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that the burden of providing the evidence in support of a claim is borne by the
tribunal.
Although there may only be a practical, not a legal, onus of proof in tribunal
proceedings the same is not true in relation to the standard or burden of proof.
Evidence must at least meet a probative standard, however fluid that notion may
be. For facts which are required to be established by statute, it is more likely
that the civil standard, again interpreted with flexibility, is applicable. That is
consistent with the principle established by the High Court in Sodeman v R114
that the common law knows only two standards of proof – the civil and the crim-
inal standards. That does not preclude the seriousness of the matter imposing
a higher than normal civil standard.115 In some contexts, such as when the tri-
bunal is seeking to determine what might happen in the future or even what
has already happened, the use of the term burden of proof might be misleading.
But when the tribunal is required, as a step in the process of arriving at its deci-
sion, to determine whether a fact does or does not exist, generally the civil stan-
dard should apply to its decision-making with due regard being paid to serious
issues.116


Appealing tribunal decisions

Appeals lie from tribunals to the courts. What form that appeal will take and
what the appeal embraces will depend on the statutory formula. In the Com-
monwealth, appeals lie to the Federal Court, the original jurisdiction of which
includes ‘decisions from persons, authorities or tribunals other than courts’.117
Usually, this jurisdiction is exercised by a single judge, but where the appeal is
from a tribunal or authority while constituted by, or by members who include,
a judge, the appeal lies to a Full Court of the Federal Court.118 In the states
and the territories, the appeal is usually to the Supreme Court or the Court of
Appeal.
The most common provision is for appeal on a question of law or for error of
law. For example, the rights of appeal from the AAT is for a ‘question of law’.119
An appeal on a question of law or for error of law does not permit the reviewing
court to reconsider the weight to be attached to facts raised in an application.
As the Federal Court commented in Collins v Minister for Immigration and Ethnic
Affairs:120

It is not sufficient in an appeal under the Administrative Appeals Tribunal Act 1975 s44
for the appellant to invite the Court to make its own assessment of the weight of the
evidence, or to substitute its own findings. The appellant must show that there was no
material before the Tribunal to support the conclusion reached. It is not a basis for appeal
under s44 to contend that the decision was against the weight of the evidence . . . The
task of the Court is ‘to leave to the tribunal of fact decisions as to the facts and to interfere
only when the identified error is one of law’.
96 AUSTRALIAN ADMINISTRATIVE LAW


An appeal ‘on a question of law’ is narrower than an appeal that involves a
question of law.121 That finding has been affected by the constitutional restric-
tions on a federal court deciding matters of fact. Hence, the Federal Court has
been enjoined not to permit mixed questions of fact and law to be regarded as
an appeal ‘on a question of law’.122 Although amendments to the AAT Act have
given the Federal Court limited powers to make findings of fact, this power may
only be exercised once the question of law which constitutes the subject matter
of the appeal has been established, and then only within the narrow terms of the
legislation and to avoid the need for the matter to be remitted.123
As appeal is a creature of statute, there are other formulae for describing
the right of appeal. Some of these provisions for appeal rights are not explicit.
A statute which simply provides for a right of review, or an appeal by way of
rehearing, does not spell out what the appeal right entails. In this situation, the
courts have attempted to fill the statutory gaps. A commonly cited passage, which
describes the four most frequently cited rights of appeal, is found in the following
extract from the judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy.124
Although the extract refers to appeal from a ‘trial court’ the same principles apply
when the appeal right is from the decision of a tribunal:

Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders
Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between
(i) an appeal stricto sensu, where the issue is whether the judgment below was right on
the material before the trial court; (ii) an appeal by rehearing on the evidence before the
trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such
further evidence as the appellate court admits under a statutory power to do so; and
(iv) an appeal by way of a hearing de novo. There are different meanings to be attached
to the word ‘rehearing’. The distinction between an appeal by way of rehearing and a
hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that
borne by the term ‘appeal’, or whether there is some other meaning, is, in the absence
of an express statement in the particular provision, a matter of statutory construction
in each case.125

A clear example of a hearing de novo is the merit review undertaken by the
AAT. The appeal by way of rehearing most commonly applies to an appeal from a
specialist tribunal to a court. An appeal by way of rehearing generally means that
the court will undertake a hearing de novo, although there is no absolute rule to
that effect.126 It is clear that there is a spectrum of possibilities for appeal rights
and the key to the type of appeal from that spectrum is the statute granting the
right of appeal.


Tribunals and policy

This is the quintessential area in which the uneasy situation of tribunals in Curtis’s
‘no-man’s land’ is most evident. The Kerr Committee concluded that a tribunal
97
ADMINISTRATIVE TRIBUNALS


should not substitute a new decision ‘when it is shown that the administra-
tive decision is properly based on government policy’, but should be able to
inform the minister that ‘government policy as applied in the particular case
is operating in an oppressive, discriminatory or otherwise unjust manner’.127
The Bland Committee took a harder line, that a tribunal should neither express
opinions on government policy nor question the policy grounds on which a
decision is based. A tribunal ‘should do no more than identify the government
policy on which the decision is based’.128 Neither view prevailed. As McMillan
explained:

It is now part of Australian administrative law history that the strict ‘hands off ’ approach
supported by both committees was not adopted by either the Federal Court or the
Administrative Appeals Tribunal. Each, in the Drake litigation, emphasised the inde-
pendent duty of a tribunal to reach a correct or preferable decision on the merits of
the case under review. Both held that it would be an abdication of that function for
the Tribunal to reach a decision by the unreflective application of a policy that was not
enshrined in legislation. As they saw it, the public interest in a policy being applied at an
administrative level can always be outweighed by the demands of good government or
the justice of the individual case. The Federal Court would have gone so far as to regard
government policy as simply ‘a relevant factor’, with the tribunal obliged to make ‘an
independent assessment’ of ‘the propriety of the particular policy’. A more restrained
view was subsequently expressed by the Tribunal, with Brennan J as President giving
emphasis to competing factors that should be considered by the Tribunal, principally
the need for consistency and predictability in decision-making, and deference to minis-
terial judgment on policy matters. The upshot, on either view, was the clear articulation
of a principle that administrative policies are not binding on review tribunals and have
a significance that is subordinate to a tribunal’s obligation to reach what it sees to be
the correct or preferable decision.129

The decision of Brennan J in Re Drake (No 2)130 is a classic judgment in admin-
istrative law. The ruling treads a careful line between acceptance by a tribunal
of government policy while retention of a freedom to depart from policy in an
appropriate case. At the same time, as tribunals are now generally considered
to be part of the executive arm of government, their decisions are more likely to
be accepted if they command respect. That means that a decision must not only
be legally sound and well reasoned, but attuned to the administrative, including
policy, context in which it occurs. Not surprisingly, given the sensitive nature of
this issue, there are differences of opinion as to how well tribunals have achieved
that balance. As McMillan noted:

Mr Justice Kirby observed that the statement of the AAT’s functions and duties . . . ‘has
taken [the AAT] beyond the frontier marked “Policy – Lawyers Keep Out” [and] Mr
Derek Volker [an experienced official] warned of the impending confusion for admin-
istrators who would be faced with conflicting views on the status of particular policy
directives, between the administration and the Tribunal, and also among different
members of the Tribunal.131
98 AUSTRALIAN ADMINISTRATIVE LAW


Views of this kind probably lie behind the restrictions imposed on review by
the multi-purpose tribunals. The New South Wales ADT, the Victorian VCAT and
Western Australia’s SAT are each bound to take account of government policy
in certain circumstances, provided the policy is lawful and to apply it would not
be inappropriate in the circumstances.132 Those circumstances include that the
policy was in force at the time, that some form of certification or publication
of the policy is available, and in the case of Victoria and WA, that the decision
maker took account of the policy when making the decision. There was a similar
proposal for Commonwealth tribunals if the Administrative Review Tribunal Bills
had been passed. The proposal lapsed with the Bills and no attempt was made to
introduce such a provision when there were subsequent amendments to the AAT
Act.
These attempts in the states to make policy binding on tribunals appear to have
had little impact. This probably reflects the practical difficulties. These include
that many policies do not have endorsement at ministerial or Cabinet level; the
requirement misunderstands the role of tribunals which is to consider the individ-
ual case, rather than wider fiscal, administrative or other public interest matters;
and policies can become out-of-date, or be inappropriate in the particular case.
Nonetheless, the clash between government policy and individual or administra-
tive justice is a constant theme in administrative law.



