Commonwealth Ombudsman Annual Report 2004-05 | Appendixes
APPENDIX 1 | presentations and papers by staff
Airo-Farulla, G. 2004, With Respect to: Characterising Commonwealth Laws, paper presented to Constitutional Law Teachers' Workshop, Sydney.
Airo-Farulla, G. 2004, Judicial Review of Gaming Regulation, paper presented to 1st Annual Governance Research Network and Regulatory Institutions Network Conference, Canberra.
Airo-Farulla, G. 2004, He Ain't Heavy, He's My Brother: Separation of Powers and Judicial Counterweights, paper presented to 2004 Australian Institute of Administrative Law, National Administrative Law Forum, Hobart.
Airo-Farulla, G. 2004, Courts and Tribunals—What's the Diff?, paper presented to the Australian Institute of Judicial Administration, National Tribunals Conference, Brisbane.
Airo-Farulla, G. and White, S. 2004, Separation of Powers, 'Traditional' Administration and Responsive Regulation (2004) Vol. 4 Macquarie Law Journal No. 57.
Airo-Farulla, G. 2005, Judicial Review of Gaming Regulation, paper presented to Griffith Law School Staff Seminar, Brisbane.
Airo-Farulla, G. 2005, When can a Tribunal Change its Mind?, paper presented to Council of Australasian Tribunals Seminar, Brisbane.
Brent, R. 2004, The Role of Good Governance in Australia, presented to the National Commission of Indonesia Regional Seminar, Maumere, Indonesia.
Brent, R. 2005, Policies, Guidelines and Legislation in Good Administration, presented to the ACT Contact Officers Forum, Canberra.
Brent, R. 2005, Common Faults in Administrative Inquiries, presented to Inspector-General Australian Defence Force (IGADF) Inquiry Officers Course, Sydney.
Browne, D. 2005, Introduction to Alternative Dispute Resolution, presented to the Malawian Body of Case Handling Institutions Conference, Zomba, Malawi.
Browne, D. 2005, Australian Administrative Law and the Ombudsman, presented to the Malawian Body of Case Handling Institutions Round Table, Zomba, Malawi.
Browne, D. 2005, Australian Administrative Law and the Ombudsman, presented to the National Ombudsman Commission of Indonesia Regional Seminar, Manado, North Sulawesi, Indonesia.
Browne, D. 2005, The Ombudsman and the Public Service, presented to the National Ombudsman Commission of Indonesia Regional Seminar, Surabaya, East Java, Indonesia.
Durkin, M. 2004, The Role of the Defence Force Ombudsman, presented to the Defence Force Legal Conference, Canberra.
McMillan, J. 2004, The Ombudsman and the Rule of Law, paper presented to the Australian National University Public Law Weekend, Canberra.
McMillan, J. 2004, Reflections—from Academia to Practitioner, presented to the Australian Public Service Commission Seminar, Brisbane.
McMillan, J. 2004, Problem Areas in Administrative Law, presented to a joint Commonwealth/State Ombudsman Seminar, Perth.
McMillan, J. 2004, Border Security and Immigration, presented to United Nations Youth Ambassadors, Canberra.
McMillan, J. 2004, Administrative Law and Outsourced Decision making, paper presented to Australian Public Service Secretaries' Meeting, Sydney.
McMillan, J. 2004, Adapting to Change: the Contemporary Role of the Ombudsman, presented to the Joint Initiatives Group, Sydney.
McMillan, J. 2004, Legal Training for Primary Decision Makers, presented to Administrative Review Council, Canberra.
McMillan, J. 2005, Problem Areas and Emerging Issues: An Ombudsman Outlook, presented to the Australian Institute of Administrative Law, Melbourne.
McMillan, J. 2005, Legislative Scrutiny from an Ombudsman Perspective, presented to the International Conference on Scrutiny of Bills and Human Rights, Canberra.
McMillan, J. 2005, Problem Areas and Emerging Issues: An Ombudsman Outlook, presented to the Australian Institute of Administrative Law, Perth.
McMillan, J. 2005, Problem Areas in Administrative Law, presented to the Australian Public Service Commission Seminar, Perth.
McMillan, J. 2005, Complaint Management and Good Government, presented to ACT Contact Officers' Forum, Canberra.
McMillan, J. 2005, Natural Justice, presented to the joint Australian Federal Police/Ombudsman Integrity Investigation Program, Canberra.
