absolutely no requirement for the employer—in this case the Government— to enter into controversy with an applicant by informing

him of the reasons for his failure’ to be employed.

117. We do not pretend to have made any study of all the issues relevant to the questions of the circumstances in which there should be a review of decisions where security issues intrude or of the appropriate review mechanism. We simply say that, until there is some special machinery, an Ombudsman ought not to be

denied power to deal with a matter simply because security issues intrude. It would, however, be proper, in our view, to deny jurisdiction where the Attorney- General certified that the security of the Commonwealth was involved.

118. Subject to this, we see no reason why the Ombudsman should not have access to the Director-General of Security and be permitted to proceed with his investigation and report, subject to arrangements that adequately have regard to security requirements.

119. Doubtless you will wish to take counsel of the Director-General of Security on the appropriate procedures and requirements. The New Zealand legislation provides some pointers to the course that might followed.

27

Access to the Ombudsman

120. It is our view that complainants should be citizens or residents of Australia as distinct from persons in Australia under temporary permit or here without entry permit. The qualification is of major importance in relation to complaints regarding powers exercised under the Department of Immigration’s immigration and pass­

ports legislation. That Department, with knowledge of what has happened in other countries, is fearful of the consequences of a right to review being given to those who are not truly residents of Australia such as alien students, entrepeneurs, employees, entertainers, ships deserters and visitors. Such a qualification would not preclude a citizen or resident of Australia from taking up a refusal of entry or of extension of temporary stay of a spouse, minor child, fiance (e) or aged parent.

121. We expect in our final report to put forward views on the need for a tribunal to review certain decisions under the Department of Immigration’s legislation.

122. Relevant to the foregoing is that, of the four Statutes studied only the United Kingdom Act requires that the complainant be resident in the United Kingdom but a complaint may also be made about action taken in relation to a person while he was present in, or in relation to rights and obligations which accrued or

arose in, the United Kingdom or ships or aircraft registered in the United Kingdom.

123. As mentioned above, all the Acts, except the United Kingdom Act, entitle the Ombudsmen on stated grounds to refuse to investigate a complaint. The common grounds for refusal in the New Zealand, Western Australian and South Australian Acts are triviality, frivolousness, vexatiousness, lack of good faith and lack of sufficient interest. The Western Australian and South Australian Acts add further grounds, i.e., that the investigation is unnecessary or unjustifiable. In the

United Kingdom Act, despite the fact that complaints have to come through a member of the House of Commons, the Ombudsman has a discretion not to investigate or to continue an investigation. The New Zealand Ombudsman has proposed that his legislation should be amended to give him an absolute discretion to determine whether or not to investigate a complaint. His object appears to be to enable him ‘to concentrate on cases of significant hardship’. He seems to have been motivated by the number of complaints received from government employees about terms and conditions of service. 124. It strikes us as odd to include in legislation establishing a process of review of discretions exercised under Statutes, a provision giving an absolute discretion to an Ombudsman to refuse to investigate complaints. In this regard, we are not attracted to the Western Australian and South Australian provision entitling the Ombudsman not to investigate if he thinks it unnecessary or unjustifiable. If there were to be any power in our legislation to refuse other than on grounds of triviality, frivolousness, vexatiousness, lack of good faith and lack of sufficient interest, we would think that the power should be exercisable only with the consent of the Attorney-General. This would, at least, subject to the review of Parliament any refusal by the Ombudsman to investigate other than on the grounds stated. It might be expected that the Attorney-General would give his consent when, for example, he considered that though a matter was within the jurisdiction of the Ombudsman, the matter could better be dealt with under some other process of investigation.

28

125. We have confined ourselves to reviews initiated by the complaints of aggrieved persons. We think we should mention that, under the four Statutes we have studied carefully, there are other avenues by which investigation by the Ombudsmen may be promoted.

126. Under the New Zealand Act, any Committee of the Parliament may refer a petition before it and the Ombudsman, to the extent that his Act gives him jurisdiction, is required to report to the Committee. Under the Western Australian Act, either House of Parliament or any Committee of either House or a Joint

Committee may refer any matter to the Ombudsman for investigation and report. Under the South Australian Act, a member of either House of Parliament may pursue a complaint on behalf of the complainant, with the latter’s consent.

127. Each of the Acts, other than the United Kingdom, permits the Ombudsman to conduct an investigation within his powers, on his own motion.

128. Both of these types of provisions appear to us to be open to question.

129. As to the first, it might well be argued that, if the Ombudsman is to stand in close relation to the Parliament, there can be no valid objection to it’s remitting matters within his jurisdiction for report to it. Yet there are the risks that the Ombudsman could find himself caught up in political manoeuvring which might

not enhance his status in the public esteem and that he could be diverted from his principal purpose to attend to a reference from Parliament, directed to him simply because he was the most convenient agency at hand.

130. And to the second, much of course would depend on the good sense of the Ombudsman. There could be no quibble with his pursuing a matter that came to notice during an investigation. But beyond that there are questions of priorities and influences, e.g., whether preference should be given to a matter that catches

the Ombudsman’s eye in the Press or that, in some chance or contrived conversa­ tion, titillates his interest, or to complaints formally made by aggrieved persons.

Conclusion

131. Subject to what we have written, you will judge from the tenour of this Report that we are attracted to the basic approach made by the New Zealand Act as generally appropriate to the review by the Ombudsman type process’ of decisions or recommendations or acts done or omitted relating to matters of

administration in the exercise of powers and functions conferred by Common­ wealth Statutes or subordinate legislation. We have expressed some qualifications which we consider appropriate. They have been influenced sometimes by the philosophies guiding, and the techniques displayed in, the United Kingdom Act.

132. As will have been gathered from our opening paragraphs, we do not see the institution of an Ombudsman type process as completely satisfying the need for review of administrative discretions by processes external to the department or instrumentality by or on whose behalf they are exercised. Our final Report will be

directed to our views on the need for formal tribunals to review some discretionary powers. Nor will the institution of an Ombudsman mean that other forms of investigatory process, like Royal Commissions and Committees of Enquiry, won’t be considered appropriate in particular types of cases.

29

133. However, given a decision that there is to be an Ombudsman type review process and that, with or without qualifications, the Ombudsman is excluded from jurisdiction in respect of complaints where there is a right of review by some tribunal, no conflict will arise in relation to any proposals we may make in our final Report about the desirability of providing for a review by a tribunal in respect

of any specific provisions of legislation or regulations.

Summary 134. The following summarises our major conclusions and recommendations:

(a) Whenever opportunity offers, discretionary powers in extensive terms should be more narrowly defined (paragraph 16).

(b) It would be desirable to introduce an Ombudsman type review process in respect of decisions etc. relating to matters of administration affecting a person or body in his or its personal capacity in or by the departments and some of the instrumentalities of the Commonwealth in the exercise of any power or function conferred by or arising under any enactment

(paragraph 63).

