Commonwealth Ombudsman annual report 2004-2005

CHAPTER 4 | looking at the agencies

Introduction

During 2004–05, the majority of complaints received by the Ombudsman (78%) concerned the five Australian Government departments and agencies listed below. This chapter focuses on particular issues that arose during the year in investigating complaints about these agencies:

As well, this chapter looks at three other special areas of complaint work:

The 'Other agencies' section of this chapter provides examples of complaints received about some other agencies, such as the Department of Family and Community Services and the Department of Employment and Workplace Relations.

While the discussion and analysis of complaints arising in specific areas of government illustrates the role 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. Examples of difficulties that commonly arise are delay in decision making, inadequate explanation of decisions, and deficient record keeping. 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').

'... analysis of complaints arising ... does not fully portray the work of the office.'

Something should also be said of the agencies about which most complaints are received. A common feature is that each of those agencies engages daily in a high number of direct transactions with members of the public, on matters such as providing benefits, assessing taxation, granting visas, calculating child support liability, and providing postal services. The complaints received by the Ombudsman are a small fraction of the total number of transactions undertaken by the agencies.

Complaints sometimes arise from the service provided by any agency, but at other times complaints are more about a perceived difficulty in the law being administered by an agency. The complaints to the Ombudsman illustrate the difficulties that people face in dealing with government, but not necessarily the standard of administration in those agencies. This point is captured in another way in the 'Performance report' chapter, which gives more emphasis to the remedies and assistance that the Ombudsman's office can provide to the public than to whether in the Ombudsman's view there was an agency defect.

Figure 4.1 shows the proportion of complaints received by the Ombudsman from agencies about which most complaints are received.

Figure 4.1 Complaints received, by agency, 2004–05

Figure 4.1 Complaints received, by agency, 2004–05

A detailed breakdown of complaints by portfolio and agency is in the 'Statistics' appendix.

Australia Post

Australia Post is an incorporated government business enterprise wholly owned by the Australian Government. It operates under the Australian Postal Corporation Act 1989 (the Postal Act) and Australia Post Terms and Conditions (which are approved by its Board).

Legislation to create a separate office of Postal Industry Ombudsman was introduced into Parliament in August 2004. Under the proposed legislation, the Commonwealth Ombudsman will undertake the role of Postal Industry Ombudsman. The jurisdiction of the Postal Industry Ombudsman will extend to private sector postal operators who register to participate in the scheme. It is anticipated that Parliament will further debate the Bill during 2005–06. Pending enactment of the legislation, we have been working on establishing a framework of operations for the Postal Industry Ombudsman scheme.

In 2004–05, we received 1,190 complaints about Australia Post, compared to 1,079 last year, an increase of 10%. See Figure 4.2 for Australia Post complaint trends from 1999–2000 to 2004–05.

Figure 4.2 Australia Post complaint trends, 1999–2000 to 2004–05

Figure 4.2 Australia Post complaint trends, 1999–2000 to 2004–05

Australia Post's Customer Contact Centres handle most complaints about postal services, and we usually ask complainants to raise their concerns with a contact centre in the first instance. In many cases we are satisfied that Australia Post has handled complaints appropriately. In some cases, however, we may form an opinion that the complaint could have been handled differently. We may suggest a different outcome or broader changes to Australia Post's systems or operations.

As in previous years, the complaints to the Ombudsman were mostly about domestic, international or parcel post mail deliveries. Some of the issues are covered below.

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Mail services

Australia Post has placed particular emphasis on, and committed resources to, maintaining the integrity of its mail services and improving and expanding its operations.

'... complaints to the Ombudsman were mostly about domestic, international or parcel post mail deliveries.'

Although Australia Post has diversified into areas such as logistics, retail sales and agency work, mail still forms the core of its operation. Equally, mail remains a vital mode of communication for many people, notwithstanding the growth of electronic means of communication, such as email and SMS. During the year, we received a number of complaints from people who were not receiving regular mail deliveries from Australia Post.

Irregular delivery

In one case we investigated, Australia Post had ceased mail deliveries to a residential address without notifying the person. No mail was delivered for over three weeks because an old car parked near the mail box was considered by the postal delivery officer to be a health hazard. The complainant claimed that the car had been parked on the verge intermittently for four years, and had not previously impeded access to the letterbox.

We discussed the complaint with Australia Post and found that the postal delivery officer had taken the mail with him each day, decided not to deliver it because of the car, and had returned it to the delivery centre. The delivery officer had made a notation in Australia Post's hazard report book, but had not brought the hazard to his supervisor's attention or waited for the matter to be investigated prior to ceasing the mail delivery. Australia Post reminded all delivery officers of the proper procedures in these instances.

Business addresses in residential areas

Other complaints, which raised the issue of mail delivery to individuals who conduct business from residential areas, illustrated the importance that many businesses and individuals place upon efficient mail delivery. In one complaint, a business owner complained that he did not receive mail until mid-afternoon, which was too late for business purposes. He had complained previously to Australia Post, who had remedied matters, but a few months later the same problem had recurred.

After we raised the matter with Australia Post, the relevant Australia Post delivery manager undertook to discuss the problem with the complainant, and subsequently arranged for his mail to be included in the nearby business delivery round to ensure that he received his mail earlier in the day.

Registered mail

We received a complaint that a registered parcel containing war medals had been collected by a person who signed for the parcel in the addressee's name. The allegation raised a concern about a possible crime and about the integrity of the registered mail service. Following our request, Australia Post investigated the allegation and concluded that the person who collected the parcel had no legal authority to do so, and considered that the addressee's signature may have been forged.

The matter was referred to the Director of Public Prosecutions. Australia Post also took internal action, as staff had not followed the proper identity check for a registered parcel. The addressee's family was given a statement to enable them to obtain a reissue of the war medals.

Community service obligations

Australia Post has some community service obligations imposed by the Postal Act. Under this Act, Australia Post must provide a universal letter service for standard postal articles that is reasonably accessible to all Australians, wherever they reside. The Act also provides for performance standards relating to matters such as frequency and speed of mail delivery and availability of post boxes. These obligations define a minimum standard, and the issue can arise of whether Australia Post should go further.

There is, for example, a community service obligation on Australia Post to provide a minimum of 10,000 street post boxes across Australia; currently there are over 15,000 street post boxes. In metropolitan areas, Australia Post aims to have a street post box within two kilometres of each resident.

We investigated a complaint from a person who had moved into a new residential development and was concerned because there was no street box nearby. Australia Post informed us that in fact there were three street post boxes approximately one kilometre from the person's residence. In these circumstances, we did not consider Australia Post's position was unreasonable.

Compensation delay

Each year we receive complaints about delays by Australia Post in dealing with claims for compensation. Sometimes, despite a person being well organised in keeping relevant receipts and records, things may go awry.

We investigated a complaint about delay by Australia Post in compensating a customer for items broken in transit. Australia Post had notified the customer that compensation was approved based on the claim information, including receipts, evidence of the breakage and demonstrated adequate packaging. Australia Post had still not posted a compensation cheque two months later, despite repeated phone calls from the customer. We contacted Australia Post, who quickly forwarded the cheque and apologised for the delay.

Access to information

One important outcome our office can achieve for the community is an improvement in the amount of information an agency makes publicly available. A complaint investigated by the office raised the issue of how postcodes are allocated by Australia Post. In response to our inquiries, Australia Post agreed that information regarding the assignment of postcodes would be made publicly available. This information is now available on Australia Post's website.

Australian Tax Office 

Improvements in ATO complaint handling | Liaison with the ATO | Complaints overview | Referral survey project | Superannuation issues | Settlements | Compensation changes

The Australian Taxation Office (ATO) is primarily responsible for administering Australian Government taxation legislation and collecting Commonwealth revenue. Under Australia's self-assessment system of taxation—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.

Section 4(3) of the Ombudsman Act 1976 provides that the Commonwealth Ombudsman is also the Taxation Ombudsman when dealing with complaints about the ATO. This designation, introduced in 1995, recognised the need for the Ombudsman to be able to bring a specialist focus to complaints about the ATO. Additional funding for a Special Adviser on Taxation was a part of this change.

Since this change in the role of the Ombudsman ten years ago, we have seen a marked improvement in the relationship between the Ombudsman's office and the ATO. The volume and complexity of tax law and the extensive powers of the ATO with respect to individuals continue to generate complaints about the administrative actions of the ATO.

The greatest challenge for those working in the tax field is the ever-increasing complexity of tax law and the tax system. The Taxation Ombudsman plays an important role in assisting taxpayers to find their way through this complexity, as well as pointing out to the ATO ways in which processes and information might usefully be simplified. The underlying approach to the Taxation Ombudsman role is to find practical solutions to administrative problems.

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Improvements in ATO complaint handling

In July 2003, the Ombudsman released an own motion investigation report into ATO complaint handling.

In 2003–04, we reported that the Commissioner of Taxation had accepted all of the report's recommendations. The main recommendations were that the ATO develop a strategy for implementing best practice 'relationship management' within complaint handling across the ATO, and that it adopt a consistent single complaint-recording system as soon as practicable.

