Commonwealth Ombudsman Annual Report 2003-04 | Chapter 5

CHAPTER 5 | looking at the agencies

Introduction

The majority of complaints received by the Ombudsman (78% of those received in 2003–04) concern five Australian Government departments and agencies—Centrelink, the Child Support Agency, the Australian Taxation Office, Australia Post and the Department of Immigration and Multicultural and Indigenous Affairs. This chapter focuses on particular issues that arose during the year in investigating complaints about these agencies. As well, the chapter looks at three other special areas of complaint work: complaints about the Australian Defence Force, handled by the Ombudsman discharging the role of Defence Force Ombudsman; complaints about the Australian Federal Police, handled under the Complaints (Australian Federal Police) Act 1981; and complaints about the handling by agencies of Freedom of Information requests.

While the discussion and analysis of complaints arising in specific areas of government illustrates the work of the Ombudsman, it does not fully portray the work of the office. The issues raised in complaints to the Ombudsman are mostly about difficulties that arise between people and government generally rather than about specific problem areas. Some of these general themes are taken up in other chapters of this report (such as 'How the Ombudsman helped people' and 'Problem areas in government decision making'). Examples of difficulties that commonly arise are inadequate explanation of adverse decisions, deficient record keeping, delay in decision making, and discourtesy by agency officers.

The focus of this chapter on complaints against specific agencies does not by itself accurately portray the standard of administration in those agencies. Issues have been selected in part to show the aspects of government about which people complain to the Ombudsman. Not surprisingly, those complaints are more likely to target the agencies that deal more frequently with the public. While complaints to the Ombudsman are only a minor fraction of the decisions and actions taken each year by government agencies, they illustrate the difficulties that people face in dealing with government and to that extent provide valuable insight into the operation of government in Australia.

Figure 5.1 shows the proportion of complaints received by the Ombudsman from particular agencies.

FIGURE 5.1Complaints received, by agency, 2003–04

FIGURE 5.1 Complaints received, by agency, 2003–04

Australia Post

The jurisdiction of the Commonwealth Ombudsman to investigate complaints against Australia Post is poised to undergo an important transformation in 2004–05. Legislation to create a separate office of Postal Industry Ombudsman was due to be introduced into the Parliament in August 2004, with a view to commencement in 2005 if enacted. A key aspect of the government proposal for a Postal Industry Ombudsman is to confer the role upon the Commonwealth Ombudsman. Additional resources for this office to perform the role were allocated in the 2004–05 Budget.

While the Commonwealth Ombudsman's role in relation to Australia Post will continue, in some respects it will become a different role. The proposed jurisdiction of a Postal Industry Ombudsman will extend to private sector postal operators that register to participate in the Postal Industry Ombudsman scheme. This scheme is distinctive in conferring jurisdiction upon a single ombudsman to handle complaints in the public and private sectors. This also reflects the commercial focus in Australia Post operations, which in turn has to be reflected in the approach to complaint handling taken by the Ombudsman.

'The proposed jurisdiction of a Postal Industry Ombudsman will extend to private sector postal operators …'

A separate office of Postal Industry Ombudsman will be expected to develop its own profile, and to be widely known as such by postal consumers. As an aspect of that challenge, it is envisaged that future reporting on complaints against Australia Post will be dealt with in a separate Postal Industry Ombudsman annual report. It is likely, however, that residual areas of jurisdiction over Australia Post will remain within the office of the Commonwealth Ombudsman. A possible example is Freedom of Information matters.

In 2003–04, the Commonwealth Ombudsman received 1,079 complaints about Australia Post, compared to 1,082 in the previous year. Complaint numbers have been relatively stable over the past five years, apart from 2001–02 when there was a marked decrease (896 complaints). Figure 5.2 shows the complaint trends since 1999–2000.

FIGURE 5.2 Australia Post complaint trends, 1999–2004

FIGURE 5.2 Australia Post complaint trends, 1999–2004

The point has been made in earlier reports of the Commonwealth Ombudsman that the number of complaints received each year against Australia Post constitutes only a small percentage of total postal transactions (which reach as many as 50 million per day prior to Christmas). Most of the problems and complaints that arise are dealt with by Customer Complaint Centres established by Australia Post in each State and Territory. Our impression is that Australia Post's complaint handling is well managed, and in some instances the response to individual complaints exceeded what we consider was required under Australia Post's service obligations. However, no system is perfect, and occasions arose on which we formed the view that Australia Post might have handled a complaint differently or better.

In 2003–04, as in previous years, the complaints to the Ombudsman dealt mostly with domestic, international or parcel post mail deliveries: these accounted for roughly three-quarters of complaints.

Mail redirection featured as an ongoing issue, particularly where a customer's instructions on a mail redirection form were not properly followed. Australia Post addressed this issue during the year by introducing further improvements to forms to bring greater certainty and clarity to customers' requirements and expectations.

'… complaints to the Ombudsman dealt mostly with domestic, international or parcel post mail deliveries …'

Another topic that attracted some complaints during the year was Australia Post's Unaddressed Delivery Service. Australia Post delivers unaddressed advertising items (letters, mail, catalogues etc) to delivery points and letterboxes within a specified geographical area. There is no delivery confirmation for what Australia Post describes as a 'no-frills' service. When there is a dispute, it is generally only Australia Post that can determine whether all the items have been delivered. Given the low cost of the service, Australia Post is not inclined to commit resources to a 'thorough' investigation. In these circumstances, we had discussions with Australia Post about the level and type of investigation its customers might reasonably expect about their complaints.

Several complaints were received about cash-on-delivery items. Australia Post had taken the view that it would breach privacy principles if a customer were permitted to inspect an item before deciding whether to make a payment. We took a different view, and pointed to a section in the postal legislation stating that information clearly visible on the outside cover of an article is not specifically protected. We could not, therefore, see why a postal outlet customer should not have the opportunity to view an item prior to paying. Following our investigation of one such complaint, Australia Post agreed and amended its practices relating to inspection of items before payment is made.

Another complaint that resulted in a substantial response from Australia Post concerned the packaging of compact discs (CDs). The problem is that CD Mailers are on the margin of meeting the 20 mm limit for the large letter rate rather than the small parcel rate. Some packages were charged at the lower price and others at the higher rate, even though CD Mailers were identified in Australia Post literature as below the 20 mm limit. Australia Post responded to these complaints in a number of ways, including a refund in some cases, issuing a national instruction to all retail staff, providing better instructions to suppliers, addressing the issue specifically in training programs, redesigning the CD Mailer product, and tightening the procedures for measuring CD Mailer products. Our expectation is that these changes to products and practices should significantly reduce the potential for inconsistencies in charging.

Discretionary payment of compensation to individuals on a case-by-case basis is another theme in Ombudsman investigations of Australia Post complaints. This issue arises less frequently in relation to other government agencies, where complaints more commonly deal with decisions about entitlements, allowances and payments in accordance with legislation and policy. Australia Post, by contrast, is more likely to provide discretionary compensation as a remedy to a problem or complaint. In turn, this places an onus on Australia Post to be consistent in the exercise of that discretion. During the year, we took up the greater problem of inconsistency where the decision on compensation was made by an area within Australia Post other than the Customer Contact Centres.

Australian Taxation Office

Under section 4(3) of the Ombudsman Act 1976, the Commonwealth Ombudsman is also the Taxation Ombudsman when dealing with complaints about the Australian Taxation Office (ATO).

The ATO is primarily responsible for administering Australian Government taxation legislation and collecting Commonwealth revenue. Under the self-assessment system of taxation which we have in Australia—that is, where the taxpayer is responsible for the accuracy of his or her own taxation assessment—the ATO has increasingly taken on the role of providing accurate and timely information to taxpayers (and tax agents) to enable them to comply with the law. The ATO also administers some other non-taxation legislation, such as the Superannuation Guarantee Charge Act 1992.

Inspector-General of Taxation

The 2003–04 financial year was the first year of operation for the Inspector-General of Taxation (IGT), whose focus is on tax systems review. The Taxation Ombudsman continues to be the only external complaint-handling agency for taxpayers with complaints about the ATO. We will also continue to identify systemic issues and remedies that flow from individual complaints and to conduct own motion investigations. To avoid any duplication in our work, we will maintain regular liaison with the IGT.

Liaison with ATO

During the year, we continued to benefit from effective working arrangements with the ATO. We met regularly to discuss issues raised by complaints, such as a complaint about the ATO's handling of test and lead case litigation. The ATO accepted that, where arrangements had been reached with third parties concerning litigation involving individual taxpayers, it was important to keep the individual taxpayers informed of significant developments relating to that litigation. In a particular case raised, the ATO acknowledged that this had not been done, and indicated that it would be open to providing realistic compensation by settling with the individual taxpayer concerned.

'… it was important to keep the individual taxpayers informed of significant developments relating to test and lead case litigation.'

The ATO briefed Ombudsman staff about a range of activities, including the compliance and debt recovery areas, and alerted us to incidents that might generate complaints. In each case brought to our attention, the ATO initiated steps to mitigate the risk of complaints and provided specific high-level briefings to the Special Tax Adviser and Tax Team staff. This provided us with up-to-date information, enabling our staff to respond effectively to these complaints.

We also contributed to the ATO's consideration of integrity issues through the Special Tax Adviser's attendance at the ATO's Integrity Advisory Committee.

We further refined arrangements between the ATO and ourselves to assist in:

improving response times to ensure that we can shorten the time required to resolve complaints
referring complainants directly to the appropriate person at the ATO to ensure complaints are dealt with efficiently.

ATO complaint handling

In our 2002–03 annual report, we advised that the Commissioner of Taxation had accepted all of the recommendations in our own motion investigation report on complaint handling in the ATO. During 2003–04, we worked with the ATO on implementing these recommendations, particularly towards the ATO developing a single ATO-wide complaint-handling and recording system. The new system is to be in place by late November 2004, and should dramatically improve the ATO's ability to track and manage complaints. It should also result in some flow-on effects on the complaints we currently refer to the ATO, as well as on our own investigations.

Complaints overview

In 2003–04, the Ombudsman received 1,711 complaints about the ATO, compared with 1,909 the previous year (see Figure 5.3). There has been a steady reduction in the number of complaints about the ATO since 2000–01, due primarily to the declining number of complaints related to mass-marketed schemes and the bedding down of the new tax system. The office finalised 1,904 individual complaint issues, of which 24% were investigated; error or deficiency by the ATO was found in 17% of the cases investigated.

FIGURE 5.3Australian Taxation Office complaint trends, 1999–2004

FIGURE 5.3 Australian Taxation Office complaint trends, 1999–2004

Complaints were received about a wide range of issues. Some of the more prominent complaint issues are covered below, and include active compliance and debt recovery, 'competitive edge' issues, tax relief, the impact of changing demographics, the GST, the TaxPack and mass-marketed schemes.

Active compliance and debt recovery

During the year, there was a decrease in the number of audit and debt recovery complaints coming to the Ombudsman, from 575 in 2002–03 to 457. This decrease was unexpected, given that the ATO increased its focus on compliance, and suggests that the ATO has improved its handling of audit and debt collection matters. Our investigation of cases found no evidence of improper or over-zealous action by tax officers. We were able to assist taxpayers by expediting completion of audits and advising people on their options about ATO recovery action against a tax debt.

The Commissioner of Taxation advised us that the ATO would continue actively to pursue outstanding tax debts. This may result in an increase in the number of bankruptcies and insolvencies. Although we appreciate the Commissioner's obligations to the community as a whole to ensure that tax properly due and payable is collected, we are mindful of the human element involved. We can intervene where we consider the effects of ATO recovery action to be unjust or oppressive. The use of legal action, including bankruptcy or insolvency, to recover an outstanding tax debt is not in itself unreasonable, unjust or oppressive. We will continue our important work in this area to provide assurance to taxpayers, the ATO, and the community more generally.

Compliance—'competitive edge' issues

ATO compliance activity during the year led to some complaints raising 'competitive edge' issues. The concern is that not all taxpayers in the same industry are being targeted by the ATO. For example, we received a complaint from a tax agent concerned about an audit of his clients and subsequent tax adjustments. The audit in question was based on random selection and related to the taxation of incentives that some greeting card suppliers give to newsagencies and other similar businesses. The agent considered that the ATO attention given to his clients was unfair and that failure to enforce against others in the industry put his clients at a competitive disadvantage.