(c) This conclusion does not extend to the Australian Capital Territory or the Northern Territory at this stage, nor to Papua New Guinea (paragraph 4). (d) The qualities required of an Ombudsman are demanding. They are dis­

cussed in paragraphs 68 to 70. (e) Because it is vital that the Ombudsman institution should succeed, great care should be taken to avoid overloading the office in the initial stages (paragraphs 71 to 81).

(/) The frequency of resort to an Ombudsman could be less if it were the practice of departments and instrumentalities, where this is not already the case, to give the fullest possible information to the public about their rights and entitlements and the procedures to be followed, the maximum possible opportunity to present claims, and at least brief reasons for deci­ sions that go against a citizen (paragraph 72). (g) No definitive decision should be taken at this stage as to whether provision

should be made for more than one Ombudsman (paragraphs 76 and 77). (A) While power should be taken enabling all departments and instrumentali­ ties to be brought within the jurisdiction of an Ombudsman, to start with only the Departments of Customs and Excise, Education and Science,

Health, Housing, Immigration, Postmaster-General’s and Social Services (using the names by which they were known) should be placed under the Ombudsman’s jurisdiction (paragraphs 78 to 81).

( 0 Policy decisions etc. of Ministers should not be examinable (paragraph 97 ( a ) ). Alternative possibilities in relation to administrative decisions etc. are also canvassed in paragraph 97 (a). The broad question whether decisions etc. of Ministers should be examinable is discussed in paragraphs 83 to 97.

(/") The question whether recommendations to Ministers should be examin­ able is linked to the decisions your Government elects to take as regards

30

the decisions of Ministers. Logically, if decisions of Ministers are not to be examinable, neither should recommendations related thereto. But attention is drawn to the New Zealand approach which is that ‘administrative’ recommendations made under statutory powers are examinable (para­

graphs 83 to 97 and particularly paragraph 97 ( b )).

( k) Where a Minister certifies that a decision of an official is in accordance with a policy decision of himself or of Cabinet, that decision should not be examinable except on grounds of maladministration (paragraph 97 ( c ) ) .

(l) A Commonwealth Ombudsman should not have jurisdiction in respect of the matters detailed in paragraph 99. Some elaboration appears in para­ graph 100.

(m ) While an Ombudsman should not normally deal with matters where the complainant has another remedy, the Ombudsman should be entitled to make an exception where he feels this justified, (paragraph 9 9 ( i) ( i) ).

(n) An Ombudsman should not be invested with power to express judgments about, or to recommend reconsideration, amendment or repeal of legisla­ tion. (paragraphs 105 to 107).

(o) An Ombudsman is not to be thought of as a one man Court of Appeal against every decision and accordingly his power to take action should not extend to what he considers a wrong decision unless it has the qualities of maladministration, (paragraphs 108 and 109).

(p) The New Zealand provisions dealing with the Ombudsman’s power to report should not be supplemented by a power for the Ombudsman, at his own discretion, to make public a report on a matter he has investigated, (paragraph 111).

(ρ) An Ombudsman must perforce use others to interview people, make inquiries and conduct investigations on his behalf. It would be desirable to allow him access to Commonwealth officers, apart from his own staff, and to State officers to perform these functions. There should be no power to delegate the power to report, (paragraph 112).

(r) Until there is some special machinery for the review of decisions where security issues intrude, an Ombudsman ought not to be denied jurisdiction simply on that account. However, there must be proper regard for security requirements. Doubtless you will wish to consult with the

Director-General of Security, (paragraphs 113 to 119).

(j) All citizens or residents of Australia, as distinct from persons here under temporary permit or without entry permit should have access to an Ombudsman, (paragraph 120).

(Z) An Ombudsman should be entitled to refuse to make an investigation when he believes a complaint to be trivial, frivolous, vexatious, lacking in good faith or lacking in sufficient interest. Widening the grounds for refusal is not favoured. If they were to be widened, the consent of the Attorney-

General should be required to any proposed refusal, (paragraphs 123 and 124).

31

(«) The wisdom of permitting an Ombudsman to be distracted from his main purpose by authorising him to deal with matters referred to him by the Parliament is questionable, (paragraphs 126 to 129).

(v) The same has to be said for a power permitting an Ombudsman to take up matters on his own motion. Such a power could lead to abuse if not sensibly exercised, (paragraph 130).

(w) The institution of an Ombudsman will not completely satisfy the need for review of administrative decisions. Nor will it mean that thereafter there will be no persons aggrieved by the exercise of discretionary powers. Moreover there is a price for having an Ombudsman, (paragraphs 65 and

132).

(x) Subject to the views expressed in this Report, the New Zealand legislation provides a model for any legislation of the Commonwealth Parliament, (paragraph 131).

Acknowledgments

135. To conclude, we wish to express our appreciation to the Secretary of your Department for making available as our Secretary, Mr Ernst Willheim, a Principal Legal Officer of the Department and to undertake researches for us first Mr F. Marris and later Mrs A. Glover. To each of them, personally, we express our gratitude for their help.

H. A. BLAND Chairman H. WHITMORE P. H. BAILEY

Canberra. 19 January 1973.

32

APPENDIX A

Persons invited to make Submissions

Mr D. P. Williams, President, Australian Society of Accountants, General Council

Mr T. R. Russell, President, Australian Society of Accountants, New South Wales Division

Mr R. O. Thiele, President, Australian Society of Accountants, Victorian Division

Mr W. F. Atkinson, President, Australian Society of Accountants, Queensland Division

Mr C. R. Faggotter, President, Australian Society of Accountants, South Australian Division

Mr J. D. Hawtin, President, Australian Society of Accountants, Western Australian Division

Mr M. McL. Glennie, President, Australian Society of Accountants, Tasmanian Division

Mr J. R. Harrowell, President, Institute of Chartered Accountants in Australia

Mr P. C. E. Cox, Chairman, Institute of Chartered Accountants in Australia

N.S.W. Council

Mr A. R. Bottomer, Institute of Chartered Accountants in Australia Queensland Council

Mr N. W. Buckley,

Chairman, Institute of Chartered Accountants in Australia Victorian Council

Mr L. N. P. Cox

Chairman, Institute of Chartered Accountants in Australia Tasmanian Council

Mr E. H. Burgess, Chairman, Institute of Chartered Accountants in Australia South Australian Council

Mr J. B. Morrison, Chairman, Institute of Chartered Accountants in Australia Western Australian Council

Mr H. S. Southam, President, Institute of Affiliate Accountants

Miss J. Brown, Secretary-General, Australian Council of Social Service

Mrs M. Baulch, Federal Secretary, Australian Association of Social Workers

Mrs M. MacLean, Secretary, Council of Social Service of the A.C.T.

