The overt association between parliamentary ombudsmen and human rights is a relatively new development. In essence, it reflects the office’s role as an advocate for fairness and the public interest. In many cases, the Ombudsman ensures those most vulnerable within our society are treated lawfully and fairly, and have access to the services and support that they are entitled to and need.
But the association also reflects the broadening functions of the office, particularly in Australia, and the development of international conventions on human rights. The Office’s reporting regime, particularly its function of reporting directly to Parliament, its ability to identify systemic issues and make recommendations which preserve and enhance human rights, have led to significant protections and reforms for the people of New South Wales.
Police
Policing is an area that consistently attracted a high proportion of complaints. The Ombudsman began oversight of police administration in 1975. Its ability to review and reinvestigate public complaints regarding police conduct gradually expanded from February 1981, despite resistance from many within the police force. By 1996 Irene Moss reported that complaints about police in ‘day-to-day matters’ consumed about two-thirds of the office’s resources. The Ombudsman tenaciously reviewed police conduct, and their widening powers, until July 2017 when responsibility for police oversight was transferred to the Law Enforcement Conduct Commission.
Complaints relating to police encompass everything from the conduct of officers to the abuse of powers or office. Many of the complaint categories consistently received by the NSW Ombudsman related to incidents or behaviour which were discriminatory or impinged on people’s civil liberties. These included search without warrant, wrongful arrest, unlawful detention, physical injury, strip searches, unauthorised access or release of criminal records or other confidential information. Serious cases of police misconduct could lead to charges and even dismissal.
A key recommendation from the Wood Police Royal Commission was the establishment of an Aboriginal Complaints Unit within the Police Division of the Ombudsman’s Office. The unit was established in 1996 with three staff and a ‘significant travel budget’.
While the jurisdiction over police evolved over the period 1979-2017, the focus was always on holding police accountable for their decisions. Where weaknesses in policing practices and operations were identified, recommendations were made to improve procedures. Breaches of police rules or procedure consistently showed the need for education and reinforcement of the appropriate application of procedures. It was also about exposing the work culture of the police service and demanding fair, honest behaviour, as expected by the wider community.
Key reports have included
- Report on Operation Sue (1991),
- Race Relations and Our Police (1995),
- Policing Domestic Violence (1999),
Prison work
Prisoners form a vulnerable and often overlooked cohort in our community. Even when remembered, they often receive little community sympathy. The NSW Ombudsman’s Office has an enduring role in relation to prisons, particularly visiting correctional centres and reviewing prisoners’ complaints.
Despite being a large agency with dispersed facilities, Corrective Services did not have an internal complaints unit in the 1970s and 1980s. In 1985 the government established the Official Visitors Scheme for NSW prisons, as a way to establish an independent quasi-complaints body reportable to the (then) Corrective Services Commission.
Prisoners’ access to the Ombudsman has been particularly fraught. Prison visits by the Ombudsman and the Prison Visitors Scheme has done much to ensure the rights of incarcerated individuals are safeguarded.
Top six subject areas of complaint over the years relate to transfers, access to medical services, visits and correspondence, discipline, loss or confiscation of property, and conduct of prison officers.
Children and young people
The Ombudsman has had a role ensuring fairness and equity of government services to children and young people since 1975. Public authorities such as the Department of Education, the Department of Health, the Police Service and the juvenile justice system have always been scrutinised for their services to and treatment of young people.
Reaching out to young people to ensure they knew of the Ombudsman’s services has always been a key concern. Brochures and posters were produced by the Ombudsman’s Office. The legal centres were also proactive by informing young people they could direct complaints to the Ombudsman. At different times the Office has had youth liaison officers.
The Ombudsman’s role in relation to children and young people was substantially expanded in 1998 to incorporate reportable conduct / workplace child protection. The new function of child protection marked a radical extension of the Office’s jurisdiction into the non-government sector. This function continued until 2020 when the scheme was transferred to the Office of the Children’s Guardian.
The amalgamation of the Community Services Commission with the Ombudsman’s Office in 2002 brought wider remit for child protection oversight and introduced a new formal death review function to the Office covering children who potentially died from abuse or neglect, as well all people with a disability in care.
Central to any effective child protection system is risk assessment and the provision of timely services and supports to protect children and assist their parents or carers. The NSW Ombudsman has shared information and insights on the challenges of child protection to several key state and federal inquiries in the 2000s-2010s.
New functions and responsibilities were assigned to the Ombudsman’s Office as a consequence of the government’s Keep them Safe plan (2009). The Child Death Review Team (CDRT), established in 1996 and previously supported by the Commission for Children and Young People, transferred across to the Ombudsman in February 2011. This team reviews all child deaths from birth to 17 years, and focusses on identifying systemic issues, reviewing trends and patterns, and recommending improvements in policies and practices in an effort to minimise preventable deaths. The annual and biennial reports of the CDRT make sobering reading.
Key reports by the Ombudsman’s Office include reviews of juvenile justice centres, the death of Ebony (2009), the death of Dean Shillingsworth (2009), reviewing the government’s Keep Them Safe plan (2011), More than shelter – addressing legal and policy gaps in supporting homeless children (2018, 2020, 2023), Strip Searches in youth detention (2022).
People with a disability
Community services delivered by the public sector were under the Ombudsman’s jurisdiction from 1975, with complaints and maladministration of the Department of Community Services being scrutinised in the same way as other public authorities.
From 1994-2002 the Community Services Commission was responsible for oversight of community services, including ageing disability and home care services, and reviewing the deaths of people with disability who were living in residential care, before being amalgamated into the NSW Ombudsman in 2002.
The Office established a standing inquiry (2016-18) into allegations of abuse and neglect of adults with disability in the community. This led to significant reforms in NSW, with the establishment of the Ageing and Disability Commission and the creation of a new Commissioner.
The introduction of the National Disability Insurance Scheme (NDIS) in 2013 dramatically changed the landscape of disability services. The rollout of the scheme was gradual and the NSW Ombudsman did a lot of preparatory work to manage the transition and identify risks.
On 3 December 2014, the Disability Inclusion Act 2014 conferred a new and important function on the Ombudsman’s Office and established the Disability Reportable Incidents scheme. It was the first legislated scheme in Australia for the reporting and independent oversight of serious incidents involving people with disability in supported group accommodation. The scheme became the model later adopted by the NDIS Quality and Safeguards Commission.
Disability oversight moved from the Ombudsman to the NDIS and the Ageing and Disability Commission between 2019 and 2022.
Key reports in this area have included:
- People with disabilities and the closure of residential centres (2010)
- More than board and lodging: the need for boarding House report (2011)
- Abuse and neglect of vulnerable adults in NSW – the need for action (2018)
- Modifying public housing properties to meet the needs of tenants with disability (2022)
- Report of Reviewable Deaths Annual Report 2003-2004
- Report of Reviewable Deaths in 2004 - Annual Report
- Report of Reviewable Deaths in 2005 Volume 1: Deaths of people with disability in care
- Report of Reviewable Deaths in 2006 Volume 1: Deaths of people with disabilities
- Report of Reviewable Deaths in 2007 Volume 1: Deaths of people with disabilities
- Report of Reviewable Deaths in 2008 and 2009 Volume 1: Deaths of people with disabilities
- Report of Reviewable Deaths in 2010 and 2011 Volume 2: Deaths of people with disability in care
- Report of Reviewable Deaths in 2012 and 2013 Volume 2: Deaths of people with disability in care
- Report of reviewable deaths of people in 2014-2017: Deaths of people with disability in residential care.