Impact of tribunal decisions

In strict theory, since a tribunal is not a court the doctrine of precedent does
not apply to a tribunal and a decision of a tribunal does not become a binding
precedent. Nevertheless, since consistency and predictability are at the heart of
good administrative decision-making, earlier rulings by a tribunal should not be
ignored. Within a tribunal, encouraging consistency is undertaken by ensuring
that decisions of the tribunal are available on a database accessible to members,
and that members are reminded of the value of consistent decision-making. In
at least one federal tribunal, the SSAT, there is legislative recognition of this
function with the requirement that the Executive Director of the SSAT take steps
to ensure consistency of its decisions.133
The impact of tribunal decisions within public administration is more prob-
lematic. One of the reasons is that there is no formal institutional arrangement
for monitoring the application of tribunal decisions by agencies. This is a gap
in the administrative law framework.134 In its 1995 Better Decisions Report, the
Administrative Review Council observed:

Unless an agency has in place organisational structures and procedures that enable it to
take account of tribunal decisions in the development of agency policy and legislation,
and apply them in other individual cases, it will be unable to take full advantage of the
significant potential benefits of merits review.135
99
ADMINISTRATIVE TRIBUNALS


Despite this concern, an empirical study has indicated that even without
an institutional framework for disseminating information about tribunal deci-
sions, although there is room for improvement, in fact decisions are understood
and their principles disseminated within agencies.136 Officials have generally
embraced administrative law standards and the principle of legality is strongly
adhered to within agencies.
6
Australian Ombudsman: A continual
work in progress
Rick Snell




The transition in the roles, functions and activities of Australian Ombudsman
from those contemplated at the start of the 1970s to current practice in 2006 has
been remarkable.1 Early research on the Ombudsman in Australia argued that
the office was an alien concept to Australia that had been remarkably successful
in terms of receiving and resolving complaints and establishing a good reputation
with the public, but that the office had received marginal attention in legal schol-
arship and had a problematic relationship with other parts of the administrative
landscape.2 Australian Ombudsmen have transformed from an alien (and barely
understood) import on the edge of public administration, assigned a secondary
and assistant role, to being regarded as a central component of administrative
justice.3 There has been a significant redistribution of focus and activity from an
original complainant-focused, incident-based approach to an institution-focused
and performance-based approach to investigation.4
The administrative law and public administration landscapes in Australia have
radically changed since the 1970s. More importantly the rate, extent and impact
of those changes continue to compound in the early decades of the twenty-first
century. This raises some interesting questions about the capacity of an insti-
tution, initially configured as a third-hand antipodean import of a nineteenth
century instrument of Swedish law reform, to function in a rapidly changing
Australian environment two centuries removed from its Swedish beginnings.5
Australian Ombudsmen, more than any other part of the New Administrative
Law package introduced in the 1970s, have had the capacity to move beyond their
originally conceived mandate, to attract new jurisdictions from governments and
to constantly redevelop and refine their mission and purpose. Furthermore, of
all the administrative law processes and institutions it is the Ombudsman that
is best placed to respond to what have become central concerns of public law

100
101
AUSTRALIAN OMBUDSMAN


such as ‘compensation for wrongful government action, the regulation of rule-
making, and the contribution of administrative law to better decision-making for
the better of the community as a whole’.6 Indeed, the Australian Ombudsmen
may be an exception to George Soros’s argument that there are limits to the life
spans and vitality of institutions.7 Approaching its third decade, there appears to
be little evidence of a loss of vitality or any limit to the Ombudsman’s expected
lifespan.
This chapter explores some of the key themes that have shaped and guided the
operations of the Australian Commonwealth Ombudsman since the 1971 Report
of the Commonwealth Administrative Review Committee (the Kerr Committee)
to the present day. Attention is then turned to how the dynamics of change
within Australian administrative law and public administration presented fur-
ther significant opportunities for the institution to have its activities, purpose
and mission reshaped. The Harlow and Rawlings typology of fire-fighting and
fire-watching is refined and used to understand some of the shifts in emphasis
and activity that have occurred with the Commonwealth Ombudsman at various
stages of its evolution.8 This chapter builds upon the array of previous stud-
ies that have extensively dealt with issues surrounding the jurisdiction, pow-
ers, accountability and positioning of Australian Ombudsmen including those by
D Pearce,9 M Groves10 and A Stuhmcke.11



Revisiting the dawn of the Australian Ombudsman

Stuhmcke has depicted 1968–1976 as a period that led to the ‘conceptualisation,
refinement and eventual introduction of the Commonwealth Ombudsman’.12
Both Stuhmcke and Pearce have presented a detailed exploration of the evo-
lution from the innovative and revolutionary proposal for a General Counsel
for Grievances to the more traditional Ombudsman model that appeared in the
Ombudsman Act 1976 (Cth).13 Stuhmcke argues that:

. . . the parameters set for the Commonwealth Ombudsman reflect an attempt to meld
the classic European formulation of an Ombudsman with the English Westminster style
of government and, in addition, reflect the creation of the Commonwealth Ombuds-
man as part of a wider package of administrative reforms. This period establishes
a transformation in dispute resolution between government and citizens – the new
administrative law package providing citizens with an alternative to the court system
or ministerial accountability for resolving disputes with administrators where hitherto
there had existed little or no alternative review mechanisms.14

Yet the lead up to the development of those parameters, indeed the very
nature of those parameters, was both a continual work in progress and a process
that has left an on-going legacy. That legacy has granted the Ombudsman very
flexible limits on its mission, practice and future development. An uncertain and
evolving experiment has continued from the very conception of an Australian
102 AUSTRALIAN ADMINISTRATIVE LAW


‘grievance man’ by the Kerr Committee – as a leading member of the Bar with
an extraordinary capacity to receive, investigate and pursue complaints15 – to
the more classical Ombudsman model, heavily influenced by the New Zealand
model.
The Kerr Committee, in its short chapter, deliberately rejected the New Zealand
model of the Ombudsman as not ‘the best way’ of dealing with complaints that
were not justiciable, minor or for reasons of costs not worthwhile litigating.16
The Committee never fully detailed why they assigned their grievance man to
the administrative arena apart from a desire to avoid locating the institution in
either the Parliament or the executive.17 The Committee’s conception seemed
to embrace the idea of a roaming and independent administrative officer whose
interest in most matters, especially minor ones, would produce an immediate
correction of the problem by a responsive Commonwealth Public Service that
was of ‘high quality’.18 The decision not to locate the Ombudsman in the parlia-
mentary sphere has long been regretted by some writers19 and at the state level
is progressively being addressed.20 On a continuum ranging from a complainant-
focused, incident-based approach to an institution-focused and performance-
based approach the Kerr Committee placed their grievance man firmly and per-
manently in the first category.
Often the Bland Committee21 and its recommendations are lost in the shad-
ows of, or compared unfavourably with, those in the Kerr Committee Report.
Remarking on the proposals to replace the ‘grievance man’ with an Ombudsman
model, Lindsay Curtis argued ‘the message was unmistakable. In the view of the
Bland Committee, the Kerr Committee had committed the cardinal sin of not ask-
ing the bureaucracy what it wanted, and had, therefore, come up with the wrong
answer’.22 A careful reading of the Interim Report,23 which contained the pro-
posal for the Ombudsman model, and an examination of the internal workings
of the Bland Committee reveals a more positive motivation.
Whilst there is a general deficiency in the historical coverage of Australian
administrative law, we are blessed by Peter Bailey’s detailed insider’s account of
the Bland Committee.24 The Committee set the initial benchmark for the type of
extensive, detailed and consultative approach to administrative law reform which
is the hallmark of both the Administrative Review Council and the Australian
Law Reform Commission approaches in subsequent years. An example of this
painstaking research was the extensive interviews with senior public servants
and the detailed scrutiny of legislation and regulations.25
There is little doubt that an informal visit to New Zealand by Sir Henry Bland
and a meeting with Sir Guy Powles, the New Zealand Ombudsman, was a critical
and formative episode in the thinking and approach of the Committee.26 The
‘lesson drawing’27 from the New Zealand experience encouraged the Committee
to move away from a legalistic and activist ‘grievance man’ to a more neutral,
reactive and administrative orientated Ombudsman model. By mid-December
1972, the Committee had advanced their thinking about the Ombudsman concept
to a stage at which Sir Henry Bland was able to win the enthusiastic backing of the
103
AUSTRALIAN OMBUDSMAN


new Attorney-General, Senator Lionel Murphy, who commissioned an immediate
interim report on the proposal.28
However, the New Zealand decision to locate the Ombudsman in the parlia-
mentary arena has not been adopted in Australia. R Creyke and J McMillan have
argued that ‘internationally, the prevalent model for creating the Ombudsman
is to make it an officer of the parliament’.29 A number of the state Ombudsmen
report to parliamentary committees, and in Western Australia the Ombudsman
is titled the ‘Parliamentary Commissioner for Administrative Investigations’. Yet
‘from a practical perspective, all Australian public sector Ombudsman offices are
located in an administrative law setting within the executive branch. That is,
they are established and operate much in the same fashion as other executive
agencies, although they enjoy statutory independence’.30 Pearce has been a long
term advocate for relocating Australian Ombudsman from the executive to the
parliamentary arena but no steps have been taken at the Commonwealth level to
achieve this position.31
In the final lead-up to the passage of the Ombudsman Act 1976 (Cth), a number
of the Bland Committee recommendations were modified or replaced with mea-
sures that prepared the legislative and creative groundwork for future Ombuds-
man to expand upon. Professor Pearce succinctly outlines both the significant
changes and their consequence when he states:

The Ombudsman Act 1976 reflects a bolder approach than that taken by the Bland
Committee. The policy/administration dichotomy is avoided – the action that may be
investigated is ‘action that relates to a matter of administration’ (s5(1)). Ministers’
actions are excluded (s5(2)(a)) but not recommendations; and there is no power for a
minister to prevent an investigation. The Ombudsman may proceed on his or her own
motion (s5(1)(b)). A decision may be found to be wrong. A report may be made public.
Relative to Ombudsman offices in other jurisdictions both in Australia and overseas,
the Commonwealth Ombudsman is one of the stronger offices in terms of breadth of
jurisdiction and power.32

By the time Professor Jack Richardson took up his position as the first Common-
wealth Ombudsman, the institution had already undergone two distinct phases
of modification from the original and revolutionary concept of a government paid
lawman ready to act on behalf of citizens with valid complaints. In the mind of
many in the general public, this powerful agitator for citizens role is still mistak-
enly seen as the core activity of the Ombudsman. Ombudsman constantly draw
attention to the fact that their legislation places them as an independent and
neutral party in the citizen-state relationship.
On 1 July 1977, Professor Richardson was at the helm of a new institution,
with fresh and untested jurisdictions, a capacity to be both reactive (receiving and
acting on complaints) and proactive (own motion investigations), the necessity
to devise procedures, the limitations of a budget based on guesswork about load,
function and activity, and the capability to declare decisions as wrong, unfair
or unreasonable and to publish such findings. In retrospect, many within the
104 AUSTRALIAN ADMINISTRATIVE LAW


Australian public service, and even Cabinet members, might have opted for the
original and more limited ‘grievance man’ concept if ever offered the choice
again.
Harlow and Rawlings deployed the analogy of ‘fire-fighting’ and ‘fire-
watching’ to explain a gradual change in the operations of the Parliamentary
Commissioner for Administration (UK).33 Fire-fighting, for Harlow and Rawl-
ings, is the type of reactive response by Ombudsman to complaints generated
by individuals. On the other hand, fire-watching is the type of activity which
the Ombudsmen engage in when they mount ‘a systemic investigation where on
the basis of previous complaints he believed a department was working ineffi-
ciently, with a view to making recommendations for putting things right’.34 Har-
low and Rawlings viewed this typology as showing ‘a built-in tension between
its fire-fighting and fire-watching functions’.35 In this analogy, the Australian
Ombudsman had gone from one entirely focused as a fire-fighter under the Kerr
Committee proposals, to a primarily fire-fighting function, with an unknown
potential (using own motion powers) to drift into fire-watching activity under
the Ombudsman Act 1976 (Cth).
There are two limitations to the Harlow and Rawlings fire-fighting and fire-
watching analogy. First, as the rest of this chapter will try to demonstrate, the fire-
fighting and fire-watching typology should be expanded to include a third type of
activity of ‘fire-prevention’. Fire-prevention can be described as that area of activ-
ity where the Ombudsman uses own motion powers, systemic approaches, report-
ing and continuing monitoring of departmental activities in a way that is not based
solely or primarily on intelligence gained from previous complainants. Other
activities in this area would include production of improved decision-making
guides, provision of training courses and performance evaluations. Second, the
notion either that there is a linear progression over time from the fire-fighting
and fire-watching functions (and fire-prevention) or that there is an unnecessary
tension between the roles does not seem forceful. Observations of Ombudsman
activity in the UK, Canada, New Zealand and Australia over the last three to four
decades suggests that there is a constant change in the distribution of activity
between all three functions. A more productive deployment of the analogy would
be to use it to chart this constant change in the distribution, emphasis and level
of importance attached to each of these roles at any one time by any particular
Ombudsman or over various periods of the institution’s existence.



1976–1989: Setting the pattern and finding some
creative responses

During this period, the first three Ombudsmen took a relatively unknown institu-
tion, that had been allocated uncertain powers and a limited role in the executive
105
AUSTRALIAN OMBUDSMAN


branch of government, and made several important steps towards being seen
as ‘occupying an essential place in modern society’.36 The first three Ombuds-
men experienced many problems with the workload and staffing of their office.
There were also concerns that the recommendations of Ombudsmen were not
addressed by the Prime Minster and Parliament.37 Nevertheless, as Stuhmcke
observed, ‘despite many of these issues having the capacity [to] impede the oper-
ational effectiveness of the Ombudsman, such as staffing and resources, by the
end of this period the Commonwealth Ombudsman is established as a primary
means of dispute resolution in terms of the New Administrative Law’.38
The powers and procedures of the Ombudsman distinguished the institution
from many of the other administrative law mechanisms. Ombudsman investiga-
tions are usually conducted informally and by way of preliminary inquiries and
in private. Whilst the Ombudsman has the same powers as a royal commission
(to require the attendance and examination of witnesses, to enter premises, to
administer oaths and to require the production of documents) these powers have
rarely been exercised and generally are used as a last resort.
The Ombudsman does not have determinative powers to alter an administra-
tive decision and can only make a report to an agency recommending that further
action of some kind be taken.39 The Ombudsman can determine (s15) that an
administrative action:
• appears contrary to law;
• was unreasonable, unjust, oppressive or improperly discriminatory;
• was in accordance with a law or administrative practice that itself was unreasonable,
unjust, oppressive or improperly discriminatory;
• was taken for an improper purpose or was based on an irrelevant consideration;
• was based on a mistake of law or fact;
• was one for which reasons should have been but were not given; or
• was otherwise wrong in all the circumstances.

The Ombudsman can, if of the opinion the agency has not taken appropriate
action in relation to any recommendation, report to the Prime Minister and there-
after to the President of the Senate and the Speaker of the House of Represen-
tatives, for presentation to the Senate and the House of Representatives and for
presentation to both Houses of Parliament.
In the period 1976–1989, the workload of the Ombudsman rose from about
7500 complaints (written and oral) to a peak of almost 21 000 in 1986 before
falling to about 10 000 complaints in 1989.40 The key innovation was the decision
by Professor Richardson not only to receive oral complaints by phone but to
use that device to try and resolve complaints. Whilst the innovation was driven
by necessity, it nevertheless won the support of many agencies, complainants
and observers. External observers, like Professor Rowat from Canada, expressed
surprise at and admiration for how the Ombudsman could handle such a heavy
workload with comparatively so few staff compared with those available in other
jurisdictions.41
106 AUSTRALIAN ADMINISTRATIVE LAW


An increase or extension in functions started to occur in the 1980s with the
Ombudsman gaining some responsibility for dealing with complaints against
the Australian Federal Police, responsibilities under the Freedom of Information
Act, Telecommunications (Interception) Act 1987 and gaining jurisdiction as the
Australian Capital Territory Ombudsman. Professor Pearce in particular saw this
jurisdictional growth as undesirable because the jurisdictions which lay ‘outside
the traditional Ombudsman function, have not aided the office in that they have
not assisted the relationship of the Ombudsman with either the public or the
government and they have diverted the attentions and resources of the office
away from mainstream functions’.42
Another feature of this period was a deliberate decision to allocate a signifi-
cant level of resources, time and effort to ensure that ‘general systemic change
flows from the Commonwealth Ombudsman’s investigation of complaints by
individuals’.43 This was achieved in three ways. First, by making recommen-
dations for systemic changes when reporting back to agencies on individual
complaints. Secondly, by noting the need for such changes in each annual report.
Thirdly, by an active contribution of advice to government and Parliament, espe-
cially its committees and law reform bodies.
In terms of the fire-fighting, fire-watching and fire-prevention typology this
first period of the Commonwealth Ombudsman had seen the majority of activ-
ity conducted in the fire-fighting area but a significant amount of activity being
devoted to the ‘fire-watching’ function. The Ombudsman, especially Professor
Pearce, did not view this as either a tension-filled dichotomy or an inevitable
evolutionary progression away from a complainant-focused, incident-based
approach to a purely institution-focused and performance-based approach to
investigations. The approach seemed to be both a resource saving strategy and
one that also allowed the Ombudsman to be a positive contributor to good admin-
istrative practice.
In December 1990, the Senate Standing Committee on Finance and Public
Administration undertook an external review of the institution, after a request
from the Prime Minister, using terms of reference suggested by Professor Dennis
Pearce, the retiring Ombudsman. The Committee’s report, presented in
December 1991, was largely favourable and made several important recom-
mendations.44 In particular the Committee reaffirmed that they considered that
the:

Ombudsman principally functions as an informal complaints-resolution agency. It
seems to the Committee that much of the value of the Office in that role stems from
the very factors for which it has been criticised in some quarters: the fact that it is
not an advocate for complainants, is not bound by legal formalities and lacks power to
enforce its recommendations. These features make the Ombudsman at the same time
accessible to complainants and acceptable to the public service.45

The Committee, when it tried to define the Ombudsman’s role, suggested that
it was better suited and more capable of adopting a fly-swatting function rather
107
AUSTRALIAN OMBUDSMAN


than a more active lion hunter role.46 This was a clear rejection of the trend that
had been developing with the Ombudsman over the previous fifteen years of allo-
cating more resources and effort to encouraging and pursuing systemic change
within the public service. This was not a view shared by the new Ombudsman,
Alan Cameron, who stated in reaction to this part of the Committee’s report that
‘there is little point in applying a band-aid or quick fix solution if a festering sore
lies undiscovered beneath’.47 The Committee had stated:

The traditional Ombudsman role assigned to the Commonwealth Ombudsman is more
concerned with the resolution of particular grievances than with systematic reform of
the administration or with coordination of the whole system of administrative review.
The main focus of the Ombudsman’s operations in the core jurisdictions of the office
can be summarised as:
• Processing individual complaints, through contact, frequently informal, with the
agencies that are the subject of complaints;
• Transmission of information in both directions between complainants and the agen-
cies about which they have complained;
• Attempting to bring complaints to a resolution in which both sides agree on the
facts of the complaint and on the fairness of whatever final decision is made by the
agency following the Ombudsman’s intercession.48

In the view of the Committee, it was only once these functions were settled
upon that issues of resources, determinative powers and alignment (or place-
ment) within the legal and administrative system would be able to be resolved,
whilst ‘significant systemic benefits will continue to arise from such a role but
these will occur as a spin-off from the Ombudsman’s primary task of resolving
complaints’.49 This approach had been strongly advocated by Peter Bailey, a mem-
ber of the Bland Committee, in his testimony to the Senate Committee.50 A return
to, and concentration on, a fire-fighting role by the Commonwealth Ombudsman
was the central message.
However, the Committee felt comfortable with Professor Tomasic’s argument
that the Australian Ombudsman was a developing or evolving concept. In par-
ticular, the Committee accepted Professor Tomasic’s view that the developing
concept should move the Ombudsman away from a legalistic and citizen’s rights
orientation towards a more administrative focus that sought to improve ‘the link
between the public service and those it serves’.51 To this end, the Committee made
the suggestion that future Ombudsman, from a non-legal background, should be
recruited in preference to those with legal training.52 Yet it rejected Professor
Tomasic’s view that the Ombudsman’s principal role ought to be ‘to facilitate
the improvement and rationalisation of decision-making processes within the
bureaucracy itself’.53
The Senate Committee recommended a return of attention and activity back
towards the fire-fighting function with any fire-watching activity an incidental
and occasional by-product of that primary focus. Yet as we will see in the next
section the Senate Committee had adopted a Canute-like attitude in trying to
turn back an inevitable sea change.
108 AUSTRALIAN ADMINISTRATIVE LAW


1990–2002: The Commonwealth Ombudsman
reacting and responding to an administrative
landscape in flux54

The next twelve years saw all the Commonwealth Ombudsmen recognising and
responding to an environment where administrative law and public administra-
tion in Australia were in a constant state of flux.55 H Arthurs has argued that
several key features of a ‘New Economy’ and restructured state have demanded a
‘reconsideration of the ways in which we have previously thought about bureau-
cracy, government, and the role of the interventionist state’.56 Many authors have
also dealt with the nature, extent and implications of these changes to both gov-
ernment and public administration in Australia.57 As G Airo-Farulla maintains
these changes in ‘government are as significant as the nineteenth century revo-
lution in government’.58 Creyke and McMillan usefully summarise the effect of
these changes as:

• A changed conception of the role and structure of government
• Leaner government
• Melding the public and private sectors
• Switched emphasis from external to internal regulation
• Concern with excessive formality and legalism in dispute resolution
• Shift in emphasis from judicial to the administrative correction of administrative
errors.59

Since the late 1980s, Commonwealth Ombudsmen were in the vanguard of
those recognising the direction, extent and impact of changes occurring in pub-
lic administration.60 A direct, and day-to-day, engagement with administrative
decision-making and an ability to access experiences from across the entire public
service acted as an early warning system for Ombudsmen. The need for ‘adapta-
tion and theorisation’ became a familiar refrain from Ombudsmen in their annual
reports and speeches during this period. In 1992, Alan Cameron predicted that
‘future scholars may opine that the Senate Committee missed an opportunity to
redefine the role and take it forward, in an era when much more regard is being
had to public service management issues than when the office was created’.61
Philippa Smith, in her annual reports and submissions to the Administrative
Review Council and Australian Law Reform Commission, strongly advocated that
the Commonwealth Ombudsman maintain or extend jurisdiction to deal with
concerns generated by contracting out or privatisation of public services and the
development of Government Business Enterprises.62 In 2002, Ron McLeod noted
that the creation and proliferation of industry Ombudsmen, specialist complaint
bodies and other review schemes had required the Commonwealth Ombudsmen
to ‘change our methods of operation and structures’.63
Despite the fact that the Senate Committee Report in 1991 had strongly urged
the Commonwealth Ombudsman to concentrate on individual grievance han-
dling and to treat any systemic reviews as unplanned ‘spin-offs’, this period
saw an increasing amount of attention being paid to systemic issues and major
109
AUSTRALIAN OMBUDSMAN


investigations. In 1995, Smith indicated that whilst her core role was to ‘impar-
tially investigate complaints, resolve disputes and discover and address defec-
tive administration’ a preventive role was also a ‘key part of the modern
Ombudsman’.64 Indeed, her Annual Report for that year revealed that the office
had received funding that was ‘directed at improving our ability to analyse, inves-
tigate and report on the systemic nature and causes of complaints to the Ombuds-
man’s Office’.65 About 150 important systemic issues were identified and twenty-
five of these were adopted as major projects.66 P McAloon has argued that in an
increasingly privatised environment one of the key functions of the Common-
wealth Ombudsman was to act as an early systemic warning system.67
A significant contribution was also made by state Ombudsmen to refashion
the functions, work practices and approach of Ombudsmen in a rapidly changing
environment. In the early 1990s, after listening to an academic presentation on
future challenges, the New South Wales Ombudsman, David Landa, undertook a
‘major re-think and review’ of the direction of his office.68 In a climate of budget
cuts, public sector restructuring, addition of extra jurisdictions and the spread of
private Ombudsman he sought to strategically reposition the organisation and,
in particular, adopted Professor Pearce’s suggestion that ‘the Ombudsman must
establish an acceptance within the public service as an office that is of value as
a management tool’.69 The first step in New South Wales was to ‘give priority to
complaints that indicated systemic deficiencies in administration and individual
cases of serious abuses of power’.70 In addition, numerous other proactive steps
including surveys of users, training workshops and complaint resolution projects
were taken.71 A transformation had occurred in the way Ombudsmen could go
about their tasks. Over the next decade, to varying degrees and with varying
commitment, all Australian Ombudsmen (state and Commonwealth) adopted
some of these new practices and shifted some of their resources towards greater
systemic activity.
By the end of Ron McLeod’s term of office in 2002, the resources, personnel
and attention paid to systemic issues had become very significant. In 2001–2002,
the Commonwealth Ombudsman had commenced twelve major investigations,
including ten own motion inquiries, and had looked at a number of systemic
issues across sixteen agencies.72 McLeod stated that: ‘One of my primary roles
is to promote improved public administration and the major means I adopt to
meet my objectives is investigating systemic issues in government agencies.’73
A specialist Social Support unit had been created not only to provide greater
expertise to the handling of social security and child support complaints, but
in particular provided ‘an added capacity to analyse and address some systemic
issues in these areas’.74 A series of proactive reports were released including Issues
Relating to Oral Advice: Clients Beware (1997), A Good Practice Guide for Effective
Complaint Handling (1999), Balancing the Risks (1999) and To Compensate or not
to Compensate (1999).
At the end of this twelve-year period, the Commonwealth Ombudsman had
coped with an almost doubled increase in complaint handling, a constant level
of staff,75 a small but significant increase in jurisdiction (especially in 2002) and
110 AUSTRALIAN ADMINISTRATIVE LAW