33

Miss H. Halse-Rogers,

Executive Secretary, Council of Social Service of N.S.W.

Mrs E. H. Gough, Secretary, Council of Social Service of Queens­ land

Mrs R. V. Hutchison,

Executive Officer, South Australian Council of Social Service

Mrs A. Rood,

Secretary, Council of Social Service of Tasmania

Mrs M. Stephenson, Secretary, Council of Social Service of Western Australia (Inc.)

Mrs M. Coleman, Director, Victorian Council of Social Service

Mr M. R. C. Stradwick, O.B.E., President, Australian Council on the Ageing

Mr W. H. Wintle, President, Canberra Original Old Age and Invalid Pensioners Association

Mrs A. Heading, National President, Association of Civilian Widows

Miss J. Garside, Executive Director, Australian Council for Rehabilitation of the Disabled

Mrs I. Ellis, Secretary, Australian Commonwealth Pensioners Federation

M r C. R. Nichols, C.M.G., O.B.E.,

President, Associated Chamber of Manufactures of Australia

M r N. Blyton,

President, Associated Chamber of Commerce of Australia

Mr R. J. Hawke, B.A., LL.B., B.Litt.,

President, Australian Council of Trade Unions

Mr R. J. B. St. John,

President, N.S.W. Council for Civil Liberties

Dr Alan Hughes,

President, Victorian Council for Civil Liberties

Mr D. Lake, President, Queensland Council for Civil Liberties

Mr J. Dahl, J.P.,

President, South Australia Council for Civil Liberties

Mr J. Henshaw,

President, Civil Liberties Association of Western Australia

Professor A. K. Stout,

President, Tasmania Council for Civil Liberties

Mr Η. N. Boot, Secretary, Civil Liberties Council of the A.C.T. (Inc.)

Mr D. A. Noakes,

President, Australian Council of Employers Federation

34

M r Μ. M. O’Loughlin,

President, Taxation Institute of Australia

Mr L. P. Skinner,

President, Tax Agents Association of South Australia

Mr L. E. Wruck,

President, Queensland Tax Agents Association

Professor H. Whitmore, LL.B., LL.M., Dean of Faculty of Law Australian National University

Professor G. Reid, B.Com., Ph.D.,

Department of Political Science, Australian National University

Professor R. L. Mathews, B.Com.,

Department of Accounting and Public Finances, Australian National University

Associate Professor E. J. Edwards, B.A., B.L., LL.B., S.J.D., Dean of Faculty of Law, University of Western Australia

Professor P. R. Brown, B.Com., M.B.A., Ph.D., A.A.S.A., Department of Accounting, University of Western Australia

E. D. Watt, B.Ed., M.A., Ph.D.,

Senior Lecturer, Department of Politics University of Western Australia

Professor D. Roebuck, M.A., M.Com.,

Dean of Faculty of Law, University of Tasmania

Professor J. McB. Grant, M.Ec., Dip.Ec., A.A.S.A.,

Department of Applied Economics, University of Tasmania

Professor W. A. Townsley, Dip.Ed., M.A.,

Department of Political Science, University of Tasmania

Professor D. M. McCallum, M.A., B.Phil., Department of Political Science, University of New South Wales

Professor A. S. Carrington, M.Com., F.A.S.A., F.C.A., C.M.A.N.Z., F.C.I.S., F.I.A.N.Z.

Department of Accountancy, University of New South Wales

Professor D. C. Corbett, M.A., Ph.D.,

Department of Political Theory and Institutions, Flinders University of South Australia

Professor A. D. Barton, B.Com., Ph.D., A.A.S.A.,

Department of Accounting and Busi­ ness Studies, Macquarie University

Professor D. A. Aitken, M.A., Ph.D.,

Department of Politics, Macquarie University

Professor L. Goldberg., B.A., M.Com., Litt. D., F.A.S.A., A.C.I.S., Department of Accountancy, University of Melbourne

Professor H. A. J. Ford, S.J.D.,

LL.M., Dean of Faculty of Law, University of Melbourne

Professor A. F. Davies, M.A., Department of Political Science, University of Melbourne

Professor S. R. Davis, LL.B., Ph.D., Department of Politics, Monash University

35

Professor J. W. Bennett, B.Com., AA.S.A.,

Department of Accounting, Mon ash University

Professor D. E. Allan, M.A.,

Dean of Faculty of Law, Monash University

Professor A. C. Castles, LL.B., J.D.,

Dean of Faculty of Law, University of Adelaide

Professor F. K. Wright, B.Met.E., B.Com., F.A.S.A.,

Department of Commerce, University of Adelaide

Professor G. C. Duncan, B.A.,

Dip.Ed., D.Phil.,

Department of Politics, University of Adelaide

Professor K. W. Ryan B.A., LL.B., Ph.D.,

Department of Politics, University of Adelaide

Professor K. W. Ryan, B.A., LL.B., Ph.D.,

Dean of Faculty of Law, University of Queensland

Professor R. S. Cynther, M.Ec.,

D.B.A., B.Com., A.A.U.Q.,

F.A.S.A., F.C.A.A.,

Department of Accountancy, University of Queensland

Professor C. A. Hughes, M.A., Ph.D.,

Department of Government, University of Queensland

Professor K. O. Shatwell, M.A., B.C.L.,

Dean of Faculty of Law, University of Sydney

Professor R. J. Chambers, B.Ec.,

Department of Accounting, University of Sydney

Professor R. N. Spann, M.A.,

Department of Government and Public Administration, University of Sydney

Professor R. N. Martin, M.A., Ph.D., Department of Politics, La Trobe University

Professor E. K. Braybrooke, LL.M.,

Department of Legal Studies, La Trobe University

Professor G. G. Meredith, B.Ec., M.Com., Ph.D., Department of Accounting and Finance Management, University of New England

Professor C. M. Tatz, M.A., Ph.D., Department of Politics and Government, University of New England

Mr J. G. Stephenson,

President, Customs Agents Federation of Aus­ tralia

Mr A. Flynn, F.C.A.I.A.,

Federal President, Customs Agents Institute of Australia

Mr N. J. Gahan,

Federal President, Taxpayers Association of Australia

Air Marshal Sir John McCauley, K.B.E.,

President, Good Neighbour Council of N.S.W.

Mr M. Harrison, C.B.E., J.P.,

President, Good Neighbour Council of Victoria

36

Sir Keith Wilson,

President, Good Neighbour Council of South Australia

Mr R. H. Wainwright, O.B.E.,

President, Good Neighbour Council of Queensland

Mr L. E. Hewitt,

President, Good Neighbour Council of Tasmania

Mr J. Heulin,

President, Good Neighbour Council of Western Australia

Mr A. Collins,

President, Good Neighbour Council of Northern Territory

Mr I. A. Krippner,

President, Good Neighbour Council of the A.C.T. (Inc.)