'... the Taxation Ombudsman role is to find practical solutions to administrative problems.'

Since that time, we have been working closely with the ATO on the implementation of the report's recommendations. In April 2005, the Commissioner wrote to the Ombudsman providing a detailed report on the measures the ATO had taken since July 2003 in response to our report; the Commissioner advised that the ATO had fully implemented all recommendations.

The centralised complaint-recording system in the ATO commenced in November 2004. This has resulted in improvements in both the timeliness and quality of ATO complaint handling. We will continue to keep abreast of the system's further development and effectiveness. We were also provided with a comprehensive ATO Practice Statement outlining procedures and minimum standards expected in the handling of ATO complaints.

The Commissioner also outlined other issues addressed by the ATO in response to our report, such as implementing a comprehensive quality assurance regime for complaints, identifying and managing systemic issues at a high level, and making a continuing commitment to the Taxpayer's Charter.

For some years, the Ombudsman's office has encouraged agencies to develop their own internal complaint-handling mechanisms. We are pleased that the ATO has given priority to this issue, and the result may well be a model for other agencies.

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Liaison with the ATO

During the year, the Special Tax Adviser and Tax Team staff continued their efforts to maintain the effective working relationship that the Ombudsman's office has established with the ATO and its officers over the past few years. Apart from the usual contact in the course of handling individual complaints, we met regularly with ATO staff involved with handling Ombudsman inquiries about matters such as legal issues and mass-marketed schemes. The focus of the meetings is to make the complaint processes work more effectively through an exchange of views and information on a range of issues.

'The focus ... is to make the complaint processes work more effectively ...'

We also met with ATO staff to address specific tax issues as they arose during the year. When the ATO becomes aware of an emerging administrative problem that could lead to increased complaints, it provides advice to the Special Tax Adviser on what action the ATO is taking to address the problem. One example is delays in processing the superannuation guarantee payment, where the ATO was quick to provide a briefing about the actions it was taking to address the problem.

At other times, we specifically requested that the ATO provide us with a more general briefing on matters which arose out of individual complaints we investigated: an example this year was a request for advice on ATO action on old debts. The aim of such briefing is to better inform ourselves about ATO processes, and to collect information against which we can measure ATO action when investigating current and future complaints.

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Complaints overview

In 2004–05, the Ombudsman received 1,633 complaints about the ATO, compared with 1,711 the previous year. This was a decrease of 5% (see Figure 4.3 for ATO complaint trends from 1999–2000 to 2004–05). This suggests a return to greater stability in ATO complaint numbers, comparable with the period prior to the introduction of the new tax system and the difficulties over the tax treatment of mass-marketed investment schemes. The office finalised 1,591 complaints, of which 364 (or 23%) were investigated, a similar proportion to last year.

Figure 4.3 Australian Taxation Office complaint trends, 1999–2000 to 2004–05

Figure 4.3 Australian Taxation Office complaint trends, 1999–2000 to 2004–05

We received complaints across the full range of ATO activities and products, including excise, superannuation, debt recovery, the goods and services tax (GST) and aggressive tax planning. Complaints about ATO debt recovery action and the accuracy, clarity and timeliness of ATO advice continue to dominate.

Our specialist Tax Team continues to monitor complaints to identify emerging complaint trends that may warrant direct intervention by the Special Tax Adviser or Taxation Ombudsman. In 2004–05, we identified an increase in complaints about superannuation co-contributions, allowing the office to look at whether these were due to a systemic issue or other reason. This assessment is ongoing.

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Referral survey project

We will usually suggest to complainants that they first try to resolve their concerns directly with the ATO, as we consider that the agency should first have the opportunity to correct any perceived problems. We suggest that the complainant contact the ATO directly, and provide advice about making a complaint and information on specific issues such as remission of interest guidelines. In some circumstances, we will offer to transfer the complaint directly to the ATO, with the understanding that the complainant can contact us if dissatisfied with the outcome.

Towards the end of 2004–05, we commenced a pilot project to test the effectiveness of our complaint referral process. We are surveying a sample of complainants who we referred back through the ATO complaints system to obtain feedback on whether the advice we provided was useful in progressing their complaints. The results of the survey will assist us to improve the effectiveness of our complaint referral process.

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Superannuation issues

In 2004–05, we received a significant increase in the number and range of superannuation complaints and issues.

Superannuation guarantee

The move from annual to quarterly superannuation guarantee reporting created problems for the ATO in aligning aspects of its accounting system, which in turn caused delays in processing assessments and making payments to superannuation funds. The ATO briefed the Special Tax Adviser on the issue and the course of action being taken to address the backlog of cases. The Commissioner also put in place a compensation scheme to ensure that neither employers nor employees affected by the processing delays will be out of pocket.

We continued to receive a small number of complaints from employers caught by what the ATO has called the 'double jeopardy' effect of the superannuation guarantee legislation. The current legislative scheme does not allow any discretion where an employer makes a late payment to an employee's superannuation fund or mistakenly pays the contribution directly to the employee. The employer is liable to pay a 'superannuation guarantee charge' (SGC) to the ATO on top of the amount already outlaid.

Recognising the burden this creates for employers who genuinely attempt to meet their obligations, the 2005 Budget included an initiative aimed at reducing the incidence of double payment. An employer's payments will be used to offset any part of the SGC relating to that quarter when payments are made to a superannuation fund within 30 days of the due date for quarterly contributions. The budget initiative will not assist all complainants, but will go some way to ameliorating the potential for, and impact of, employer double payments. We expect that this will lead to a reduction in the number of complaints about this issue.

Superannuation surcharge

There was also an increase in the number of complaints relating to the superannuation surcharge. In nearly all cases, the complainant's concerns and confusion were exacerbated by the complexity of the surcharge system. This was particularly true for those complainants facing a one-off surcharge liability, generally following their retirement. For this reason, we welcomed the government's abolition of the surcharge in the 2005 Budget. We anticipate that complaints about the administration of the superannuation surcharge will gradually decrease.

Superannuation co-contribution scheme

Towards the end of 2004–05, we received a number of complaints about the Superannuation Co-contribution Scheme. The scheme operates to provide eligible taxpayers with a matching superannuation contribution made by the Australian Government up to a maximum of $1,500 per annum. The complaints received related to eligibility, retrospective legislative amendments and the quality of ATO advice and publications. We will continue to monitor these complaints and provide feedback about the administration of the scheme to the ATO towards the end of 2005.

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Settlements

The settlement of disputes between taxpayers and the ATO about taxation liabilities is one area where difficulties occasionally arise. For some complaints, we have been able to help simply by encouraging discussion between the parties, or suggesting a different perspective for consideration. Other problems have been more complex.

During the year, we discussed a range of issues relating to settlements with the ATO, including the need for senior-level involvement in settlement decisions, the nature and breadth of the Commissioner's power to settle disputes, and perceived technical difficulties with specific settlements. For example, in one case we were able to facilitate finalisation of a complex settlement involving a trust and some of its beneficiaries and the difficulties arising from the rescission of an earlier distribution of trust income outside of the timeframe for amending ordinary assessments.

In November 2004, the Commissioner established a panel of senior officers to consider proposed settlement of widely based disputes and to provide guidance to ATO staff. The Ombudsman is providing input to the panel for the preparation of the guidelines.

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Compensation changes

We continue to see fewer complaints about decisions made by the ATO on whether to pay compensation to a taxpayer who claims to have been wrongly damaged by ATO action. The reduction in complaints stems from the ATO's introduction in 2003–04 of a more pragmatic approach to handling compensation claims. The changes include clear service standards on timeliness, against which we can consider complaints about delay. The changes also involved the Minister delegating to some senior taxation officers the power to handle all claims, where previously there had been a $50,000 cap. This meant that decisions formerly made by the Minister and beyond the Ombudsman's jurisdiction can now be made by the ATO and so fall within the office's jurisdiction.

Centrelink

Internal review process | Nominees | Customer compensation | Banning customers

During 2004–05, Centrelink was affected by a number of changes made to Australian Government agency structures and responsibilities. The biggest change was the creation of the Department of Human Services, which was established to direct, coordinate and broker improvements to government service delivery. Centrelink was one of six Australian Government agencies brought within the responsibility of the new Department of Human Services.

Centrelink retains responsibility for delivery of a wide range of programs and payments on behalf of Australian Government agencies. The majority of complaints that the Ombudsman receives about Centrelink relate to income support payments, family payments and other programs that Centrelink administers.

In 2004–05, Centrelink complaints accounted for 44% of all complaints to the Ombudsman. We received 7,699 complaints about Centrelink, compared with 8,084 complaints in the previous year. This was a decrease of 5%. See Figure 4.4 for Centrelink complaint trends from 1999–2000 to 2004–05.