The ATO was able to satisfy us that there was no evidence of a widespread practice of failure to make relevant disclosure in tax returns. As a result of the complaint, the ATO decided to focus specifically on incentives from greeting card suppliers to newsagencies and other similar businesses, including rebates and non-cash benefits relating to quantity purchases.

Following several complaints we received last year about 'competitive edge' issues stemming from GST rulings, we received two complaints from companies that conduct title searches about the application of GST to the information-broking industry. The complainants were concerned that GST did not apply to entities that were performing a search function but were not brokers. They also complained the ATO would not advise them of any steps it might be taking on the compliance front.

On the basis of our inquiries, we were satisfied that the ATO consulted the industry, was seeking to apply the law with proper regard to the particular facts of relevant transactions, and was taking appropriate steps to educate the industry and to ensure compliance. We noted that the ATO is required to comply with stringent secrecy provisions as well as privacy legislation, and concluded that there was no basis for us to be critical of the ATO for declining to provide details to the complainants about specific compliance activities.

'… we were satisfied that the ATO consulted the industry ... and was taking appropriate steps to ensure compliance.'

Tax relief

In September 2003, an important change was made to the way in which taxpayers can seek relief from their tax debts on the grounds of serious hardship. The Taxation Relief Board was abolished and replaced by a system that allows taxpayers to seek relief by submitting a simple application to the ATO. The reforms also created a right to object to the ATO's decisions on relief, with a flow-on right of review by the Small Taxation Claims Tribunal. These reforms should streamline the process of seeking relief, with gains in both timeliness and accountability.

Impact of changing demographics in Australia

There was much policy debate during the year about the impact of changing demographics in Australia and the 'ageing' of the population. A number of cases we received highlighted an administrative issue that will be an increasing challenge for the ATO in response to this demographic change.

For example, in one case, a complaint from an elderly self-funded retired couple stemmed from their confusion about the reasons for the wife's inclusion in the PAYG instalment system. Despite a number of telephone conversations with ATO staff, the couple apparently did not understand the new system. As a result of our inquiries the ATO wrote to the taxpayer advising how the PAYG instalment system applied in the specific circumstances, explaining in simple terms the criteria for annual PAYG instalments and clarifying which notices had been sent to her. The ATO also invited the taxpayer to telephone a specified contact officer for further clarification.

The growing administrative challenge for the ATO arises from the convergence of a number of factors, including:

the ageing population and likely increase in age-related illness
an increasing emphasis on fully or partly self-funded retirement
the current complexity of the tax system
the nature of the self-assessment regime.

After we raised the general issue, the ATO advised that it was conscious of the demographic changes, having already identified seniors as a population segment requiring increasing support. It is also moving to adopt a range of products, services and strategies to target and assist that section of the community. The ATO also accepted that more could be done to assist taxpayers affected by complications associated with age and infirmity. The ATO undertook to explore additional steps that might be taken to better assist these clients, particularly through more immediate case management.

GST issues

In the fourth year of operation of the new tax system, taxpayers generally have a better understanding of the way the GST operates. We received only a few complaints stemming from the GST. One case highlighted the initial uncertainty relating to application of GST in the taxi industry, but also the ATO's preparedness to find a practical solution for a difficult problem. In this case, the complainant, a minibus business operator, was cooperative and anxious to adopt the correct procedure and was dependent on ATO advice, which was delayed because of the complexity of the issues.

'One case highlighted … the ATO's preparedness to find a practical solution for a difficult problem.'

We also received a complaint from a tax professional concerned that the unrequested cancellation of his client's GST registration might be indicative of a systemic problem. We clarified how the error had occurred and were satisfied that the error did not indicate any widespread problem.

As the ATO focused more on compliance and initiated recovery action, we received several complaints that the ATO was unreasonably interpreting the GST legislation. In such cases we decided not to investigate, because the complainants could challenge the ATO view through the objection and review process.

TaxPack improvements

TaxPack and its supplements provided a comprehensive starting point for most individual taxpayers. We provide feedback each year to the ATO on TaxPack, as well as providing suggestions if and when they arise from the investigation of specific complaints. This year we identified an ambiguity in the TaxPack text, relating to travel claims, that the ATO agreed to address in future editions.

Mass-marketed schemes

We continued to receive complaints arising out of the ATO's handling of mass-marketed schemes (114 in 2003–04 compared to 112 in the previous year).

The largest single category of complaints came from those taxpayers deemed ineligible for the full concessionary settlement opportunity offered for most mass-marketed scheme investors by the Commissioner of Taxation in February 2002. The ATO put in place a review process for these taxpayers and informed them of their right to further review by the Ombudsman's office.

We investigated all of the 'ineligibility' complaints we received. Although we did not find any reason to criticise the ATO's decision in any of these cases, our earlier investigations encouraged the ATO to make improvements in the quality and content of its decision letters.

We were also able to assist some taxpayers who had already settled. For example, one of our investigations disclosed errors in the ATO's statement of account. Our intervention resulted in an ATO apology for the taxpayer and a concession on the starting time for his repayments.

Centrelink

Centrelink, established under the Commonwealth Services Delivery Agency Act 1997, is responsible for delivering a large range of payments and programs for Australian Government agencies.

These government agencies include the Department of Agriculture, Fisheries and Forestry, the Department of Education, Science and Training and the Department of Veterans' Affairs. However, the majority of complaints that the Ombudsman receives about Centrelink relate to income support payments, family payments and other programs that Centrelink administers on behalf of the Department of Family and Community Services.

Centrelink complaints account for 46% of all complaints received by the Ombudsman. During 2003–04, we received 8,084 complaints about Centrelink compared with 9,642 complaints received in the previous year, a 16% decrease (see Figure 5.4). In approximately 55% of complaints about Centrelink, we initially decided not to investigate, because in most cases the agency had not yet been given the opportunity to address the complainant's concerns before approaching our office.

FIGURE 5.4Centrelink complaint trends, 1999–2004

FIGURE 5.4 Centrelink complaint trends, 1999–2004

In last year's annual report, we commented about advice given by Centrelink to its customers and the need for Centrelink staff to have better familiarity with the payments and programs that it delivers, including an understanding of the underlying legislative basis for this administrative activity.

Complaints received by the Ombudsman's office during 2003–04 indicate that there is still room for improvement. Further comment on this area is covered under the 'Life events' section in this chapter.

The largest category of complaints received by the Ombudsman in 2003–04 about a single issue related to debt recovery. Another issue addressed in this section relates to a consequence of practices adopted by Centrelink to assist families to minimise their family assistance debts.

'The largest category of complaints received … about a single issue related to debt recovery.'

Debts

The social security and family assistance laws set out the basis under which a person is entitled to a range of income support and family assistance payments, and the rate of such payments. These same laws also provide for the recovery of debts, specifying what is a debt and what is a permitted method of recovery. To that end, there is no doubt Centrelink has a legitimate basis to undertake debt recovery activity.

The focus of our concern is that debt recovery policies and procedures developed and implemented by Centrelink are not only authorised by those laws, but also have regard to the position or special needs of Centrelink customers and are not heavy handed.

Examples of complaints that we have received about Centrelink's debt recovery practices are set out below. We will continue to monitor these practices in the coming year and may consider further investigation. In doing so, we will take account of the steps that Centrelink itself is undertaking to implement changes in the context of the integration of the Centrelink Service Delivery Network and recommendations from the Australian National Audit Office's Audit Report on Centrelink's Debt Management.

Pressure to pay

A number of complaints highlighted a concern as to whether Centrelink's debt recovery practices have become too outcome driven without regard to the wider social purpose that Centrelink serves.

An example is a complaint from a disability support customer who claimed that a Centrelink debt recovery officer had harassed him and his daughter. The customer had received a lump sum compensation payment due to a traffic accident, while in receipt of an income support payment. As a result of receipt of the compensation payment, Centrelink raised a debt against the customer and sought to recover that debt.

Although refusing to concede that a debt existed, the customer entered into a fortnightly repayment arrangement that reduced the debt over a number of years to approximately $10,000. Centrelink subsequently determined that the customer may have had an asset that could be used to pay off the balance of the debt, and increased the rate of withholdings from the customer's disability support pension.

The customer told the Ombudsman that he felt that he had no choice but to take out a bank loan to pay a lump sum off his Centrelink debt and stop the debt recovery officer's harassment. Unfortunately, the customer then found himself in the position of paying off the bank loan (part of which was used to repay the Centrelink debt), at the same time as having to face a reduced disability support pension due to continued withholdings.

We raised the legality and appropriateness of Centrelink's actions in pressuring an individual (especially one who had a nominee) into making a lump sum payment when a withholding arrangement to repay the debt was achieving results. Discussions were continuing with Centrelink at the end of the year.

Letters of demand

Another issue that arose concerned the practice by some Centrelink officers of contacting debtors with partners, suggesting that the couple had the capacity to repay a debt based on the partner's income. For certain payments it is necessary for a recipient to provide Centrelink with details of their partner's income, which is used to assess eligibility. In at least one case the debtor received a letter from a Centrelink debt recovery section rejecting his request for waiver of his debt and suggesting that Centrelink had the power to recover the debt from the partner.

Centrelink has no power to enforce recovery of a customer's debt from their partner. For any recovery from a partner, permission must first be obtained from the partner. Centrelink undertook to examine the matter.

Getting in quick—adding judgment interest without a judgment

We investigated a complaint that involved the addition of a substantial amount of debt interest. Our inquiries revealed that Centrelink had intended to seek a debt interest judgment on the case. Centrelink debt recovery officers anticipated the amount to be awarded and proceeded to apply this amount to the debt without gaining the judgment. The customer was provided with an updated debt statement, which indicated they owed in excess of $45,000. Following our request, Centrelink removed the anticipated debt interest and apologised to the customer.

Data-matching—many years down the track

Numerous complaints were received during the year about Centrelink's data-matching activities. Some complaints related to debts raised in relation to overpayments up to six years earlier. Many of the overpayments resulted from under-declaration of earnings. However, others resulted from a genuine misconception by Centrelink customers that information they had provided to one government agency would be automatically shared with other government agencies. Some customers had debts in excess of $10,000, due to several years of understated income.

We also identified cases where the customer provided correct income information to Centrelink in the applicable year, but Centrelink had not correctly updated earnings records on its computer system. Although, as a consequence, the customers had been paid more than they should have received, Centrelink has since reconsidered the legitimacy of recovering these debts and has applied the administrative error waiver provisions of the social security law in some of these cases. We will continue to assess the impact of these errors in the coming year.

Impact of overestimating income for family tax benefit purposes

Photo of Commonwealth Ombudsman brochure display at shopfront Centrelink has implemented a number of practices aimed at reducing the likelihood of families being faced with family tax benefit debts at the end of a financial year. One of these practices includes suggesting to families that they overestimate their family income so that they would get paid less throughout the year. This would effectively result in either no debt at the end of the year or top-up if it turned out the family had overestimated their income.

However, a consequence of this practice was that in overestimating their income, some people did not qualify throughout the year for low-income health care cards. As a consequence, these people failed to qualify for certain Commonwealth and State Government discounts or concessions that are available only to low-income health care card-holders. Examples include stamp duty exemption, electricity account reductions, motor vehicle registration exemptions and reduced health and pharmaceutical costs.

We argued in one such case for payment of compensation under the Compensation for Detriment caused by Defective Administration (CDDA) scheme to a customer who complied with Centrelink's instruction to overestimate their family income for family tax benefit purposes. The family had suffered a financial loss when it could not attract certain State government concessions available to new homebuyers who were holders of low-income health care cards. The only reason that the family had not qualified for the card was because of their overestimation of income. Centrelink agreed to pay compensation.

Centrelink is reviewing its information products for customers, and internal reference material for staff, to ensure that customers are not disadvantaged by estimates of their income.

Life events

Under the Life Events Service Delivery Model adopted in the late 1990s, Centrelink undertook to match customers with the most appropriate payments and benefits for each customer's circumstances. This is done through Centrelink reviewing the information obtained from a customer completing a payment claim form, or in a pre-grant interview or other contact with them.

The view taken by the Ombudsman is that the model places an onus on Centrelink to provide accurate and clear advice to customers.

During the year we identified many instances where Centrelink had been provided with the full circumstances of a person. However, the correct payments and entitlements were not suggested or discussed with the person when they applied for a Centrelink payment, often to the person's detriment.

'… the model places an onus on Centrelink to provide accurate and clear advice to customers.'