Mr T. Molomby, M.B.E.,

President, Law Council of Australia

Mr J. Broadbent,

President, Law Society of New South Wales

Mr G. J. Samuels, Q.C.,

President, New South Wales Bar Association

Mr L. Masel,

President, Law Institute of Victoria

Mr W. O. Harris, Q.C.,

Chairman, Victorian Bar Council

Mr S. Douglas,

President, Queensland Law Society (Inc.)

Mr J. D. Dunn, Q.C.,

President, The Bar Association of Queensland

Mr S. Jacobs, Q.C.,

President, Law Society of South Australia

Mr J. L. Toohey, Q.C.,

President, Law Society of Western Australia

Mr P. R. Cranswick,

President, Law Society of Tasmania

Mr J. Ellis,

President, Law Society of the A.C.T.

Mr J. J. Kelly,

President, Bar Association of the A.C.T.

Mr I. Barker,

President, Law Society of the Northern Territory

Mr C. J. Legoe, Q.C.,

President, South Australian Bar Association

Mr J. L. Toohey, Q.C.

President, Western Australian Bar Association

Mr W. O. Harris, Q.C.

President, Australian Bar Association

Sir Arthur Lee, K.B.E., M.C.,

National President, Returned Services League of Australia

37

Mr A. C. Cameron, D.F.M.,

State President, Returned Services League of Australia, Queensland Branch

Mr C. J. Hines,

State President, Returned Services League of Australia, N.S.W. Branch

Sir William Hall, C.B.E., D.S.O., E.D.,

State President, Returned Services League of Australia,

Sir Thomas Eastick, C.M.G., D.S.C., E.D.,

State President, Returned Services League of Australia, South Australia Branch

Mr P. Pearson, O.B.E., J.P.,

State President, Returned Services League of Australia, Western Australia Branch

Mr B. C. Piggott, O.B.E., State President, Returned Services League of Australia, Tasmania Branch

Mr D. W. W. Elliman, M.B.E., President, Returned Services League of Australia, A.C.T. Branch

Mrs E. Mayor, O.B.E., National President, War Widows Guild of Australia

Mr P. F. Irvine, President, Institute of Public Affairs (N.S.W.)

Mr W. Brooks, President, Institute of Public Affairs

Hon. Justice R. M. Hope, Chairman, Australian Institute of Political Science

Mr Walter Ives,

President, Royal Institute of Public Administration, A.C.T. Regional Group

Mr J. I. Murtagh,

Chairman, Royal Institute of Public Administration, Tasmanian Regional Group

Mr R. M. Brown, Chairman, Royal Institute of Public Administration,

Queensland Regional Group

Mr D. Dunn,

President, Royal Institute of Public Administration, Western Australian Regional Group

Mr E. J. Walder,

Chairman, Royal Institute of Public Administration, N.S.W. Regional Group

Mr R. A. Moffatt,

President, Royal Institute of Public Administration, Victorian Regional Group

Mr G. C. Strutton,

Chairman, Royal Institute of Public Administration, South Australian Regional Group

Professor R. S. Parker, M.B.E., M.Ec.,

President, Royal Institute of Public Administration, Steering Committee

38

APPENDIX B

Comparative Table of Parliamentary Commissioner (Ombudsman) Act 1962 as amended (New Zealand) Parliamentary Commissioner Act 1967 (United Kingdom) Parliamentary Commissioner Act 1971, (Western Australia) Ombudsman Act 1972 (South Australia)

N ew Z ealand U nited Kingdom W estern A ustralia South Australia

NAM E

APPOINTM ENT

LIM ITATIONS ON APPOINTM ENT

s 2 (1) Ombudsman

s 2 (2) By Governor-General on recommendation of House o f Representatives s 4 (1) Recommendation shall be made in first or second session o f every Parliament

s 3

N ot capable o f being a member of Parliam ent; not to hold additional office of trust or profit or engage in

other occupation for reward

s 1 (1) Parliamentary Commissioner for Administration

s i (2)

By H er Majesty

s 5 (1) Parliamentary Commissioner for Administrative Investigations

s 5 (2) By Governor

s i (4)

N ot to be member of House o f Commons or of Senate or House of Commons of N orthern Ireland

s 5 (8) N ot to have been member of Parliament o f Commonwealth or any State within preceding three years. T o vacate office if nominated for election for Parliament

s 6 ( l )

Ombudsman

s 6 Cl) By Governor

N ot, without ministerial consent, to engage in any remunerative employment or undertaking outside duties of office

s 5 (9) N ot to hold additional office of profit or trust or engage in other occupation for reward unless authorised by resolutions o f both Houses

of Parliament

New Zealand United Kingdom Western Australia South Australia

TERM OF OFFICE s 4 ( 2 )

Shall hold office until successor appointed

s 1 (2) To hold office during good behaviour

s 5 (3) Five years. May resign at any time

s 4 (1) (Recommendation for appointment to be made in first or second session of

every Parliament)

s 4 (2) May be re-appointed s 4 ( 3 ) May resign at any time

s 1 (3) s 5 (4)

To vacate office on T o vacate office on

completing year of service in completing year of service in which attains 65 years of age. which attains 65 years of age May be relieved of office at own request

s 10 (1) Appointm ent for term expiring on day on which he attains 65 years

s 10 (4) Office becomes vacant in various circumstances, including if he becomes a

Member of Parliament

REMOVAL AND φ. SUSPENSION FROM o OFFICE

s 5 (1) May be removed or suspended by Governor- General upon an address

from House of Representatives for specific reasons

s 5 ( 2 ) When Parliament not in session Governor-General in Council may suspend for specific reasons

s 1 (3) By Her Majesty upon Addresses from both Houses of Parliament

s 6 (1) Governor may remove or suspend on address from both Houses of Parliament

s 6 (2) Governor may suspend for specific reasons

s 10 (2) Governor may remove upon address from both Houses of Parliament

s 10 (3) G overnor may suspend for specific reasons

s 10 (4) Office automatically vacant in certain circumstances

DELEGATION s 24 s 3 (2)

With prior approval in each Any function of Comrnis- case of Prime Minister, may sioner may be performed by delegate to any person holding officer of the Commissioner office under him but not the authorised by Commissioner power to make a report

s 11 (1)

In so far as authorised by Rules of Parliament made under Act o r resolution of both Houses of Parliament

Commissioner may in writing delegate to any officer of the Commissioner except the power to report

s 9 (1) Ombudsman may in writing delegate powers and functions to any person

JU RISDICTIO N (i) DEPARTM ENTS AND AUTHORITIES s 11 (1)

