Investigative Bodies Notes

11. Investigative Bodies: Other than Courts & Tribunals General Mechanism focused on individual grievances and complaints * Ombudsmen: tripolar adjudication, closest to adjudicative model *> Ombudsmen, like the courts and tribunals, provide a form of 'external' scrutiny. However, the basic function of ombudsmen is very different from that of courts and tribunals --> ombudsmen investigate complaints. * Internal review: bipolar process, closest to bureaucratic model *> Internal review is distinguishable from 'reconsideration' of a decision in that it is conducted by some other (typically more senior) decision-maker within the organisation. - This senior decision-maker stands in the shoes of the original decision-maker. *> The aim of the review is to identify the correct or preferable decision. Similar to courts and tribunals, internal reviewers review decisions. Mechanism focused on operation of administrative systems --> broader approach * Accountability mechanism requires an official or organisation to 'give an account' of decisions or actions for which they are in some sense 'responsible. * Accountability mechanism are often triggered by events themselves. * The typical reason for this approach is to find ways of improving the system for the future. Internal Processes Why internal review procedures are typically authorised by statute? * Basic principle: finality principle * Once a final decision has been made, it stands unless and until it is reversed on appeal, or quashed by a judicial reviewer, or a merits reviewer sets it aside, varies it or replaces it with a substitute decision. * The principle is based on an idea of 'legal certainty.' * Ultra vires and intra vires decisions *> Finality principle applies only to intra vires decisions. - An ultra vires decision is not really a decision at all, but only a 'purported' decision. * If a decision-maker is asked to reconsider an adverse ultra vires decision, the finality principle will not, in theory at least, prevent such reconsideration. * Adjudicative decision & administrative decision *> In relation to courts and tribunals, the finality principle is expressed in the doctrine of res judicata, which prevents resolved cases being reopened. *> So far as administrative decision-makers are concerned, the finality principle can be overridden by statutory provision expressly or impliedly allowing reconsideration. - Therefore, internal review procedures are typically authorised by statute. - In the absence of such provision, there are very few circumstances in which an intra vires decision may be reconsidered. Internal complaint procedure * Two-tier system --> first 'internal review' --> then 'ombudsmen'. * Internal complaints system *> Rationale why the first tier is an internal complaints system? - An internal complaint procedure is likely to be more accessible, less formal, and cheaper to operate than an external counterpart. * Ombudsmen system -- external *> Rationale why a two-tier system is better than a single internal tier? - Because the great distance of the external tier from the decision-maker and the opportunity the external tier would provide to check the output of the first tier and correct its mistake. 1 11. Investigative Bodies: Other than Courts & Tribunals Ombudsmen Legislation: Ombudsman Act 1976 Constituent Institutionally, ombudsmen are positioned somewhere between the executive and the legislature. * Commonwealth level *> Some ombudsmen are officers of parliament and their role is assisting and supplementing parliamentary oversight of the government. *> Parliament has a role in the appointment and funding of the ombudsman, and a parliamentary committee is charged with regularly supporting and overseeing the ombudsman's work. * State level (territory) * Ombudsmen are officers of a department of State. Functions of Ombudsmen The basic function is to investigate and resolve individual complaints. In addition, other functions are related to: * 'Own-motion' investigations * Investigations, initiated by an ombudsman actively rather than in reaction to complaints: s 5(1)(b) *> Ombudsman can have much greater influence on the conduct of government business than courts and tribunals. * Supervise investigations of complaints by other bodies, such as internal police complaints units. * May operate as a sort of citizens' advice bureau. * Play an important role in finding that the complaint is not justified and, in this way, 'legitimising' government processes. Complaints They typical user of ombudsman services is an individual, and a distinctive feature of ombudsman regimes is that the service is free to the complaint. Access is further facilitated by the absence of limitations equivalent to rules of standing. Discretion as to not to investigate -- broader than courts and tribunals: s 6 Not to investigate, or not to continue investigating, complaints