Figure 4.4 Centrelink complaint trends, 1999–2000 to 2004–05

Figure 4.4 Centrelink complaint trends, 1999–2000 to 2004–05

We investigated 32% of complaints received about Centrelink. The majority of complaints received were about the Family Tax Benefit (20%), Newstart Allowance (20%), Disability Support Pension (13%), and Parenting Payment (13%). Complaints were received about a large range of complaint issues. Some of the more prominent topics were the internal review process, nominees, compensation, and controlling contact with certain customers. These issues are covered below.

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Internal review process

The internal review process in Centrelink generally comprises two stages: reconsideration by the original decision maker, and review by an Authorised Review Officer.

If customers are dissatisfied and want a decision reviewed, the issue is generally referred back to the original decision maker to reconsider the decision. The original decision maker may decide either to affirm, set aside or vary the original decision. If a customer still remains dissatisfied, they can ask that an Authorised Review Officer review the decision.

Delay

Delay can occur at one or both stages of Centrelink's internal review process. There can be delay where the original decision maker is reconsidering the decision and/or where the Authorised Review Officer is reviewing the original decision. Delay can have a significant consequence for a customer, particularly if the decision being reviewed was a denial of income support.

A number of complaints this year involved delays in Centrelink's internal review process. For example, in several cases a complainant waited approximately six months for the Authorised Review Officer to review the original decision. During this time the customer's payments were cancelled.

Delays by the original decision maker in reconsidering the decision are of particular concern. This is intended to be a quick process to give the original decision maker the opportunity to see if there has been an error or misunderstanding between the customer and Centrelink. Excessive delay calls into question the value of a decision being reviewed both by the original decision maker and the Authorised Review Officer.

Review by original decision maker

The social security law does not require that the original decision maker review a decision before it can proceed to an Authorised Review Officer for review. However, under the current review system, the original decision maker will initially treat a customer's request for review as a request for reconsideration. Even if the original decision is not changed after this process, the customer must again request review by the Authorised Review Officer, rather than the decision being automatically referred for review. The Ombudsman is concerned that this review process sometimes leads to customers experiencing appeal fatigue.

As a result of a report by the Australian National Audit Office in March 2005, Centrelink's Review and Appeals System, Centrelink agreed to consider options for the future role of the original decision maker. One option being considered by Centrelink is to restrict the role and functions of the original decision maker to that of an administrative check before an appeal progresses to an Authorised Review Officer.

'The Ombudsman is concerned that this review process sometimes leads to customers experiencing appeal fatigue.'

Given our concerns about unnecessary delay and appeal fatigue, we have agreed to participate in a Centrelink steering committee, which is considering the future of the review process.

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Nominees

A Centrelink customer can authorise a person or organisation to act and make changes on their behalf and/or to receive payments on their behalf. This person or organisation is called a nominee. Given the importance of income support for a customer, Centrelink must be careful in accepting and administering nominee arrangements.

A number of complaints received during 2004–05 raised issues that resulted in the Ombudsman's office enquiring about Centrelink's practices and procedures for handling nominees.

Correspondence with customers and nominees

Complaints this year raised the question of whether Centrelink should send correspondence about a customer's payments to the nominee as well as to the customer.

There may be an adverse consequence if a nominee is not informed about Centrelink correspondence, particularly if the correspondence potentially affects the customer's eligibility or payment. For example, a customer complained to our office this year because his payments had been suspended. That customer had a nominee handling his Centrelink affairs. When we investigated, we found that Centrelink had written to the customer about his payments, requiring that he provide information about income. Unfortunately, the nominee was unaware of this correspondence. When the customer did not respond to Centrelink's notice, his payments were suspended, causing much concern to the customer. As a result of our inquiries, the customer's payments were reinstated.

Although Centrelink may not be required to send a copy of correspondence to nominees, we have suggested that it seems preferable that nominees in the situation described above be aware of any Centrelink correspondence concerning the customer. Centrelink has advised that current procedures now specify that both parties should be notified in such circumstances.

Investigating requests to appoint nominees

Although a customer may choose to change their nominee, there may be circumstances in which Centrelink should investigate the appropriateness of allowing the customer to do so.

This issue was highlighted by a complaint from a person who was the nominee for an intellectually impaired customer. The complainant had expressed concern to Centrelink about another person who might seek to become a nominee. The other person later attended a Centrelink office with the customer and lodged a form seeking to change the nominee arrangement. Centrelink processed this request without first contacting the current nominee to discuss the situation. The complainant subsequently obtained guardianship and was reinstated as the customer's nominee.

Centrelink has provided advice that procedures have been revised to better ensure that the interests of its customers are fully considered in such circumstances.

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Customer compensation

If a customer considers that Centrelink's actions have caused them to suffer loss, the customer may apply for compensation from Centrelink. In recent years, Centrelink implemented changes to improve handling of customer compensation claims. These included:

Despite this, complaints continued to highlight deficiencies with Centrelink's administration of customer compensation claims, including considerable delay.

In September 2004, Centrelink implemented a new system for handling customer compensation claims, which involved centralising all decision making about customer compensation. It is intended that the new system will improve the consistency and quality of decisions as a result of claims being investigated and handled by specific customer compensation caseworkers. The new database will allow Centrelink to better monitor the progress of compensation claims to ensure that they are processed in a timely fashion and are of a satisfactory and consistent quality.

The Ombudsman's office will continue to raise with Centrelink any issues resulting from complaints about customer compensation.

Banning customers

We received a number of complaints from customers who had been banned from either attending Centrelink offices or having telephone contact with staff. These decisions stemmed from the behaviour of the customers, usually of an abusive or threatening kind.

Although we found that the decisions to ban the individuals concerned were not unreasonable, these complaints highlighted that Centrelink has no national guidelines for the process of banning customers. Instead, different areas had developed guidelines specific to their particular area.

Centrelink examined this issue and decided to develop national guidelines for banning customers with the aim of improving consistency. These guidelines are expected to be implemented in the first half of 2005–06.

Child Support Agency 

Registration of court orders and agreements | Accuracy of income information | Privacy breaches | Compensation decisions—future recovery opportunities

The Child Support Agency (CSA) was set up in the late 1980s to administer the Child Support Scheme, which provides for the assessment, collection and disbursement of child support. The scheme paved the way for compulsory payment of child support based on the income and earning capacity of both parents.

The Child Support Scheme operates under two statutes—the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989. Together, these Acts provide for the registration of child support cases, the calculation of a child support assessment, and the recovery and disbursement of child support payments. Payers are those paying child support and payees are those receiving child support.

Following a recommendation from the House of Representatives Standing Committee, a ministerial taskforce was convened during the year to examine the Child Support Scheme. The taskforce's report was released in June 2005. It recommended a number of significant legislative changes to the scheme, which are being considered by the government.

In 2004–05, the Ombudsman received 2,094 complaints about the CSA, compared with 1,951 last year, an increase of 7%. Complaints about the CSA account for 12% of all complaints received by the Ombudsman. See Figure 4.5 for CSA complaint trends from 1999–2000 to 2004–05.

Figure 4.5 Child Support Agency complaint trends, 1999–2000 to 2004–05

Figure 4.5 Child support agency complaint trends, 1999–2000 to 2004–05

The main areas of complaint related to assessments, and collection and recovery of child support. Complaints about assessments focused on three matters: the application of the basic formula; decisions made under the 'change of assessment' process; and income processing. Complaints about collection and child support recovery activities included failure to collect, the method of collection, and calculation of arrears.

A complaint theme that featured this year was the registration of child support agreements and court orders. Other themes included privacy breaches in change of assessment decisions, the accuracy of income information, and compensation decisions. A brief description of the scope of our investigations in these areas follows.

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Registration of court orders and agreements

Although most child support amounts are set by the CSA according to formulas contained in the child support legislation, some people independently enter into child support agreements or obtain court orders that set the amount of child support payable. A payee may register a child support agreement or court order with the CSA and may request the CSA to collect child support on their behalf. At the end of June 2004, 4.6% of child support assessments were based on agreements or court orders.

The Ombudsman received a number of complaints about the registration and enforcement of child support agreements and court orders. Two examples of the issues raised in these complaints (discussed below) related to registration errors and to unemployment clauses.

Registration errors

The Ombudsman received complaints about errors that had occurred in registering child support agreements and court orders. Often complaints did not come to light until several months, or in some cases several years, after the child support agreement or court order was registered.

In one complaint we examined, the parents had entered into a child support agreement for their two children that ended when each child turned 15 years old. Unfortunately, the incorrect end date for the agreement was registered by the CSA. This had the effect of continuing the child support liability of one child for three years past the agreed date. The payer was subsequently assessed as having to pay child support beyond the child's fifteenth birthday, yet the complaint nevertheless raised questions about the quality controls in place to prevent simple errors from occurring. Discussions with the CSA are continuing on this issue.

Unemployment clauses

Child support agreements may contain clauses reducing the child support payable by the payer during periods of unemployment. Such clauses can state that the payer must be in receipt of income support from the government for the unemployment clause to operate. This means that even if the payer is unemployed, the child support liability will not reduce unless the payer is receiving income support from the government.

