The need for an Ombudsman

Today the concept of an ombudsman is widely accepted as an appropriate mechanism for complaint handling, oversight and investigations. But in the 1960s it was a relatively new idea in Australia. In NSW, government bureaucracy had expanded dramatically. Inappropriate conduct by public authorities could significantly impact the day-to-day lives of citizens and their confidence in public administration.  

It took a decade of debate before the NSW Parliament finally passed legislation establishing the office under the NSW Ombudsman Act 1974. The first Ombudsman was appointed in 1975.

The Ombudsman’s office has firmly maintained for 50 years its objective of reviewing complaints about government service providers. The Office’s responsibilities have expanded and contracted over that time, but its focus is always the same: pursuing fairness for the people of NSW.  

Ken Smithers, a Sydney solicitor, was appointed as the first NSW Ombudsman on 2 April 1975 and the Office was empowered to investigate complaints from 12 May 1975. He commenced with a staff of just three, but within a year the Office comprised 14 investigative and administrative staff.

More information about the circumstances giving rise to the creation of a NSW Ombudsman can be found in the NSW Law Reform Commission’s expansive report, Appeals in Administration (Report no.16), which was finalised in December 1972. The Commission was unequivocal in recommending the appointment of an ombudsman.

A principal concept of an Ombudsman is their independence from government. The standard term is seven years, although an Ombudsman may seek a further term. There have been eight Ombudsman who have served the people of NSW, including the current Ombudsman. 

Each Ombudsman has been supported by at least one Deputy Ombudsman, and a dedicated staff who handle complaints, undertake investigations and perform other functions to promote integrity in public administration.

The scope and jurisdiction of the NSW Ombudsman’s Office is defined by legislation, which has changed over the past fifty years.  

Excluded from the Ombudsman’s original jurisdiction in 1975 were: 

• the Governor; 
• Ministers of the Crown; 
• members of Parliament; 
• officers of Parliament; 
• officers of most courts and tribunals; 
• government legal advisers; 
• police; and 
• local government. 

Despite these exclusions, the definition of public authorities was relatively wide, covering over 400 government departments, statutory authorities, committees, boards and trusts.

Local Government was added to the Ombudsman’s remit in 1976, once the Office was up and running smoothly.  

The Ombudsman’s ability to reinvestigate public complaints about Police conduct gradually expanded from February 1981. The Ombudsman reviewed police conduct, and their widening powers, until July 2017 when responsibility for police oversight was transferred to the Law Enforcement Conduct Commission. 

The table below highlights some of the significant changes in the NSW Ombudsman’s jurisdiction.

Since its establishment, the Ombudsman has focussed on investigating unlawful, unreasonable, unjust and otherwise ‘wrong conduct’ – action and inaction – in relation to matters of administration by public authorities. Such investigations could be prompted by a complaint from the public or could be initiated by the Ombudsman themselves. The “own motion” power is a significant power that enables the Ombudsman to identify and act on emerging and systemic issues. 

The Ombudsman Act prevents the Office from releasing detailed information relating to an investigation unless it has been tabled in Parliament. Typically, only the most vexed issues and the most serious maladministration have been exposed through detailed special reports over the last 50 years. Our Annual Reports provide broader commentary on administrative reviews and resolving individual complaints.  

Complaint-handling and investigations are conducted in private, so the outcomes of much of the Ombudsman’s work particularly in the early resolution of complaints is unsung. Aside from special reports to Parliament, the annual reports and the recently adopted 6-monthly case books are the only public documents that allow us to glimpse the extent of the Ombudsman’s work.  

The Ombudsman has been a champion and advocate for the public’s right to fair decisions and good conduct. Influencing procedures and administrative processes takes time. Change is often slow and incremental. To work at the Ombudsman’s Office you need patience. Persistent reporting and recommendations by the Ombudsman has resulted in many improvements being adopted by public authorities.  

Thanks to the Ombudsman’s efforts, alongside willing agents of change within public authorities, NSW citizens have eventually gained many rights and benefits. Here are just a few examples where the Ombudsman has been influential. 

• Public sector agencies accept the general principle that reasons should be given when they deny liability (1980). 

• Government regulators are able to prosecute other government agencies for breaches of the law (1985). 

• Ministers are empowered to make ex gratia compensation payments where recommended by the Ombudsman (1989). 

• Local councils have a statewide code of conduct addressing issues like conflict of interests (1993). 

• Police are required by law to tell anyone who was arrested that they can call a friend and lawyer, and let them do so (1997). 

• The child protection reportable conduct scheme was rolled out across the state and training provided to agencies, schools and centres (1999) – the first in Australia. 

• Government agencies can provide apologies to consumers without constituting an admission of legal liability (2002) – every state and territory has since followed suit. 

• The quality of land valuation issued by the Valuer General has improved (2005). 

• The Government Information (Public Access) Act was introduced, ushering in a new era of open government, with mandatory and proactive release of government information, overseen by a new independent Information Commissioner (2009). 

• Mandatory registration of disability boarding houses and 24-hour staffing was introduced (2012). 

• The Ageing and Disability Commissioner was established (2019). 

• A statutory advisory committee on asbestos was established (2021). 

• The Public Interest Disclosures Act was completely rewritten and modernised (2022).