significantly redirected resources and effort into systemic activity. The Ombuds-
man had quickly sensed the changes in public administration and exercise of
public power and had adapted the practices and procedures of the office without
the necessity of legislative change. Bruce Barbour, New South Wales Ombuds-
man, argued that the complaints-handling role was not fundamental to the office
but only one of the tools required to ensure ‘high quality decision-making by those
exercising power’.76 His preference was for a ‘mix of proactive and reactive work’
although he clearly favoured a greater proportion of proactive non-complaint-
based work.
By the start of the new century, there had been a significant redistribution of
activity and emphasis between the various roles of fire-fighting, fire-watching
and fire-prevention. In particular, for the first time there was a noticeable level of
activity and emphasis placed on fire-prevention activities. The New South Wales
Ombudsman, and to a slightly lesser extent the Commonwealth Ombudsman, had
embraced an institution-focused and performance-based approach to investiga-
tion. In terms of caseload, rhetoric and symbolic importance, individual-focused
activities were still essential hallmarks of the Ombudsman but there was an
emphasis on the systemic work. Monitoring, based on both previous complaint
history and internally generated concern, had also become a more prominent
activity.
Ombudsmen in Australia have been subjected to limited judicial review. Whilst
there have been a number of challenges to Ombudsmen, these have usually
involved questions about the Ombudsmen’s jurisdiction to conduct investiga-
tions rather than attempts to seek judicial review of the results of their investi-
gations. The challenges, which are decreasing in frequency, have generally been
launched by government agencies77 and the courts have been restrained in the
exercise of their supervisory jurisdiction over Ombudsmen. In Bounty Council v
The Ombudsman78 Kirby P, with whom Sheller and Powell JJA agreed, explained:

Those powers, as the Ombudsman Act reveals, are, as they ought to be, extremely
wide. They are not powers which this Court should read down. They are beneficial
provisions designed in the public interest for the important object of improving public
administration and increasing its accountability . . . Sadly, the experience of the past
(and not only the past) has been of the occasional misuse and even oppressive use of
administrative power. One modern remedy against such wrongs has been the creation
by parliaments in all jurisdictions of Australia of the office of Ombudsman. Whilst it may
be expected that the Ombudsman will conform to the statute establishing his office, a
large power is intended. The words of the Ombudsman Act should be . . . given ample
meaning.79

In Anti-Discrimination Commissioner v Acting Ombudman,80 the Supreme
Court of Tasmania endorsed Kirby P’s comments in Botany Council and held
that it could review the Ombudsman’s jurisdiction to investigate but not the
results of such investigations. In Chairperson, Aboriginal and Torres Strait Islander
Commission v Commonwealth Ombudsman, the court held the Commonwealth
Ombudsman could not make ‘findings’ but was restricted to forming and express-
ing ‘opinions’.81
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AUSTRALIAN OMBUDSMAN


2003 and beyond: More changes, new theories
and a bigger footprint

The recruitment of Professor John McMillan was a return to an ANU academic
lawyer occupying the post of Ombudsman (in the footsteps of Professors Richard-
son and Pearce).82 His first years as Ombudsman have been accompanied by a
massive increase in staff, a greater diversification in functions and a deliberate
attempt to shape a new theoretical structure for the institution. There are now
over 140 staff, seven different Ombudsman titles (Commonwealth Ombudsman,
Tax, ACT, Defence, Immigration, Postal Industry and Law Enforcement) and
increases in jurisdiction over Commonwealth service providers and a significant
and expanding jurisdiction in the area of law enforcement.
This increase in oversight functions has confronted the Ombudsman with the
challenge of positioning the institution as ‘a generalist agency, hosting a cluster
of specialities’.83 The Ombudsman had been granted other specialist functions
since the 1980s (such as for tax, ACT Defence and FOI matters) but the specialist
functions granted to the Ombudsman expanded rapidly since 2002 to cover a
more diverse range of responsibilities (Immigration, Postal, Law Enforcement
among others). These changes have necessitated different approaches to inves-
tigation and new monitoring techniques. Pitham and McMillan have described
how in 2003–2004, the ‘Commonwealth Ombudsman’s focus on law enforce-
ment matters underwent a remarkable transformation’,84 a transformation that
required an additional element of accountability activity, labelled ‘continuous’
(undertaking an on-going auditing/inspection function), to be added to the gen-
eral typology of reactive (complaint handling) and proactive (own motion or
systemic) activity.85 From this point, the fire-preventing activity was now associ-
ated with both a legislatively mandated activity and an institutional preference
in certain areas. In part, McMillan suggests that the legislative requirement to
undertake the monitoring role, required within both law enforcement and immi-
gration, has transformed the way the Commonwealth Ombudsman performs this
type of role.86 Previously, the handling of systemic activity (both fire-watching
and fire-preventing) was ad hoc, built upon complaint intelligence and generally
once-off. Now the role is more likely to be scheduled, derived from a multitude
of sources and repeated on a frequent basis.
By 2004, Professor McMillan was able to write that:

. . . it is conventional for the office to define its role as one concerned as much with sys-
temic problems in public administration as with transitory malfunctions in administra-
tive decision-making. It is normal for the office to follow through and examine whether
recommendations have been implemented and assurances have been honoured. Par-
ticularly through own motion investigations and publications on decision-making the
office has both a functional and an educative role in improving public administration,
including legal compliance.87

The dedicated legal-centric tactical fire-fighter of the Kerr Committee had in
three decades become primarily an administrative and strategically focused
112 AUSTRALIAN ADMINISTRATIVE LAW


fire-watcher and fire-preventer. The Commonwealth Ombudsman’s fire-fighting
role and capacity is still regarded as essential core business for the institution but
not the sole or prime justification for its existence.88
S Boyron suggested that a rapidly changing administrative environment might
herald the ‘emergence of new paradigms that are requiring urgent adaptation
and theorisation’.89 Adaptation has been a constant motif of the Commonwealth
Ombudsman. In recent writings, Professor McMillan has been floating the idea
that the changed roles played by institutions like the Ombudsman may necessitate
a new theoretical framework. Professor McMillan argues:

In my view the role of Ombudsman, tribunals, inspectors-general and like bodies is
not well-understood in legal and academic thinking. The significance of their role
is often overlooked and understated. A contributing cause of this misunderstanding
is a timeworn and unrealistic view of the separation of powers, which positions these
agencies in the executive branch of government, and treats the judiciary alone as the jus-
tice and oversight branch of government. An alternative constitutional theory, focussed
on how our system has actually evolved, would describe four branches of government –
parliament, courts, the executive, and (what I would loosely call) an oversight, review
and integrity branch of government.90

Within this integrity branch of government Professor McMillan sees a series
of bodies entrusted with the task of ensuring ‘legal compliance, good decision-
making, and improved public administration within the executive branch of
government’91 of which the Ombudsman is a key body. Reports and inquiries
become essential tools within this new branch of government. Professor McMil-
lan argues that ‘inquiry mechanisms are now built into the fabric of government
in a more penetrating and systemic manner’92 and furthermore in the aftermath
of the cases of Cornelia Rau and Vivian Alvarez ‘a single well-written report
can be more effective in triggering political and departmental change than a
decade of oversight by courts, tribunals and investigation agencies’.93 This new
theoretical framework for the Ombudsman is heavily orientated towards the fire-
watching and fire-prevention end of the spectrum. However, Professor McMillan
also creates a rejuvenated role for the fire-fighting function. Essentially he links
complaint handling directly with the rule of law. Professor McMillan argues that:

. . . through the mechanism of the Ombudsman, the notion is now embedded in Aus-
tralia that people have a right to complain against the government, to an independent
agency, without hindrance or reprisal, and to have their complaint resolved on its merits
according to the applicable rules and the evidence.94

In this theory, the Ombudsman is both an institution that enables individuals
to gain access to the rule of law, supplementing the central role played by the
judiciary, and an exemplar of the rule of law in practice. By the way it conducts
investigations, resolves problems and communicates to agencies and citizens
the Ombudsman demonstrates the application of the theory or principle of the
rule of law to everyday life. Professor McMillan observes ‘the rule of law is as
much concerned with explaining to a person why an adverse decision was made
113
AUSTRALIAN OMBUDSMAN


and is unimpeachable as it is with examining whether a decision was legally
proper’.95 This linkage to the rule of law function adds an interesting dynamic to
the complainant-focused, incident-based approach that is too often depicted in
a negative light in Harlow and Rawlings fire-fighter model.
At the same time as the role and performance of the Ombudsman has been
changing and evolving, there has been a similar change in the activities of Auditor-
Generals. The Auditor-General Act 1997 (Cth) allows the Auditor-General to con-
duct, at any time, a performance audit of an agency, a Commonwealth authority
or company, other than a Government Business Enterprise (GBE) or any of its
subsidiaries. Most other Australian jurisdictions have similar provisions. The Aus-
tralian National Audit Office conducted forty-eight performance audit reports in
the year 2004–2005. Typically, performance audits examine the use of resources,
information systems, performance measures, monitoring systems and legal com-
pliance. Therefore this function extends Auditor-General activity well beyond the
financial management of government in ways that resemble own motion and per-
formance monitoring activities of the Ombudsman.
The National Integrity Systems Assessment Project (NISA) has argued that
the Commonwealth Auditor-General and Ombudsman effectively operate as two
separate integrity systems ‘overlapping only indirectly and not necessarily coordi-
nated in their operation’.96 The critique by NISA is that at national level this frag-
mented and uncoordinated approach poses a serious problem in dealing with gov-
ernance issues and assisting in integrity and prevention of corruption activities.97
The Commonwealth Ombudsman has reacted favourably to the Report’s recom-
mendation that each jurisdiction establish a governance review council which
would include representatives of agencies such as the Ombudsman, Auditor-
General, Public Service Commissioner among others.98


State Ombudsmen – cut from a different cloth?