that fall within their remit; To decline to investigate matters in which the complainant lacks sufficient interest, To reject complaints on the ground that the complainant could and should have recourse to a more suitable avenue of redress; To reject complaints on the ground that too much time has elapsed since the complainant became aware of the action which is the subject of the complaint. Jurisdiction s 5 Ombudsman Act 1976 (1) Subject to this Act, the Ombudsman: (a) shall investigate action, being action that relates to a matter of administration, taken either before or after the commencement of this Act by a Department, or by a prescribed authority, and in respect of which a complaint has been made to the Ombudsman; and Investigate who? * Department * Prescribed authority defined in s 3. * Exclusion: Ministers, Parliament, Judiciary, non-administrative areas of government: s 5(2) Action that relates to a matter of administration * The word 'action', as opposed to 'decision' (as in the AAT Act) or 'decision' plus 'conduct (in the ADJR) Act. 2 11. Investigative Bodies: Other than Courts & Tribunals * The action need not have been done 'under an enactment'. * May have been an exercise of non-statutory power, or an action merely incidental to the exercise of a statutory or non-statutory power. * The phrase 'relates to a matter of administration' has much broader connotation than the phrase 'of an administrative character' used in the ADJR Act. Procedural characteristics Ombudsman must inform of investigation: s 8(1). While courts and tribunals typically operate in public, ombudsmen conduct their investigations "in private": s 8(2) * The fact that ombudsmen are required to operate privately suggests that they are better viewed as part of the administration than as part of the administrative justice system. Ombudsmen investigate complaints inquisitorially: s 8(3) * The combined effect of ombudsmen's inquisitorial role and typically unrestricted access to relevant agency files make it much more likely to uncover defects in administration than proceedings before a court or tribunal. *> s 9 of the Act provides where the Ombudsman has reason to believe that a person is capable of furnishing information or producing documents or other records relevant to an investigation, the ombudsman may, by notice in writing served on the person, require the information to be provided within a specified period. Process of ombudsmen is quite informal. * Complaints can be made by telephone or on the internet as an alternative to hard copy. * Formal investigation occurs in only a relatively small proportion of complaints. * Many are resolved orally by discussion between the ombudsman and the relevant agency without formal reports or recommendations for remedial action. If the opinions are relate to a person, the person should be provided opportunity to be heard: s 8(5)(b) Complaints are often resolve by negotiation and compromise. The investigation is asymmetrical. * Courts proceedings are symmetrical in that each of the disputing parties has an equally active part to play. * Ombudsmen proceedings are asymmetrical in that the centre of gravity of the process is in dealings between the ombudsman and the agency that marginalise the complaint. *> The complainant is passive except to the extent that the ombudsman chooses to involve them in the investigation. - In most cases, the fate of the complaint depends primarily on negotiations between the ombudsman and the agency. Considerations in investigation Generally, the basis on which ombudsmen can find a complaint to be justified and recommend remedial action is wider still: s 15. * The principles applied by ombudsmen begin with the principles of judicial review and merits review. *> The basis of judicial review is 'illegality'. *> Merits review is concerned not only with legality but also with ensuring that the correct or preferable decision is made. Especially according to the s 15(1)(a)(iii) and s 15(2)(d), while the remedial powers of courts and tribunals are limited to enforcing the existing law, the Chief Officer can intervene, even when the conduct complained of was in accordance with law, on the basis that the relevant 'is or may be unreasonable, unjust, oppressive or improperly discriminatory' and should be altered. * The ombudsman is of the opinion: * that the action was in accordance with a rule of law, a provision of an enactment or a practice but the rule, provision or practice is or may be unreasonable, unjust, oppressive or improperly discriminatory: s 15(1)(a)(iii) * that a rule of law, provision of an enactment or practice on which a decision, recommendation, act or omission to which this section applies was based should be altered: s 15(2)(d) Outcome of Ombudsmen's Investigation Recommend only, cannot enforce the law * By contrast, 3

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