Evaluation of Ombudsman and Administrative Law in Tasmania, 2017

This essay examines Australian administrative law, focusing on the role of the ombudsman and its impact on the relationship between the state of Tasmania and its citizens in 2017. It explores the functions of the ombudsman, including investigative powers and the ability to address complaints and initiate investigations. The essay discusses the principles of administrative law, its influence on various sectors of society, and the mechanisms for appealing administrative decisions. It analyzes the effectiveness of the ombudsman, considering both its strengths, such as cost-effectiveness and independence, and its limitations, such as the lack of binding decisions. The paper highlights the importance of administrative law and the ombudsman in ensuring fair governance, safeguarding human rights, and promoting a healthy relationship between citizens and the state. The essay also explores the criticisms of administrative law, particularly regarding the separation of powers, and concludes that the ombudsman is a crucial tool, despite some limitations, for promoting good administration. The essay emphasizes the need for both the ombudsman and administrative law to work together to foster a positive citizen-state relationship.

Running head: ADMINISTRATIVE LAW
Administrative Law
Name of the Student
Name of the university
Author Note

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The level of powers and responsibilities which are vested in the administrative agencies
of Australian governments are known as Australian administrative law. Basically it is a common
law system where statutory overlays are increasing and the focus of which have been changed
towards tribunals having extensive jurisdictions and a codified system of judicial review. A well
developed ombudsman system is possessed by Australia along with legislations related to the
freedom of legislations which are influenced by international models1. The comment and notice
requirements of delegated legislation designing are influenced by the United States. An office of
ombudsman exists both at state and commonwealth levels who have been provided with broad
range of powers towards investigating actions related to administrative matters. Administrative
law is brought in place so as to ensure quick and appropriate justice to the citizens. However it is
against the concept of separation of powers which provides that the judiciary, the executive and
the legislative have different and independent roles to play in the society. The purpose of this
paper is to assess whether ombudsman and administrative law at state level is appropriate to deal
with the relationship between the state of Tasmania and the citizens in 2017.
The role of an ombudsman is primarily investigative. It has to investigate the complaints
made by the members of the public and in addition it has to investigate on own initiatives of the
offices known as own motion investigation. Initially the investigation is privately conducted in
an informal manner in form of preliminary inquiries. The powers of an ombudsman are similar to
that of a royal commission which is to require examination and attendance of witness,
administration of oaths, to enter premises and to require the production of documents2. In case it
is believed by the ombudsman that an agency has not taken appropriate steps in relation to a
particular matter reporting can be done by it to the state government. Tight budgetary restrictions
1 R McLead, ’25 Years of the Cth ombudsman’ (2002 Conference Presentation) pp 87-100
2 R snell, Review of Ombudsman Act: Position Paper (2004) pp 51

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have been imposed on the ombudsman recently. Many activities also have been removed by
from the authority of ombudsman due to the introduction of privatization.
In Tasmania ombudsman operates successfully and freely and act in public interest so as
to improve the standard of public administration in Tasmania and resolve complaints. A few
issues which are included by OT are related to the functioning of Tasmanian government
agencies and departments, provisions related to services provided by local government, the
welfare and treatment of people in prison and actions related to administration of the state owned
businesses along with government business enterprises3. OT is an independent officer which is
appointed by the governor who is directly answerable to the parliament. The OT investigates the
administrative actions taken by public authorities so that it can be ensured that they are taking
lawful, fair and reasonable actions. The OT works in objective, impartial and independent way
in order to resolve complaints along with addressing systematic problems so as to enhance the
standard and quality of Tasmanian public administration. The OT supervises over local
councils,government departments, sewage and water corporations, stated owned companies,
prisons and government enterprises. Investigation can be made by the OT on their own known as
“Own motion”along with a complaint made by the public.
As provided by James ombudsman are very effective to enhance the relationship between
the state and the citizens as it involves no cost, it is independent from the government, it provides
a remedies for bad practices and when it comes to state ombudsman they have the power of
offering conciliation services along with investigations4. However, according to buckombudsman
cannot provide quick solutions to problems which are complex5. In addition as provided by
3 B Barbour, ‘The ombudsman and the Rule of Law’ (2004 Conference Presentation) pp.120-135.
4James, Natalie, and Fair Work Ombudsman. "Commonwealth of Australia." (2015) pp 23-77.
5Buck, Trevor, and Richard Kirkham. The ombudsman enterprise and administrative justice. Routledge, (2016). pp
17-24.