Some interesting questions arise about the Commonwealth Ombudsman’s rela-
tionship to state Ombudsmen. The literature on Australian Ombudsmen has
tended to concentrate on the Commonwealth Ombudsman, with a few excep-
tions notably Groves99 and Pearce,100 and has seemed to assume that for most
intent and purposes the similarities between the institutions was more important
than any differences. Descriptions and explanations of different Ombudsmen
have usually used the same language to cover both the state and the Common-
wealth Ombudsmen. This approach is derived in part from a lack of close study
of state Ombudsmen and in part from an idea that a similar institution was intro-
duced into near-identical Westminster systems. In my view, the origins, reception,
administrative-legal cultures and the impact of changes produced a number of
different evolutionary paths for the various Ombudsmen. Furthermore, although
not examined in this chapter, each institution has been significantly shaped by
the individuals who have occupied the position of Ombudsman.
114 AUSTRALIAN ADMINISTRATIVE LAW


McMillan claims that significant differences now exist between the state and
Commonwealth Ombudsmen.101 Those differences may have already been there
but after twenty to thirty years of different development paths, they have been
compounded and widened in recent years. In his survey of Ombudsman jurisdic-
tions, Pearce concluded that there were ‘surprising variations between them’.102
Compounding the jurisdictional variation has been the type of caseload and focus
of the various Ombudsmen. McMillan states:

The majority of complaints to the State Ombudsman arise in areas such as policing,
local government, corrections, juvenile justice, and public transport. The investigation
of those complaints often focuses on allegations of abuse of power by government, ques-
tionable behaviour, conflict of interest, and insensitivity. Many of the complaints to the
Commonwealth Ombudsman are about Centrelink, the Australian Taxation Office, the
Child Support Agency and Australia Post. Features that are common to the complaints
against those agencies are that they stem from highly complex laws, that are adminis-
tered by large agencies that employ tens of thousands of employees around Australia;
the laws and administrative procedures are not well understood by government clients,
or sometimes even the administrators; the complaints are often about money, including
debt recovery; and the complainants have an ongoing relationship with the agency that
is at risk of becoming toxic.103

McMillan further suggests that there may be significant differences in the
reporting and treatment of Ombudsmen activity, by the media between state
and Commonwealth Ombudsmen.104 This analysis could be extended to examin-
ing differences in the relationship with agencies, parliaments and complainants.
Whilst it is beyond the remit of this chapter, it would be interesting to see if the
use of the fire-fighting, fire-watching and fire-prevention typology would reveal
similar shifts and changes with state Ombudsmen over time has it has done for
the Commonwealth Ombudsmen. There is now need for greater focus on under-
standing aspects of differences between Australian Ombudsman in addition to
heeding Professor Pearce’s call that ‘it is perhaps time for the office holders to
look at the position of their colleagues and try to draw the best from each’.105
The dramatic increase in jurisdictions, staffing and activities that occurred
between 2002 and 2006 promise to propel the Commonwealth Ombudsman
into further creative developments, especially in the areas of continuous activ-
ity and compliance monitoring of administrative standards. Staffing levels have
increased by over fifty per cent in this period. Minimal changes to the com-
plaint workload present the Ombudsman with the opportunity to strategically
deploy staff to undertake greater institution-focused and performance-based
approaches to investigation, monitoring and proactive compliance activity. Over
most of the period since the Kerr Committee Report was presented the question
of resources has pre-occupied Ombudsmen and severely limited their potential
choices. Nevertheless, in each period examined in this chapter, every opportunity
was taken not only to improve and refine the fire-fighting role of Ombudsmen but
to slowly make advances in more systemic and preventive type of activity. Despite
needing to carry out extra activities in areas like Immigration, Law Enforcement
115
AUSTRALIAN OMBUDSMAN


and the like, the Commonwealth Ombudsman will now have greater staffing flex-
ibility, expertise and capacity to pursue ideas like contributing to and developing
an integrity branch of government.
The rise of new managerialism, performance and risk management and a
transformation in the composition, skills and roles of the Commonwealth public
service presented the Commonwealth Ombudsman with a necessity to further
adjust his approach, whilst various, if not all, Commonwealth Ombudsmen have
worked hard at selling their better management contribution to the rest of the
public service that has now become a central plank in the institution’s objectives.
On its website the following declaration is made: ‘the Ombudsman is indepen-
dent and impartial, and works to improve public administration generally’.106
Professor McMillan has flagged the possibility of greater use of inquiries, audit-
ing and reports designed to have a wider impact, rather than simply a dispas-
sionate and objective recounting of a resolved complaint. The Ombudsman is no
longer a neglected aid to better management nor is the institution simply a modi-
fied grievance man. In 2006, the Commonwealth Ombudsman has an impressive
track record over three decades and has been accepted into the heart of the exec-
utive branch of government. The uncertainty during its conception as to the role,
form and necessity of an Ombudsman has well and truly been resolved. However
the literature and our understanding of this institution constantly lags behind
each major reconfiguration or modification of the office of the Ombudsman.
Professor McMillan has rightly labelled the two reports on the Rau and Alvarez
cases prepared by Mick Palmer and Neil Comrie, as part of the investigation of the
wrongful placement of many Australian citizens and residents into immigration
detention, as ‘a watershed in public administration and external oversight’.107
More importantly these findings can be seen as representing a systemic break-
down in the operation of Australian administrative law, or at the very least expos-
ing some very disturbing limitations or deficiencies in the much touted New
Administrative Law package. The history of the Commonwealth Ombudsman,
Professor McMillan’s public musings, the new responsibilities of the Immigra-
tion Ombudsman and a dramatic increase in staff suggest that further changes
to the institution are already well underway.
7
Freedom of information
Moira Paterson




Judicial review and responsible government both have an important role to play
in ensuring legality and accountability in executive decision-making. Freedom
of Information (FOI) laws enhance the operation of those mechanisms while
supplementing them with a more direct form of accountability to the people.1
They also make a substantial contribution to information privacy by providing an
avenue for access to, and amendment of, personal records held by governmental
agencies.
This chapter is concerned exclusively with FOI laws. Other laws which pro-
vide alternative sources of access to public sector information include informa-
tion privacy and health records statutes,2 public records statutes,3 requirements
for administrative decision makers to provide reasons for their decisions (see
Chapter 11), other common law duties of disclosure and laws which require the
proactive disclosure of information, including information about government
contracts.4
The concept of a statutory right of access to information originated in Sweden
in the seventeenth century,5 but first attracted attention in Australia following
the enactment of the FOI legislation in the United States6 in 1967.7
The Freedom of Information Act 1982 (Cth) (the Commonwealth FOI Act),
which will form the main subject of this chapter, formed the final element of the
Commonwealth’s so called ‘New Administrative Law’ package and is confined in
its operation to the Commonwealth public sector. It was the first national legisla-
tion to be adopted by a country with a Westminster-style system of government
and had its origins in a commitment by the Whitlam Labor government in 1972
to enact legislation along the lines of the United States legislation, although its
enactment was delayed until 1982 while it was considered by a number of govern-
ment bodies.8 The version of the Act enacted in 1982 failed to give effect to many

116
117
FREEDOM OF INFORMATION


important recommendations in the 1979 report of the Senate Standing Commit-
tee on Constitutional and Legal Affairs. Subsequently, it was amended in 19869
to give effect to some of those recommendations and again in 199610 to give
effect to further recommendations in a second report by the Senate Committee.11
However, a series of important recommendations in the Australian Law Reform
Commission’s Open Government report12 are yet to be implemented.13


The Commonwealth Act

The Commonwealth FOI Act is based on the rationales that: (1) transparency is an
essential precondition for political accountability and for discouraging corrup-
tion and other forms of wrongdoing; (2) increased transparency contributes to
greater public participation in government policy formulation and in the process
of the government itself; and (3) the ability of individuals to request the amend-
ment of personal information which is incorrect or misleading will contribute to
information privacy by enhancing the ability of individuals to exercise control of
their own information.
The Act consists of three separate elements: requirements for agencies to
publish specified materials, a qualified universal right of access to government
documents and procedures for the amendment of personal records.