Departments and organisa­ tions listed in Parts I and II of Schedule to Act

s 4 (1) Act applies to departments and authorities listed in Schedule 2 to Act

s 4 (2), (3) H er Majesty by Order in Council may amend Schedule 2 (subject to annulm ent in pursuance o f resolution of either House)

s 13 (1) Act applies to departments and other authorities specified in Schedule and to any other departments to which Act is declared to apply by Rules of

Parliament

s 3 (1) ‘Administrative Act* relating to Departm ent listed in Schedule or proclaimed

Authority or proclaimed Council

(ii) MATTERS SUBJECT TO INVESTIGATION s l l ( l ) (1a)

Any decision or recommenda­ tion, act done or omitted relating to a m atter of administration and affecting any or body of persons in his or its personal capacity by any Departm ents named in Parts of Schedule to Act or by any officer or employee in the exercise of any power or function conferred by or arising under any enactment

s 5 (1) Any action taken by depart­ ment or authority in exercise of administrative functions by which person claims to have sustained injustice in consequence of mal­ administration

s 4 (4) Reference in Act to government department or authority includes reference

to Ministers

s 14 (1) Any decision o r recommenda­ tion made o r act done or

omitted that relates to a m atter of adm inistration and affects any person in his or

its personal capacity by any government departm ent or other authority to which Act applies in the exercise o f any power or function conferred by or arising under any enactment

s 14 (3) Section does not authorise or require Commissioner to investigate any decision made by Cabinet o r a Minister of the Crown o r to question the merits o f any such decision

s 13 (1) A ny administrative act as defined in s 3 (1)

PROVISIONS RELA TING s 11 (1) (1a) TO RECOM M ENDATION Recommendation includes TO M INISTER recommendation to a

Minister of the Crown or any organisation in Part III of Schedule

s 14 (2) (c) Reference to taking of action construed as including the making of any recom mendation (including

a recom mendation to a Minister o f the Crown)

s 3 (1) ‘Administrative Act’ includes a recommendation to a Minister of the Crown

New Zealand United Kingdom Western Australia South Australia

SPECIFIC EXCLUSION FR O M JU R ISD ICTIO N (i) D EPARTM ENTS A N D AUTHORITIES

(ii) (

ft

s 11 (5) (d) (e) Any decision recommendation act or omission of employee or officer of medical Board being a doctor or dentist or employee of education Board,

being a probationary teacher, etc. at M aori school or student at teachers college

s 5 (3) Schedule 3 s 5 ( 4 ) H er Majesty by Order in

Council may amend Schedule 3 to include matters, subject to annulm ent by either House

s 13 (2) (a)-(S) s 3 (1)

Courts of law, Judges, Acts in discharge of judicial

stipendiary magistrate, responsibilities commissioner, coroner, Auditor-G eneral Parliam entary s 5 (1) Privileges A c t 1891 Any Commission or tribunal

to which Act proclaimed not to apply

s 5 ( 2 ) Any member of police force

(ii) (b) IN RELATION s 11 (5) (6)

TO CERTAIN PERSONS Any decision, recommenda­ tion, act or omission by person in capacity of trustee

s 14 (6) Any action taken by person acting as legal adviser or counsel

e 3 ( l )

Any action by person acting as legal adviser or counsel to the Crown

s 11 (5) (c) Any decision, recommenda­ tion, act or omission of any person acting as legal adviser

to Crown

s 17 (1) Where of opinion that complaint made by employee against employer

s 11 (6) See Schedule 3

Certain matters relating to any member of Armed Forces

(ii) (c) W HERE R IG H T O F APPEAL s 11 (5) (a) Any decision, recommenda­

tion, act or omission in respect of which there is a right o f appeal, objection or review whether or not appeal exercised or time expired

s 5 (2) (a) (6) Any action where person aggrieved has or had right of appeal reference or review to

tribunal or any remedy by way of court proceedings but Commissioner may investigate if satisfied that not reasonable to expect person to have resorted to remedy

s 14 (4) (a) (6), s 14 (5) Any action where person has or had a right of appeal, reference or remedy to a

tribunal or remedy by way of proceedings in any court of law but Commissioner may conduct investigation if satisfied that not reasonable

to expect him to resort to it. c . f also s 15 (3) where investigation on reference by Parliament

s 13 (3) (a) (6) Any administrative act where right of appeal, reference or review or remedy by way of

legal proceedings but Ombudsman may investigate where in his opinion not reasonable to expect person to have resorted to remedy

(iii) TIM E LIM ITATIONS s 14 (2) Discretion to decide not to investigate complaint where complainant had knowledge for more than 12 months

s 6 (3) Complaint must be made within 12 m onths except where Commissioner con­ siders special circumstances exist

s 17 (5) Complaint m ust be made within 12 m onths from day on which person aggrieved first had notice except where Commissioner in special

circumstances determines

s 16 (1) Complaint must be made within 12 months from day on which complainant first had notice but Ombudsman

had discretion to investigate a later complaint

s 17 (6) Complaint in respect of action taken before operation o f Act (s 14 (8)) shall be

made within 6 months following that date

s 14 (3) Complaint shall not be entertained 12 months after commencement of Act of any

course of conduct that occurred before commence­ ment

(iv) OTHER LIMITATIONS

s 6 (4) Complaint only entertained if person aggrieved resident in United Kingdom or complaint relates to action taken in relation to him while present in United Kingdom or an installation or registered ship or aircraft

New Zealand United Kingdom Western Australia South Australia

TEST O F JU RISDICTIO N s 11 (7) Commissioner may apply to Supreme Court for declaratory order if question arises as to

his jurisdiction in a case

s 5 ( 5 ) Commissioner shall act in accordance with own

discretion and any question whether complaint duly made determined by Commissioner

s 29 (1) Commissioner or the party to the investigation may make an application to the

Supreme C ourt for determina­ tion of question o f jurisdiction

PROCEDURE (i) BY WHOM INVESTIGATION INITIATED

s 11 (2) By any person or of Commissioner’s own motion

s 11 (3) (3a) Any Committee of House of Representatives may refer any petition before it and

any organization in Part III may refer any report for investigation

s 5 (1) («) (6) W ritten complaint by member of public to a member of House of Commons, who

with consent of person refers it to Commissioner

s 6 (2) Complaint may be made by personal representative, member of family or other

suitable representative where person died or unaule to act for himself

s 15 (1) Either House of Parliament or any committee of either House or joint committee

may refer m atter to Commissioner for investiga­ tion and report

s 16 (1) On Commissioner’s motion

s 17 (1) By person o r body of persons incorporated or not

s 6 (1) (a) (6) Complaint may be made by individual or body of persons incorporated or not, but not

by local authority or body constituted for public service or of local government, or any other body whose

members are appointed by H er Majesty or Minister of Crown or government Department

s 17 (2) Complaint may be made by personal representative, member of family or other

suitable representative where person dies o r is unable to act for himself. Except as provided complaint must be

by person aggrieved

(ii) M ODE O F s 13 (1)