This year we investigated a complaint where the CSA incorrectly advised a payer that the unemployment clause applied. The payer advised the CSA that he was unemployed, but not entitled to income support payments from Centrelink because his partner's income was too high. The CSA said that it would activate the unemployment clause in the agreement if he provided a letter from Centrelink confirming that he was unemployed, but not eligible for an income tested payment due to his partner's income. When the payer provided the letter, the CSA accepted it and reduced the child support payable from $184 to $5 per week.

This application of an unemployment clause was incorrect, as the agreement clearly stated that the payer must be in receipt of income support payments to effect a reduction in his child support payments during a period of unemployment. The error was not identified until almost 12 months later when the payee questioned the payer's employment status. As a result, the CSA reviewed its decision to activate the clause and reverted the child support payable to $184 per week effective from the date the unemployment clause was incorrectly activated. This action raised a significant debt against the payer.

The CSA has taken action to ensure that all staff are aware of the meaning of unemployment clauses in child support agreements. The CSA has also advised that the topic will receive additional attention in future training programs.

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Accuracy of income information

The accuracy of income information is vital to properly assess the rate of child support payable. In the absence of the last relevant year of taxable income, the CSA may seek information about a person's taxable income and supplementary income from sources such as Centrelink, the ATO, employers, and change of assessment and estimate information. The CSA has a range of investigative powers available to seek information about a client's income and financial resources.

In some circumstances, the CSA can retrospectively increase or decrease a child support assessment if it later discovers new income information. This can result either in an overpayment of child support that the payee has to repay, or a child support debt raised against the payer.

'The accuracy of income information is vital to properly assess the rate of child support payable.'

If the CSA has been responsible for collection of child support during the period over which the overpayment or debt is raised, it may take action to collect the money owed. This option may not be possible where payees have elected to collect child support privately. This was highlighted in a complaint this year where a child support debt was raised as a result of a retrospective child support assessment for the previous three to four years. The payee changed the method of collection and asked the CSA to collect the child support debt. Under the child support law, where a person transfers from private collection to agency collection, the CSA can only seek to collect a maximum of nine months in arrears. Unless the payer agrees to pay the remaining arrears privately, the payee's only recourse involves pursuing civil legal action.

Parents are encouraged to collect child support privately, and currently more than 50% of child support payments are collected this way. We are particularly concerned that the CSA take appropriate steps to ensure that income information is accurate, given the limited options these parents have in pursuing any arrears or overpayments that may arise through correction of inaccurate incomes.

When we raised this matter, the CSA advised that there was scope for improving its procedures to identify incomes that may warrant further investigation.

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Privacy breaches

The CSA holds sensitive and personal information about its clients, including other dependent children being cared for by a parent. Although this information can affect the amount of child support payable, the names of other dependent children are private and should not be released to the other party.

The Ombudsman received complaints this year about the inappropriate inclusion of the names of dependent children in documents provided by the CSA to the other party. Ombudsman staff examined two complaints in which the CSA acknowledged that it inappropriately disclosed information about these children, despite advising that the information would not be accessed by or released to the other party.

In response to our inquiries, the CSA advised that it has instituted a quality assurance process that requires all notices of decisions to be checked for accuracy and relevance of material. It is hoped that tightening this process will prevent similar breaches of privacy in the future.

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Compensation decisions—future recovery opportunities

A CSA client who has suffered financial loss due to the wrongful action of the agency can apply for compensation under the Compensation for Detriment Caused by Defective Administration (CDDA) Scheme. While our investigations generally find that the CSA's client compensation decisions made under the CDDA scheme are reasonably based, we are of the view that in some instances the CSA has been too strict in its application of the scheme.

We have received complaints where the CSA admitted that it failed to collect child support owed by a payer (for example, it failed to garnishee a bank account), but declined to pay compensation on the ground that the loss incurred by the claimant was not permanent. In other words, the CSA argued that there might be an opportunity for it to collect the arrears of child support at some time in the future.

Compensation can be paid under the Department of Finance and Administration CDDA guidelines when there has been a detriment, which is defined to mean quantifiable financial loss as opposed to financial disappointment. Accordingly, it may be reasonable to deny payment under the CDDA scheme where, for example, there has been a failure to collect child support but significant collection action is now occurring or can reasonably be expected to occur in the foreseeable future.

On the other hand, it will sometimes be speculative whether a child support debt can be realised by future collection. For example, a payer's health may have resulted in a drastic reduction in income with few employment opportunities in the future. Consequently, there may be instances in which it may be more realistic to classify a debt that has arisen from CSA default as a permanent loss rather than as a financial disappointment that is liable to be repaid. We consider that a claimant may be disadvantaged if CDDA is denied by regarding this as a case where the payee has simply suffered financial disappointment rather than a permanent loss.

The CSA has agreed to review such cases after a reasonable time to determine if in fact a collection opportunity is likely to arise. In the event the CSA determines it is unlikely, the agency has agreed to review the decision not to pay compensation.

Defence 

Department of Defence | Australian Defence Force | Department of Veterans' Affairs | Defence Housing Authority

Complaints under the heading of Defence fall into two categories: the Defence Force Ombudsman (DFO) jurisdiction, covering employment-related matters for serving and former members of the Australian Defence Force (ADF); and the Commonwealth Ombudsman jurisdiction, covering complaints about administrative actions of the Department of Defence.

The combined DFO and Commonwealth Ombudsman jurisdiction also encompasses complaints about the Department of Veterans' Affairs (DVA), the Defence Housing Authority (DHA), Defence Service Homes and the Defence Force Retirement and Death Benefits Authority. There has been a steady decline in the number of Defence complaints, dropping to 662 in 2004–05, compared to 690 in the previous year. See Figure 4.6 for Defence complaint trends from 1999–2000 to 2004–05.

Figure 4.6 Defence complaint trends, 1999–2000 to 2004–05

Figure 4.6 Defence complaint trends, 1999–2000 to 2004–05

Department of Defence

We received 125 complaints about the Department of Defence in 2004–05, compared to 135 in 2003–04, down 7%. Complaints included concerns from individuals who had been unsuccessful in their application to join the ADF (accounting for 12% of complaints received), and from successful and unsuccessful applicants for contracts and tenders (accounting for 8% of complaints received).

The Department of Defence spends significant public funds each year acquiring goods and services from the commercial market through a contracting and tendering process. Given the commercial value of the contracts and tenders involved, it is not surprising that from time to time complaints are made about the way the department has managed the tenders and contracts.

Issues raised in complaints included disagreement about whether the termination of a contract was warranted, and criticism of a decision to deny a previous contractor the opportunity to tender. Our investigation of such complaints examined the level of the department's compliance with government procurement guidelines, as well as issues such as procedural fairness. The department has, in some cases, shown a commendable willingness to have its tendering processes reviewed by an external consultant, without the Ombudsman needing to suggest such an approach.

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Australian Defence Force

During the year, 298 complaints were received from serving and former members of the Australian Army, the Royal Australian Navy (RAN) and the Royal Australian Air Force (RAAF), a decrease of 15% on the previous year. Complaints received about the actions of the RAAF fell by 23%; the Army by 17%; and the RAN by 1.4%.

The ADF's campaign to extend measures to prevent and detect the use of prohibited substances was reflected in complaints received by the Ombudsman throughout the year. Approximately 13% of complaints finalised in the Ombudsman role were about dissatisfaction with the processes undertaken by the ADF that resulted in decisions to involuntarily discharge members.

In most of these cases, discharge action initiated by the ADF related to a finding that the member had been involved in the use of a prohibited substance. In none of the cases investigated was a recommendation made that discharge action be reconsidered. The Ombudsman instead raised with the Chief of the Defence Force (CDF) the need for detailed documentation of termination decisions and for a quality control mechanism to ensure that briefs prepared for the decision makers are consistent with natural justice principles. It is pleasing to note that recently released Defence Instructions relating to these processes reflect a number of issues raised by our office.

It was interesting to observe throughout the year that very few complaints were received about matters such as payment of allowances (accounting for only 1% of complaints finalised) and that no complaints were received from members involved in operations overseas.

In October 2004, the Ombudsman publicly released an abridged version of a report into the investigation of a complaint by a young person (under the age of 18) of an incident involving unacceptable behaviour at a Navy training establishment in mid-1996. The complaint alleged a failure of the RAN to adequately investigate and address issues arising from an incident of an alleged sexual assault of a young woman by other RAN members.

The jurisdiction of the Ombudsman did not extend to investigating whether the complainant had been sexually assaulted; this was more properly a matter for the courts. The Ombudsman's investigation focused instead on whether appropriate action had been taken in response to her allegation, given the nature of the allegation, her age and circumstances; whether the Chief of Navy should consider taking further action; and whether RAN practices and procedures are sufficient to address any similar situation that might arise in the future.

After a detailed investigation of those matters the Ombudsman formed the view that the complaint had been substantiated. As a result of the investigation, the RAN accepted our recommendation to provide an apology to the complainant; provide appropriate investigative training for relevant RAN personnel; revise instructions to require alleged sexual assault cases to be referred to the civilian police at an early stage; reinforce the importance of accurate record keeping; and equip divisional officers to provide proper support to any person making an allegation of sexual assault. (An abridged report is available at www.ombudsman.gov.au)

Reviews

In 2004–05, two significant reviews relating to complaint management in the ADF, which will affect the DFO role in the immediate future, were completed.

