Mandate

Frahm, Michael

doi:10.1007/978-3-642-33896-0_3

Michael Frahm²

602 Accesses

Abstract

The Paris Principles stipulate that an Institution should be given “as broad a mandate as possible […] specifying […] its sphere of competence.” While the Principles do not explicitly focus on the object of control, this may be derived from the specific responsibilities which shall include inter alia “legislative or administrative provisions”, “any situation of violation of human rights”, and “situations in any part of the country where human rights are violated”. Further, Institutions may “be authorized to hear and consider complaints and petitions concerning individual situations” and thus may make “recommendations to the competent authorities […]”. UN General Assembly Resolution 63/169 and UN General Assembly Resolution 65/207 both see the role of the Ombudsman in “promoting good governance in public administrations, as well as improving their relations with citizens, and in strengthening the delivery of public services.”

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Notes

1.
Paris Principles, “Competences and responsibilities”, paragraph 2.
2.
Paris Principles, “Competences and responsibilities”, paragraph 3.
3.
Paris Principles, “Additional principles concerning the status of commissions with quasi-judicial competence”, introductory paragraph and d).
4.
UN General Assembly Resolution 63/169, 2008, on the role of the Ombudsman, mediator and other national human rights institutions and protection of human rights, preamble; UN General Assembly Resolution 65/207, 2010, on the role of the Ombudsman, mediator and other national human rights institutions in the promotion and protection of human rights, preamble.
5.
Cf Sect. 1.2, p. 10 above.
6.
Cf the discussion in Buck et al. (2011), p. 7; cf also Reif (2004), p. 26 et seqq.
7.
Cf Reif (2004), p. 27.
8.
For a discussion of the definition, cf Keith (2005), Development of the role of the Ombudsman with reference to the Pacific. Speech held at the 22nd APOR Conference, p. 2 et seq.
9.
All Australian jurisdictions as well as Papua New Guinea, Taiwan and Vanuatu follow this model.
10.
Cf Sect. 3.1.2.4, p. 45 below for more details.
11.
Cook Islands, Hong Kong, New Zealand, Samoa and Tonga.
12.
Jurisdiction of the Commonwealth Ombudsman is limited to the central level. There are state/territory level Ombudsmen in all six Australian states as well as in the ACT and the Northern Territory.
13.
In New Zealand this competence extends to the national Intelligence Service.
14.
Cf Chap. 15, p. 199 for details.
15.
Cf the respective reports on different jurisdictions, Chaps. 7–22 for details.
16.
This is inter alia the case for the Ombudsman of the Australian Commonwealth, New South Wales, the Northern Territory, Tasmania and Western Australia. In New Zealand, for example, the Privacy Commissioner is competent, cf. http://privacy.org.nz/.
17.
Cf Stuhmcke (2008), p. 321 et seq.; Villar (2002), p. 5; and McLeod (2001), p. 361.
18.
This being said, from a human rights and democracy perspective, many questions are connected with the outsourcing of government functions and public private partnerships. Cf inter alia Stuhmcke (2008), p. 322 and McLeod (2001), p. 362 et seq.
19.
All Institutions examined were asked for information on who supplies these services and whether or not the provider is under the Institution’s jurisdiction.
20.
All the following data does not include the Cook Islands, as the Institution there has not responded to this question.
21.
In Papua New Guinea and Vanuatu, the Ombudsman has no jurisdiction. No clear answers can be provided for Samoa and Tonga.
22.
In Papua New Guinea and Vanuatu, the Ombudsman has no jurisdiction.
23.
No such services are provided in Papua New Guinea, Samoa, Tonga and Vanuatu.
24.
In Australia, the Postal Industry Ombudsman is competent, acting in personal union with the Commonwealth Ombudsman.
25.
In Vanuatu, the Ombudsman has no jurisdiction.
26.
Railway services do not exist or are not under the Ombudsman’s jurisdiction in Hong Kong, Papua New Guinea, Samoa, Tonga and Vanuatu.
27.
The ACT, New South Wales and Queensland have established Public Health Complaints Commissions that are competent to investigate complaints with regards to these services.
28.
In the ACT, an individual can turn to the ACT Civil and Administrative Tribunal. In New South Wales and Queensland it is the Energy and Water Ombudsman that has jurisdiction. In Vanuatu the Ombudsman has no jurisdiction in this field.
29.