McMillan, J. 2005, The Ombudsman and Parliament—Assimilating their Complaint Functions, presented to a seminar for State and Commonwealth Parliamentarians, Hobart.
McMillan, J. 2005, Principles of Australian Public Law, presented to newly appointed SES officers, Canberra.
McMillan, J. 2005, The Ombudsman—Future Directions, paper presented to the Australian Institute of Administrative Law National Administrative Law Forum, Canberra.
McMillan, J. 2004-05, various presentations on administrative law, the Ombudsman and complaint handling to seminars organised by the Australian National University, Attorney-General's Department, and Sparke Helmore.
Pitham, C. 2004, Who's got the map?, paper presented to the Australian Institute of Administrative Law, National Administrative Law Forum, Hobart.
APPENDIX 2 | freedom of information statement
This appendix provides information required under the Freedom of Information Act 1982 (the FOI Act), which stipulates that Australian Government agencies must report annually on:
- the organisation and functions of the agency
- the categories of documents that are held by the agency
- how people can gain access to information held by the agency.
Functions and decision-making powers of the Ombudsman
The Commonwealth Ombudsman was established by the Ombudsman Act 1976. The Act came into effect on 1 July 1977 and is administered by the Prime Minister. The Ombudsman is also the Defence Force Ombudsman.
The national office of the Commonwealth Ombudsman and the office of the Australian Capital Territory Ombudsman are co-located in Canberra. Other offices are located in Adelaide, Brisbane, Darwin, Hobart, Melbourne, Perth and Sydney.
The Ombudsman and Deputy Ombudsman are statutory officers appointed under the Ombudsman Act. Staff are employed under the Public Service Act 1999.
Investigation of administrative actions
Following a complaint from a member of the public, or using 'own motion' powers under the Ombudsman Act, the Ombudsman may investigate the administrative actions of most Australian Government departments and agencies and some private contractors delivering government services.
The Ombudsman cannot investigate:
- the actions of government Ministers or judges
- most employment-related matters (although the Defence Force Ombudsman can investigate employment-related complaints from current or former members of the Australian Defence Force)
- the actions of some government business enterprises.
The Ombudsman can decide not to investigate complaints that are 'stale', or frivolous, where the complainant has not first sought redress from the agency, where some other form of review or appeal is more appropriate, or where he considers investigation would not be warranted in all the circumstances.
The Ombudsman may conduct a complaint investigation as he thinks fit. The powers of the Ombudsman are similar to those of a Royal Commission, and include compelling an agency to produce documents and examining witnesses under oath. Most investigations are conducted with minimal formality.
Ombudsman investigations are private, and details are generally not revealed to people who are not legitimately concerned with the investigation. The Ombudsman's office is subject to the FOI Act and the Privacy Act 1988.
Following an investigation, the Ombudsman is required to consider whether the actions of the department or authority were unreasonable, unlawful, improperly discriminatory or otherwise wrong.
When the Ombudsman concludes that an agency has erred, he may report that view to the agency and may recommend whatever remedial action the Ombudsman thinks is appropriate. If the agency does not implement that action, the Ombudsman can report such to the Prime Minister and report to the Parliament. The Ombudsman must inform complainants of the action taken by the office in response to their complaints.
Defence Force complaints
The Defence Force Ombudsman (DFO) can investigate complaints about administrative actions and Defence Force employment matters. The DFO cannot investigate actions connected with disciplinary proceedings or the grant or refusal of an honour or award to an individual. The DFO investigates complaints from serving members only after they have exhausted internal grievance mechanisms, unless there are exceptional circumstances. The DFO also investigates complaints from ex-service personnel or their families.
Taxation complaints
The Ombudsman has a specialist team to investigate complaints about the Australian Taxation Office (ATO), headed by the Special Tax Adviser. Under s 4(3) of the Ombudsman Act, the Commonwealth Ombudsman is also the Taxation Ombudsman when dealing with complaints about the ATO.
Complaints about freedom of information
The FOI Act enables the Ombudsman to investigate complaints about actions and decisions by departments and agencies about requests for access to documents under FOI. Details of these complaints are included in the Ombudsman's annual reports and in any additional reports made to Parliament under s 19 of the Ombudsman Act. These reports may include observations about the operation of the FOI Act and recommendations on ways to improve public access to documents.