Review of effectiveness of Redress of Grievance process

The former CDF, General Peter Cosgrove AC MC, and the Ombudsman sponsored a joint review of the Redress of Grievance (ROG) process in the ADF. A joint report was released in April 2005 and is available online at www.ombudsman.gov.au. Dissatisfaction with the process used and/or time taken by the ADF to investigate complaints from members has been a major source of complaint for many years. In 2004–05, this accounted for approximately 17% of complaints finalised by the DFO . Many of the issues identified in the complaint investigations were addressed in the context of the joint review of the ROG process.

It is encouraging to report that a number of the recommendations in the report have been implemented, which is having a positive impact on the timeliness and quality of ROG investigations within the ADF. The Ombudsman has met with the new CDF, Air Chief Marshal Angus Houston AO AFC, to discuss strategies for continuing the improvement process. (More detail on this review is contained in the 'Promoting good administration' chapter of this report.)

'It is encouraging to report that a number of the review recommendations in the report have been implemented ...'

Senate Inquiry Report on the Effectiveness of the Military Justice System

In last year's annual report, we summarised the concerns raised in our submission to the Senate Foreign Affairs, Defence and Trade Committee Inquiry into the Effectiveness of Australia's Military Justice System. In June 2005, the committee released its report, which recommends extensive changes to the framework for the investigation of complaints about military justice issues (disciplinary and administrative action against members of the ADF). The implications of the recommendations in the report have been the subject of discussion between the Ombudsman and the CDF.

Meetings between the Ombudsman and the CDF also provided an opportunity to discuss the DFO role in complaint resolution within the ADF more generally and to inform the CDF of issues of concern which have arisen during the investigation of complaints. The CDF has indicated that complaint management within the ADF will benefit from a closer working relationship between our two agencies.

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Department of Veterans' Affairs

Services administered by the Department of Veterans' Affairs (including service pension, age pension, income support supplement and allowances, disability and war widows' and widowers' pensions, allowances, special purpose assistance, Defence Service Homes Loans Scheme assistance and concession cards) impact on the daily lives of almost a half a million veterans and their dependants. During 2004–05, the Ombudsman received 203 complaints about the DVA's decisions and actions (up from 172 in 2003–04).

It was pleasing that, for complaints about delays in processing claims for compensation under the Military Rehabilitation and Compensation Scheme, we have generally been able to quickly resolve the matter by contacting the processing area and discussing any reason for delay. In some cases where such a resolution was not possible, DVA staff agreed to contact the complainant personally to explain documentation required to progress the application or to provide details of action being taken.

The Ombudsman was also able to assist complainants to understand and accept that the DVA had in fact applied the current, often complex, legislation and policy correctly. This applied particularly in regard to compensation offsetting arrangements, where a disability pension can be reduced if a lump sum payment of compensation is received for the same injury or illness from another source.

Legislative changes

During 2004–05, a number of legislative changes impacted on the administration of veterans' entitlements by the DVA.

Military Rehabilitation and Compensation Act 2004 (enacted 1 July 2004)

All claims relating to injury, disease or death due to service in the ADF will be dealt with under the provisions of the new Act, rather than requiring consideration under two separate schemes (the Veterans' Entitlements Act 1986 and the Military Compensation and Rehabilitation Scheme). The transition to the new scheme has not generated any substantial change to the number or nature of complaints referred to us for consideration.

Administrative Appeals Tribunal Amendment Act 2005 (enacted 16 May 2005)

The Act introduces what are considered to be significant reforms to the practices and procedures of the Administrative Appeals Tribunal, which will affect individuals who progress their claims with the DVA through the appeals process. Among the changes is an expansion of alternative dispute resolution processes available to the tribunal and greater flexibility for the tribunal in allocating resources so that panels can be constituted by members with the expertise and experience required to resolve the matter. The Ombudsman's office will monitor how the changes contribute to the timely resolution of disputes about decisions made by the DVA.

Delay in decision making

In 2005–06, the Ombudsman will liaise with the DVA about the strategies the department has put in place to facilitate more timely decision making in relation to requests, and applications for review of decisions, under the Compensation for Detriment Caused by Defective Administration (CDDA) Scheme provisions.

The Ombudsman has investigated a range of such complaints about the DVA in recent years. Some matters have gone on for some years before the complainant approaches our office for assistance.

Unfortunately, our investigation of such complaints has often also become protracted. One factor that can extend the time taken to resolve such complaints is the nature of the administrative deficiency being claimed by the individual, which can require detailed research of complex pension-processing arrangements. In a number of instances, the issues involved have necessitated the involvement of senior officers within both agencies, rather than a more informal approach.

During the year, we discussed the issue of delays in the resolution of matters being investigated by the Ombudsman and involving the DVA. An observation of this office for many years is that legalistic approaches to complaints can often contribute to delays and detract from finding simple administrative solutions to them. As with some other agencies, this has been a feature in a number of the cases we have discussed with the DVA during the year. We have begun productive discussions with the DVA about this issue and will continue to liaise with the department about ways in which to seek speedier resolution of matters.

'An observation of this office is that legalistic approaches to complaints can often contribute to delays and detract from finding simple administrative solutions to them.'

Defence Housing Authority

The Defence Housing Authority (DHA) is responsible for providing housing and relocation services for entitled members of the ADF. The role includes providing property maintenance as required. DHA staff also calculate all allowances and entitlements for ADF personnel who are moving to a new posting as part of the relocation process.

We received 24 complaints about the actions and decisions of the DHA in 2004–05, compared to 23 in the previous year. The majority of the complaints considered related to the suitability of housing provided. In most cases we were able to resolve the matter quickly through informal liaison with DHA representatives.

Immigration 

New immigration functions for the Ombudsman | Issues arising in complaint handling | Detention | Compliance activity | Migration Issues

The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) continued to be a significant source of complaints to the Ombudsman during 2004–05. Overall, we received 873 complaints about DIMIA, compared with 865 complaints in 2003–04. See Figure 4.7 for DIMIA complaint trends from 1999–2000 to 2004–05.

Figure 4.7 Department of Immigration and Multicultural and Indigenous Affairs complaint trends, 1999–2000 to 2004–05

Figure 4.7 Department of Immigration and Multicultural and Indigenous Affairs complaint trends, 1999–2000 to 2004–05

Complaints about DIMIA can be categorised into three distinct areas: migration issues, which are usually about decisions on visa applications; immigration detention issues raised by or on behalf of detainees; and other issues such as freedom of information (FOI) applications and citizenship processes. Complaints about migration issues continue to form the largest category.

New immigration functions for the Ombudsman

In June 2005, Parliament passed amendments to the Migration Act 1958. These changes give the Ombudsman a statutory role in reviewing the cases of detainees who have been held in immigration detention for more than two years (cumulative), with follow-up reviews every six months if the person remains in detention. This statutory monitoring role will substantially enhance our capacity to oversee the administration of important and sensitive legislation that can have a major impact on people's lives.

Shortly after the end of the reporting year, in July 2005, a report from an independent inquiry conducted by Mr Mick Palmer into the immigration detention of Ms Cornelia Rau was followed by an intense public and political focus on immigration issues. Arising from this report, the government proposed enhancing the role of the Commonwealth Ombudsman in immigration matters by designating the office as the Immigration Ombudsman and providing additional funding. The development of these new functions will be reported on in our 2005–06 annual report.

'This statutory monitoring role will substantially enhance our capacity to oversee the administration of important and sensitive legislation ...'

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Issues arising in complaint handling

In general we investigate a higher proportion of the complaints we receive about DIMIA (43% in 2004–05), than the general average of 33% across all Australian Government departments and agencies. This reflects our experience that DIMIA does not have a robust complaint-handling system in place. Where an agency does have such a system, we feel more confident in suggesting that complainants take up their concerns with the agency involved in the first instance. We can also focus our efforts on dealing with more complex or systemic matters, and on periodically reviewing the effectiveness of the complaint-handling arrangements.

During the year, we continued to discuss this matter with DIMIA, which is working on developing an improved and expanded internal complaint-handling system. We also experienced delays in getting responses from DIMIA to some matters we raised in the course of investigations. We will continue to address these issues with DIMIA during 2005–06.

Detention

The Ombudsman and other staff made a number of visits to immigration detention facilities during the year including Villawood Immigration Detention Facility (IDF), Maribyrnong IDF, Baxter IDF, the Port Augusta Housing Project, Brisbane Women's Correctional Centre, Arthur Gorrie Correctional Centre, the Perth Immigration Detention Centre and the Christmas Island IDF.

Many detainees who approached us during these visits complained about access to medical services, including dental, psychiatric and specialist services. Their concerns included delays in referrals to specialists and other appropriate services, the frequency of visits by medical staff to IDFs, and the quality of medical services. These concerns were exacerbated in isolated locations such as Baxter in South Australia. We expect to have a specific new role in relation to medical services as part of our broader Immigration Ombudsman function.

