The common law theory and practice of the ombudsman/judiciary relationship

Kirkham, R; Stuhmcke, A

The common law theory and practice of the ombudsman/judiciary relationship

Kirkham, R Stuhmcke, A

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Publisher:: SAGE Publications
Publication Type:: Journal Article
Citation:: Common Law World Review, 2020, 49, (1), pp. 56-74
Issue Date:: 2020-03

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Field	Value	Language
dc.contributor.author	Kirkham, R
dc.contributor.author	Stuhmcke, A https://orcid.org/0000-0002-3679-7301
dc.date.accessioned	2020-12-18T00:54:00Z
dc.date.available	2020-12-18T00:54:00Z
dc.date.issued	2020-03
dc.identifier.citation	Common Law World Review, 2020, 49, (1), pp. 56-74
dc.identifier.issn	1473-7795
dc.identifier.issn	1740-5556
dc.identifier.uri	http://hdl.handle.net/10453/144823
dc.description.abstract	<jats:p> In both Australia and the United Kingdom, the ombudsman sector plays a specific role in the oversight of the administration of government, but there exists no clear overarching theoretical framework within which the institution is aligned with common law constitutionalism. An ombudsman’s functionality is secured by gaining legal authority from parliament and effective power through executive acquiescence, but simultaneously to function effectively it must maintain a degree of separation from the executive and parliament. This situation creates a regulatory gap which the courts fill by acting in a supervisory relationship over the ombudsman sector. In turn, this raises the danger that the legitimacy gained through judicial oversight results in a loss of flexibility and uniqueness in the ombudsman institution. Through an empirical study of the case law on the sector, this article confirms that the courts have shaped and legitimised the role of the ombudsman institution under the common law constitution. Yet this study also suggests that there is a risk that over-reliance upon the judiciary to perform a retrospective, reactive and intermittent control function can lead to an inappropriate imposition of judicial values on the ombudsman sector as well as the courts performing an unsuited regulatory role. </jats:p>
dc.language	en
dc.publisher	SAGE Publications
dc.relation.ispartof	Common Law World Review
dc.relation.isbasedon	10.1177/1473779520904963
dc.rights	info:eu-repo/semantics/restrictedAccess
dc.subject	1801 Law
dc.title	The common law theory and practice of the ombudsman/judiciary relationship
dc.type	Journal Article
utslib.citation.volume	49
utslib.for	1801 Law
pubs.organisational-group	/University of Technology Sydney/Faculty of Law
pubs.organisational-group	/University of Technology Sydney/Strength - HJ - Health Justice
pubs.organisational-group	/University of Technology Sydney
utslib.copyright.status	closed_access	*
pubs.consider-herdc	true
dc.date.updated	2020-12-18T00:53:50Z
pubs.issue	1
pubs.publication-status	Published
pubs.volume	49
utslib.citation.issue	1

Abstract:

In both Australia and the United Kingdom, the ombudsman sector plays a specific role in the oversight of the administration of government, but there exists no clear overarching theoretical framework within which the institution is aligned with common law constitutionalism. An ombudsman’s functionality is secured by gaining legal authority from parliament and effective power through executive acquiescence, but simultaneously to function effectively it must maintain a degree of separation from the executive and parliament. This situation creates a regulatory gap which the courts fill by acting in a supervisory relationship over the ombudsman sector. In turn, this raises the danger that the legitimacy gained through judicial oversight results in a loss of flexibility and uniqueness in the ombudsman institution. Through an empirical study of the case law on the sector, this article confirms that the courts have shaped and legitimised the role of the ombudsman institution under the common law constitution. Yet this study also suggests that there is a risk that over-reliance upon the judiciary to perform a retrospective, reactive and intermittent control function can lead to an inappropriate imposition of judicial values on the ombudsman sector as well as the courts performing an unsuited regulatory role.

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http://hdl.handle.net/10453/144823