Objectives and interpretation

The objects and interpretation statement in s3 refers inter alia to a general right
of access to documents subject to ‘exceptions and exemptions necessary for the
protection of essential public interests and the private and business affairs of
persons in respect of whom information is collected and held by departments
and public authorities’. Although an equivalent clause in the Victorian Act has
been interpreted as requiring the so-called ‘leaning’ position favoured by the US
courts,14 the Full Court of the Federal Court has rejected that approach. It held
in Austin v Deputy Secretary, Attorney-General’s Department15 that the exemption
provisions are as much a part of the Act as the rights of access provided and that
each is to be given the meaning its own terms fairly convey.16 That interpretation
has the consequence that decision makers and review bodies are not required
to adopt a pro-disclosure stance in interpreting the exemption provisions in the
Act.


Scope

The Act creates rights of access to documents rather than to information
more generally.17 Those rights apply to ‘documents of an agency’ and ‘official
118 AUSTRALIAN ADMINISTRATIVE LAW


documents of a Minister’. The former are defined as documents in the possession
of an agency and the latter as documents relating to the affairs of an agency which
are in the possession of a minister, in his or her capacity as a minister.
The concept of possession differs from mere custody and requires some aspect
of control.18 The fact that a document is located on an agency’s premises will
not necessarily be sufficient to establish possession if it belongs to some other
person (for example, if it belongs to an employee and does not relate to his or her
employment).19 Likewise, a document located elsewhere, including overseas,
may be regarded as being in an agency’s possession if the agency is entitled
to request its return.20 As the Act does specifically extend to documents in the
possession of government contractors, the ability to obtain access to them is
dependent on whether the contracting agency has a contractual right to require
their return.
The definition of ‘agency’ in s4(1) includes public service departments and
‘prescribed offices’. The latter include bodies and offices established for a ‘pub-
lic purpose’21 by a Commonwealth law and a number of bodies over which the
Commonwealth is in a position to exercise control which are declared by regula-
tion to be prescribed offices. It specifically excludes incorporated companies and
associations and royal commissions.
The Act also contains a total exclusion for the office of the Auditor-General and
for the national security and other bodies listed in Pt I of Sch 2; a partial exclusion
for specified documents of the bodies listed in Pt II of Sch 2; a partial exclusion in
respect of documents relating to the commercial activities of government busi-
ness enterprises listed in Pt III of Sch 2; and a total exclusion for documents
originating or received from specified national security bodies. The combined
effect of these exemptions is to provide substantial protection for the commercial
activities of government business enterprises and the documents and activities of
intelligence bodies.
‘Document’ is broadly defined in s4(1) to cover any record of informa-
tion, including video and audio tapes, maps and photographs. Although it
does not refer specifically to computer discs, it includes any article on which
information has been stored or recorded, either mechanically or electronic-
ally.
The scope of the Act is also affected by the exemptions in Part V and some
additional exceptions in s12. The latter apply to documents which are avail-
able via other specified access mechanisms and documents created or received
more than five years before the commencement of the Act. There is no obli-
gation to provide access to a document which was created or received by a
minister or agency prior to 1 December 1977, unless it relates to an appli-
cant’s personal information or access to it is reasonably necessary to enable
a proper understanding of a document which has lawfully been provided
to the applicant. Older documents are potentially accessible via the Archives
Act 1983 (Cth).22
119
FREEDOM OF INFORMATION


Publication requirements

Section 8 requires the minister responsible for an agency to publish and annually
update various statements containing information about the agency’s functions,
documents, FOI procedures and procedures for public participation.
In addition, s9 requires agencies to agencies to make available for inspection
and purchase the policies and rules which govern the exercise of powers which
affect members of the public.23 These documents provide a potentially important
source of information for the exercise of review and appeal rights. Failure to
comply with s9 activates a limited reversal of the rule against estoppel in relation
to administrative matters.24 Section 10 provides that a person who could lawfully
have taken some action (or avoided taking some action) and has not done so due
to the failure to publish some rule, policy, guideline or practice should not be
prejudiced by reason only of its application in relation to what has been done
or omitted to be done. Its effect is to render the relevant rule inapplicable to a
person who is unaware of its existence due to an agency’s failure to publish it as
required.



Applications for access to documents

The procedures for access are set out in Part III of the Act.


Informal access
Section 14 makes it clear that the Act is not intended to provide an exclusive
avenue for access to public sector documents. Ministers and agencies are able to
provide access to documents (including exempt documents) on an informal basis
provided that they are not precluded from doing so by other laws.


Applying for access
The right of access in s11 is conferred on ‘every person’ (that is, any natural or
legal person, irrespective or their status or nationality).25 Section 11(2) states
that an applicant’s right of access is not affected by his or her stated reasons for
seeking access or by a decision maker’s belief as to what those reasons might
be. This suggests that it is inappropriate to take into account the identity of an
applicant in deciding whether a document is exempt. It can be argued that its
primary purpose is to ensure that the concept of universal access is not undercut
by judgments concerning the lack of worthiness of an applicant’s motives in
seeking access. Consequently, there have been cases in which review bodies have
120 AUSTRALIAN ADMINISTRATIVE LAW


considered an applicant’s identity and motivation where these have added to,
rather than detracted from, the public interest in disclosure.26


Requirements for making applications
The requirements for making an application for access are set out in s15.27 An
application must be made in writing, supply an Australian address to which
notices can be sent and include any fee payable for access. It must also contain
such information as is reasonably necessary to enable a decision maker to identify
the documents to which access is sought.


Obligations concerning processing of applications
Decisions concerning access must be made by persons who qualify as authorised
decision makers under s23. They must also comply with specified time limits.28 A
decision maker who receives an application for access must generally notify the
applicant of its receipt within fourteen days and of a decision within thirty days
of its receipt. Failure to comply with the latter requirement results in a deemed
refusal which triggers the review procedures outlined below (see page 130-2).
Section 16 allows for the transfer of a request to another agency where appro-
priate (but without extending the time limits for response) and requires decision
makers to take reasonable steps to assist applicants in formulating their appli-
cations.


Fees and charges
Details of the fees and charges for access are set out in the Freedom of Information
(Fees and Charges) Regulations (Cth). Unless it contains information relating
to a decision concerning a ‘prescribed benefit’ such as a pension, a request for
access must be accompanied by the prescribed application fee. That fee may be
remitted under s30A if an agency or minister is satisfied that its payment could
cause financial hardship to the applicant or that the provision of access would
be in the interest of the general public or of a substantial section of the public.
For example, it may be remitted if the application relates to an applicant’s own
personal information, is not unreasonable in magnitude or is required for research
or other public interest purposes.
An applicant is also liable under s29 of the Act to pay access charges for the
costs involved in processing a request and providing access to the documents
sought (including the time spent in deciding whether information is exempt). The
applicant must be provided with a written preliminary assessment of the amount
payable, details of the basis on which it has been calculated and notification of
any deposit payable. An applicant may either accept the charges notified and pay
any deposit required or may apply for the charges to be reduced or remitted. If
121
FREEDOM OF INFORMATION


her or she fails to reply within thirty days, the application is deemed to have been
withdrawn and no charges are payable.
In deciding whether to remit a charge, a decision maker must consider whether
payment of the charge would cause the applicant financial hardship and whether
access to the document sought would be in the interest of the general public or of
a substantial section of the public. That decision must be notified within twenty-
eight days. Failure to do so results in a deemed adverse decision and triggers the
right to exercise the review procedures outlined below.


Obligations to consult with third parties
Agencies are required to follow consultation procedures, otherwise known as
‘reverse-FOI’ procedures, where documents may potentially qualify for exemp-
tion under some of the exemption provisions which protect the interests of third
parties.29 Ministers and agencies are required to consult with: other Australian
governments in relation to information provided by them or which may affect
relations with them;30 persons and organisations in relation to documents con-
taining information about their professional or business affairs; and individuals
in relation to documents which contain their ‘personal information’. In each
case the requirement to consult is confined to the question of exemption under
the provision which is designed to protect the interests of the person or body
consulted.
Persons and bodies consulted have the right to seek review of any decision
to grant access to a document contrary to their wishes and must be informed of
any such decision and of their right to apply for review. In addition, access must
be deferred until the time available for seeking review has expired or the deci-
sion has been upheld by the Administrative Appeals Tribunal (AAT). Conversely,
if a minister or agency decides to refuse access to a document in accordance
with the wishes of a person or body consulted and the applicant seeks review
of that decision, the person or body has a right to be joined as a party to those
proceedings.