The Ombudsman is competent in the Northern Territory, Victoria (for public sector agencies), Papua New Guinea, Samoa, Taiwan and Tonga. In the ACT, it is again the ACT Civil and Administrative Tribunal that is competent. The Ombudsman has no jurisdiction in Hong Kong and Vanuatu; there is no information whether another body is competent to investigate complaints.
30.
Specialised Public Ombudsmen exist in Queensland, Tasmania and Western Australia.
31.
Private Industry Ombudsmen exist in New South Wales, South Australia and Victoria (for private sector agencies), while in New Zealand a private Electricity and Gas Complaints Commissioner Scheme provides for a complaints mechanism.
32.
As Cook Islands’ law is silent in this regard, it remains unclear whether such a right exists. There has been no response to this question from Tonga.
33.
The Australian Commonwealth Ombudsman may also undertake unannounced visits to detention facilities, cf Chap. 7, p. 111.
34.
Cf Chap. 18, p. 240 for more details.
35.
Cf Chap. 112 , p. 4 above for details.
36.
Cf Reif (2004), p. 13 for details.
37.
Cf report on Taiwan, Chap. 20, p. 257 below for details.
38.
Cf ibid.
39.
Cf s16(3) OA (Northern Territory).
40.
Tribunals include the Lands, Planning and Mining Tribunal and the Mental Health Review Tribunal, cf www.nt.gov.au/justice/ntmc/about.shtml for details.
41.
Cf reports on Papua New Guinea, Chap. 18, p. 235 and Vanuatu, Chap. 22; p. 283 for details.
42.
The term “leaders” is defined accordingly in the Constitution of Papua New Guinea, cf. Art.221 Constitution.
43.
Cf Owen (1999), p. 63.
44.
Australian Commonwealth.
45.
Cook Islands and New Zealand.
46.
New Zealand.
47.
South Australia. According to information provided by the Institution; cf s3(1)(c) OA (South Australia).
48.
Cf report on Victoria, Chap. 13, p. 177 and s57 FOIA (Victoria) for more details.
49.
Cf Sect. 2.2.2, p. 24 above.
50.
Cf Kucsko-Stadlmayer (2008), p. 30.
51.
Cf Sect. 4.1.3.1, p. 74 for more details on legislative initiatives.
52.
According to information provided by the Institution.
53.
Cf report on Taiwan, Chap. 20, p. 257 for details.
54.
Paris Principles, “Competences and responsibilities”, paragraph 2.
55.
Paris Principles, “Competences and responsibilities”, paragraph 3(a).
56.
UN General Assembly Resolution 63/169, 2008, on the role of the Ombudsman, mediator and other national human rights institutions and protection of human rights, preamble, and UN General Assembly Resolution 65/207, 2010, on the role of the Ombudsman, mediator and other national human rights institutions in the promotion and protection of human rights, preamble.
57.
UN General Assembly Resolution 63/169, 2008, on the role of the Ombudsman, mediator and other national human rights institutions and protection of human rights, paragraph 2(b).
58.
UN General Assembly Resolution 63/172, 2008, on national institutions for the promotion and protection of human rights, paragraph 12.
59.
UN General Assembly Resolution 65/207, 2010, on the role of the Ombudsman, mediator and other national human rights institutions in the promotion and protection of human rights, preamble.
60.
UN General Assembly Resolution 65/207, 2010, on the role of the Ombudsman, mediator and other national human rights institutions in the promotion and protection of human rights, paragraph 6(a).
61.
Cf Pearce (1999), p. 86 et seq.
62.
This includes all jurisdictions except for Hong Kong and Taiwan, see footnote below.
63.
In Hong Kong the law uses the term “maladministration” which is further specified in the Definition Chapter. In Taiwan, the Constitution requires the Control Yuan to investigate whether there has been any “violation of law or “dereliction of duty”.
64.
This is the case in Papua New Guinea and Victoria, cf Chap. 18, p. 235 and Chap. 13, p. 177 for more details.
65.
Cf Gregory (1999), p. 139 who discusses the term “maladministration”.
66.
Cf Keith (2005), Development of the role of the Ombudsman with reference to the Pacific, speech held at the 22nd APOR Conference, p. 2.
67.
In case of a dispute, the question can be put before the highest court for decision in most jurisdictions, cf Sect. 4.1.3.1, p. 74 for details.
68.
Cf e.g. s15(1) OA (Commonwealth).
69.
Cf Cooray (2000), p. 77.
70.
Cf s2(1) OO (Hong Kong).
71.
Cf Sect. 4.1.2.1, p. 66.
72.
Quotes from the legislation in New Zealand, New South Wales and the Northern Territory, used as examples for all the legislations that use the same or similar wording. Cf also Pearce (2000), p. 97 et seq. and Gregory (1999), p. 142.
73.
For a discussion of the term good governance cf p. 8 et seq. Cf also Chen (2010), p. 726 et seq.
74.
