Upholding open government

Burgeoning bureaucracy, delegated decision-making and discretionary application of policies by public servants were key triggers for the creation of the Office of the Ombudsman. 

From the very beginning, the Ombudsman encountered bureaucratese and obfuscation when making inquiries about intractable complaints. 

Excessive delays by public authorities in responding to preliminary enquiries from the Ombudsman was like a red rag to a bull, warned the state’s third Ombudsman David Landa. Such behaviour effectively ensured that the Ombudsman took up a complaint. Landa gave fair warning, publishing in the 1988 Annual Report “Hints for public authorities” which highlighted excuses the Office heard way too often to be acceptable: 

• the file is lost. 

• the office is being re-organised and the file can’t be located (a subtle variation of “the file is lost”). 

• your letter wasn’t received. 

• your letter was placed on the wrong file. 

• your letter wasn’t referred to me (the person who is allegedly dealing with the matter) for attention. 

• the reply is ready but unfortunately the (Mayor/Director/etc) is unavailable to sign it until next week. 

• the complainant is a pain in the neck and we don’t bother replying to him/her. 

• the questions asked are too complex to prepare a reply within the time; sorry, I didn’t think I needed to advise you of the delay in replying. 

An important service of the Ombudsman’s Office over its first 50 years has been to help complainants identify the responsible government authority. This advice role would not necessarily result in the lodging of a formal complaint, but was greatly appreciated by complainants who were often at their wit’s end.  

Time and time again the Ombudsman has pointed out the importance of being transparent in decision-making.  ‘On many occasions,’ George Masterman, the state’s second Ombudsman observed, ‘would-be complainants are satisfied with an explanation of the administrative procedures applied to their cases.’ Providing reasons for a decision goes a long way in addressing a sense of injustice. 

The Ombudsman has been a champion of the public’s right to access government information and lobbied for an Act to protect this right in legislation.  

Guided by the Wilenski reports on government administration, and prodded by both the passing of Commonwealth legislation and the introduction of a private member’s bill in 1982, Premier Neville Wran introduced a Freedom of Information Bill into the NSW Parliament in 1983. Wran spoke boldly, but like many bills encouraging government accountability it languished with minimal government support. 

It took a change of government to get it back on the agenda. Premier Nick Greiner described the legislation in 1988 as vitally important, stating ‘it will enshrine and protect the three basic principles of democratic government, namely, openness, accountability and responsibility’.  

The Freedom of Information Act 1989 (NSW), or FOI Act, came into force from 1 July 1989. The Ombudsman was given the power to investigate complaints about the determination of FOI applications. 

At the time of the FOI Act’s introduction in 1989, Parliamentarians promised to monitor the legislation and review it after two years. This never happened. For the next 15 years the Ombudsman repeatedly called for the FOI Act to be reviewed. In the meantime, other legislation, such as the Privacy and Personal Information Protection Act 1998, created conflicts between privacy and access to government information. Technological advances towards the paperless office in the 21^st century and the rise of the electronic document also created challenges in legislative interpretation and document access. 

Eventually Bruce Barbour, the state’s fifth Ombudsman, took matters into his own hands, announcing in April 2008 that the Office would conduct a comprehensive review of the FOI Act. The special report Opening Up Government (February 2009) called for new legislation, a cultural shift across government and the public sector, a more proactive approach to the release of government information, stronger protections for FOI officers, and oversight of the act by an independent information commissioner. 

The government accepted nearly all of the Office’s 88 recommendations and quickly passed two new pieces of legislation - the Government Information (Public Access) Act 2009 (known as the GIPA Act) and the Government Information (Information Commissioner) Act 2009. Thanks to the Ombudsman, NSW now has an Information Commissioner tasked with supporting citizens’ rights to access information and guiding government agencies to implement good practice. 

Navigating the system has always been a challenge. ‘Individual citizens sometimes feel bewildered by complex government systems’, the state’s second Ombudsman George Masterman noted in 1984.  

The situation was just the same in 2000. ‘From an outsider’s perspective,’ Bruce Barbour, the state’s fifth Ombudsman, conceded, ‘government bureaucracies can appear extremely complicated and unwieldy. Members of the public do not always know which public authority to approach to have their grievances dealt with appropriately. They feel frustrated when they are passed from person to person within an authority or told to approach a different public authority altogether.’  

Time and time again, the Ombudsman has found that complaints involving multiple departments and agencies due to overlapping responsibilities are very difficult to resolve. The blame game often gave complainants and the Ombudsman the run-around. 

Departmental restructures, or ‘machinery of government’ changes as they are now dubbed, only exacerbate the problems. In January 2024 the state’s eighth Ombudsman Paul Miller released an occasional paper highlighting the challenges that machinery of government changes pose for program and service delivery. The aim of the paper is to foster awareness among public servants regarding the impacts of machinery of government changes and how poor administrative practices may be mitigated or prevented. 

The introduction of computers within public authorities to assist with administrative processes began in earnest in the 1980s. And with it, came the computer errors and, subsequently, complaints to the Ombudsman. 

Computers were a double-edged sword. They had the capacity to reduce inefficiencies and delays. But introducing computerisation into administrative processes was sometimes clunky, with the added human component of data entry errors. Transitions across from one computer system to another could also lead to data loss, or inadvertent merging of data. While these types of complaints were often relatively straightforward in principle, limited knowledge of how the computer system operated sometimes hampered easy resolution. Some bureaucrats also placed too much trust in the system. 

The capacity of technology in the 21^st century to store and process large amounts of data is once more transforming public administration. The ways public officials make and document decisions, and the source of their advice or evidence to inform those decisions, now sits squarely in the digital space. Integrated database systems can and do provide access to information with speed, efficiency and consistency. However, as the case of “Robo debt” demonstrated, disproportionate faith in the computer system can lead to maladministration. 

The state’s eighth Ombudsman, Paul Miller, has taken up the issue, issuing special reports to Parliament on the use of AI and automated decision-making in 2021 and 2024. The 2024 report was ground-breaking. It was the first systematic attempt in any Australian jurisdiction to comprehensively identify and publish the ways in which the public sector was using, or planning to use, automated decision-making systems in their administration of government services and functions. This is a rapidly developing area in public administration and you can be assured the Ombudsman’s Office, as they have done for 50 years, will continue to scrutinise these practices and procedures by public agencies and authorities. 

The Protected Disclosures Act 1994 (PD Act, later renamed the Public Interest Disclosures Act or PID Act) provided a legislative framework to facilitate ‘the disclosure of corrupt conduct, maladministration and serious and substantial waste in the public sector’. The NSW Ombudsman has taken a leading role since the legislation was introduced in 1994. 

The Office first published the Ombudsman’s Protected Disclosures Guidelines in 1996. They provided advice to prospective and actual whistleblowers, as well as guidance to public authorities outlining the interpretation and implementation of the Act. 

When the Act was amended in 2011, it was renamed the Public Interest Disclosures Act 1994 (PID Act). More importantly, the Ombudsman was given a new function to help implement the large-scale reform: they were now the central agency and owner of the public interest disclosures legislation. 

The Public Interest Disclosures Act was completely rewritten and modernised in 2022, following reviews by the Parliamentary Ombudsman Committee (2017), and the Parliamentary ICAC Committee (2018). A “speak up” culture is being prioritised by Government as important for the state’s integrity. The NSW Ombudsman has new and improved oversight functions under the 2022 Act. It is the lead agency responsible for overseeing the operation of the PID Act.