COM PLAINT In writing

s 5 ( l )

In writing

s 17 (1) In writing

s 28 (1) Ombudsman or interested person, body, Departm ent, Authority or proclaimed

Council may apply to Supreme Court for determina­ tion of question of jurisdiction

s 13 (2) Complaint made to Commissioner or on his own motion

s 15 (1) Complaint made by person or body of persons whether corporate or unincorporated

s 15 (2) Complaint may be made by suitable representative on behalf of person who dies or unable to act for him self

but otherwise complaint must be by person or body directly affected

s 15 (3) Complaint may be made on behalf of person or body, by member of Parliament,

with their consent

s 5 (5) Commissioner shall determine any question whether a complaint is duly made

(iii) D ISCRETIO N TO REFUSE O R TO AGREE TO INVESTIGATE A COM PLAINT

s 14 (1) (a) (b) Commissioner may refuse to investigate m atter further where it appears that under the law or existing adminis­ trative practice there is an adequate remedy or right of appeal or that any further investigation is unnecessary

s 14 (2) (c)-(c) If in Commissioner’s opinion subject m atter trivial, complaint frivolous or vexatious or not made in good faith, complainant has not a sufficient personal interest in subject m atter of complaint

s 11 (2) May investigate complaint although it may not on its face be against any decision,

recommendation or act

s 5 (5) Commissioner shall act in accordance with his own discretion in determining whether to initiate, continue or discontinue an investigation

s 18 (1) (a)-(d) Commissioner may refuse to entertain complaint where m atter raised is trivial, complaint is frivolous, vexatious or not made in good faith, person aggrieved has not sufficient personal interest in m atter, investigation of complaint is unnecessary or unjustifiable

s 16 (2) May investigate a complaint, although it may not on its face be against any decision,

recommendation or act done or omitted

(iv) PROCEDURE W HERE INVESTIGATION REFUSED

s 14 (3) If Commissioner decides not to investigate he shall inform complainant of decision and may state reasons therefore

if he thinks fit

s 10 (1) Commissioner to send to member of House of

Commons who requested investigation, statement of reasons for not conducting an investigation

s 18 (2) Commissioner shall inform complainant where precluded from or refuses to investigate

any complaint and shall state reasons

s 17 (2) ( a H d ) If Ombudsman is of the opinion that m atter raised is

trivial, complaint frivolous or vexatious or not m ade in good faith, person has insufficient personal interest in m atter raised, investigation unnecessary or unjustifiable

s 13 (2) May investigate any administrative act although on face o f it complaint may

not appear to relate to that administrative act

s 17 (3) Ombudsm an to inform complainant, stating reason, where refuses to or precluded from, entertaining complaint

New Zealand United Kingdom Western Australia South Australia

(v) PROCEDU RE FOLLOW ED IN M A KING AN IN Q U IRY

(a) RULES OF PROCEDU RE MADE BY PARLIAMENT

(6) PROVISIONS RELATING TO PROCEDURE (i)

(ii)

(iii)

s 12 House of Representatives may make general rules for guidance of Commissioner

s 12(1) Rules of Parliam ent may be made for guidance of Commissioner

s 15 (1) Before investigating any matter Commissioner shall inform Permanent Head of

Department or organisation of intention to make investigation

s 15 (2) Every investigation shall be conducted in private

8 7 (1 ) Give principal officer of Departm ent or Authority and any person alleged to

have authorised action complained of, an opportunity to comment on allegations

s 7 ( 2 ) Every investigation shall be conducted in private

s 19 (1) Before commencing investigation Commissioner shall notify principal officer

and Minister responsible of intention to investigate

s 19 (2) Every investigation shall be conducted in private

s 15 (3) Commissioner may hear or obtain information from such persons and make such

inquiries as thinks fit. Not necessary to hold hearing. No person shall be entitled as of right to be heard

s 7 (2) Commissioner may obtain information from such

persons and in such manner and make such inquiries as thinks fit. May determ ini whether person be represented

s 19 (3) Commissioner not required to hold any hearing. He may obtain information from

such persons and in such manner and make such inquiries as he thinks fit. Any person concerned in

investigation may be represented

s 18 (1) Before commencing investigation Ombudsman shall inform principal officer

of the Departm ent, Authority or proclaimed Council of intention to conduct investigation

s 18 (2) Every investigation to be conducted in private

s 18 (3) Ombudsman not required to to hold any hearing and he may obtain information from

such persons and in such m anner as he thinks fit. He may determine whether any person may be represented in

investigation

s 15 (3) Proviso If it appears that there may be grounds for making report that may adversely affect any D epartm ent, organisation or

person, he shall give them an opportunity to be heard

s 19 (4) If it appears that there may be grounds for making a report that may affect any government D epartm ent or

Authority, he shall give principal officer an opportunity to comment

s 15 (4) Discretion at any time during or after an investigation to consult any

Minister concerned in investigation

s 19 (5) May, at any time during or after an investigation consult any M inister concerned in investigation

s 15 (5) On request of Minister, Commissioner shall consult

him before forming final opinion on certain matters

s 19 (6) On request o f Minister, Commissioner shall consult him before forming final opinion on certain matters

s 15 (6) If Commissioner of opinion during or after investigation, that there is evidence of any breach o f duty or misconduct on part o f any officer, employee or organisation, he shall refer m atter to appropriate authority

s 19 (7) If Commissioner o f opinion during or after investigation that there is evidence of

breach of duty or misconduct on part o f any member, officer or employee of government D epartm ent or Authority he shall report to

principal officer and Minister

s 19 (6) Commissioner shall not in any report make comment that is adverse to a person

unless the person has been given an opportunity to be heard

s 25 (7) There shall be no defamatory or adverse comment in a report about anyone unless

they have had the opportunity to be heard

s 18 (4) If it appears that there may be grounds for making a report that may affect any D epartm ent, A uthority or

proclaimed Council, he shall afford principal officer opportunity to comment

s 18 (5) If Ombudsman of opinion during or after investigation that there is evidence of

breach of duty or misconduct on part o f any member, officer, employee of any Departm ent, A uthority or proclaimed Council, he shall

refer m atter to principal officer

New Zealand United Kingdom Western Australia South Australia

(ix) s 15 (7)

Commissioner has discretion to regulate procedure subject to Act and any rules made by House of Representatives

« 7 ( 2 ) Investigation procedure in discretion of Commissioner

s 19 (8) Commissioner has discretion to regulate procedure subject to Act and Rules of

Parliament

s 18 (6) Ombudsman has discretion to regulate procedure in such manner as sees fit

(c) EVIDENCE (i) s 16(1)