Complaints about the Australian Federal Police
The Ombudsman has specific functions in relation to complaints about the Australian Federal Police (AFP) under the Complaints (Australian Federal Police) Act 1981. Complaints about the AFP usually focus on its practices and procedures or the conduct of individual AFP members. Complaints about its practices and procedures are dealt with in a similar way to complaints made under the Ombudsman Act.
Where the conduct of an AFP appointee is in question, the AFP Professional Standards and Internal Investigation division normally undertakes the initial investigation. There are occasions where Internal Investigation is not involved; for example, when the complaint is about actions of a member of Internal Investigation. The Ombudsman examines reports of all AFP investigations, whether the originating complaint was made to the Ombudsman or to the AFP, and decides whether further action is necessary. If action is required, the case may be referred back to the AFP for further investigation. Alternatively, the Ombudsman can decide to investigate the matter independently.
Following an investigation by either the Ombudsman or the AFP, the Ombudsman can recommend remedial action to the AFP Commissioner. Recommendations may include that a member be charged with a criminal offence or a breach of discipline, or some other course of action.
The Ombudsman's intercept and surveillance devices audit
Under the Telecommunications (Interception) Act 1979 and the Surveillance Devices Act 2004, the Ombudsman can inspect certain records of the AFP and the Australian Crime Commission (ACC) to ascertain whether the agencies have complied with specified record-keeping requirements of the Acts.
Audit of controlled operations
In accordance with the Crimes Act 1914, the Ombudsman is required to inspect and report on records of controlled operations conducted by the AFP and the ACC.
Audit of compliance powers
The Ombudsman also has responsibility for auditing the use of the compliance powers in the Workplace Relations Act 1996 by members of the Building Industry Taskforce.
Australian Capital Territory (ACT) Ombudsman
Under ACT legislation, and by arrangement between the Australian and ACT governments, the Commonwealth Ombudsman is also the Ombudsman for the ACT. A more detailed explanation of the role of the ACT Ombudsman appears in a separate annual report made to the ACT Government.
Under the Public Interest Disclosure Act 1994 (ACT), the Ombudsman is a proper authority to receive and investigate disclosures by whistleblowers in relation to the actions of ACT Government agencies.
Categories of documents held by the Ombudsman
Broadly speaking, the Ombudsman holds information related to:
- investigations, including complaints, correspondence and consultations with complainants, agencies and other information sources, background material, records of conversation, analysis and advice, and reports
- oversight functions
- the Ombudsman's role as the chief executive of an Australian Government agency with a particular set of responsibilities, in terms of the development or implementation of administrative process, policy or legislation
- the Ombudsman's management of the office, including personnel, contracting and financial records and information about asset management.
FOI access and initial contact points
General inquiries and requests for access to documents or other matters relating to freedom of information may be made in person, by telephone or in writing at any Commonwealth Ombudsman office. Each office is open between 9 am and 5 pm on weekdays. For the cost of a local call, people can contact their nearest Commonwealth Ombudsman's office by calling the National Complaints Line on 1300 362 072. (See contacts in 'References' section of this report.)
Pursuant to s 23 of the FOI Act, the Ombudsman has authorised the Deputy Ombudsman, all Senior Assistant Ombudsmen, and some Executive Level officers to grant or refuse requests for access. Under an arrangement made outside the Act, the Ombudsman has agreed to officers at and above Executive Level 1 providing limited complaint information if requested by, or on behalf of, a complainant as detailed below.
FOI requests to the Ombudsman's office
The Ombudsman's office deals with a moderate number of requests every year under the FOI Act (15 in 2004–05, compared to 23 in 2003–04 and 37 in 2002–03), mostly for documents related to investigations. Following are some observations about how those requests are handled.
- The office tries to set a good standard of compliance. We do not require a complainant to submit an FOI request prior to Ombudsman staff providing certain kinds of documents:
- documents previously and lawfully provided by or to the complainant by the Ombudsman's office or someone else
- records of telephone conversations involving the complainant
- most database entries relating to the complainant.
- In the course of investigation, we may provide an agency response to a complainant so that he or she can better understand the agency's position.
- It is likely that an investigation file could contain information and documents provided by other agencies—typically, the agency about which a complaint was made. Wherever possible, the Ombudsman will seek the other agency's agreement to transfer to it those parts of the request that relate to
its functions. This is done because the other agency is usually much better placed to make an informed decision about the documents' content and context, in the light of their experience in dealing with requests for similar documents.