Centrelink has implemented and committed itself to the Life Events Model. When this approach does not meet customer needs, or adversely affects the customer, compensation should be, and is, available.

An example of this problem is that some age pension recipients were not provided with information about the Pension Bonus Scheme, either at their pre-grant interview or prior to receiving the age pension. This meant that they were not aware they could access a tax-free lump sum payment of up to $25,000 by remaining in the workforce past pension age.

We found that Centrelink failed to provide information about the Pension Bonus Scheme to individuals during their contact with staff about an age pension. When a subsequent customer compensation claim was lodged, it was rejected because the view was taken that there was no onus on Centrelink to invite a claim for entitlements.

We were able to persuade Centrelink to alter its decision on several customer compensation claims about the Pension Bonus Scheme; as a result compensation equivalent to the full bonus entitlement was paid.

Centrelink has since made changes to its age pension claim form, which amalgamated information about age pension and the Pension Bonus Scheme, to ensure that customers claiming assistance have all information available at the time of claim. Other information products for age pensioners now also include information on the Pension Bonus Scheme to ensure that customers are aware of their options in this respect.

Child Support Agency

The Child Support Agency (CSA) administers the Child Support Scheme. The Scheme, set up under the Child Support (Registration and Collection Act 1988 and the Child Support (Assessment) Act 1989, provides for the assessment, collection and disbursement of child support. The CSA's client group includes both payees (those receiving child support payments) and payers (those making child support payments).

In 2003–04, the Ombudsman received 1,951 complaints about the CSA, compared with 2,432 last year, a decrease of 20%, see Figure 5.5. Of the issues raised, the Ombudsman found agency defect in 7% of cases, showing a downward trend. The reduction in the number of complaints about the CSA is due primarily to the bedding down of the new CSA computer system introduced in 2002 (although this issue continued to generate complaints to the Ombudsman this year). As identified in earlier reports, it also indicates that CSA's internal complaint resolution processes are effectively addressing concerns raised by parents.

FIGURE 5.5Child Support Agency complaint trends, 1999–2004

FIGURE 5.5 Child Support Agency complaint trends, 1999–2004

A complaint theme that arose prominently in the investigation of complaints about the CSA was that payers could find themselves unexpectedly being told that they had a child support debt. This tended to result from computer system changes or incorrect recording of payer or payee income details by CSA staff. Other recurring themes included complaints about the accuracy of information provided to parents, delays in providing information and breaches of privacy. A brief description of the scope of our investigations into some of these areas follows.

Debts

Some complainants approached our office after unexpectedly receiving a notice from the CSA that they had a sizeable child support debt. The investigation of these complaints highlighted two problem areas. First, a debt could arise if there had been a delay by CSA staff in making a manual adjustment to child support liability to take account of updated income information provided by one or other of the parents. Second, a parent could receive notice of a debt for a past payment period when current information was entered on the CSA computer system, which then automatically recalculated the parent's child support liability for the past assessment period.

The difficulties people experience in child support matters can sometimes arise because parents do not fully understand the features of the child support scheme. At other times, the difficulties stem from shortcomings in the administration of the child support scheme by the CSA. The following example of a complaint that we investigated illustrates the complexity that can arise in a child support case, and how parents can as a result be surprised or confused by actions taken by the CSA.

'The difficulties people experience in child support matters can sometimes arise because parents do not fully understand the features of the child support scheme.'

A payer's child support liability for a certain period had been assessed on the basis of an estimate of the parent's income. Some time later, the parents agreed between themselves that some of the child support owing for that period should be discharged. Notwithstanding that agreement, the payer was later told by the CSA that he had a debt for the period.

A combination of two factors produced this result. The first was that a child support assessment that is based on an estimated or deemed income is subject to reassessment once the actual taxable income is known. In this case, the result of the reconciliation was that too little child support had been paid for the earlier period, resulting in a debt for the payer. The second contributing factor to this problem was that there had been a delay of two years on the part of the CSA in making the reconciliation after learning of the taxpayer's taxable income. The delay, combined with the agreement between the payer and the payee to discharge the arrears, resulted in the payer being confused and uncertain as to the legitimacy of the child support debt.

The CSA advised that under child support law they were obliged to recalculate the payer's child support liability and raise a debt against him, notwithstanding that the debt related to a past period and was the subject of an agreement between the parents. We suggested that the CSA should offer the payer a complete explanation of what had occurred, apologise for the incomplete information provided to him about the reconciliation action, negotiate a fair repayment agreement with the payer, and remit any late payment child support penalties once the debt had been fully recovered. It is encouraging that some of these actions had already been initiated by the CSA.

We took up the question of administrative delay exposed by this complaint. We were advised that prior to the implementation of the new computer system in 2002, reconciliation of actual incomes was completed manually. The manual process had broken down in this case, as the error was not detected until data integrity checks were run in late 2003. The CSA's new computer system now automates this process and ensures that this issue will not recur.

'We took up the question of administrative delay exposed by this complaint.'

A suggestion agreed to by the CSA as a result of this investigation was that it would amend its procedural instruction dealing with debt recovery arrangements. The amendments will focus on the need for CSA officers to provide both payees and payers with full and comprehensive information about their rights and responsibilities, as well as the process for debt recovery. The changes also highlight the need for client service officers to review the entire case and to be aware of any estimated or provisional income prior to brokering a debt arrangement.

Errors in recording information

The essence of the child support scheme is that it specifies a formula to be applied in calculating the amount of child support to be paid by one parent to another. The formula takes into account a range of different factors, such as the number of children in each parent's care, the time spent by a child with each parent, and the income of each parent.

The formula is applied to data entered onto the system relating to those different factors. The integrity of the resulting decisions is conditional therefore on the accuracy and comprehensiveness of the information entered onto the system. This becomes all the more important when, as is often the case, many child support assessment decisions are made by the computer (or expert) system operated by CSA. The computer system can undertake some tasks without confirmation, and contains some built-in enforcement mechanisms.

'The integrity of the resulting decisions is conditional on the accuracy and comprehensiveness of the information …'

It is human to err, and errors sometimes occur in data entry. The difficulties that can result are illustrated by the following two complaints handled by the Ombudsman's office during the year.

In the first case, a payer with a child support debt had an arrangement for regular weekly payments to be withheld from his salary and to be applied to the debt. The arrangement was to continue for four years until the debt was reduced to a nominated amount, at which time the remaining child support debt would be discharged by the payee. Near to that time, the payer contacted the CSA, which advised that a small amount remained outstanding. The CSA also said that upon payment of that amount the CSA would remit all penalties that accrued over the life of the case because the payer had not paid his child support on time. The CSA failed to implement the agreement and instead intercepted the payer's tax refund when it became available. It released the full amount to the payee. The amount given to the payee was greater than the outstanding arrears.

On investigation, we found that the CSA had not correctly recorded the debt repayment arrangement on its computer system. The system showed the full amount of arrears owing without reference to the repayment agreement.

The CSA accepted that it had made an error and acknowledged the payer's commitment and adherence to the arrangement for debt repayment. Initially, the CSA advised that the payer would need to recover the overpayment direct from the payee. However, after we highlighted the inequity in this approach and drew attention to the reason both parties were in this position, the CSA agreed to refund the payer the remainder of his tax refund and to take responsibility for pursuing the recovery of the overpayment direct from the payee. While the CSA would not normally take this action, in the particular circumstances of this case the action was an appropriate resolution for these clients.

The second illustrative complaint concerned entries made on the Child Support Register. Under the child support law, the Child Support Registrar must enter certain information about each child support case in the Child Support Register. Changes to the Register must be made within a specified time after new information that could affect a child support assessment is received from a payer, a payee or a third party. The information entered on the Register is significant in that it sets the legal basis on which a child support liability is calculated.

In a complaint to our office, the payer had told the CSA that he and his current partner had had a baby. The Register should have been amended to record the child as a dependent child of the payer, but was incorrectly amended to record a liable child support assessment between the payer and the payee. The consequence of this error was that the assessment was based on the payer and the payee each having sole care of one liable child, when in fact there was only one liable child who was in the care of the payee. The payer's child support was accordingly assessed at a lower rate than it should have been. The error was identified days later and a new, updated assessment notice sent to the parents. The parents were not provided with any explanation of why a new assessment was issued.

The problem arose again following the introduction of the new computer system. The system automatically reverted the new child from dependent child status, to liable child status, thus again reducing the amount of child support payable by the father. This error was only discovered when the payee questioned the amount of assessment after a further change to the Register, more than 12 months later.

As the child support payments had been made under a private collection arrangement between the payer and the payee, the payee was not able to get the CSA to enforce recovery of the unpaid amounts, other than for the compulsory three months period provided for in the legislation.

'… we asked the CSA to review the content of current notices.'

On investigation, it seemed to us that neither the payer nor the payee had identified the errors because of the ambiguous format of the assessment notices they had received from the CSA. Changes have since been made by the CSA to the assessment notices, but we asked the CSA to review the content of current notices to ensure that an error of this nature would be easier to identify in the future. Furthermore, we noted that the CSA had not provided an adequate explanation to either party, even though the matter had been subject to a complaint from the payer's Federal Member. We also learned that the CSA had not formally apologised to either party for the error and asked that it attend to this matter with urgency. The CSA has since issued an apology.

Advice on recourse options

If a parent has overpaid or been underpaid, reconciliation of the debt can be foremost in their mind. They are likely to turn to the CSA in many cases for advice on whether they have any recourse, and the options available. It is important that any advice given to a parent is both accurate and realistic.

The point is illustrated by one complaint we investigated. A payer had made an overpayment because of a CSA computer system error. He was advised by the CSA that he could either make a gift of the overpayment or take the payee to court to seek a civil remedy for repayment. While those were two options, our concern was that the CSA had neglected to suggest as an additional remedy that the payer could lodge a claim for client compensation on the basis that the error constituted defective administration by the CSA resulting in financial loss.

Information provided to parents

Another aspect of the child support scheme, about which parents rely on the CSA for advice, concerns the private collection of child support. Arising from some complaint investigations we undertook this year, we suggested to the CSA that it should evaluate the adequacy of the information made available to parents about private collection.

'We suggested to the CSA that it should evaluate the adequacy of the information made available to parents …'

It is open to parents for whom a child support assessment has been made to make a private and informal arrangement for payment of a lesser child support amount. However, if the payee later arranges for the CSA to collect child support, the CSA will collect at the rate specified in the child support assessment, not the rate agreed between the parents. Furthermore, it is open to the payee to request the CSA to seek three months of arrears payment from the payer (up to nine months in exceptional cases) equal to the difference between the CSA-assessed child support amount and the amount agreed privately between the parents.

Not surprisingly, some payers feel aggrieved when action is taken by the CSA to collect an amount greater than the payer understood they had agreed to pay. It is important in such instances that parents are fully aware, from any advice or information they obtain from the CSA, of the ramifications of making a private collection agreement.

Defence

2004 is a 21-year milestone for the Defence Force Ombudsman. The DFO office was given a statutory basis in 1983 by amendment of the Ombudsman Act 1976. The functions and powers of the DFO were conferred upon the Commonwealth Ombudsman. The DFO investigates employment-related matters for serving and former members of the ADF, including complaints about compensation and veterans' entitlements, which are administered by the DVA.

'2004 is a 21-year milestone for the Defence Force Ombudsman.'

There has been a steady decline in the number of Defence complaints, dropping to 690 in 2003–04 (see Figure 5.6). We are evaluating the causes of this decline, but they can be hard to discern. It could be that there is less cause for complaint, that complaints are being better handled internally, or that there is a loss of faith in the Ombudsman's effectiveness.

FIGURE 5.6Defence complaint trends, 1999–2004

FIGURE 5.6 Defence complaint trends, 1999–2004

Australian Defence Force employment-related complaints

In 2003–04, the most common causes of complaint from Defence personnel were discharge matters, pay and allowances, dissatisfaction with the outcome of a Redress of Grievance (ROG) process, discrimination and harassment, and posting decisions. Complaints about discharge action were evenly spread between medical discharge and discharge on the ground of a person's unsuitability for continued service in the Army, Navy or Air Force.

The DFO will not ordinarily initiate the investigation of a complaint by a serving member of the ADF unless the complainant has sought redress through the ADF's internal ROG process and that process has been completed. This approach, which is required by s 19E of the Ombudsman Act, is designed to ensure that the ADF has the opportunity to resolve a matter before there is a need for the DFO to become involved.

