Last month, the government quietly announced the appointment of a new Commonwealth Ombudsman, Michael Manthorpe, to replace the incumbent, Colin Neave, who moved to a customer advocacy role in the banking sector. The choice of Manthorpe raised a few eyebrows. He is a deputy secretary in the Department of Immigration and Border Protection, which makes him the first Ombudsman to be appointed directly from the ranks of the Australian Public Service. Of the nine ombudsmen since the position was established in 1977, three were appointed from academia (all law professors from the Australian National University), two from backgrounds in consumer advocacy and the others from a range of arm's-length government positions.
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Previous governments sometimes touted the names of senior public servants as possible ombudsmen but backed off in favour of candidates with a more independent perspective. Given that the ombudsman's function is to comment critically, and independently, on the public service, someone drawn immediately from the APS may have difficulty achieving (and being seen to achieve) sufficient objectivity.
In Manthorpe's case, the problem is made more glaring because he comes from a department, immigration, that always attracts a high level of complaints to the ombudsman. The department was also the recent focus of intense political controversy over immigration detention centres, where the ombudsman has an audit function.
In 2011, this role was the cause of friction between the government and Neaves' predecessor, Allan Asher, who was forced to resign after giving Greens senator Sarah Hanson-Young possible lines of questioning to put to immigration officials. With this history, Manthorpe's appointment obviously raises the suspicion that ministers and senior public servants, smarting from earlier criticism over immigration, are looking for a watchdog who is tame and sympathetic.
Manthorpe may still surprise the supporters and critics of his appointment. As an ex-poacher, he is well-positioned to become an effective gamekeeper. He will know the weak points in his old department, and the APS generally, and will have the skills to frame his comments and recommendations for maximum effect. Much will depend on what sort of ombudsman he wants to be and which groups he wishes to impress.
One general difficulty he will face, which any other appointee would also have faced, is underlying uncertainty about the proper role and public profile of his new position. The office of ombudsman is a relatively recent graft on to the Westminster constitutional system and is still evolving (as that system itself is also adapting to changed circumstances). The ombudsman's original and prime function was to investigate complaints from individuals, groups or organisations about administrative decisions made by government agencies and service providers. As such, though not a judicial body, the office sits within the overall structure of administrative law, allowing citizens an extra avenue of redress against government maladministration, which is more informal and less expensive than recourse to a tribunal, such as the Administrative Appeals Tribunal, or to a court of law. The ombudsman also belongs to a wider set of accountability mechanisms for disgruntled citizens, which includes in-house complaints procedures as well as approaches to local members of Parliament and the media.
In dealing with complaints, the ombudsman's jurisdiction is strictly limited, both in scope (confined to matters of administration rather than policy) and in power to impose solutions (allowing only for recommendations, not legal enforcement). The effectiveness of ombudsmen in remedying individual mistakes and maladministration depends on securing the confidence of public servants and ministers that their recommendations are reasonable. Though the threat of publicity may be needed as a last resort to encourage compliance, the system works best when based on quiet diplomacy and trust.
Over the years, the ombudsman's duties have steadily extended beyond the complaints function and brought the office into greater prominence. Ombudsmen have always had the power to initiate own-motion inquiries into general matters of administration, often arising out of investigations into individual complaints. These inquiries lead to published reports containing recommendations on how administrative procedures could be improved. A recent example is the report on Centrelink's administration of the "robo-debt" scheme, which found serious deficiencies in the way the agency recovered overpayments from welfare recipients. Another common topic is how agencies themselves handle complaints, with the ombudsman recommending procedures for in-house complaint mechanisms.
Own-motion reports now occupy a greater proportion of the office's time than in its first decades. Arguably, they are a more efficient use of the office's limited resources. If the ombudsman's overall aim is to improve administrative performance, time may be better spent on matters that concern entire programs or the APS as a whole rather than on individual cases. Some earlier ombudsmen certainly took this view, notably Philippa Smith (1993-98), who had a background in consumer advocacy.
From the 1990s, ombudsmen consciously reduced the proportion of individual complaints that the office dealt with itself. They made greater use of their discretionary power to refer complaints back to agencies, seeing themselves more as a forum of last resort, and thus freeing up more resources for other activities. In addition, over time, the office steadily took on several extra audit functions. For example, it now audits the records of the federal police and the Australian Criminal Intelligence Commission to ensure they comply with legislative requirements. Since 2005, the ombudsman has reported on the appropriateness of the arrangements for immigration detainees held under mandatory detention for more than two years. The office is also responsible for promoting awareness of the Public Interest Disclosure (or whistleblowing) Act and monitoring its operation.
When governments are looking for a reliable oversight agency that is at arm's-length from the public service yet respectful of the government's overall policy directions, the ombudsman is the obvious choice.
Recognising the ombudsman's widening jurisdiction, commentators on government accountability now classify the office as an "integrity agency" (or "watchdog agency") along with auditors-general, police integrity agencies and anti-corruption commissions. There is support for formally classifying the ombudsman as an officer of Parliament, like the auditor-general, as is the case in some other jurisdictions. Some even argue that integrity agencies should be seen as a "fourth branch" of government, alongside the legislature, executive and judiciary.
In its 40 years of existence, the ombudsman's role has therefore expanded well beyond its original mandate. There can be no in-principle objection to such an evolution. But it raises questions about how well the office suits its growing responsibilities. For example, some administrative law scholars express disquiet at the playing-down of the individual complaints function. Professor Anita Stuhmke, of the University of Technology Sydney, whose research documented the long-term trend to refer complaints back to agencies, questioned whether individual complainants receive the expert attention that the office's designers intended and which appeared to have been achieved in the early years.
Another point of contention comes from the use of the ombudsman to provide governments with political cover on sensitive issues such as immigration. Asher was the author of his own downfall through incautious contact with a Greens senator. But the underlying cause was the requirement that his office audit the government's treatment of asylum-seekers, a highly contentious and ethically suspect area of policy. Such a role was bound, at some point, to bring the office into conflict with ministers and thus threaten the ombudsman's all-important informal authority, which derives from avoiding matters of partisan policy.
A related issue is the question of public profile. How far should the ombudsman be prepared to speak up on matters of concern? Until his premature resignation, Asher was active in the media, criticising the APS for overly bureaucratic procedures and insensitivity to citizens' needs. Such activism came easily to someone with experience as a consumer advocate. Neave may have thought Asher flew too close to the sun for safety and so made himself almost invisible. Manthorpe, we must hope, will avoid that cautious path.
Frank and authoritative public criticism of bureaucrats is needed urgently. If it steers clear of attacking government policy, so much the better. There is more chance, then, that ministers will lend their own weight to imposing improvements on public servants.
Those progressives who want to see the ombudsman as primarily an equity and human rights champion might be disappointed. But supporters of an honest and competent public service would cheer. Such a direction for the ombudsman also has the advantage of being true to the office's original purpose of combating maladministration. Manthorpe knows where many of the APS bodies are buried. He should have the courage to disinter a few.
Richard Mulgan is an emeritus professor at the ANU's Crawford School of Public Policy. richard.mulgan@anu.edu.au