A further consideration is that if the request is not transferred, the other agency would have a legitimate interest in making suggestions about the decisions the Ombudsman should make. The Ombudsman would not be bound to accept those suggestions, but they would have to be given considerable weight. From the point of view of the complainant, if there is a complaint about an FOI process, it is probably better that the Ombudsman's office has been involved as little as possible.
- It is possible to detect that some FOI requests to the Ombudsman are made with a view to causing extra work for an investigator who made, in the view of a complainant, the 'wrong' decision. As a matter of practice, staff who have had little or no involvement with the investigation often perform the tasks of processing and decision making on FOI requests. The question of motive is, of course, irrelevant to rights under the FOI Act.
The Ombudsman has been considering whether exempting the office from the operation of the FOI Act would not, on balance, adversely affect the right of complainants. The Ombudsman proposes to raise this issue in the context of a review of the office's legislation.
APPENDIX 3 | statistics
TABLE 1—complaints received, and complaints and issues finalised, 2004–05, Ombudsman Act 1976 (including freedom of information)
TABLE 2—AFP complaint issues finalised, 2004–05, Complaints (Australian Federal Police) Act 1981
TABLE 3—AFP method of handling complaint issues finalised, 2004–05, Complaints (Australian Federal Police) Act 1981
Legend for Tables
Advised to pursue elsewhere—complainant advised to pursue complaint directly with agency, court or tribunal, industry or subject specialist, member of parliament or Minister. AFP investigation—AFP investigation of complaints against AFP members and review by the Ombudsman. AFP workplace resolution—complaints managed by the AFP in the workplace. Agency defect—administrative deficiency determined where an agency has not acted fairly, reasonably or in accordance with its legislation, policies and procedures. Complaint not pursued—withdrawn by complainant, or written complaint requested but not received. Complaints finalised—complaints finalised in 2004–05, including some complaints carried over from previous years. Complaints received—complaints received in 2004–05. Conciliated—complaint conciliated through the AFP's workplace resolution process. Incapable of determination—sufficient evidence was not available to support a clear conclusion. Issues—complaints can contain a number of issues, each requiring a separate decision as to whether to investigate. Each issue may result in a separate outcome. | Ombudsman decision not to investigate—the Ombudsman may decide not to investigate where a person has not tried to resolve their problem directly with the relevant agency or there is a more appropriate avenue of review available. Ombudsman investigation—further investigation, following preliminary inquiries stage, asking more questions and reviewing the agency's files, policies and procedures. Ombudsman investigation not warranted—investigation not warranted for one of the following reasons: complaint issue is over 12 months old, frivolous or not in good faith, insufficient interest, related to commercial activity, or not warranted having regard to all the circumstances. Ombudsman preliminary inquiries—initial inquiry to determine whether a complaint is within jurisdiction, an investigation is required or the complaint can be resolved by informal inquiries. Out of jurisdiction—complaint not within the Ombudsman's legal powers. Resolved without determination—complaint issues resolved before the office reached a view as to whether or not there was any administrative deficiency. Special investigation—investigations conducted under s 46 of the Complaints Act may be conducted solely by the Ombudsman or jointly with the AFP. Substantiated—complaint issue was found to be true. Unsubstantiated—there were no grounds for the complaint. |
APPENDIX 4 | consultancy services
The Ombudsman's office is committed to achieving the best value for money in its procurement practices. Purchasing practices and procedures are consistent with the Commonwealth Procurement Guidelines and are set out in the Ombudsman's Chief Executive Instructions.
Table 4 provides details of consultancy services let by the office during 2004–05 with a contract value (GST inclusive) of $10,000 or more.
Table 4 Consultancy services, 2004–05
(1) Methods of selection
Open tender—procurement procedure in which a request for tender is published inviting all businesses that satisfy the conditions for participation to submit tenders.
Select tender—procurement procedure in which the procuring agency selects which potential suppliers are invited to submit tenders in accordance with the mandatory procurement procedures.
Direct sourcing—procurement process, available only under certain defined circumstances, in which an agency may contact a single potential supplier or suppliers of its choice and for which conditions for direct sourcing apply under the mandatory procurement procedures.
Panel—arrangement under which a number of suppliers, usually selected through a single procurement process, may each supply property or services to an agency as specified in the panel arrangements.
(2) Reasons for decision to use consultancy
A—skills currently unavailable within agency
B—need for specialised or professional skills
C—need for independent research or assessment
APPENDIX 5 | financial statements
The online Commonwealth Ombudsman Annual Report 2004–05 Financial statements are available in Portable Document Format (PDF).
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