Restrictive placement and accommodation—Red One

During the year, we pursued the issue of detainees being placed in more restrictive accommodation units at IDFs. Particular concerns related to the processes, procedures and practices of the Red One 'behavioural management compound' and the 'management unit' at Baxter IDF. A prominent issue was whether Red One is appropriate and adequate as a behaviour management tool, and whether due regard is paid to each individual's circumstances.

DIMIA and the IDF service provider, Global Solutions Limited (GSL), are revising the operational procedures that deal with detainees being placed in more restrictive regimes. This revision is in response partly to the concerns we raised and partly to the issues uncovered during the Palmer Inquiry.

We will continue to monitor the development and implementation of appropriate procedures. One option is to conduct an own motion investigation into the use of such restrictive placement and accommodation.

'We will continue to monitor the development and implementation of appropriate procedures.'

Assaults

In May 2004, we wrote to DIMIA expressing concern over the way in which allegations of assaults within IDFs were being investigated by DIMIA and GSL. Our concerns included:

We recommended a number of changes, including:

We are pleased that DIMIA has accepted the majority of our recommendations. Specific amendments have been made to the GSL operational procedures to reflect our recommendations. We are continuing to discuss the outstanding issue of the amount of information provided to detainees on the outcome of investigations.

Maintenance costs arising from detention

We received a number of complaints relating to the costs incurred by detainees when in detention centres. Migration policy instructions specify that detained non-citizens should be informed of the likely costs as soon as detention commences, and be given updated information weekly. This policy has not been complied with in a number of cases. It is therefore not surprising that concerns are raised when detainees receive notification of sizeable debts at the end of their detention period.

We recommended that DIMIA take steps to ensure that officers are aware of the guidelines relating to detention costs and that they comply with migration instructions.

Videotaping incidents in detention centres

When we are investigating alleged incidents at detention centres, DIMIA provides us with any relevant videotapes. We have appreciated DIMIA's willingness to provide these tapes, but have raised some concerns about the quality of the tapes.

DIMIA considered that the quality of the footage was generally adequate, given the context within which it was taken. The department did acknowledge it needed to strengthen its records management guidelines to articulate more clearly the procedures for handling electronic media such as video footage. DIMIA is now developing new guidelines.

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Compliance activity

In our 2003–04 annual report, we foreshadowed our intention to concentrate on complaints about compliance activity in 2004–05. To facilitate this, we modified our complaints management system to separately identify complaints about compliance activity.

We finalised 26 complaints about compliance activity during the year. These complaints largely related to the use of search and entry powers and the demeanour of DIMIA officers in discharging their duties. We also held a number of meetings with DIMIA staff throughout the country to better understand the issues involved. We will continue to pay close attention to compliance issues during 2005–06.

It is important to ensure that compliance activity is carried out with due regard to the legislation and proper procedures. The following two cases on which formal reports were made under s 15 of the Ombudsman Act illustrate the issues we encountered during the year.

In one case, a person alleged that DIMIA officers took him from his home to an IDF. He complained to DIMIA that the keys to his home were missing, and subsequently so had many of his personal possessions. When we made preliminary inquiries, DIMIA told us that State police officers had taken him to the detention facility. However, he continued to maintain they were DIMIA officers.

Our subsequent investigation was lengthy and difficult. DIMIA could provide no satisfactory record of the events under examination, and there was no relevant documentation. We were eventually able to conclude that the complainant had, in fact, been removed from his home by State police officers, not DIMIA officers.

We reported our findings to DIMIA, making a number of recommendations, which included the need for DIMIA to:

DIMIA subsequently implemented most of our recommendations and is in the process of implementing the remainder. The Minister also acknowledged the seriousness of our findings and undertook to consider them in light of the government's response to the Palmer Inquiry into the circumstances of the immigration detention of Ms Cornelia Rau.

'DIMIA subsequently implemented most of our recommendations and is in the process of implementing the remainder.'

The other case related to a complaint from a person who was being held in an IDF about DIMIA unduly delaying making a decision on his application for a Bridging Visa E (BVE). The Migration Act provides that such applications must be decided within two working days, failing which the applicant is taken to have been granted a visa. If the applicant and the department agree, the timeframe can be extended.

During our investigation we raised concerns about a number of matters, including:

In the light of those concerns, we made a number of recommendations that DIMIA accepted, including procedural changes to:

Visa cancellations for long-term Australian residents

During 2004–05, we received several complaints from long-term Australian residents whose permanent residency had been cancelled under s 501 of the Migration Act. Under s 501, the Minister or a delegate can refuse or cancel a visa on character grounds. Each of the complainants had been in Australia for many years and was then held in detention facing possible removal from Australia.

These complaints raised a number of concerns about how s 501 cancellations relating to long-term Australian residents are being administered. As a result, we commenced an own motion investigation, which is due to be completed in the first half of 2005–06.

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Migration Issues

Regulating migration agents

The Migration Agents Registration Authority (MARA) is responsible for overseeing the registration of migration agents and for investigating complaints about their actions. It is important for an agency that discharges a regulatory role of this kind to deal with complaints received by the agency properly and fairly.

In one instance investigated by our office, MARA had received a number of complaints against a migration agent and had written to him requiring that he respond to the complaints by a particular date. The agent requested an extension of time but his request was refused. He then complained to the Ombudsman about this decision.

We investigated and concluded that MARA's decision to refuse the extension of time was one that was reasonably open for it to make in the circumstances. However, we were concerned that MARA had not responded to the agent's request until two weeks after the due date expired. The problem appeared to arise because a decision on this issue could only be made by the Board, which meets infrequently, and on this occasion did not meet until after the deadline expired. We were also concerned that MARA had not provided any reasons for the refusal of the request.

In response, MARA agreed to put in place a process to keep agents informed about processing of their requests. MARA also agreed that notices of decision issued by the Authority will contain full details of the reasons for the decisions.

Advice to applicants

Applying for a visa can be a complex and lengthy process, and in some cases applicants may incur costs in addition to the application fee. It is important that DIMIA provide clear information to applicants about liability for costs.

We received a complaint from a person whose mother applied for a tourist visa in India and had to undergo a number of medical examinations in order to receive a visa. She complained about the costs of these examinations and alleged that they were unnecessary.

We considered that DIMIA's actions were not unreasonable, but that the information provided to potential visa applicants relating to the cost of health checks could be misleading. We recommended that DIMIA improve the advice it provides in such cases. DIMIA is amending its forms to alert applicants to the potential costs for certain medical examinations.

Interpreting legislation

The Migration Act and the regulations made under the Act are complex. It is essential that DIMIA staff understand the legislation and apply it correctly in their decision making.

A migration agent complained to us about a number of cases where applicants needed to prove that they had been employed in their nominated skilled occupation for 24 months during the period of 36 months immediately before making an application for a permanent visa. In each case, the applicant was employed with an individual employer for a period greater than the 36-month period.

DIMIA initially refused the applications on the basis that a period of employment in Australia must not be counted unless the person held a substantive visa authorising him or her to work during that period, and that they complied with the conditions of the visa. Even though each applicant had a substantive visa allowing them to work during the relevant 36-month period, they had also worked for the same employer earlier while on a bridging visa. The decision maker disallowed the entire period with the employer, rather than only that period while the applicant was on a bridging visa.

We took the view that in each of the cases DIMIA was not correctly interpreting the legislative provisions. DIMIA accepted our view, subsequently vacated the original decisions and continued to process the applications.

Notification of decisions

It is important for DIMIA to correctly notify visa applicants of decisions, as the time in which to appeal a decision is limited. In some cases, errors by applicants or their migration agents may compound problems.

A complaint received from a person's migration agent in mid-2004 raised concerns about DIMIA refusing his client a visa application in March 2002 without advising her of the decision. By this time, she was well outside the statutory time limit of 21 days in which she could apply for review by the Migration Review Tribunal (MRT). The agent had asked DIMIA to renotify the decision, but DIMIA refused. The client was 80 years old and about to leave the country.

DIMIA had sent the original decision letter to a post office box no longer used by the migration agent. The agent had recorded the incorrect address in one field of a form. Elsewhere in the form, however, and in other documents, the agent had recorded the correct address. The agent had also made several attempts to contact DIMIA about the visa application, but DIMIA had not responded.

The relevant regulations require DIMIA to address the document to 'the last address for service provided to the Minister by the recipient for the purposes of receiving the document'. We considered that, while some responsibility for the error lay with the agent, the serious effect of refusing to renotify may represent an unjust application of the regulations in these circumstances.

During our investigation DIMIA decided to renotify in August 2004, enabling an appeal to be submitted to the MRT.

Applying online

Australian citizenship and a number of visas can be applied for online, making the process faster and easier for people. However, in some cases this may introduce other problems.