Commissioner may require any person to give information or produce documents

s 8 (1) Commissioner may require any Minister, Officer, member of Departm ent or

authority who is able to give information or produce a document to do so

s 20 (1) (a) Commissioner to have powers of Royal Commission

s 19 Ombudsman to have powers of Royal Commission

(ii)

S

s 16 (5) Every person shall have same privileges in relation to giving information and production

of documents as witnesses have in Court

« 8 ( 5 ) N o person shall be compelled to give evidence or produce any document which he

could not be compelled to give or produce in Court proceedings

s 20 (3) A person is not compelled to give any evidence or produce any document that

he could not be compelled to give or produce in Court proceedings

(d) SECRECY (i) EFFECT OF SECRECY PROVISIONS IN O THER ACTS

s 17 (3) (a) Restrictions in other Acts on communications do not apply to any communication for

purpose of making a complaint under this Act

s 16 (3) N o person who is bound by provisions of any enactment to maintain secrecy (other

than Public Service A c t 1912 and Official Secrets A c t 1951) shall be required to supply

■ 8(3) N o obligation to maintain secrecy or other restriction upon the disclosure of

information obtained by or furnished to persons in Her Majesty's Service shall apply

s 20 (2) (a) No obligation to maintain secrecy or other restriction upon disclosure of informa­

tion obtained by or furnished to persons in service of Crown, applies to disclosure

s 20 N o obligation to maintain secrecy or other restriction upon the disclosure of

information obtained by or furnished to persons in service of Crown, an

any information or produce to disclosure of information o f information any document Authority or proclaimed Council applies to disclosure

of information

(ii) CROW N PRIVILEGE

(iii) DISCLOSURE OF EVIDENCE

(iv) STAFF

s 16 (1) Applies to officers of Departments

s 16 (4) Any person to whom 16 (3) applies may with consent of complainant be required to supply information relating to complainant s 17 (2) Subject to s 17 (1), normal rules o f privilege do not apply

s 16 (6) N o statement made or answer given in proceedings, admissible in evidence except on trial for perjury within

Crimes A c t 1961

s 18 (2) Commissioner and staff to maintain secrecy

s 18 (4) May disclose in report matters to establish grounds for conclusions and recom­

mendations. M atters to be excluded that may prejudice security, defence, international relations of New Zealand

investigation and detection of offences or Cabinet deliberations

s 8 (3) Crown not entitled to any privilege in respect of production of documents or giving o f evidence

s 11 (2) (a) (b) Information obtained by Commissioner and officers only to be used for purposes of investigation and report for proceedings under

Official Secrets A c t 1911-1939 and for proceedings for obstruction

s 11 (1) Commissioner and staff hold office under Official Secrets Act

s 20 (2) (6) Crown not entitled to any privilege in respect of production of documents or giving of evidence

s 23 (1) (e) (b) Inform ation obtained by Commissioner and officers

not to be disclosed except for purposes o f investigation and report o r for proceedings for perjury and under R o ya l

Commissions A ct 1968 or this Act

s 20 Subject to the Act, Crown not entitled to any privilege in respect to the production of documents or giving of evidence

s 22 (1) (a) (Jo) Inform ation obtained by or on behalf of Ombudsman not to be disclosed except for purposes o f investigation and report or for proceedings

under R o ya l Commissions A c t 1917 or under this Act

New Zealand United Kingdom Western Australia South Australia

(e) MATTERS N OT TO BE DISCLOSED (i) CABINET PROCEEDINGS

(ii)

(J ) POWERS OF COMMISSIONER, OMBUDSMAN (i)

(ii)

(g ) PROCEDU RE A FTER INVESTIGATION

s 17 (1) (6) (c) Attorney-General may certify that deliberations of Cabinet might be disclosed or that

proceedings of Cabinet or Cabinet Committee of a secret or confidential nature might be disclosed and would be

injurious to the public interest s 17 (1) (a) Attorney-General may certify that disclosure of information

might prejudice security, defence or international relations of New Zealand or the investigation or detection

of offences

s 16 (2) (a)-(c) Power to summon persons and examine them on oath

s 23 (1) Power of entry on premises of Departments and organisa­ tions in Schedule

s 19 (1) (2) (3) Where Commissioner of opinion, decision, recom­

mendation, contrary to law

s 8 (4) Any information or document relating to proceedings of Cabinet or of any Cabinet

Committee. Certificate of Secretary of Cabinet with the approval of the Prime Minister conclusive

s 11 (3) Minister of Crown may notify Commissioner he is of the opinion that disclosure of documents or information

prejudicial to safety of State or contrary to public interest

s 8 (2) Commissioner to have same power as C ourt in respect to attendance and examination

witnesses and production of documents

s 22 (1) (a) (b) (2) Any information or document relating to proceedings of Cabinet or any Cabinet

Committee. Certificate of U nder Secretary Premier’s Departm ent with approval of Premier conclusive

s 10 (1) (2) Commissioner shall send a report to (i) member of Parliament by

s 20 (i) (a) Commissioner to have powers of Royal Commission

s 21 (1) Power of entry on premises of any Government D epart­ ment or authority to which

Act applies

s 25 (1) (2) (3) (4) W here Commissioner of opinion action to which investigation relates appears

s 21 (1) («) (6) (2) Any information or docum ent relating to proceedings of

Cabinet or any Cabinet Committee. Certificate of M inister conclusive

s 19 Ombudsman to have powers o f Royal Commission

s 23 Power o f entry on premises of D epartm ent, A uthority or proclaimed Council

s 25 (1) (2) (3) (4) Where Commissioner of opinion administrative act to which investigation relates

unreasonable, etc. and that further action should be taken, he (i) shall report his opinion and reasons to the appropriate Departm ent or organisation and may make recommend­ ations (ii) may request Department, etc. to notify him of steps to implement recommendations

(iii) shall send copy o f report and recommendations to Minister

s 19 (4) (5) I f of opinion no adequate action taken discretion to send Prime Minister report and recommendations and may make a report to Parliament with any comments made by D epart­ ment or organisation

s 19 (5a) s 19 (4) (5) do not apply to investigation relating to Officer or employee in Part III of Schedule

s 20 (1) Commissioner to inform complainant where of opinion no action taken on his recommendations within a a reasonable time

whom investigation requested (ii) principal officer of D epartm ent or authority and to any other person alleged to have taken or authorised action complained of

s 10 (3) If it appears that injustice caused to person aggrieved as a result o f maladministration and injustice was not or will not be remedied, he may lay before each House of Parliament a special report

s 12 (3) N o power to question merits o f a decision taken without maladministration

to be contrary to law, unreasonable, etc. and that further action should be taken, he (i) shall report opinion and reasons to principal officer of appropriate authority and

may make recommendations (ii) shall send a copy to responsible Minister (iii) may request principal officer to inform him of steps to implement recommenda­

tions

s 25 (5) (6) If of opinion no adequate action taken may send Premier o f State copy o f report and recommendations and comment and may lay report before each House of Parliament

s 26 Commissioner shall inform complainant o f result of investigation and of recommendations made where appropriate steps have not been taken