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Beckman ombudsman are not effective as the person making a complaint has no control over
investigation as the ombudsman do not act specifically for the complainant and can even refuse
to deal with particular matters6. In addition the decisions which are made by ombudsman are not
binding decisions.
The law which governs the decisions and actions of government decision makers is
known as administrative law. Administrative actions, administrative decisions and administrative
law are similar terms which can be used simultaneously. The area of Administrative law also
covers the right of appealing against an administrative decision related to the question of
Administrative review. Administrative law is predominant in the society. It affects building
permits, car licensing, dog registration, water, sewerage, roads and mostly all sectors of society
are covered by administrative law and therefore its functioning have a significant effect on the
relationship between states and citizens.
The decision of the local Council to impose a charge for sewerage or road works, the
verdict of a government board towards acceptance rejection of an application related to the
registration of a graduate as a teacher and the decision to revoke or grant car license are all parts
of Administrative law. Administrative agencies work closely with the society as compared to the
Legislature. The decision which is taken by administrative officials has to be in accordance to the
existing laws. Although they have the power to make a decision their decisions cannot be
influenced by corruption or personal preferences. The decisions of any administrative body is
legally binding. However the citizens have the right to make an appeal against such decisions.
Appeals are usually made to an Administrative Tribunal which has the capacity to review the
merit of the decision. Further the decision of an Administrative Tribunal can be appealed against
6Beckman, Ludvig, and Fredrik Uggla. "An Ombudsman for Future Generations, Legitimate and Effective?."
(2016):pp 117-134.

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in court. In such circumstances the court does not have power to comment on the merit of the
decision made by administrative tribunals the court only analyses whether such decisions have
been made correctly in accordance to the laws or not. A person who has grievances against the
decision made by administrative body can make a complaint to ombudsman of the particular
state, administrative appeal to a tribunal, administrative review to a magistrate Court or Judicial
review to the Supreme Court7. In Tasmania particularly citizens can appeal at Resource
Management Planning and Appeal Tribunal and Tasmanian Public Housing Review Committee.
It has to be noted that decisions which are provided by the public housing cannot be reviewed by
the Supreme Court as they do not fall under the scope of Administrative decisions under the
Judicial Review Act 2000. A person who is affected by the decision of the administrative body
can make an appeal against the decision however in case the partner or ex-partner of such person
is affected by such decision substantially can also make an appeal. There are a few legislations
which provides that interested parties make an appeal against administrative bodies. For instance
as provided by the Ombudsman Act 1978 where there is a question with respect to the
jurisdiction of the ombudsman towards conducting an investigation into a complaint a party who
is interested make an application before the supreme court to determine the question related to
the jurisdiction8. Interested parties may include the administrative body, the principal officer of
the administrative body, the Minister who is responsible for the decision and any person who has
made the decision or the complaints9.
The need for administrative law and Society is very high. It is not possible for the
legislature to enact laws for each and every circumstances. The administrative bodies who deal
7Ombudsman, Commonwealth. "Commonwealth Ombudsman annual report 2015–16." (2017) pp 54-60.
8 B Etter, ‘ An Insight Into The Establishment of the Integrity Commission in Tasmania’ (2010 Public Lecture) pp 77-
82
9 R Snell and E Wells, ‘Serial Applicants – Troublesome Users and Abusers or Necessary Agitators’ (2006) AIAL
Forum Paper. Pp 333-343

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closely with the society understand the functioning of the society and are in a much better
position than the Legislature to handle the specific situation. However for a person to make a
review against in administrative body’s decision there must be appropriate grounds for making
such appeals10.
Speaking technically judicial functions are primarily vested in the courts. The
Commonwealth constitution does not follow the doctrine of separation of powers as quickly as it
is followed by other countries. In Australia judicial powers are vested in both Federal and state
courts however it is not compulsory that only these courts have the power to exercise judicial
functions. In Australia judicial powers are delegated to other bodies which do not fall within the
scope of ordinary courts. Administrative bodies can be better than ordinary quotes with respect
to disposing cases in a timely way. In addition adjudication of Administrative tribunals are much
cheaper as compared to court adjudication. The system of Administrative Agencies is flexible as
well as informal as compared to the stringent and rigid common court proceedings.
Administrative bodies or agencies usually have experts who have increased knowledge in a
particular field or domain and therefore they are in a better position to understand a particular
matter as compared to the judges in the court only have legal knowledge. However as provided
by Barnett administrative bodies suffer from a lack of legal expertise many members of the
administrative agencies are selected from diverse backgrounds and thus they do not have any
legal knowledge required to adjudicate disputes11. Moreover Rose et al. have provided that there
is always a fear of partiality with respect to the decision of Administrative agencies as most of
the members of Administrative tribunals add employees of various Agencies all offices and
therefore there decisions may not be particularly free and they may be bias or partial towards a
10 G Fleming, ’Civil Administration Review – Issues in Practice’ (2003 conference paper) pp 23-26
11Barnett, Hilaire. Constitutional and administrative law. Taylor & Francis, 2017. Pp 421-423