If the ROG process is not finalised in a timely manner, it becomes progressively more difficult for the matter under complaint to be resolved fairly or to be remedied effectively. Delay in finalising a ROG can have an adverse impact on a member, financially and psychologically.

The DFO's concern about delay in finalising ROGs has been brought to the attention of the Department of Defence in previous annual reports. The number of complaints still received about the ROG process, particularly about the time taken to finalise investigations, indicates that the problem of delay is still a concern to members. During the year, in a submission to the Senate Inquiry into the Effectiveness of Australia's Military Justice System, the Ombudsman took up this ongoing concern about the time taken to finalise ROG investigations.

'Delay in finalising a ROG can have an adverse impact on a member, financially and psychologically.'

Other concerns were also taken up in the submission to the Senate inquiry:

Investigative practices Complaints to the Ombudsman indicate that in some cases there has been a considerable delay by the ADF in initiating the investigation of serious complaints it received. Deficiencies in the quality of ADF investigations were also identified in some cases.
Learning from complaint management There is room for improvement in the extent to which the ADF draws lessons, about complaint management and how to stem the flow of complaints, from investigations undertaken internally or by other agencies such as the Inspector-General of the ADF, the Defence Equity Organisation and the Ombudsman's office.
Legalistic approaches to addressing complaint issues A tendency noted increasingly during the past 12 months has been for the Department to respond to Ombudsman investigations with more formal, legally-based responses. It is questionable whether this is necessary in relation to Ombudsman investigations, but also the practice can unnecessarily delay the resolution of complaints.

As these points indicate, the DFO jurisdiction presents a number of challenges. A delay by the ADF in finalising a ROG can adversely impact on the ability of the DFO to finalise complaints and to provide complainants with an efficient service. The Ombudsman's 2004 Client Satisfaction Survey highlighted that complainants in the DFO jurisdiction are generally less satisfied with our service than complainants in other jurisdictions.

Following discussion between the DFO and the Chief of the Defence Force, it has been agreed to conduct a joint review of the ROG system with a view to reporting before the end of 2004. The review will seek strategies to refine the system. We are also reviewing the adequacy of our own resources devoted to the DFO jurisdiction, the timeliness of our processes and how well we are educating complainants to have a realistic appreciation about the outcome they can expect from a complaint investigation.

Department of Veterans' Affairs

Complaints about the actions and decisions of the DVA fell to 172 in 2003–04, a decrease of 14% from 2002–03.

Several well-established avenues of review and appeal are available within the DVA portfolio, and applicants for pensions and allowances also have a right of appeal to the Administrative Appeals Tribunal (AAT). We encourage complainants to exercise these rights of review and appeal. During 2003–04, approximately one-third of inquiries from DVA complainants resulted in a referral to either the DVA's internal review mechanisms or the AAT.

The Ombudsman received a number of complaints in relation to the Veterans' Home Care (VHC) program (decisions on VHC matters are not reviewable by the AAT). The complaints raised various concerns from veterans and their supporters about the way the DVA had assessed whether a particular veteran was eligible for home care services, the manner in which veterans were advised of reductions in home care services, the impact of reduced services, the lack of notification of review rights and the failure of the DVA to provide a revised service provision plan to a veteran.

'The complaints raised various concerns about the way the DVA had assessed eligibility for home care services.'

The Department provided timely and comprehensive responses to our inquiries, which assisted us to provide a high standard of service to veterans in most instances. For example, in one particular case, an ex-member of the ADF applied for compensation under the Military Compensation Rehabilitation Scheme administered by the DVA for an injury they claim to have suffered during enlistment in the ADF. The ex-member was concerned about the time it was taking for the DVA to make a decision about permanent incapacity and incapacity payments, as well as the lack of progress reports on the matter. In response to our informal inquiries, the DVA acknowledged that there had been a delay in processing the claim. The DVA apologised for the delay and for not responding to inquiries in a timely manner. The Department also confirmed that, following our inquiry, contact had been made with the claimant to finalise the matter.

Department of Defence

Complaints against the Department of Defence fall within the jurisdiction of the Commonwealth Ombudsman. In 2003–04, we received 135 complaints about the Department. Of the 135 complaints, we conducted inquiries or investigated 42 complaints. The majority of complaints not investigated were referred back to the Department for appropriate action or we decided not to investigate, because an investigation was not warranted in all the circumstances.

Issues raised in complaints included concerns about military aircraft noise in residential areas, delays in finalising requests made under FOI legislation, delays in finalising claims against the Australian Government under the Compensation for Detriment Caused by Defective Administration scheme and delays in finalising payment of monies owed. In a significant number of cases involving the payment of accounts, inquiries by the Ombudsman's office resulted in action being taken to finalise the matter.

Immigration

FIGURE 5.7 Department of Immigration and Multicultural and Indigenous Affairs complaint trends, 1999–2004

FIGURE 5.7 Department of Immigration and Multicultural and Indigenous Affairs complaint trends, 1999–2004

We investigated just under half (46%) of complaint issues arising from complaints about DIMIA. This compares to the general average of 30% across all Australian Government departments and agencies. Of the 486 DIMIA issues investigated, arguable administrative defect or error was identified in 76 issues (15.6%).

Complaints about DIMIA can be categorised into three distinct areas: migration issues, which are usually about decisions on visa applications; immigration detention facilities, made by or on behalf of detainees; and other issues, such as Freedom of Information (FOI) applications and citizenship processes. Complaints about migration issues formed the largest category.

The most common concerns about migration issues were decisions that DIMIA made on permanent visa applications for overseas family members or spouses, and temporary visa applications for students and tourists.

Complaints from detainees in immigration detention facilities most commonly revolved around access to medical services, property that was allegedly lost or stolen and allegations of assault, both by detention centre staff and by other detainees.

'Complaints received about immigration matters are often complex and can take some time to resolve.'

Facilitating improved complaint resolution

Complaints received about immigration matters are often complex and can take some time to resolve. Visa applications must meet statutory requirements before they can be approved and information often has to be obtained from overseas immigration posts. The detention facility environment is a difficult one and, although the number of people still in detention has decreased over the years, many of those who remain have been in detention for lengthy periods. Complaints often relate to the day-to-day experiences of detainees living in detention and are difficult to resolve given the limitations of the detention environment.

'Complaints often relate to the day-to-day experiences of detainees living in detention …'

Officers from both DIMIA and the Ombudsman's office have worked hard throughout 2003–04 to ensure better communication and speedier resolution of complaints.

Senior staff from the Ombudsman's office and DIMIA met regularly throughout the year to keep each other informed of potential issues of concern and to discuss significant cases.
Members of the office's Immigration Team met monthly with staff from DIMIA's Ombudsman, Privacy and Freedom of Information Section to discuss current complaints and facilitate resolution.
Detailed quarterly reports were provided to the Secretary of DIMIA to ensure that complaint trends and significant cases were brought to the attention of DIMIA's Executive in a timely manner.

These measures resulted in many longstanding complaints being resolved and a marked improvement in the working relationship between the two agencies.

We appreciated DIMIA arranging a meeting during the year with managers from the newly appointed detention service provider, Global Solutions Limited (GSL). At the meeting we discussed some of our past concerns about detention centre management.

DIMIA officers also showed an increased willingness to discuss potential issues of concern with the Ombudsman's office and to invite our comments on draft policies and documents, particularly relating to the management of detainees. The majority of the Ombudsman's comments have been adopted on the following policies and procedures:

GSL's new draft complaint-handling guidelines, which are designed to facilitate speedy complaint resolution within the Immigration Detention Facilities (IDFs).
A proposed new Migration Series Instruction on 'Transfers of Detainees within Detention Facilities'. Decisions to transfer detainees to a more restrictive environment have been the source of complaints from all IDFs in recent years. Concerns about inadequate record keeping and the absence of opportunities for detainees to comment on proposed transfer actions were raised with DIMIA on a number of occasions and, in particular, following a general disturbance within one IDF.
Proposed procedures for transferring a number of longer-term detainees to Baxter IDF which had been designed to accommodate the longer-term detainees.

Feedback from detainees about the effectiveness of GSL's new policies has been encouraging. One measure of the positive change achieved by the new complaints management regime is that in the period January to June 2004 there was a 45% reduction in complaints compared to the same period in 2003. Specifically, 173 complaints were received in January–June 2003, 111 in July–December 2003, and 95 in January–June 2004. This is against a small drop in the number of detainees.

'Feedback from detainees about the effectiveness of GSL's new policies has been encouraging.'

Ombudsman staff (including the Ombudsman and Deputy Ombudsman) visited detention facilities regularly throughout the year. We welcomed DIMIA and GSL's support and cooperation with these visits, which often needed to be arranged at short notice.

Particular issues

Proposal for legislative change

A key objective of the Ombudsman's office is to facilitate improved administrative practices and to draw attention to legislative provisions that result in unfair or unreasonable consequences for individuals. These issues are taken up with DIMIA, sometimes with a proposal for legislative change, as the following example illustrates.

In December 2003, the Ombudsman wrote to the Secretary of DIMIA recommending that action be taken to overcome the problem that visa holders who had appealed successfully to the Migration Review Tribunal (MRT) could still end up in a disadvantaged position. For example, if the MRT had set aside a decision by DIMIA to cancel a student visa, the student may still be unable to meet the requirements for a permanent visa, because their student visa had expired before the MRT appeal process was finalised. Under the migration legislation, DIMIA cannot then grant another visa without a new application being made, yet the student may be unable to make such an application in Australia if their substantive visa has expired. The student then faces the predicament of having to leave the country in order to make a new application.

'The Minister has since approved the introduction of amending legislation.'

DIMIA acknowledged this as an issue affecting not only student visas, and accepted the need for legislative change to address the problem. The Minister has since approved the introduction of amending legislation. Until that amendment is enacted, cases of this nature may be referred to the Minister, who has a public interest discretionary power to grant a new visa.

Cancellation or refusal of visa on character grounds

A number of complainants during the year expressed frustration at the uncertainty of their visa entitlement. The complainants had each appealed successfully to the Administrative Appeals Tribunal (AAT) against a decision by a DIMIA officer to refuse or cancel their visa on character grounds. Notwithstanding the AAT decision, it is open to the Minister under s 501A of the Migration Act 1958 to refuse or cancel a visa if the Minister reasonably suspects that the person does not pass the character test and is satisfied that refusal or cancellation is in the national interest. Instances occur in which the Minister does make such a decision, and visa applicants and holders are aware of the possibility. Some have complained to the Ombudsman about the failure of DIMIA after months of delay to advise whether their case is to be referred to the Minister for consideration of cancellation or refusal under s 501(3).

The Ombudsman's office has conducted research on the general problem, and has taken up with DIMIA the importance of clarifying the administrative procedures for handling s 501 cases. We will continue to monitor the issue.

Use of search and entry powers

To facilitate compliance activity, the migration legislation confers upon authorised officers of DIMIA wide-ranging search and entry powers—commonly described as coercive powers. The exercise of these powers has been the subject of a number of complaints to this office. Issues commonly raised are whether it was necessary for a search to be conducted, and the demeanour of DIMIA officers in discharging their duties. Another issue taken up by this office in investigating the complaints is the adequacy of the records maintained by the Department. It is, in our view, a vital element in securing adherence to the law and safeguarding civil liberties that each stage of the process of executing coercive powers is properly documented. Given the significance of the issue, we will be concentrating on it during 2004–05.

Immigration detention issues

During 2003–04 there were significant changes in the number of individuals held in immigration detention, the location of the detainees, and the management of the IDFs. The Curtin and Woomera IDFs were closed in 2002 and 2003, and the Port Hedland facility was closed in June 2004. The changes in facilities were reflected in the number and types of complaints we received and investigated in relation to immigration detention.

To assist detainees to understand the alternative avenues available to them for making a complaint, we highlighted to DIMIA and GSL the benefits of information posters to summarise the complaint-management processes within IDFs. The posters should also provide details of relevant external complaint bodies, including the Commonwealth and State Ombudsmen, the Human Rights and Equal Opportunity Commission, and the Health Care Complaints Commission. It is expected that information posters will be ready for distribution early in 2004–05.

Basis of complaints

Access to medical and dental care in detention has been a regular source of complaints in previous years. This year there was a significant reduction in this type of complaint. The change to a new provider (GSL) provided an opportunity to review relevant practices and procedures. The downward trend in complaints is particularly pleasing, given that an increasing proportion of detainees have spent more than two years in detention and are more likely to require access to such services.