2 0 (2) Commissioner in any case to inform complainant o f result of investigation

appears to be contrary to law, unreasonable, etc. and that further action should be taken, he (i) shall report opinion and reasons to principal officer of Departm ent, Authority or proclaimed Council and may make recommendations (ii) shall send copy to responsible Minister (iii) may require principal officer to notify him of steps to implement recommenda­ tions

s 25 (5) (6) If of opinion appropriate steps not taken discretion to forward to Premier copy of report, recom mendation any requirement and comments and may send copy o f report etc. to Speaker o f House of Assembly and to the President o f Legislative Council with request they be laid on table o f respective Houses

s 27 Ombudsm an shall inform complainant o f result of

investigation and of recommendations made where appropriate steps have not been taken

New Zealand United Kingdom Western Australia South Australia

ANNUAL AND OTHER REPORTS

PROTECTION OF COM MISSIONER OMBUDSMAN AND OFFICERS

s 25 Commissioner to make an annual report to Parliament

on exercise of his functions

s 12 (2) Any rules made by House of Representatives may authorise the Commissioner

from time to time in the public interest or in interest of any person, Departm ent or organisation to publish

reports relating generally to the exercise of his functions or to any particular case

s 10 (4) Commissioner shall annually lay before each House of Parliament a general report

on the performance of his functions under the Act. From time to time may lay such reports with respect to

functions as he thinks fit

s 27 Commissioner shall lay before each House of Parliament

annually a report on the exercise of his functions. Discretion at any time to lay before each House of

Parliament a report on any matter in connection with exercise of functions

s 28 Rules of Parliam ent may authorise the Commissioner to publish in various interests

reports on his functions or a particular case

s 22 (1) (a) (b) Except in case of proceedings for an offence against Official Secrets A c t 1951 (a) no proceedings to be

taken against Commissioner or officer for anything he may say, do, or report unless shown to have acted bad

faith (b) Commissioner and officers shall not be called to give evidence of matters known

as a result of an investigation

s 22 (2) Anything said or any information document or paper supplied shall be

privileged

s 10 (5) The following publications to be absolutely privileged (a) report to either House of

Parliament (b) any communication between member of House of Commons and Commissioner

and officers (c) publication by member of report to complainant (d) publication by Commis­

sioner to officer of department or authority or person alleged to have authorised action

s 11 (2) Commissioner and officers shall not be called upon to give evidence of matters

known as a result of an investigation

s 30 (1) Commissioner o r officers not liable for any act done in pursuance of Act unless done

negligently o r in bad faith

s 30 (2) (3) N o action under s 30 (1) brought w ithout leave of Supreme C ourt and no

prerogative writ shall be issued against Commissioner compelling him to carry out an investigation

s 30 (4) Commissioner and officers shall not be called upon to give evidence of matters

known in exercise of his functions

s 29 Ombudsman shall forward report annually on exercise of his functions to Minister,

who shall cause report to be laid before each House of Parliament

s 26 Ombudsman may, if he considers that it is in public interest or that o f any

Departm ent, etc. publish in any manner he thinks fit a report o f any investigation made by him

s 30 (1) N o action shall be brought against Ombudsman and officers in respect of any act

or omission in exercise in good faith o f any power or function vested in him by Act

s 30 (2) Ombudsm an and officers shall not be called to give evidence of matters known

in exercise of his functions

APPENDIX C

Statistical Summary of Complaints Received by New Zealand Ombudsman 1.10.1962-31.3.1972

Total Investigated Investigated S till under D eclined

number o f and considered a n d considered investigation discontinued

D epartments, etc. complaints justified not justified a t 3 1 .3 .7 2 or withdrawn

Part I: G overnment D epartments Agriculture . . . . . 62 5

A u d i t ......................................... 7 1

Crown Law Office . . . 1

Customs . . . . 263 29

Defence . . . . 113 9

Education . . . . 462 49

Electricity . . . . 31 2

Foreign Affairs . . . 20 3

Forest Service . . . 26 5

Government Life Insurance Office 30 3

Government Printing Office . 3 1

H e a l t h ......................................... 295 25

Industries and Commerce . 39 3

Inland Revenue . . . 394 37

Internal Affairs . . . 78 13

Justice . . . . . 373 44

L a b o u r ......................................... 244 30

Lands and Survey . . . 116 14

Law Drafting Office . . . .

Legislative . . . . 6 1

Maori and Island Affairs . 63 2

M aori Trust Office . . . 14

Marine . . . . . 41 4

Mines . . . . . 23 1

Police Departm ent . . . . .

Post Office . . . . 267 57

26 4

133 11 245 8

8

11 17 2

144 8

113 30 155 100

52

2

26 1 19 10

ιόϊ

2 29

2 1

2 99

2 91

10 158

21

2 7

1 9

·· 10

i i 115

28

5 239

35

15 159

5 109

4 46

" 3

2 33

13

3 15

4 8

i i 98

Prime Minister’s Department . Public Trust Office . . .

Railways . . . .

Scientific and Industrial Research Social Security . . .

State Advances . . .

State Insurance Office . .

State Services Commission Office Statistics . . . .

Tourist and Publicity . .

Transport . . . .

Treasury . . . .

Valuation . . . .

W orks . . . . .

1

89 160 24

7

1,025 108

237 35

87 12

3 4 1

119 6

26 1

32 2

215 28

1 4

79 4

623 119 39

3 1

62 12 6 78

3

24 2 1

85 54 3 270

81 35

2

5 46

13

1 23

4 105

Part I I : O ther O rganizations Decimal Currency Board . . . .

Defence C o u n c i l ...................................................

Earthquake and W ar Damage Commission . Export Guarantee O ffice.........................................

Government Stores Board . . . .

Government Superannuation Board . . .

Land Settlement Board . . . . .

Maori Affairs Board . . . . .

National Parks Authority . . . .

National Provident Fund Board . . .

National Roads B o a r d .........................................

Police . . . . . · ■ ·

Rehabilitation Board . . . . .

Social Security Commission . . . .

Soil Conservation and Rivers Control Council . State Advances Corporation Board of Management State Insurance B o a r d .........................................

State Services Commission . . . .

10 1

35 3

1 i

150 16

17 2

1 3

32 4

23 4

249 22

32 2

8 2

322 55

5

18

83 13

21 11 103

25

*3

164

4

14

14 37

1 1 5 114

5

*3

12 91

2,708 153 2,331

Source: Report of the New Zealand Ombudsman for the year ended 31 M arch 1972.