Possible responses to requests
An applicant who makes a valid request for access to a document must be granted
full and immediate access to it unless one or more grounds for refusal are appli-
cable. Alternatives to a complete denial of access include providing access to
a copy of the document from which any exempt matter has been deleted and
deferring access to some specified future time. In some circumstances, a decision
maker may respond in terms which neither confirm nor deny the existence of a
document.31 A decision maker who decides not to provide full and immediate
access to a document must provide a written statement of reasons which includes
findings on any material questions of fact and refers to the material on which they
are based.
122 AUSTRALIAN ADMINISTRATIVE LAW


Protection against liability arising from disclosure
of documents
Section 91 protects authorised officers who authorise or grant access to docu-
ments against liability for any defamation, breach of confidence or breach of
copyright arising from the provision of access to an applicant. That protec-
tion is limited to cases where access is required under the Act, or is granted
in the bona fide belief that it is required. It is therefore unavailable if access
is granted informally. Persons who have provided documents or information
to ministers or agencies are also protected from liability for any defamation or
breach of confidence arising from the provision of access to an applicant (but
not necessarily from any liability arising from the initial provision of informa-
tion to a minister or agency).32 The protection under s91 does not extend to
subsequent uses of documents by applicants and the provision of access to a
document, including an exempt document, cannot be taken as approval of acts
which constitute breaches of laws relating to defamation, breach of confidence or
copyright.
Section 92 provides protection against liability for criminal offences arising by
reason only of the authorising or giving of access. Again that protection is limited
to authorised officers and is available only where access is required under the
Act or provided in the bona fide belief that it is required.




Grounds for denying access to a document
An applicant has no statutory right of access if his or her application falls outside
the parameters of the Act, does not comply with requirements for making a valid
request or qualifies under one or more exceptions or exemptions in the Act. Access
to a document may also be denied on the basis that it cannot be found or does
not exist33 or the request falls within s24(1) or (5).
Section 24(1) permits denial of access before an application is processed if
the work involved in processing it would substantially and unreasonably divert
an agency’s resources from its other operations or substantially and unreason-
ably interfere with the performance of a minister’s functions. The decision maker
must consider the resources which would have to be used in identifying, locat-
ing or collating the documents sought; to justify non-disclosure the diversion of
resources must be both substantial and unreasonable. The requirement of unrea-
sonableness has been interpreted as permitting consideration of public interest
grounds favouring disclosure to the applicant.34
Section 24(5) permits access to be denied without identification of the docu-
ments to which an application relates and without specifying the specific grounds
for exemption if it is apparent that all of the documents sought are exempt
documents.35 However, the decision maker must provide a general outline of
the reasoning process which underlies the decision to refuse access.
123
FREEDOM OF INFORMATION


The exemption provisions

Part IV of the Act contains a number of exemptions designed to protect public,
business or personal interests which may be harmed by disclosure. The fact that
a document is exempt does not preclude a decision maker granting access to it.



General matters of interpretation
It is possible for a document to qualify for more than one exemption. Section 32
specifically precludes a decision maker from having regard to any interrelation-
ship between individual exemption provisions in resolving ambiguities in their
wording. The exemptions fall into two main groups: class based provisions which
provide for exemption simply because a document falls within a specified cate-
gory or class; and harm-based provisions which require likelihood that disclosure
will result in some specified adverse effect.
The harm-based provisions require an assessment of the effect of disclosure
from the standpoint of ‘disclosure under the Act’. As the Act is predicated on the
notion of universal disclosure, that phrase logically requires an assessment of the
effect of disclosure to the world in general, rather than to the specific applicant.
However, the Act also serves an important avenue for individuals to obtain access
to their own personal records so there is an argument for allowing consideration
of an applicant’s identify where documents shed light on his or her own personal
affairs.
A number of the harm-based provisions require that some specified conse-
quence is reasonably likely. That formulation has been interpreted as requiring a
judgment as to what is reasonable, ‘as distinct from something that is irrational,
absurd, or ridiculous’.36 Some of the harm-based provisions require a ‘substantial
adverse effect’. The word ‘substantial’ has been interpreted as requiring an effect
that is sufficiently serious or significant to cause concern to a ‘properly informed
reasonable person’.37 Alternative formulations refer to an effect that is severe or
of some gravity38 or ‘real and of substance and not insubstantial or nominal’.39
Some of the exemptions require a balancing of the factors for and against
disclosure. These may take the form of public interest tests or requirements to
assess the reasonableness of disclosure. Balancing tests serve a useful function
in limiting the operation of exemptions to those cases where the harm likely to
result from the disclosure of a specific document is sufficiently serious to out-
weigh the countervailing interests in transparency. They require a decision maker
first to identify any public interest considerations which mitigate against disclo-
sure of the specific document having regard to the nature of the harm which
the particular exemption provision seeks to avoid. These must then be balanced
against the public interest considerations favouring transparency, including the
general democratic interests inherent in the objectives of the Act. Other consid-
erations which may favour disclosure of specific documents include the interest
124 AUSTRALIAN ADMINISTRATIVE LAW


in shedding light on whether an agency has acted legally40 or been soundly
administered41 and the interest in finding out about current decision-making
while it is still possible to contribute to that process.42
The Act also contains provision for ministers to issue conclusive certificates
to support claims for exemption under ss33A, 34, 35 and 36.43 These establish
conclusively that a document qualifies for exemption or, in the case of s36, that
it satisfies the second part of the test for exemption. They also limit the review
powers of the Commonwealth Administrative Appeals Tribunal.44



The exemption provisions
Cabinet and Executive documents
The exemptions in ss34 and 35 are designed to protect the processes of Cabinet
and Executive Council decision-making by ensuring the secrecy of their delib-
erations, thereby protecting the operation of collective ministerial responsibility
and avoiding the other types of harm which may arise where individuals are able
to obtain advance knowledge of proposed policy changes.45 They both contain
provision for the issuing of conclusive certificates.
Subject to exceptions in respect of ‘purely factual material’,46 they encompass:
(1) documents created for the purpose of submission to the Cabinet/Executive
Council; (2) official records of the deliberations of the Cabinet/Executive Coun-
cil; (3) copies, parts and extracts of those documents; and (4) documents, other
than those officially published, which would disclose the deliberations or orders
of the Cabinet/Executive Council. It has been held by the AAT in relation to the last
category that it is sufficient if disclosure ‘would reveal the substance of the delib-
eration or decision’.47 The exemption of Cabinet documents has been extended
via the exclusion of Cabinet notebooks from the definition of ‘document’ in s4(1).


National security and international relations
The national security exemption in s33 is additional to the extensive exclusions for
intelligence agencies outlined above. A document is exempt if its disclosure under
the Act could reasonably be expected to cause damage to the security, defence or
international relations of the Commonwealth or would divulge any information
or matter communicated in confidence by or on behalf of a foreign government,
an authority of a foreign government or an international organisation. A claim
for exemption under s33 may be supported by a conclusive certificate.
‘Security of the Commonwealth’ is broadly defined in s4(5) as extending to
matters relating to the detection, prevention or suppression of activities, wherever
occurring, which are subversive of, or hostile to, the interests of Australia or its
allies and to the security of any communications system or cryptographic system
of any country used for the purposes of defence or the conduct of international
relations.
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FREEDOM OF INFORMATION


The expression ‘communicated in confidence’ has been interpreted as having
ordinary meaning. It does not necessarily require proof of each of the elements
necessary for an actionable breach of confidence.48
In some instances review bodies have accepted claims for exemption based
on the so-called ‘mosaic theory’. That theory suggests that seemingly innocuous
pieces of information can be used to build a composite picture such as the identity
of a confidential informant and may need to be withheld from access to prevent
this occurring.49


Relations with states and territories
Section 33A protects relations with other Australian governments. A document is
exempt if its disclosure under the Act could reasonably be expected to cause dam-
age to relations between the Commonwealth and a state or territory government
or if it would divulge information or matter communicated in confidence by or
on behalf of a state or territory government or one of its authorities. That test is
subject to an overriding public interest proviso in s33A(5). A claim for exemption
under s33A may be supported by a conclusive certificate.


Internal working documents
Section 36 provides for exemption of documents relating to the deliberative pro-
cesses of an agency. The primary test for exemption in s36(1) consists of a class-
based definition of the documents which potentially qualify for exemption and
an overriding public interest test. A document will fall within the first part of
the test if its disclosure under the Act would disclose matter in the nature of, or
relating to, opinion prepared or consultation or deliberation that has taken place
in the course of, or for the purpose of, the deliberative processes of an agency
or a minister. The expression ‘deliberative processes’ has been interpreted by
the Commonwealth AAT as ‘thinking processes – the processes of reflection, for

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