The Commonwealth Heads of Government advocate good governance and endorsed the “Framework for Principles for Promoting Good Governance and Combating Corruption” in the Durban Communiqué 1999. The Framework refers in paragraph 21 to the importance of Ombudsmen vested with an anti-corruption mandate in combating poor governance.
75.
Cf Reif (2004), p. 63 and p. 78 et seq. for more details on the concept of good governance.
76.
Cf Gregory (1999), p. 144.
77.
Motives are often implied by a law or regulation and must be accurately deduced by those who apply the law.
78.
Except for the legality of an action, cf Sect. 3.2.3, p. 51.
79.
This criterion is not explicit part of the standard of control in s22 of the Ombudsman Act (New Zealand).
80.
Cf www.britannica.com/EBchecked/topic/406273/natural-justice .
81.
Cf s34(1) LCA (Vanuatu) which stipulates “contrary to natural justice”.
82.
Cf s7(1)(b)(i) OO (Hong Kong).
83.
The legal definition of maladministration includes “unreasonable conduct, including delay, discourtesy and lack of consideration for a person affected by any action, abuse of any power (including any discretionary power) or authority […] or unreasonable, unjust, oppressive or improperly discriminatory procedures,” cf. s2(1) OO (Hong Kong).
84.
Cf Sect. 3.2.4, p. 51.
85.
The concept of good governance was originally developed by the World Bank in a very different context — that of development aid and economic reforms. Back then, good governance was the opposite of what was considered poor or bad governance in many partner countries in the global South. Cf Reif (2004), p. 62 et seq.
86.
Cf Kucsko-Stadlmayer (2008), p. 33 for details; she refers to “good administration” in this context. Cf also Kofler (2008), who states that the Ombudsman in the UK “investigates instances of maladministration,” a term not further defined by law, p. 435.
87.
The standard of control is stipulated in the Constitution.
88.
Cf Annual Report of the Secretary General of the UN 1997, UN Doc A/52/1, paragraph 27, (www.un.org/Docs/SG/Report97/97rep2.htm#A ). Cf also Reif (2004), p. 64 et seqq.
89.
Cf Sect. 3.2.4, p. 51 above.
90.
Cf also Reif (1999), p. 282; Reif (2004), p. 86 and Oosting cited in Reif (1999), p. 282.
91.
Taiwan has ratified the Covenants, but the deposit was rejected by the UN. Cf Liao (2001), p. 90 for more details on Taiwan and international human rights treaties. The Cook Islands are not a signatory but bound by virtue of their association with New Zealand.
92.
Reif (1999), p. 281.
93.
Cf Reif (2004), p. 87 et seq.
94.
Cf art. 219(1)(a) Constitution (Papua New Guinea).
95.
Cf s40 Human Rights Act (ACT) 2004.
96.
Cf Reif (2011), p. 278 and s13(1A) OA (Victoria).
97.
This competence includes all levels of government both central level and local level.
98.
Cf report on Taiwan, Chap. 20, p. 263.
99.
By way of this Act, the provisions of both covenants become binding law in Taiwan although Taiwan is not a UN member.
100.
Cf p. 61 and 82 for more details.
101.
The Institution is involved in the Government’s establishing of a Human Rights Commission, in conformity with the Paris Principles. It can be expected that in the future this Commission will adequately exercise monitoring functions.
102.
Cf s41 Charter of Human Rights and Responsibilities Act 2006 (Victoria).
103.
Cf report on Samoa, Chap. 19, p. 249 for more details.
104.
Australia has signed but not yet ratified, cf report on the Commonwealth Ombudsman, Chap. 7, p. 101 for more details; Taiwan may pass legislation to implement OPCAT in the future according to information provided by the Control Yuan. Such legislation would make the provisions of the OPCAT become binding law in Taiwan although Taiwan is not a UN member.
105.
The OPCAT requires signatories to establish fully independent National Preventive Mechanisms (NPMs) to prevent torture and ill-treatment, cf 4.1.3.9, p. 79.
106.
Cf art. 33 UN Convention of the Rights of Persons with Disabilities (CRPD).
107.
The CRPD entered into force on 3 May 2008.
108.
By way of this Act, the provisions of the Convention become binding law in Taiwan although Taiwan is not a UN member. In addition to the 2009 Act implementing the ICESCR and the ICCPR, cf p. 55 above.
109.
Similarly, also by way of such Act, the provisions of the CEDAW would become binding law in Taiwan although Taiwan is not a UN member. Information on these plans of the Parliament was provided by the Institution.
110.
This is stipulated in the Rules Governing the Establishment of the Human Rights Protection Committee, which are based on the Organic Law of the Control Yuan.
111.
UNDP (2005), p. 109 et seq.
112.
Paris Principles, “Competences and responsibilities”, paragraph 2.
113.
Paris Principles, “Methods of operation”, paragraph (b).
114.
