Australian and New Zealand Ombudsman Association
a particular model of alternative dispute resolution
A free, informal, speedy and cost-effective alternative to court action
The history of the Ombudsman model goes back over 200 years. It is well known for independent and impartial review and investigation. The term Ombudsman commonly describes both the person who holds the position of Ombudsman and the office they head up. The term Ombudsman is gender-neutral — it applies correctly whether the Ombudsman is male or female. And the plural form, Ombudsmen, is now widely accepted and used. In Australia and New Zealand, Ombudsman offices handle hundreds of thousands of enquiries and complaints from citizens and consumers each year. Generally, an Ombudsman also has a responsibility to help improve service or administration, especially where complaints indicate there may be more general or systemic problems.
Ombudsman offices place a high priority on easy access and speedy and informal dispute resolution. They use a range of methods to resolve complaints — including negotiation, conciliation, investigation, providing opinions and recommendations and (in the case of industry-based Ombudsmen) making decisions that bind service providers. In arriving at an outcome that is fair to both parties, the Ombudsman will take account of the law (including any applicable codes of practice), good administrative or industry practice, and what is fair and reasonable in the circumstances of each complaint.
The first Ombudsman was established in Sweden in 1809 as a parliamentary inspector of the bureaucracy.
The Ombudsman concept has since migrated and expanded beyond its birthplace in Sweden to other countries and applications. New Zealand's Parliamentary Ombudsman was one of the first in the world, set up in 1962. Parliamentary Ombudsmen were set up across Australia in the 1970s and early 1980s — Western Australia (1971), South Australia (1972), Victoria (1973), New South Wales (1974), Queensland (1975), the Commonwealth (1977), Tasmania (1978), Northern Territory (1981) and the ACT (1989). Ombudsmen of some description can now be found in most European countries, throughout Africa and Asia, Canada, in a number of states of the USA, and in the Australasian and Pacific region. The office of the Ombudsman has migrated from parliamentary democracies to other forms of government, from countries with very significant public services to those with fewer, from the very prosperous to the very poor, from the very large to the very small.
The second expansion of the office of the Ombudsman has been the widespread adoption of the term Ombudsman.
As a title with understood dimensions — a provider of fair, independent dispute resolution — the Ombudsman has been adopted from its beginnings, as an officer of the parliament with specific responsibility to ensure that the administration of the laws of Parliament by public administrators. A reference to the office of the Ombudsman now equally refers to the large number of Industry-based Ombudsmen. In both Australia and New Zealand, the first Industry-based Ombudsman offices were in banking — in Australia in 1989 and in New Zealand in 1992.
There have been many reasons for the growth of Ombudsman offices.
Among them have been privatisation of public services and a desire to promote industry self-regulatory mechanisms — including industries being encouraged to take responsibility for their own complaint handling. The growth in Ombudsmen has also paralleled the growth in concern for access to justice and interest in alternative dispute resolution. It is clear that Ombudsmen were conceived, developed (and have flourished) in no small part because of a recognition that traditional justice mechanisms — despite their fundamentally important role in contributing to the maintenance of the rule of law and the provision of high quality resolution of disputes — also had shortcomings for consumers, particularly low-income consumers. These included problems with (1) accessibility and, in particular, the cost of dispute resolution; (2) the time taken to have disputes resolved; and (3) the extent to which courts and tribunals were not equipped to, or able to, identify thematic or system-wide problems arising from disputes and refer those problems to agencies (such as departments of consumer affairs or regulators) who might be in a position to encourage their resolution.
While the Ombudsman has spread throughout the world, the expansion of the Ombudsman institution has not been one of just scale, but also scope.
The third category of expansion has been the evolution in the scope of functions undertaken by Parliamentary Ombudsmen. Parliamentary Ombudsmen now undertake a much wider range of activities than was the case traditionally. For example, in addition to the 'classical' Ombudsman functions (that is, the investigation of complaints about government services), Ombudsmen now inspect telecommunications intercepts and the exercise of other covert powers, investigate public interest disclosures (commonly referred to as whistle-blower complaints), investigate complaints from overseas students, review the deaths of certain children and family and domestic violence fatalities, and monitor and review a range of legislation (for example, legislation regulating criminal organisations and the issuing of criminal penalty infringement notices). Some Ombudsmen are also undertaking dual roles, combining their Parliamentary role with that of an Industry-based Ombudsman. For example, the Tasmanian Ombudsman and Western Australian Ombudsman both undertake the role of Energy Ombudsman for their respective states.
Where problems arise in an industry or an area of government services, the call for an Ombudsman commonly follows.
This is a testament to the high level of public respect for the independence, integrity and impartiality of Ombudsman offices. However, there is concern about the inappropriate use of the term Ombudsman to describe bodies that do not conform to, or show an understanding of, the accepted Ombudsman model and its 200 year history. If the concept of Ombudsman is applied inappropriately, public confidence in the role and independence of the Ombudsman institution is at risk of being undermined and diminished. Using the term Ombudsman to describe an office with regulatory, disciplinary and/or prosecutorial functions confuses the role of Ombudsman with that of a regulatory body. An 'ombudsman' office under the direction or control of an industry sector or a government Minister is not independent. An office set up within a company or government agency as an 'internal ombudsman' is not independent.
In 2010, ANZOA began a public and ongoing campaign for stronger controls on use of the term Ombudsman in Australia.
ANZOA's long-standing concern lies with inappropriate use of the term in Australia to describe bodies that don't conform to, or show an understanding of, the accepted Ombudsman model and its history. Examples include bodies with regulatory functions and/or advocacy roles. ANZOA's on this issue sets out six essential criteria that members of the public are entitled to expect of any office described as an Ombudsman (independence, jurisdiction, powers, accessibility, procedural fairness and accountability). The distinction is made between Australia and New Zealand because in New Zealand the term is protected by legislation. Our ongoing campaign has included letters to the heads of all Australian State and Commonwealth departments and all Members of Parliament and submissions on a number of 'ombudsman' proposals. The importance of correct use of the term Ombudsman was strongly promoted in 2008 by then Commonwealth Ombudsman, Professor John McMillan, in his paper:
Public submissions made by ANZOA to consultations on proposed ombudsman offices
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