The number of complaints from detainees alleging assault by another detainee or a detention officer and the process in place to address such complaints is another matter of continuing concern. In May 2004 we wrote to DIMIA pointing to some of the issues thrown up by the complaints, such as confusion over where allegations of assault should be reported and delays in reporting allegations to police. We suggested a possible strategy for managing such complaints, which included providing detainees with an information card that clearly outlines the steps to take relating to allegations of assault. Discussions with DIMIA at senior levels are continuing on this issue.

We finalised 35 complaints from detainees about property during 2003–04 compared to 21 complaints in the previous year. To try to reduce and resolve complaints relating to property, we have agreed to develop an information brochure for detainees, in consultation with DIMIA, to highlight actions that detainees can take to safeguard their property. We expect to finalise this brochure early in 2004–05.

Port Hedland inquiry

Although we investigate many of the complaints received by the office, we believe that agencies should first have the opportunity to conduct their own investigation into an issue and be able to take remedial action if required. This approach, which is widely followed by complaint-handling agencies, sometimes needs restatement and explanation in the context of an inquiry that attracts public attention. Such was the case when we received a number of complaints from detainees and their advocates about the management of a major incident at the Port Hedland IDF in December 2003.

After first raising the complaints with DIMIA, we opted to allow an investigation initiated by the Department to continue. DIMIA appointed an independent investigator with considerable experience in critical-incident and use-of-force management. We played an active role in developing the terms of reference for the inquiry, defining the issues to be addressed during the investigation and undertaking ongoing monitoring of the investigation as it progressed.

'… this investigation demonstrated how collaborative action by the Ombudsman and a government agency can sometimes be the most efficient and effective way of ensuring that a serious incident is expertly investigated …'

The consultant's report was finalised in May 2004. The Ombudsman was satisfied that the report represented a thorough investigation of the incident and addressed the concerns raised with our office. DIMIA advised that action has been taken on a number of the recommendations. These included recommendations for letters of apology to some detainees, appropriate record keeping, further training for detention officers, and the referral of some incidents to State and federal police for further investigation. We will review the implementation of the recommendations in the report throughout 2004–05.

Generally, this investigation demonstrated how collaborative action by the Ombudsman and a government agency can sometimes be the most efficient and effective way of ensuring that a serious incident is expertly investigated and improvements to administrative practice implemented.

Monitoring detention facility standards

Staff of the NSW Ombudsman, Commonwealth Ombudsman, and Energy & Water Ombudsman NSW at the Arabic Carnivale in Homebush Bay, Sydney, April 2004. During 2002–03, Ombudsman staff conducted a review of conditions in IDFs and of how complaints were being investigated in those facilities. The review identified a range of concerns about how detention facilities were being managed by the detention service provider, and how the provider's performance was being monitored by the Department against the agreed Immigration Detention Standards.

At one stage we had foreshadowed preparing a separate report on the review, but that plan was overtaken by other events (chiefly, a change in the detention service provider and the closure of some IDFs). The information gleaned from the review was put to use in other ways described above, such as consultation with the Department about contractual conditions applying to the new detention service provider. As well, we provided significant elements of the information from the review to the Australian National Audit Office (ANAO) for its audit of the Detention Services Contract conducted during 2003–04.

The ANAO website (www.anao.gov.au) provides access to ANAO Audit Report No. 54 2003–04 Performance Audit, Management of the Detention Centre Contracts — Part A. The ANAO acknowledged that the information we provided assisted them to determine areas requiring particular scrutiny. The ANAO report was tabled on 18 June 2004 and makes a number of recommendations about monitoring the detention service provider's contract.

Law enforcement

There has been significant legislative change in recent years to enlarge the powers of federal law enforcement agencies, specifically the Australian Federal Police (AFP), the Australian Crime Commission (ACC) and the Australian Protective Service (APS). This change has partly been a response to a new security environment. It is also being driven by the objective of ensuring effective and efficient detection of crime, particularly serious crime. The legislation granting additional powers to law enforcement agencies includes measures to ensure that the right of people to complain to the Ombudsman about law enforcement activity and the ability of the Ombudsman to investigate any such complaints, are not diminished.

Broadly stated, the role of the Ombudsman's office is to review the handling of complaints about Australian Government law enforcement agencies and to oversight the use by agencies of coercive and intrusive powers. Table 5.1 lists the activities that come within the Ombudsman's independent complaint and oversight role and the legislative underpinning for each role.

TABLE 5.1Commonwealth Ombudsman’s investigative functions, by legislation

TABLE 5.1 Commonwealth Ombudsman’s investigative functions, by legislation

An increasingly complex jurisdiction

The Commonwealth legislative framework for law enforcement can be expected to change even more in the next few years in ways that are relevant to the work of the Ombudsman. An example is the additional power conferred on law enforcement agencies to combat terrorism by detaining suspected terrorists. Other examples are the proposed introduction of a national framework for the use of surveillance devices and for a register of child sex offenders. As a result, the Ombudsman's office has been more actively engaged during 2003–04 in reviewing how the Ombudsman's complaint and oversight role should be adjusted to take account of changes in law enforcement activity. The following discussion takes up this theme.

Law enforcement across borders

Criminal activity is not constrained by State and Territory boundaries. An abiding danger in a federal system is that the existence of a different legal system in each State can frustrate the investigation of crime across borders. The legislative response to 'cross-border' crime has been to develop suites of model legislation that allow for the 'mutual recognition' of certain law enforcement activities between participating jurisdictions.

'… a strong focus on the importance of developing appropriate accountability mechanisms for law enforcement powers.'

In November 2003, the Joint Working Group of the Australasian Police Ministers' Council (APMC) released a report on model ('harmonised') legislation relating to surveillance devices, controlled operations, the protection of witness identity, and assumed identities. In considering the APMC report, the Standing Committee of Attorneys-General resolved that it should also consider a report from the Commonwealth, State and Territory Ombudsmen and Privacy Commissioners on cross-border law enforcement activity, which canvassed:

whether there are gaps at national, State or Territory level in the accountability framework relating to the investigation and handling of complaints or the carrying out of accountability audits
whether there is also a need for 'harmonisation' of the laws and administrative arrangements to allow independent oversight, monitoring and accountability
what measures are necessary to address any identified legislative impediments to joint investigation and monitoring by oversight agencies.

The report by the Commonwealth and State Ombudsmen and Privacy Commissioners to the Standing Committee represents a significant collaborative effort on their part, and signals a strong focus on the importance of developing appropriate accountability mechanisms for law enforcement powers.

The Australian Government is well advanced in developing the first legislation in the suite of harmonised law enforcement powers (for the use of surveillance devices). The Commonwealth Ombudsman has been involved in consultations between agencies about the Surveillance Devices Bill 2004, which was still being considered by Parliament.

AFP powers to combat terrorism

Amendments made in 2003 to the Australian Security Intelligence Organisation Act 1979 (ASIO Act) provided for the entry and search of property by police (including the AFP) in order to arrest and detain persons on behalf of ASIO.

'… a detainee can contact the office's Law Enforcement Team 24 hours per day.'

The ASIO Act amendments created a new complaints role for the Commonwealth Ombudsman under the Complaints (Australian Federal Police) Act 1981 (Complaints Act), by allowing a detainee to complain about the actions of AFP members making an arrest or overseeing detention.

We took steps to ensure that a detainee can contact the office's Law Enforcement Team 24 hours per day. We are also working with the Inspector-General of Intelligence and Security and the Commissioner of the AFP to develop protocols between all agencies involved with warrants under the ASIO Act. These protocols will ensure that detainees are advised of their right to make a complaint, are provided with access to a telephone for that purpose, and that all agencies understand and agree on the complaint-management process.

We have not received any complaints arising from the amendments, which commenced on 23 July 2003.

Police accountability mechanisms

The Complaints Act has been operating for 23 years, and has proved to be a solid foundation for the investigation of complaints about the AFP. The Act will also form the basis for the complaints management system for the Australian Protective Service on its integration with the AFP integrity regime on 1 July 2004.

'The Complaints Act has been operating for 23 years, and has proved to be a solid foundation for the investigation of complaints about the AFP.'

The Complaints Act and the AFP's integrity management framework were subjected to a review by the Hon. William Fisher AO QC in 2002–03, A Review of Professional Standards in the Australian Federal Police (2003) (the Fisher Review). The Fisher Review also evaluated the models of other police oversight agencies. Among the recommendations in the report were some to refresh the legislative base for the AFP complaints system. The report was tabled in Parliament in December 2003.

The Kennedy Royal Commission into corruption in the Western Australian Police Service undertook a similar review in Western Australia during the year. In a report presented in January 2004, the Commission recommended sweeping changes in police oversight mechanisms, drawing strongly on the conclusions of the Fisher Review.

There were similar developments in Victoria in 2003–4, stemming from a concern about police corruption. The Victorian Government responded by significantly increasing the powers and resources available to the Victorian Ombudsman to investigate police corruption in that state. The statutory powers newly granted to the Victorian Ombudsman match those already held by the Commonwealth Ombudsman. However, the Commonwealth Ombudsman's office has customarily seen its role as one of administrative review and oversight, not corruption investigation. At the same time, there is a thread that links administrative misbehaviour and official corruption.

The AFP more appropriately deals with some complaints against police as management issues without the direct involvement of the Ombudsman's office. Under the Fisher model, the Ombudsman's involvement in minor complaints about the AFP would be reduced and attention would be focused on handling more serious complaints. This model is well established in New South Wales and Queensland and is to be introduced in Western Australia. The Australian Government has yet to respond to the Fisher Review and details of implementing the Fisher model are yet to be finalised.

The Ombudsman is confident that the Fisher Review and the office's review of the relevant Acts (see 'Year in review' chapter) are an appropriate response to the need to modernise the AFP complaints system.

Complaint handling

The major activity of the Ombudsman's office during the year in regard to law enforcement was to perform its accustomed roles of handling complaints about law enforcement agencies and conduct external reviews of AFP internal investigations.

As well, we were involved in two significant special investigations into complaints about the AFP and the APS. The investigations highlighted the role that can be played by the Ombudsman when police corruption is alleged or suspected. Although corrupt activity was not revealed in either case, such a finding is nevertheless important in its own right in bolstering public confidence that allegations of corruption have been properly investigated and eliminated if they are not soundly based.

'… investigations highlighted the special role that can be played by the Ombudsman when police corruption is alleged or suspected.'

Corruption allegations were made during the year against two officers of the ACC. We again brought an independent mind to the issue by reviewing whether the Commission had itself conducted a proper investigation of the allegations. Our role in doing so is discussed below (see 'Australian Crime Commission' section).

The remainder of this section provides an overview of the activities undertaken by the Ombudsman's office this year in relation to the three law enforcement agencies that fall within the Ombudsman's jurisdiction. The oversight of AFP complaint handling constitutes the majority of our work in law enforcement, largely because of the AFP's relative size, its high level of interaction with the public (especially through community policing in the ACT) and because of the requirement, specific to the AFP, that certain types of complaints about the AFP be disclosed to the Ombudsman for external assessment.

Australian Federal Police

Under the Complaints Act, the responsibility for investigating complaints about the AFP is shared between the AFP and the Ombudsman. The AFP's Professional Standards investigates most complaints about AFP members; the Ombudsman reviews all AFP investigations and, if appropriate, conducts an independent inquiry or investigation.

Complaints about the actions of the AFP can be made direct to the Ombudsman's office or to the AFP. As the Ombudsman's main role is to ensure that all complaints are satisfactorily managed, the Ombudsman is notified of all complaints promptly. When complaints are finalised, the AFP provides a report to the Ombudsman explaining how the complaint was managed or investigated. Approximately 70% of all complaints received about the AFP relate to ACT Policing, with the remaining complaints relating to the AFP's corporate, national and international roles. It is natural that a high number of complaints are made about ACT Policing because of the level of public interaction involved in community policing work. Most complaints are of a relatively minor nature and concern alleged conduct of police, such as incivility or rudeness.

The Complaints Act allows the AFP to conciliate complaints of a less serious nature directly with complainants through its workplace resolution process; where this is done, a senior police officer conciliates the complaint in the relevant workplace. This process combines the benefits of direct accountability with the opportunity to learn from mistakes. A minor mistake by a police officer that warrants an apology or explanation can often be easily conciliated with the complainant without the need for the Ombudsman's intervention. Complaints that potentially reveal more significant matters, such as alleged serious misconduct or a substantial breakdown in procedure, require a more comprehensive response.

