Ombudsmen are an essential component of the public law systems embedded in contemporary liberal democracies.
However, the changing landscape of public administration poses a number of challenges for the ombudsman institution.
Three scholars from The Australian National University (ANU) College of Law have published chapters in a new book, The Ombudsman in the Modern State (Bloomsbury, 2022), edited by Professors Matthew Groves (Deakin University) and Anita Stuhmcke (University of Technology Sydney), which examines the challenges facing Ombudsmen and the governance systems within which they operate.
Professor Greg Weeks wrote a chapter on maladministration; Professor John McMillan AO explored complaint handling effectiveness; and Dr Stephen Thomson focused on the enforceability of ombudsman remedies and competition with judicial review.
In this Q&A, Dr Thomson provides an overview of his chapter and its broader implications for administrative law.
Can you provide a brief overview about your chapter and the issues it explores?
Ombudsmen offer a channel for individuals to express grievances against public authorities. Yet unlike courts and tribunals, ombudsmen usually cannot award remedies. The fact remains, however, that many complainants go to the ombudsman with the objective of obtaining a remedy.
My chapter considers whether giving ombudsmen the power to award remedies would lead to an unacceptable overlap or competition with judicial review remedies awarded by courts. It proposes three models through which those remedies could be differentiated, namely the sequencing of remedies, the subject matter of the remedy, and the nature of the remedy.
Why are these timely or topical issues to explore?
Private sector ombudsmen are increasingly being given remedial powers, so the question is whether public sector ombudsmen should still be disempowered from awarding remedies.
As policymakers refine mechanisms for the integrity and accountability of public authorities, they must continue to review whether institutions like the ombudsman have all the tools they need to effectively perform that task.
What are the broader implications for administrative law as a field?
Administrative tribunals and judicial review are the main battlegrounds in administrative law. Notwithstanding their importance, they have limitations. Ombudsmen and other ‘integrity institutions’ play a distinct, complementary role. The trick is to fine-tune the balance across institutions to achieve the most optimal and robust accountability package.
Does this chapter relate to any of your current research project/s and teaching?
I teach Administrative Law (LAWS2201) where we consider judicial review, administrative tribunals and ombudsmen. I also published an article entitled ‘Ombudsmen as Courts’ in the Oxford Journal of Legal Studies where, as the name suggests, I explored whether ombudsmen could operate in the capacity of courts (spoiler: they can, but shouldn’t). This is not as radical as it sounds, as the UK's Pensions Ombudsman has insisted that it is a court!
Purchase your copy of The Ombudsman in the Modern Statehere.