This was illustrated in a complaint which alleged that, during an incomplete online application process, DIMIA had taken $120 from a person's credit card without authorisation. The client believed that her attempt to complete an application for citizenship on DIMIA's website had failed because the computer had 'crashed' before she could formally submit the application and authorise payment. DIMIA's computer records showed that the online application transaction had been successfully completed.

DIMIA initially rejected the complainant's refund claim, stating that the legislation prevented DIMIA from refunding the application fee based on a change of mind by an applicant. The complainant maintained that she had not changed her mind. She had believed that her online application had not been successfully processed. Our inquiries revealed that there had been a problem with DIMIA's system and, while the transaction had been completed at DIMIA's end, the complainant had been unaware of this at her end.

Following our inquiries, DIMIA reviewed its decision and agreed to give her the benefit of the doubt, refunding the application fee of $120.

Law Enforcement 

Australian Federal Police | Australian Crime Commission | Monitoring and inspection activities

Two law enforcement agencies fall within the Ombudsman's jurisdiction—the Australian Federal Police (AFP) and the Australian Crime Commission (ACC). During 2004–05, the Ombudsman's office was actively engaged across a range of issues in oversighting the law enforcement responsibilities of those agencies. Major activities included handling complaints about actions taken by the law enforcement agencies, oversighting the use by those agencies of intrusive powers, and completing several own motion investigations.

This section provides an overview of the activities undertaken by the Ombudsman's office this year in relation to the two law enforcement agencies.

Table 4.1 lists the functions of law enforcement that come within the Ombudsman's independent complaint and oversight role and the legislative underpinning for each role.

Table 4.1 Legislative basis for Commonwealth Ombudsman oversight of law enforcement activities

Table 4.1 Legislative basis for Commonwealth Ombudsman oversight of law enforcement activities

The oversight of the AFP's complaint handling constitutes the majority of our work in law enforcement. This is largely because of the AFP's high level of interaction with the public (especially through community policing in the ACT) and the requirement, specific to the AFP, that all complaints received by the AFP be disclosed to the Ombudsman for external assessment. The Ombudsman submits an annual report to the ACT Legislative Assembly on the performance of the ACT Ombudsman function, which includes ACT Policing (see www.ombudsman.act.gov.au).

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Australian Federal Police

The Ombudsman's office and the AFP share responsibility for investigating complaints about the AFP and AFP Protective Service members. The AFP's Professional Standards team investigates most complaints about AFP members. The Ombudsman reviews all AFP complaint investigations conducted by the Professional Standards team and, where appropriate, conducts other independent inquiries and investigations.

During the year, the AFP's community policing role remained the primary source of complaints, the majority of which were resolved through workplace resolution. Most complaints were of a relatively minor nature and concerned the alleged conduct of police, such as incivility or rudeness. Under the Complaints (Australian Federal Police) Act 1981 (Complaints Act), the AFP conciliates these complaints directly between the complainant and senior operational staff through its workplace resolution process. When a complaint is finalised through this process, the AFP provides a report to the Ombudsman explaining how the AFP managed or investigated the complaint.

Many police complaints were effectively resolved with an explanation of police powers and priorities, or acknowledgment of a relatively minor mistake by a member. One example concerned the execution of a search warrant on the wrong person: the person had a name similar to the person for whom the search warrant was intended. The AFP apologised to the person, explained how the mistake had been made and acknowledged the need for due diligence in future when providing details for search warrants. Another complaint related to the execution of a recovery order on a young child—this resulted in a change to the AFP Practical Guide on actioning Family Law Court process.

The AFP's Professional Standards team formally investigates serious complaints about police actions, with greater involvement from Ombudsman staff. We received briefings on the progress of investigations, and worked with AFP investigators to ensure the appropriate management of systemic issues and contact with complainants. We reviewed all complaint investigation reports and were generally satisfied that investigations were comprehensive and robust.

The majority of our requests to the AFP concerned the need for the AFP to persevere with a complainant in resolving a problem. In one case, we asked the AFP to persist in arranging a conciliation meeting despite problematic behaviour from the complainant, who alternately was insisting on a conciliation but then declining to participate. We also asked the AFP to deal with substantive issues raised by a complainant who appeared to have been prevented from providing information relevant to his complaint.

For some investigations, we requested the AFP to reconsider certain aspects of, or responses to, complaints. The AFP's responses to our requests were invariably professional and helpful, which is illustrative of the mature relationship between this office and the AFP.

Complaints overview

In 2004–05, the Ombudsman's office received 696 complaints about the AFP, compared to 712 in 2003–04, a decrease of 2%. There was an increase in complaints finalised, to 751 from 664 in the previous year (up 13%). Fluctuations in complaint numbers have occurred over the past six years, as shown in Figure 4.8.

Figure 4.8 Australian federal police complaint trends, 1999–2000 to 2004–05

Figure 4.8 Australian federal police complaint trends, 1999–2000 to 2004–05

This year, we continued to observe that many complainants remained dissatisfied with the explanations for police actions provided to them through the conciliation process. In most cases, we felt that the conciliation represented an adequate approach to the complainant's concerns. Despite dissatisfaction from the complainant, we decided that further consideration by our office was not warranted for the 258 unsuccessful conciliations.

Even when the result of a workplace resolution process may not be the outcome sought by the complainant, the process is nearly always beneficial. The process achieves improved understanding by all parties involved in the complaint, and the complainant has the opportunity to discuss the matter directly with senior police. Our assessment is that this approach has led to improved outcomes for complainants and the accountability framework as a whole.

Discretionary decision making

Ombudsman staff have worked collaboratively with the AFP since 2003 on a project to improve administrative processes associated with the adjudication of traffic infringement notices (TINs). The project was initiated because of the high level of complaints over a number of years about the AFP's traffic adjudication responsibility.

The project has led to changed administrative practices, including those relating to the AFP's role in deciding whether to withdraw an individual TIN or to allow the dispute to be resolved in court. The Ombudsman is confident the changes will reduce complaints about the AFP in this area. The Ombudsman provided the results of the project to the AFP Commissioner in early July 2005.

In 2004–05, a significant number of complaints about ACT Policing related to TINs—specifically about rudeness or bias on the part of the officer issuing the TIN. It appears that members of the public felt they were not treated respectfully, or that the AFP officer issuing the TIN was not prepared to consider exercising the discretionary power available to the officer not to issue a TIN.

We continued to emphasise that decisions by AFP members that impose a financial penalty on a person (for example, through the issue of a TIN or a defect notice) or deprive a person of their liberty (through arrest or a refusal to grant bail), should include consideration of any available discretionary powers to take a different course of action.

The reality of operational policing is that AFP members are required to make decisions in pressured circumstances and often when dealing with people who are agitated or aggressive. While the focus in policing is upon maintaining appropriate control of the situation and circumstances, it is also important that AFP members allow people to explain their actions and request the application of police discretion.

Special investigations

Ombudsman staff worked on four special investigations under powers conferred by the Complaints Act. Two investigations were completed in 2004–05, with the other two investigations to be completed in 2005–06.

One of the investigations examined the adequacy of an internal AFP investigation of alleged corrupt behaviour in the building and accommodation area of the AFP. Following notification by the AFP to the Ombudsman of a series of complaints and internal allegations of possible corruption, it was agreed that the Ombudsman's office would oversight the AFP's internal investigation of the matter.

The investigation focused on two issues: the AFP's ability to identify systemic weaknesses that might have enabled the individual concerned to act corruptly; and whether the AFP's response to the individual's actions was appropriate. We recommended that the AFP Commissioner implement all of the recommendations made by the internal investigation, and consider the apparent systemic failures within the AFP that contributed to the incident. The Commissioner accepted the recommendations and has commenced implementation. He also advised that he has referred the matter to the Director of Public Prosecutions and that criminal charges have been laid. We will continue to take an interest in this matter.

Witness protection program

We received two complaints about the AFP's administration of the National Witness Protection Program (NWPP).

One complaint was from a person who stated that he was offered participation in the NWPP if he assisted the AFP and that the offer was withdrawn when the person was considered 'less useful' to the AFP. This matter raised potentially serious issues for the administration of the NWPP, as participation in the program cannot be used to induce a person to cooperate with police; an offer of that kind would be in contravention of the Witness Protection Act.

The process of deciding who will be accepted as a participant in the program is handled by a specialist area of the AFP that must consider a range of factors separate from the assistance that a person may have provided in an investigation. The making of 'informal' offers might jeopardise the effective operation of the NWPP.

In this case, records showed that the AFP case officers made a formal request for the complainant and his partner to be considered for entry into the NWPP, and that after an appropriate assessment of the complainant's circumstances, this request was rejected. The AFP was also able to satisfy Ombudsman staff that the AFP officers involved were careful not to create an expectation of witness protection when dealing with the person. This was supported by detailed notes prepared at the time by the AFP about the interaction between its members and the person.

The second complaint concerned promises that the AFP allegedly made to a person before assessment of the complainant's suitability to enter the NWPP. The person also made complaints about the standard of accommodation provided during the time that they were under the AFP's protection. This investigation will be completed in 2005–06.