'Most complaints … concern the alleged conduct of police, such as incivility or rudeness.'

While the Ombudsman investigates some matters that are not appropriate for the AFP to examine, the Complaints Act contemplates that AFP Professional Standards will investigate most serious complaints. Ombudsman staff have the opportunity to consult with the AFP during an investigation about the progress of a complaint. It is then our role to review the evidence gathered in the investigation, consider the findings and recommendations, and inform the complainant of the outcome. Ombudsman staff provide independent scrutiny, paying particular attention to the thoroughness of the AFP investigation and deciding whether further investigation is necessary.

Appropriate investigation and resolution of complaints about serious concerns is an important anti-corruption measure. Complaints may provide a crucial source of information about police corruption, and can also act as an early-warning system for practices and procedures that are failing to deliver desirable outcomes. An organisation that takes complaints seriously and deals with them effectively can maintain public confidence.

In reviewing AFP investigation reports, we found most reports showed a comprehensive investigation and analysis, resulting in reasonable and appropriate recommendations. On a small number of occasions the reports were returned to the AFP for further action, such as a quality assurance review of the report or further clarification of a particular issue. We continue to work with the AFP to ensure that complaint investigation reports represent a robust response to complaint issues.

Complaints overview

In 2003–04, the Ombudsman's office received 712 complaints about the AFP, compared to 737 in 2002–03, a decrease of 3%. There was also a decrease in complaints finalised, to 664 from 718 in the previous year (down 7.5%). Fluctuations in complaint numbers have occurred over the past five years, as shown in Figure 5.8.

FIGURE 5.8Australian Federal Police complaint trends, 1999–2004

FIGURE 5.8 Australian Federal Police complaint trends, 1999–2004

Complaints can contain a number of issues, each requiring separate investigation and possibly resulting in a different outcome. Analysis of complaint complexity, as indicated by the number of issues raised per complaint, shows that on average complainants consistently include between one and two issues per complaint.

An effective complaints system

Ombudsman staff meet on a weekly basis with the AFP to discuss complaints and emerging issues, and to develop a better understanding of police policy and practices. During the year, we explored possible improvements to our complaint-handling systems under the Complaints Act. Some of the outcomes are reported below.

Pathways to remedies for complaints

In 2003–04, a significant proportion of cases, that in past years might have been investigated by AFP Professional Standards, were investigated by management within the AFP's workplace resolution process. These cases typically revealed errors made in good faith, a misunderstanding of police powers, or other unsatisfactory performance elements, as opposed to corrupt intent. Had these matters been investigated, the outcome would have been no different, but most likely would have resulted in a delay in investigation and unnecessary expense.

Even when the result of a workplace resolution process may not be the outcome sought by the complainant, the process is nearly always beneficial. Improved understanding is achieved and the complainant is given an opportunity to discuss the matter directly with senior police. For example, a person may believe that police should not be able to place an intoxicated person in protective custody when no offence has been committed. The complainant may not accept the decision made in the individual case, but will be better informed as to the difficulty of the issue.

Our preliminary assessment is that this approach has led to improved outcomes for complainants and the accountability framework as a whole.

Decisions not to investigate further

One of the roles of the Ombudsman under the Complaints Act is to determine in each case whether further investigative effort, or indeed any investigative effort, is warranted, having regard to all relevant circumstances. The AFP cannot terminate a complaint investigation without the agreement of the Ombudsman's office.

'One of the roles of the Ombudsman under the Complaints Act is to determine … whether further investigative effort … is warranted …'

As a general rule we would consider that it is unproductive and an ineffective use of limited Ombudsman staff resources to investigate a matter if:

the complainant is not committed to using the conciliation process or the nature of the complaint has not been properly detailed
a complaint includes insufficient evidence to allow a firm conclusion to be reached
relevant documents or witnesses are no longer available.

As detailed in Table 2 in the 'Statistics' section, there was an increase in the number of issues we decided not to investigate on receipt of a complaint or after making preliminary inquiries (222 or 24%, compared with 17% the previous year). This allowed Ombudsman staff to devote more time to ensuring that issues warranting investigation received appropriate attention. Taking this approach has resulted in a decrease in the number of conciliations attempted and an increase in the success rate, with a corresponding increase in the number of preliminary inquiries and decisions not to investigate at the outset.

Critical incident reporting

The investigation of some complaints is 'time-critical', usually because of the need to preserve evidence or prevent collusion. The effectiveness of the current Complaints Act accountability system is heavily dependent on having a protocol between the Ombudsman's office and the AFP to ensure disclosure of critical incidents.

A critical incident is a crisis event, in which police action had or could have had a serious, adverse effect on a member of the public, particularly an incident that could lead to the death or serious injury of a person in police custody. AFP Professional Standards contacts us as soon as possible in such a circumstance to determine what investigative response we consider appropriate.

One critical incident was reported to the Ombudsman during the year—the death of a person in the ACT resulting from a crash of a car that had been pursued at high speed by an AFP vehicle. We provided input to the initial stages of the AFP investigation to ensure that all relevant evidence was secured, and that the AFP's investigation considered the possibility that police (or police practices) contributed to the death. This matter is subject to a coronial investigation in the ACT.

Special investigations

During the year, Ombudsman staff worked on four special investigations under powers conferred by the Complaints Act. One of the special investigations, conducted jointly with the AFP, was carried over from the previous year. Two of the investigations were finalised in 2003–04 and the other two will be completed in 2004–05. The two investigations completed this year are reported below.

National Witness Protection Program

We investigated certain aspects of the AFP's administration of the National Witness Protection Program (NWPP) that had come under criticism in a matter before a court. The specific complaint related to the provision by the AFP of a substitute medical certificate to a court that excused a key witness from attending a committal hearing in Sydney. A doctor employed by the AFP, who had not sighted the witness, had issued the medical certificate. The concern was that the AFP had sought to mislead the court in order to secure an adjournment for the prosecution.

A special investigation by the Ombudsman's office concluded that the creation of a second certificate, though done in good faith, was ill advised. There was no evidence to support the contention that the witness or the AFP was attempting to avoid an appearance before the court. While the AFP did not initially disclose all information to the court about the creation of the second certificate, the AFP did not mislead the court about the health of the witness.

In reporting to the AFP, the Ombudsman recommended several changes to NWPP procedures to accommodate the needs of the court, but without compromising a witness's assumed identity (consistent with the Witness Protection Act 1994).

Allegation of assault and false charges

The focus of a special investigation completed during the year was a complaint that the AFP and the Australian Protective Service (APS) (the complainant's employer) had conspired to bring false charges against the complainant relating to the falsification of time sheets that had resulted in a significant overpayment of wages. The complainant had alleged that the charges were in retaliation for being a whistleblower at work. Some weeks before his scheduled court trial in 2002, the complainant was found dead in his flat. In the previous week, he had phoned the emergency number, alleging that an AFP officer had assaulted him.

A team of investigators, drawn from Ombudsman staff and the AFP and reporting to the Ombudsman, investigated the allegations of assault and laying of false charges, and tried to identify any whistleblowing in which the complainant might have been involved. The Ombudsman accepted that there was no evidence to support any of the complainant's allegations.

The New South Wales Coroner is currently inquiring into the complainant's death. Under the public interest provisions of the Complaints Act, the Ombudsman has made available all material requested by the Coroner, including the special investigation report.

AFP complaints outreach program

The office's Law Enforcement Team maintains a range of relationships designed to make the AFP complaint system accessible to those who want to exercise their right to complain. The aim is to generate public awareness of the Ombudsman's role in managing AFP complaints and to build confidence in the complaint system. Additional funding was allocated in the 2004–05 Budget for outreach activities, and an enhanced strategy has been developed for AFP complaints.

'The Ombudsman's outreach program … can obtain information about the community's interaction with the AFP.'

The organisations identified for law enforcement outreach activities are those with a large number of clients from disadvantaged and minority sectors such as the multicultural, indigenous Australian, youth, gay and lesbian sectors, and those with mental health problems. The outreach program will also serve to provide a forum where the Ombudsman's office can obtain information about the community's interaction with the AFP.

During the year, we continued to liaise with government agencies that are closely associated with the AFP, including CrimTrac, the ACT Director of Public Prosecutions, the ACT Legal Aid Office, the ACT Victims of Crime Coordinator, and the Attorney-General's Department. The perspective of these offices provides a valuable insight into current and potential issues involving police practices.

Staff members conducted an outreach visit to the Jervis Bay area, and conducted training sessions for students of criminal law at the Australian National University. We also presented seminars to AFP members about our role and the rights of people to make complaints.

Australian Protective Service

The APS provides a guarding service for Australian Government facilities and airports. The APS also provides a first-response capability at airports in terror alert incidents, and in 2003–04 was part of the Regional Assistance Mission to Solomon Islands. APS officers have a reasonably high level of interaction with the public.

The APS was granted additional powers by Parliament in January 2004. Using these new powers, an APS officer can require a person suspected of a particular offence to furnish their name and address, stop and search a suspect and their vehicle, use reasonable force to effect a search, conduct frisk searches, and seize items from suspects. No complaints were received during the reporting period about alleged abuse of these new powers.

As noted in last year's annual report, the APS became an operational division of the AFP on 1 July 2002; under that arrangement, complaints about the APS are handled under the Ombudsman Act. Seven complaints were received in 2003–04, and a further five complaints were carried forward from the previous year. Of these 12 complaints, ten were closed during 2003–04.

In May 2004, Parliament approved full integration of the APS and AFP by approving amendments to the Australian Federal Police Act 1979. From 1 July 2004, APS members will be subject to the Complaints Act and come under the same professional conduct and complaint regime as AFP members. Significantly, complaints against the APS and its members will have to be notified to the Ombudsman's office, as is currently the case with AFP complaints. Our experience shows that the requirement to disclose all complaints is an excellent accountability mechanism.

'The Ombudsman is confident that the APS's capacity to manage its complaint handling will improve …'

Several of the complaints about the APS in 2003–04 were outside the Ombudsman's jurisdiction, because they related to employment matters. In all other complaints, we considered that the APS internal complaint-handling mechanisms adequately responded to each complainant's concerns. While we expressed concern about a delay in providing a response to a complainant in one case, the Ombudsman is confident that the APS's capacity to manage its complaint handling will improve as the organisation gathers relevant experience and skills.

Members of the Law Enforcement Team spent two days with APS senior managers from around Australia at a workshop in Canberra in June 2004, discussing the implications of subjecting the APS to the Ombudsman's oversight. We look forward to working more closely with APS management and staff in the 2004–05.

Australian Crime Commission

Complaints about the ACC are managed under the Ombudsman Act. Only six complaints were received in 2003–04, largely reflecting the fact that the ACC's role does not bring its staff in close contact with members of the public. A further two complaints were carried over from the previous year. During the year, seven complaints were finalised, and one complaint was carried over.

Of the seven matters finalised during the year, the Ombudsman decided not to investigate four as they were of a trivial nature or were based on an improbable scenario. A fifth complaint related to the ACC's failure to return seized property in a timely manner, which the ACC quickly remedied.

Ombudsman staff made inquiries about a sixth complaint that was of a more serious nature. It was found that the complainants' concerns had been adequately raised and reviewed before a court on previous occasions. In such a case, notwithstanding that a person may be disappointed and continue to debate an outcome in the judicial process, there is no further role for the Ombudsman's office.

A second serious allegation was forwarded to the ACC for investigation under the Ombudsman's supervision. After significant investigative effort, the complainant's allegation could not be substantiated due to lack of conclusive evidence.

While the Ombudsman Act does not confer power to compel an agency to disclose to the Ombudsman all complaints received by the agency, it is pleasing to note that we receive regular briefings on all matters being investigated by the ACC that relate to the integrity of its staff. This provides the Ombudsman with the opportunity to judge whether or not to use own motion powers for certain matters. Considering the sensitive nature of the work of the ACC, we have appreciated the ACC's approach to the disclosure of integrity matters.

'… regular briefings … provide the Ombudsman with the opportunity to judge whether or not to use own motion powers.'

Own motion investigation

In June 2004, the Ombudsman conducted an own motion investigation into a review of the operational and corporate implications for the ACC of alleged corrupt activity by two former secondees.

