Elizabeth Proust announcing the independent corruption commission. Photo: Angela Wylie

The creation of an independent corruption commission in Victoria features new oversight institutions, and affects the state’s existing integrity bodies, none more so than the Victorian Ombudsman.

The Ombudsman’s stated mission is to promote integrity, fairness, accountability and transparency. Legislation gives the Ombudsman wide discretion to perform this role. The current holder of the office, a man strongly assertive of his independence, has used this discretion to expand the number and scope of the investigations he initiates unilaterally, or on his “own motion”.

Beginning with a complaints handling role, the Ombudsman’s territory has expanded in the past decades such that it now overlaps with the Auditor-General’s, and resembles corruption commissions in other states. The Ombudsman’s own accountability framework, however, has not kept up with the expansion of his role.

Compared with the Auditor-General, the Ombudsman has much less interaction with parliament, and his methods are much less transparent. Often, the Ombudsman’s investigative criteria are unclear, and his conclusions idiosyncratic. Without more transparency, the Ombudsman is vulnerable to the charge that criteria are jerry built for each investigation.

Since 2007, the Ombudsman has published an “output statement” on the quality, quantity and timeliness of his activities. Initially, and with some audacity, he reported a single quality measure in the statement: the level of his own satisfaction with his inspections, monitoring and complaints resolution processes. On this “quality” measure, the Ombudsman scored 100 per cent against a target of 100 per cent.

Perhaps sensing an inherent conflict of interest, the Ombudsman dropped the satisfaction measure the following year in favour of three quality measures. Only one related directly to his own-motion investigations: “Proportion of recommendations emanating from own motion investigations, which are accepted and implemented by the entities concerned.” To complement this measure, in February this year the Ombudsman began reporting more extensively on actions taken to implement his recommendations.

Though not without value, this information is of little use to those who wish to know if the Ombudsman’s recommendations were challenging and well targeted, if his findings were reliable and well founded, how he exercised his judgment and discretion, and how often he “got it wrong”.

Of all Victoria’s watchdogs, the Ombudsman has been most ready to name and criticise individuals. This helps make his reports compelling reading. It also means he causes greater harm when he errs.

The Proust model would bring the Ombudsman’s accountability framework into line with the Auditor-General’s. A new parliamentary committee would oversee the Ombudsman and the new Victorian Integrity and Anti-Corruption Commission. The Ombudsman’s jurisdiction would be clarified, and he would cede jurisdiction over serious public sector misconduct to the new commission.

Importantly, the Ombudsman, Auditor-General and the commission would participate in an Integrity Co-ordination Board that would aim to reduce the current investigative duplication, and facilitate joint investigations. Like the Auditor-General, the Ombudsman would also be subject to three-yearly performance audits to determine if he is carrying out his functions efficiently and appropriately.

Around the world, much that is done in the name of public sector scrutiny is little more than puff and showbusiness. By requiring the Ombudsman to be more transparent and accountable about his performance and methods, it will be easier for Victorians to know when he is serving our interests, and when he is engaging in accountability theatre.

Stuart Kells is a former assistant auditor-general in the Victorian Auditor-General’s Office, and is a member of the Centre for Regulatory Studies in the faculty of law at Monash University.

Ombudsman the biggest loser in anti-corruption shake-up

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