Paris Principles, “Additional principles concerning the status of commissions with quasi-jurisdictional competences, paragraph (b).
115.
Paris Principles, “Additional principles concerning the status of commissions with quasi-jurisdictional competences, paragraph (c).
116.
UN General Assembly Resolution 63/169, 2008, on the role of the Ombudsman, mediator and
other national human rights institutions and protection of human rights, paragraph 2(b).
117.
UN General Assembly Resolution 65/207, 2010, on the role of the Ombudsman, mediator and other national human rights institutions in the promotion and protection of human rights, preamble.
118.
UN General Assembly Resolution 65/207, 2010, on the role of the Ombudsman, mediator and other national human rights institutions in the promotion and protection of human rights, paragraph 6(a).
119.
Cf p. 6 for more details.
120.
Cf Gregory (1999), p. 136 et seq. and Groves (2002), p. 195.
121.
Only the Commonwealth Ombudsman and the Institutions in New Zealand and Papua New Guinea have regional sub-offices.
122.
Cf Grooves (2002), p. 196 for more details on the activities of the Ombudsmen in Australia.
123.
No information can be given for Tonga and Vanuatu. In other jurisdictions, access is ensured.
124.
Opening hours are usually from between 9 and 10 am to 5 pm (Monday to Friday).
125.
However, the New South Wales Ombudsman has discretion to also accept complaints filed orally.
126.
The Samoan Ombudsman offers support if a person has difficulties in putting the complaint in writing.
127.
In all other Australian jurisdictions, the Ombudsmen offer translation services, partly by using a telephone translation service for non-English speakers. The same goes for the New Zealand, Hong Kong and Taiwan Institutions.
128.
Although the law sometimes allows this, all Institutions reported that de facto no such fee is levied. E.g. the Hong Kong law allows the levying of a fee and the Ombudsman Act in Samoa explicitly foresees a fee. However, no fee has ever been levied upon a complainant.
129.
The Ombudsman Act (New South Wales) even stipulates that a public authority may also file a complaint, cf. s12(1) OA (New South Wales).
130.
This is the case in Hong Kong, the Northern Territory, Victoria and Western Australia.
131.
Cf s11(6)(a) Ombudsman Act (Samoa).
132.
This also goes for a complaint made by a third party if there is “no substantive issue” or if there is “no first-hand evidence about the subject matter”, cf (s33(c)-(e) OA (Northern Territory).
133.
Cf s16(3) OLOC (Papua New Guinea).
134.
Sources typically include press and television as well as individual complaints.
135.
Cf Kucsko-Stadlmayer (2008), p. 21.
136.
In Hong Kong, the latter case is specifically addressed in the law, which stipulates that, if a complainant withdraws a complaint, the Ombudsman shall determine whether it is in the public interest to continue the investigation, s11 OO (Hong Kong).
137.
Cf p. 82 for more details on the investigation of systemic flaws.
138.
Cf inter alia Creyke (2007), p. 705 et seqq. and Stuhmcke (2010), p.143 et seqq. for details.
139.
Cf Creyke, ibid.
140.
Cf Creyke, ibid.
141.
Cf Stuhmcke (2010), p. 144 and Buck et al. (2011), p. 138.
142.
The Control Yuan was established for this purpose, cf report on Taiwan, Chap. 20, p. 257 for more details on the background of Taiwan’s five-power system.
143.
Own motion investigations may be carried out by another organisation on behalf of the Control Yuan, by one of its Committees, or by a Control Yuan member.
144.
Cf report on Taiwan, Chap. 20, p. 257 for details.
145.
According to Stuhmcke, in the 1960s and 1970s parliamentary debates in the Australian Commonwealth, there has been the clear picture that the Ombudsman’s role is to focus on addressing individual complaints, cf Stuhmcke (2010), p. 147 et seq.
146.
Cf Stuhmcke (2010), p. 159.
147.
Cf Stuhmcke (2010), tables on p. 151 and 153.
148.
Cf Buck et al. (2011), p. 134 et seq. who reports the same for the United Kingdom.
149.
Cf Stuhmcke (2010), p. 152.
150.
Cf Stuhmcke (2010), p. 152.
151.
In Vanuatu, a Minister, a Member of Parliament, the National Council of Chiefs or a Local Government Council may refer a subject matter to the Ombudsman for investigation.
152.
In New Zealand it needs the approval of the Chief Ombudsman.

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Ludwig Boltzmann Institute of Human Rights, Vienna, Austria
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Frahm, M. (2013). Mandate. In: Australasia and Pacific Ombudsman Institutions. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-33896-0_3

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