The scope of the Ombudsman's investigation was limited. It focused on assessing whether the review, which was conducted by independent consultants, met the terms of reference provided by the ACC and whether the recommendations reflected the operational implications identified in the review report. The Ombudsman did not conduct a separate investigation of the allegations of corrupt activity.

The Ombudsman concluded that the review conducted for the ACC had been undertaken in a proper manner and made appropriate recommendations. The Ombudsman's report made two further recommendations to the ACC about developing effective management and compliance systems to address deficiencies identified in the consultants' review report. The Ombudsman also recommended that the ACC implement the package of recommendations made in the consultants' report. The ACC has accepted all the recommendations of both reports.

The Ombudsman will conduct a further own motion investigation during 2004–05 to monitor the ACC's progress in implementing the recommendations.

Monitoring activities

The Ombudsman's office undertakes a variety of monitoring roles in addition to its complaint investigation function. Monitoring activities encompass the inspection of records relating to telecommunications interceptions and controlled operations undertaken by the AFP and the ACC. The Surveillance Devices Bill 2004, which was still under consideration by Parliament at the end of June 2004, would broaden the Ombudsman's inspection role to include records relating to surveillance devices.

In the 2003–04 Budget, the Australian Government provided additional ongoing resources for the Ombudsman's monitoring and inspection function. We are acutely aware that the Commonwealth Ombudsman is part of a larger community of bodies that oversight law enforcement practices, both within Australia and internationally.

The office's Law Enforcement Team is actively developing a network of contacts with other Ombudsman offices to share knowledge and ideas. For example, we hope to achieve a nationally coordinated and consistent approach between Ombudsman offices that will make our collective activities more efficient and enhance our advice to government.

We have commenced an extensive review of our inspection methodologies both for telecommunication interceptions and for controlled operations. This review will be finalised in 2004–05, and will be followed by consultation with the AFP and the ACC.

These reviews have identified a small anomaly in the reporting requirements placed on the office. We currently report on the inspections we conduct in a financial year, rather than on the records generated in that period. This situation has the effect that the Ombudsman's reports to the Attorney-General cannot reasonably include interception records generated in the last months of the financial year. We intend to progress this issue in 2004–05.

'The Ombudsman is required to inspect the records of the AFP and the ACC …'

Telecommunication interceptions

Under the Telecommunications (Interception) Act 1979 (TI Act), the Ombudsman is required to inspect the records of the AFP and the ACC to ensure that telephone interception activities are conducted in accordance with the provisions of the Act.

During the year, a total of four inspections of telecommunications intercept records were conducted. Two inspections were conducted at the AFP and two inspections at the ACC. A report was made to the Attorney-General on the results of those inspections. The reports concluded that the agencies are generally complying with the requirements of the TI Act. However, there are also opportunities to improve the administrative and compliance systems for both agencies, especially in developing guidelines and training to assist staff in administering telecommunications interception warrants.

These inspections continue to form an important element of the work of the Ombudsman's Law Enforcement Team. The inspection methodology used and resource levels required are continually reviewed to ensure that the accountability role of the office continues to be performed adequately.

In conjunction with the AFP, we gave presentations to AFP investigators in Melbourne, Sydney and Perth, about the importance of accountability. These occasions gave investigators an opportunity to discuss issues of concern.

While in Perth, we had discussions with the ACC, a representative of the Western Australian Ombudsman and the Parliamentary Inspector of the Western Australian Corruption and Crime Commission. Representatives of the ACC also travelled to Canberra to meet with us to discuss new procedures and training.

We met with representatives from the Security Law Branch of the Attorney-General's Department to discuss matters relating to the TI Act.

Controlled operations

Controlled operations can be broadly described as covert operations carried out by law enforcement officers for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious offence under the Crimes Act 1914 (Crimes Act). These operations may also result in the law enforcement officers engaging in conduct that, unless authorised under a controlled operations certificate, would constitute an offence.

The Ombudsman has an oversight role in ensuring that controlled operations are approved and conducted in accordance with Part 1AB of the Crimes Act, and that information in formal reports is comprehensive and accurate. Relatively low numbers of controlled operations are undertaken in the federal law enforcement arena.

'The Ombudsman has an oversight role in ensuring that controlled operations are approved and conducted in accordance with the Crimes Act …'

During the year, a total of four inspections of controlled operations records were conducted. Two audits were conducted at the AFP and two audits at the ACC. These inspections resulted in reports to both agencies and the Minister for Justice and Customs, a briefing to the Parliamentary Joint Committee on the ACC, and the presentation of a report to the President of the Senate and the Speaker of the House of Representatives in January 2004. The reports concluded that the agencies are generally complying with the requirements of the Crimes Act and providing comprehensive and accurate information in formal reports.

Following the Ombudsman's briefing to the Parliamentary Joint Committee on the ACC in October 2003, an own motion investigation was conducted under the Ombudsman Act into controlled operations carried out by the ACC under State and/or Territory legislation. The investigation is due to be completed in 2004–05.

Other agencies

The jurisdiction of the Commonwealth Ombudsman extends to nearly all Australian Government agencies. However, nearly 90% of complaints to the Ombudsman are about the few agencies dealt with in the earlier sections of this chapter. The remaining 1,952 (or 11%) of complaints are received about 82 other agencies across 16 portfolios. Table 5.2 sets out ten of the agencies for which the most complaints were received.

TABLE 5.2Complaints received about top ten other agencies, 2001–2004

TABLE 5.2 Complaints received about top ten other agencies, 2001–2004

Any description of the complaint and investigation role played by the Ombudsman in relation to 82 different agencies is necessarily selective. Many of the complaints relate to administrative decisions or actions that form part of the specific, and at times unique, schemes being administered by particular agencies. There are, nevertheless, common themes that emerge in complaint handling, often to do with the timeliness of decisions, transparency in the decision-making process, rigidity in applying rules, and the clarity and sufficiency of the reasoning given in support of decisions.

'There are common themes that emerge in complaint handling …'

This section provides some examples of the complaints handled this year by the Ombudsman, and the themes taken up by the office. The themes and examples have been selected to provide a picture of the diversity of issues handled each year. They show, at the same time, the variety of situations in which people seek assistance from an independent agency such as the Ombudsman in relation to their dealings with government agencies. Complaints also present an opportunity to improve government administrative practice. In focusing on this systemic dimension, the Ombudsman's office can draw on 27 years of experience in handling a broad range of complaints.

Department of Employment and Workplace Relations

The Department of Employment and Workplace Relations (DEWR) is one of many government agencies that manage financial assistance schemes and other programs that provide grants or financial concessions to individuals and companies. It is to be expected that any scheme of entitlement in which applications are not always successful will generate complaints about the adverse decisions and how those decisions were made. This is particularly the case in the early days of a new scheme, when systems and processes are being developed, and entitlement criteria are being refined. At this stage in the development of a program it can be all the more importantto have oversight by an Ombudsman or another review process.

These observations have been borne out in complaints received by the Ombudsman regarding the administration of the General Employee Entitlements and Redundancy Scheme (GEERS) introduced in 2001. Complaints regarding GEERS now account for over 40% of all DEWR complaints, and underscore the noticeable increase in the total number of DEWR complaints received by the Ombudsman. There was a 69% increase in DEWR complaints in 2002–03 and a further 20% increase in 2003–04.

As Table 5.2 shows, these numbers are small in absolute terms. The 20% increase is in a figure of only 245 complaints for the year. Of the DEWR complaint issues investigated, 59% resulted in a remedy being proposed, compared with 69% for all issues investigated by this office. An example of a complaint dealt with this year is in the case study, Defining the period.

CASE STUDY

defining the period

Mr K's employment was terminated due to the insolvency of his employer. As his employment contract provided for three months payment in lieu of notice, Mr K applied for payment in lieu of notice under GEERS. However, Mr K's employment contract did not define the term 'month'. In calculating how much money Mr K was entitled to receive, DEWR defined a month as a four-week period. Mr K sought internal review of the decision on the basis that his contract referred to a calendar month and not four weeks. His appeal was not successful.

Ombudsman staff contacted DEWR, pointing out that case law supported the proposition that when the term month was not defined it referred to a calendar month. We also pointed to the Acts Interpretation Act 1901 (Cth), which provides that the term 'month' refers to a calendar month.

DEWR agreed with our view and paid Mr K 13 weeks payment in lieu of notice (instead of 12), and advised that instructions would be issued to ensure that this becomes standard practice.

GEERS is a scheme that was established by executive rather than legislative action. The only right of review provided for by the scheme is to a more senior DEWR officer; there is no appeal right to an external tribunal. Complaint investigation by the Ombudsman can therefore play an important role.

A meeting was held between staff of the Ombudsman and DEWR in early 2004 to discuss a number of issues, including:

denial of natural justice, which can occur if an applicant for a GEERS payment is not given the opportunity to comment upon information obtained from a third party that conflicts with the applicant's information
a lack of detail in notification letters about how amounts are calculated and the evidence on which a decision is based
inadequate investigation, when an unsuccessful applicant has sought review of the decision, particularly where 'independent verification' of outstanding entitlements is required
inadequate notification of the scheme to those eligible to apply under it, resulting in some applicants failing to lodge an application within 12 months of the termination of employment, as required by GEERS.

DEWR responded positively to the meeting with Ombudsman staff, drawing on our experience both in the administration of other entitlement schemes and in the handling of complaints. The Department undertook to respond to the matters raised at the meeting and to action a review of the particular GEERS processes and documentation in question.

The other major area of complaint in DEWR is the Job Network, which provides job search assistance and other employment services for people registered for unemployment benefits. The Job Network provider organisations are private and community-based organisations that have been selected through a competitive tendering process. They are contracted by DEWR to provide employment services in accordance with a code of practice. The case study, Tailoring services to individual requirements, provides an example of complaints received about the Job Network.

CASE STUDY

tailoring services to individual requirements

Mr N was required to negotiate a Job Search plan with his Job Network member. He was told that, as part of this plan, he needed to complete a 100-hour Job Search training course, which included resume preparation and interview techniques. As part of his redundancy package, Mr N had attended extensive training covering the same issues, but was nevertheless told that he had to do the Job Search training regardless of his previous training. When he called the Job Network Hotline, Mr N was told to contact the Ombudsman as there was nothing the hotline could do about the issue.

Job Search training is compulsory, but equally a Job Network member is required to assess the labour market skills and job search needs of the individual during this training. This enables the member to tailor the training to the job seeker's specific needs.

DEWR undertook to contact Mr N and to explain his rights and apologise for not resolving the complaint when he contacted the hotline. DEWR also undertook to contact Job Network members and emphasise the importance of tailoring services to the individual job seeker.

The Ombudsman conducted an own motion investigation into complaint handling in the Job Network, releasing a report in August 2003. This investigation checked the progress made by DEWR in implementing recommendations made by the Ombudsman in 2001 regarding suggested improvements to Job Network complaint-handling arrangements. DEWR had accepted ten of the 11 recommendations arising from the investigation. The Ombudsman noted that some of the recommendations had already been incorporated into requirements under the new employment services contract, which commenced in July 2003. While the investigation revealed that there had been significant progress in complaint handling within the Department, improvements were still required to arrangements for complaints made directly to Job Network providers.

We will continue our interest in DEWR's administration of complaints about the Job Network and the response to the recommendations in our 2003 report. A copy of the August 2003 report, entitled Own motion investigation into complaint handling in the Job Network, is available on our website at www.ombudsman.gov.au.

Australian Electoral Commission

A complaint about a decision by the Australian Electoral Commission illustrated the point that on occasions the decisions made by government agencies do not adhere to legislation or internal guidelines. External review by a body such as the Ombudsman can be useful in drawing attention to such a deficiency. This point was taken up in the case study, A street by no other name.

CASE STUDY

a street by no other name

A Member of Parliament complained on behalf of a constituent, Mr T, concerning the way that Mr T's address details were set out on the electoral roll. Mr T had moved to a retirement village in 1996, and initially the Australian Electoral Commission (AEC) accepted the address he nominated.

In May 1999 the AEC changed all the addresses for the retirement village using an internal but non-gazetted road as the point of reference for the roll details. Mr T complained about the change but the AEC refused to alter the details and maintained that its staff had the power to make changes to street names or any other part of an address on the roll.

Following our investigation, the Electoral Commissioner agreed that the decision to change the address did not reflect the AEC's view of the law or current procedures. The intent of the relevant provisions of the Commonwealth Electoral Act 1918 was to give the AEC authority to alter the roll when local government bodies change street names and/or numbers. The provisions imply that this power should only be exercised once official or gazetted changes have been made, and the AEC's internal procedures had been explicit on this point since at least 2001.