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particular agency12. The most debate full criticism provided against the system of Administrative
law is that it violates the doctrine of separation of powers as it is the quotes who have been
provided the authority to deal with legal matters.
Ombudsman is an initiative which would ensure that there is a body to supervise over the
decisions of Administrative bodies. In addition as a moment can carry out investigation in
relation to and administrative party without any complain there is always a fear in mind of the
administrative officials that a Watchdog is keeping an eye on the activities and therefore they
must act in accordance with law. For the purpose of promoting a healthy relationship between
the citizens and the state the proper functioning of the administrative bodies has to be insured.
Just and fair decisions provided by the administrative bodies would ensure that the faith of
people is entrusted into the governance of the state. Ombudsman is an efficient tool despite all
criticism to ensure proper functioning of the administrative bodies. This can be said because
even though the decisions of ombudsman and not binding the Parliament can take necessary
action against administrative bodies if proper proof is provided to it by the ombudsman. Even
though ombudsman do not investigate into specific matters the investigation can also be initiated
by them on their own therefore they are able to keep an eye on the functions of the administrative
bodies. Although ombudsman is a modest tool which does not have access to much power it has
significant influence on ensuring good administration, safeguarding human rights, preventing
corruption and initiating positive policy making. The most user friendly public administration is
brought into effect by the use of ombudsman as provided by Leyland13. Through the process of
Investigation and reviews ombudsman stop the violation of human rights and ensures
consequences for any violation. Through adding to the process of changing and formulating
12Rose-Ackerman, Susan, Peter L. Lindseth, and Blake Emerson, eds. Comparative administrative law. Edward
Elgar Publishing, 2017. Pp 199-210
13Leyland, Peter, and Gordon Anthony. Textbook on administrative law. Oxford University Press, 2016. Pp 34

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policies ombudsman makes a contribution towards removing any inefficiencies and deficiencies
related to the function of the state along with removal of any potential causes of social conflict. It
not only strengthens democracy but also modernizes state institution. However it is not easy to
measure how effective the work of an ombudsman is as the role played by him in the society
constitutes of many functions such as dealing with complaint, interventions, identification and
removal of irregularities, supervising the function of the state bodies and recommending a course
of action to enhance the functions of the state.
The concept of ombudsman and the principles of Administrative law must work hand in
hand in order to ensure that a healthy relationship is established between the citizens and the
state in the modern day. As administrative law is present in almost every part of the society there
may be situation giving rise to personal preferences and corruption taking over the duty to act in
accordance to the legal provisions. Such situations are addressed by an ombudsman so as to
trigger best quality pubic administration and healthy citizen and state relationships.

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Bibliography
Barnett, Hilaire. Constitutional and administrative law. Taylor & Francis, 2017.
Beckman, Ludvig, and Fredrik Uggla. "An Ombudsman for Future Generations, Legitimate and
Effective?." (2016): 117-134.
Buck, Trevor, and Richard Kirkham. The ombudsman enterprise and administrative justice.
Routledge, 2016.
G Fleming, ’Civil Administration Review – Issues in Practice’ (2003 conference paper)
Leyland, Peter, and Gordon Anthony. Textbook on administrative law. Oxford University Press,
2016
R McLead, ’25 Years of the Cth ombudsman’ (2002 Conference Presentation)
R Snell and E Wells, ‘Serial Applicants – Troublesome Users and Abusers or Necessary
Agitators’ (2006) AIAL Forum Paper.
R snell, Review of Ombudsman Act: Position Paper (2004)
Rose-Ackerman, Susan, Peter L. Lindseth, and Blake Emerson, eds. Comparative administrative
law. Edward Elgar Publishing, 2017.