The AEC developed a new form of roll address in compliance with the law for all the residents of the retirement village and apologised to Mr T for any distress caused.

Family Court of Australia

Members of the public frequently rely on agency staff for advice on completing an official transaction. It is therefore important for staff who have direct contact with the public to be well-trained and experienced. The Experienced counter staff case study illustrates where this can be an issue.

CASE STUDY

experienced counter staff

Mrs B complained that the Family Court had dismissed her divorce application. The ground of dismissal was that the affidavit verifying the application had not been sworn before an appropriately authorised person. Mrs B claimed that she had followed the advice of a Court Registry officer as to the requirements for swearing a document, and that the Court Registry had not detected the error when her divorce application was presented to the Court Registry for filing.

Our investigation was not able to establish whether Mrs B had been given incorrect advice. The Court advised that it has procedures designed to detect and remedy some of the flaws in material presented by clients for filing, but that at the time Mrs B had filed her divorce application there were staffing problems caused by experienced counter staff leaving the Court. Further training was conducted when errors of the nature experienced by Mrs B had been discovered.

The Court acknowledged that it would have been preferable had the incorrect swearing of the application been detected. The Court advised that consideration would be given to waiving the filing fee if Mrs B presented a new application.

Health Insurance Commission

The issue of the accuracy of agency advice given to a member of the public also arose in two complaints about the Health Insurance Commission. In one case, a Medicare office incorrectly refused to recognise a citizenship certificate as proof of Australian permanent residency. The Commission made a written apology and undertook to target specific training at the particular Medicare office.

In another case, Medicare staff told the complainant, whose Medicare card had expired, that he had to apply for a new card, even though no details had changed since he was last issued with a card. Medicare staff admitted that this was incorrect advice and apologised to the complainant.

Telstra Corporation

Telstra Corporation remains within the jurisdiction of the Commonwealth Ombudsman, although the Ombudsman's office handles few complaints since the introduction of the Telecommunications Industry Ombudsman (TIO). Generally, we advise a person complaining about Telstra to take their complaint to the TIO for consideration.

We sometimes receive complaints from individuals who do not agree with the TIO's conclusion. It does not come within the Ombudsman's jurisdiction to review the decisions of the TIO and we therefore do not investigate these types of complaints.

We receive a small number of complaints about Telstra each year, falling outside the charter of the TIO, in which the Ombudsman has a role to play. Two examples are in the case studies, Verifying events and Services and billing. The first, concerning the emergency telephone service (the 'triple 0' call facility) that Telstra provides as part of its Community Service Obligation, was outside the TIO's charter because it was not a matter of a competitive nature. The second, concerning difficulties an Internet Service Provider stated he was experiencing with Telstra relating to service provision and billing issues was outside the TIO's charter because the TIO does not examine disputes between its 'members'.

CASE STUDY

verifying events

Mr G believed that attempts by his daughter to contact the 'triple 0' number were not appropriately handled by Telstra operators and had contributed to the total loss of his house in a fire.

In response to our inquiries, Telstra was able to provide evidence of all calls made to the 'triple 0' service at and around the time Mr G alleged the incidents occurred. Telstra also provided us with an audio copy of the telephone conversations between Mr G's daughter, other callers about the fire and Telstra operators.

As there was nothing to support Mr G's version of events, we decided to cease further investigation unless Mr G was able to provide additional information. Our investigation did not satisfy Mr G, but it did provide him with detailed evidence of Telstra's record of all calls made to the 'triple 0' service from the telephone number he nominated. We also advised Mr G about the further information required if he wanted us to take this matter further.

CASE STUDY

services and billing

A complaint from an Internet Service Provider was about the technical cause of service supply interruption, as well as billing issues. The complaint was complex due to the protracted nature of discussions between the Provider and Telstra.

We examined the processes pursued by Telstra to identify the cause of the supply interruption; the nature, content and regularity of advice and contact to the Provider from Telstra; and the reasonableness of its actions in the circumstances, particularly given the relative size of the two organisations. We did not examine the technical aspects of the case other than to assure ourselves that Telstra's response to these aspects appeared fair in the circumstances, with Telstra commissioning an independent review of the technical issues.

Ombudsman staff were satisfied that Telstra had acted reasonably in addressing the Provider's concerns and in dealing with the technical disagreement. While our office's role in this complaint has ceased, financial resolution of the matter between Telstra and the Internet Service Provider continues. In this particular complaint, the involvement of the Ombudsman's office helped both parties to focus on the need for resolution and pointed to options to move the process forward.

Australian Customs Service

The low number of complaints received about the actions and decisions of the Australian Customs Service (ACS) is notable, given the frequency with which the ACS interacts with members of the public and the increased scrutiny of passengers and goods at airports. Only 73 complaints were received in 2003–04 (compared to 70 the previous year).

In a small number of cases, our investigation indicated that a Customs officer may not have treated a passenger appropriately. ACS provided details of the strategies it put in place to minimise the likelihood of a recurrence and offered apologies to the passengers involved.

The willingness of ACS to respond to feedback was demonstrated during the investigation of a complaint about the return of a package to the sender during the period allowed for an objection to additional tax. ACS acknowledged that the information it published needed to be revised to provide clearer advice to importers of their responsibilities in such a situation. In addition, ACS decided to amend decision-making procedures so that more senior and experienced officers would be involved in such matters.

During the year, ACS released a revised Client Service Charter and an updated complaints and compliments brochure. These publications have taken feedback from our office into account. The new complaints and compliments brochure combines two former brochures and is designed to encourage feedback from members of the public affected by the actions of the ACS. The brochures are available at www.customs.gov.au.

Tender and contract issues

It is common for government agencies to contract with private sector bodies to deliver services previously provided directly by an agency. When this occurs, it is important that the public should not lose their right to complain about the way in which a service is being delivered.

Where a government service has been contracted out, the Ombudsman can often look at the responsibility of the government agency that is contracting the service, even if the contractor itself is outside our jurisdiction. For example, a private company manages immigration detention facilities, but that does not absolve the Department of Immigration and Multicultural and Indigenous Affairs from responsibility for the operation of detention facilities. Many complaints to the Ombudsman about the facilities are taken up with the Department.

The right to complain to the Ombudsman is not the only administrative law right that can be inhibited by the contracting out of government functions, as illustrated by the Outsourced service case study.

CASE STUDY

outsourced service

Ms A had settled in Australia as a refugee with her husband (since deceased) and four young children. She and the children lived for a short while in a group accommodation house, operated by a non-government organisation that was funded by government to provide resettlement services. Prior to leaving the accommodation, there had been disagreement between Ms A and the non-government organisation about such matters as the suitability of the accommodation for a family, the operation of bank accounts, and religious preference in choice of schooling.

Ms A approached our office for assistance in obtaining Freedom of Information (FOI) access to medical and financial records relating to her resettlement in Australia. We were able to assist her in pursuing the FOI claim in relation to two Australian Government agencies, but were not able to assist her in obtaining access to the records of the non-government organisation. The organisation was not subject to the Ombudsman's jurisdiction, and was under no legal obligation to provide Ms A with access to its records.

Complaints of this nature raise the general issue of whether public information access rights should apply to documents relating to the discharge by non-government organisations of services they have been funded by government to provide to the public. A recommendation in support of this principle was made in the 1995 report of the Administrative Review Council and the Australian Law Reform Commission, Open Government: A Review of the Federal FOI Act. The report recommended that the obligation be imposed and spelled out as appropriate by statute, in service contracts, or in executive guidelines issued by an FOI Commissioner. The recommendations have not been implemented, but this is an issue of continuing interest for the Ombudsman's office.

The Government has accepted in principle a recommendation by the Parliamentary Joint Committee of Public Accounts and Audit that the Ombudsman's jurisdiction be extended to cover the actions of Commonwealth contractors. The Government's view was that the action should be limited to contracts for the provision of goods and services to the public. As part of a review of the Ombudsman Act being undertaken by the office, we are examining the option of proposing to government that the Act be amended to confer this jurisdiction upon the Ombudsman.

Another way in which the Ombudsman becomes involved in contractual issues is that a private-sector body can complain to the Ombudsman about its dealings with government, including dealings around the tender and contract process. In 2003–04, we received 53 complaints about tendering processes and contractual disputes.

Before pursuing a complaint about a contractual matter, the office first considers whether a legal avenue may be a more appropriate alternative. In some instances, parties are better served by protecting their legal interests and pursuing a legal rather than an administrative remedy. There are, on the other hand, situations in which administrative review of the kind provided by the Ombudsman is a more suitable mechanism for resolving a problem that might otherwise escalate into a protracted and costly legal dispute.

Generally, we are prepared to commence preliminary inquiries or to conduct an investigation where there are indications of poor administrative practice and where a company's or an individual's financial capacity to pursue the issue through the courts appears more limited. Our aim is not to circumvent legal processes, but to try to assist in obtaining a quicker, less expensive resolution for both parties, and to identify any systemic administrative deficiencies and processes, in what are generally very complex cases.

Freedom of Information complaints

There is a close relationship between democracy, accountability and transparency. The purpose of the Freedom of Information Act 1982 (the FOI Act) is to extend, as far as possible, the Australian community's right of access to information in the Australian Government's possession. The FOI Act expressly empowers the Ombudsman to receive and investigate complaints about the actions of Australian Government departments and agencies in response to FOI requests. The Act also requires agencies to inform applicants of their right to complain to the Ombudsman about FOI matters. The Ombudsman's role is to ensure that agencies maintain sound records, provide information clearly and accessibly, and have an open and responsive approach to complaint handling.

Complaints about FOI

During the year, we received 236 complaints and finalised 229 complaints about the way Australian Government agencies handled requests under the FOI Act (see Table 5.3). This is a 10% decrease from the 263 complaints received in the previous year.

TABLE 5.3 Freedom of Information complaints and issues finalised, by agency, 2003–04

TABLE 5.3 Freedom of Information complaints and issues finalised, by agency, 2003–04

As in previous years, the bulk of complaint issues during the year related to the processing of FOI requests, with two-thirds concerning delay. Agencies continue to take more time to make decisions than the FOI Act allows. In some cases staff appeared to have problems recognising FOI applications as such and forwarding them to the appropriate area for processing.

'… the bulk of complaint issues … related to the processing of FOI requests, with two-thirds concerning delay.'

Where the Ombudsman finds there has been delay, the usual remedy is to encourage the agency to speed up the processing and give an apology. For some complaints we have suggested more, such as a remission of fees and charges. Occasionally, the Ombudsman requests that the agency provide appropriate staff training and remind staff of the statutory time limits.

It is not always possible for agencies to identify all relevant documents relating to an FOI application in the first instance. In one case investigated this year, the agency provided further documents to the applicant following an internal review by the agency and then again after investigation by the Ombudsman of the applicant's complaint. Our investigation found that the existence of the further documents only became apparent in the context of continuing inquiries.

'Another common complaint issue was about the correctness of the FOI decision itself.'

In these circumstances, given the nature of the documents requested and the relative obscurity of the procedure to which they related, we were reluctant to criticise the agency. We did, however, negotiate a waiver of the fees for the internal review request and a review of FOI procedures within the agency to ensure that, in future, the agency's FOI officers received appropriate technical advice relating to requests about technical processes.

Another common complaint issue was about the correctness of the FOI decision itself. The majority of these complaints were not investigated, mainly because the complainants had not yet exercised their review rights. The FOI Act provides that an applicant who disagrees with a decision under the Act (for example, an exemption claim or an FOI charge) can seek internal review of that decision by a more senior officer of the agency, followed by an appeal to the Administrative Appeals Tribunal.

Own motion investigation

In the last quarter of 2003–04, the Ombudsman conducted an own motion investigation into the quality of FOI processing by Australian Government agencies. This investigation follows on from the 1999 Commonwealth Ombudsman's report, Needs to Know (available on our website), and from the work done earlier in the reporting year by the Australian National Audit Office, Administration of Freedom of Information Requests. During this investigation, we:

reviewed our office's complaint records
analysed decisions of the Administrative Appeals Tribunal
reviewed agency guidelines
analysed a selected sample of FOI files from a range of agencies.

In early 2004–05, we will publicise the general trends identified in the investigation. As the sample size is limited, we do not propose to identify specific agencies. Issues of concern will be raised with individual agencies.