AFP powers to combat terrorism

Recent amendments to the Australian Security Intelligence Organisation Act 1979 (ASIO Act) provide for the entry and search of property by police in order to arrest and detain persons on behalf of the Australian Security Intelligence Organisation (ASIO). The ASIO Act amendments preserve the complaints role of the Commonwealth Ombudsman under the Complaints Act, by confirming that a detainee can complain about the actions of AFP members making an arrest or overseeing detention.

During the year, we provided a submission to a review of ASIO questioning and detention powers being conducted by the Parliamentary Joint Committee on the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service and the Defence Signals Directorate. We also worked 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 did not receive any complaints in 2004–05 arising from the amendments to the ASIO Act.

Australian Federal Police Protective Service

The number of complaints received by, or notified to, our office concerning the Australian Federal Police Protective Service (AFPPS) in 2004–05 was 46, compared to seven in the previous year. This increase was an expected consequence of the AFPPS falling under the proactive notification requirements of the Complaints Act from July 2004.

The complaints received about the AFPPS fell broadly into two categories:

We also received complaints associated with AFPPS activities at Parliament House from people who were dissatisfied with the way in which AFPPS members spoke to them.

The AFPPS reported a serious matter to the Ombudsman during the year concerning an AFPPS member who was using a mobile phone to photograph women travelling on escalators. During investigation by the AFP's Professional Standards team, the member admitted to misconduct and subsequently resigned from the AFPPS. The AFP decided not to lay criminal charges against the member, and we were satisfied that the complaint has been managed appropriately.

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Australian Crime Commission

Complaints against the ACC are managed under the Ombudsman Act. While the ACC is not required to proactively report complaints to the Ombudsman's office, we have appreciated a strong and open working relationship with the ACC. The ACC notifies the Ombudsman's office about any significant matters, allowing us to consider whether further investigation by Ombudsman staff is warranted.

During the year, we conducted a follow-up investigation into the ACC's response to the recommendations from independent consultants and our own investigation of alleged corrupt activity by two former secondees. In response to the allegations, the ACC had developed policies and programs to promote professionalism and integrity within the ACC as primary elements of a corruption risk management approach. The Ombudsman formed the opinion that the actions taken by the ACC were appropriate and proportional responses to the issues, and indicated that further investigation of this matter was not warranted.

Ombudsman staff also conducted an own motion investigation into the ACC's conduct of controlled operations carried out by the ACC under State and Territory legislation. The results of this investigation are discussed later in this section.

Complaints

In 2004–05, we received 12 complaints about the ACC, compared to six last year. Three of the complaints related to issues of property. We are not obliged to refer all complaints to the ACC. The ACC has been highly responsive to the complaints referred to it, as demonstrated below.

One of the property complaints related to the ACC's failure to return seized property and to respond to freedom of information (FOI) requests about the property. Following our inquiries, the ACC quickly remedied the situation by providing compensation for the property that had been destroyed, revising its procedures to ensure adherence to FOI statutory time limits, and reviewing its exhibit management policies and procedures.

We received briefings from the ACC about non-property related complaints, which we decided did not warrant further investigation. Complaints related to matters such as a person's concern that they were under surveillance by the ACC, the application of proceeds of crime legislation, and aspects of a major operation conducted by the ACC and its management of a registered informant connected to that matter.

We also conducted a formal investigation into a complaint about the ACC relating to the National Witness Protection Program. The complainant alleged that the ACC had misled him about participation in the witness protection program and whether he was entitled to immunity for certain offences he had committed. Ombudsman staff found no grounds for criticism of the ACC in this matter. The process of reviewing these activities was complicated by an ongoing, difficult and rapidly evolving operational context that involved three law enforcement agencies and understandably dispersed communication between the complainant and the ACC. A number of observations were made to the ACC highlighting the importance in this context of accurate and contemporaneous record keeping. The ACC has taken action to further enhance its informant handling procedures.

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Monitoring and inspection activities

The Ombudsman's monitoring and inspection role expanded during 2004–05 with passage of the Surveillance Devices Act 2004 and amendments to the Workplace Relations Act 1996. The office's monitoring and inspection role now encompasses the following areas:

The initial inspections of the use of surveillance devices by members of the AFP and ACC, and the use of compliance powers by members of the Building Industry Taskforce, will be conducted in the first half of 2005–06. Inspection methodologies and checklists were developed during the year in preparation for the first inspections of surveillance device records.

The Ombudsman sponsored inspection workshops in November 2004 and June 2005. Representatives from agencies with similar accountability responsibilities (such as State Ombudsmen) attended the workshops, which offered a forum to share best practice and other information.

Telecommunications 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 the accuracy of records and the extent of compliance of the records in accordance with the provisions of the Act.

A report on these inspections is then presented to the agency and later to the Attorney-General. Ordinarily, two inspections of each agency are carried out each year, but in 2004–05 three inspections were conducted because of a change in practice within the office concerning the inspection period covered by a report. Three inspections were conducted at the AFP (including a regional inspection) and three at the ACC.

Reports on the results of the inspections covering 2003–04 were presented to the Attorney-General in September 2004. The reports provided to the agencies after each inspection concluded that there is a high degree of compliance with the detailed record-keeping requirements of the TI Act. We did make some recommendations for improving the administrative and compliance systems of both agencies and for assisting staff in administering telecommunications interception warrants.

We have been grateful for ongoing policy assistance from staff from the Attorney-General's Department in clarifying issues relating to the TI Act.

Controlled operations

Controlled operations can be broadly described as covert operations carried out by law enforcement officers under the Crimes Act 1914 for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious offence. These operations may also result in 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.

During the year, four inspections of controlled operations records were conducted. Two inspections were conducted at the AFP and two at the ACC. The inspections concluded that with some minor exceptions both agencies are complying with the requirements of the Crimes Act and providing comprehensive information in formal reports. These inspections resulted in reports to both agencies, a briefing to the Parliamentary Joint Committee on the ACC, and an annual report for 2003–04 presented to the Parliament in December 2004.

As stated in our 2003–04 annual report, following a briefing by the Ombudsman to the Parliamentary Joint Committee on the ACC in October 2003, an own motion investigation was initiated into record keeping related to ACC controlled operations authorised under State or Territory legislation. These operations were not caught by the mandatory inspection requirements of the Crimes Act. The purpose of the investigation was to assess the adequacy of the mechanisms the ACC had developed for ensuring that controlled operations complied with State and Territory legislative requirements and administrative best practice. The Ombudsman investigation looked also at whether there was any indication that the ACC was choosing to conduct controlled operations under particular State or Territory legislation in order to minimise the application of the Commonwealth accountability framework to controlled operations.

Ombudsman staff reviewed the application, authorisation and record-keeping practices of the ACC for all jurisdictions in which ACC controlled operations occurred. The investigation found no evidence that the ACC was choosing to conduct and/or participate in controlled operations under particular State legislation in order to escape the rigour of Commonwealth controls. There was no basis to criticise the ACC for the way in which it was handling controlled operations under State laws. We provided results of the investigation to the ACC and the Parliamentary Joint Committee into the ACC in April 2005.

Other agencies

Department of Family and Community Services | Department of Employment and Workplace Relations | Department of Transport and Regional Services | Department of the Treasury | Australian Maritime Safety Authority | Insolvency and Trustee Service Australia | Australian Securities and Investments Commission

The jurisdiction of the Commonwealth Ombudsman extends to nearly all Australian Government agencies. However, the vast majority of the complaints we receive relate to the agencies covered earlier in this chapter. The remaining 2,002 (or 12%) of the complaints we received in 2004–05 related to 84 agencies in 16 portfolios. Table 4.2 sets out the ten other agencies about which most complaints were received.

Table 4.2 Complaints received about top ten other agencies, 2001–02 to 2004–05

Table 4.2 Complaints received about top ten other agencies, 2001–02 to 2004–05

This section provides some examples of complaints handled by the Ombudsman and the themes taken up by the office, to illustrate the diversity of issues handled each year. These examples show the variety of situations in which people seek assistance in handling the difficulties they encounter with government. Complaints also present an opportunity to improve government administrative practice.

Some of the more interesting complaints came from agencies that do not make the list of 'top ten other agencies', as can be seen from the complaint issues relating to the Department of Family and Community Services (FaCS).

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Department of Family and Community Services

During 2004–05, significant changes were made to the policy responsibilities of FaCS. Previously, the department had policy responsibility for most payments and programs administered by Centrelink. Responsibility for a number of these assistance programs and payments has been transferred to the Department of Education, Science and Training and the Department of Employment and Workplace Relations (DEWR).

We gave particular attention to three areas of FaCS's responsibility during the year: the $600 one-off payment for families; the marriage-like relationship policy; and the extension of advance payments.

$600 one-off payment for families

The 2004 Budget provided that a $600 one-off payment (per child) would be paid to families who, on Budget night on 11 May 2004, were entitled to receive fortnightly instalments of Family Tax Benefit Part A (FTB). The bonus payment was to be paid in June 2004.

Following the introduction of this bonus payment, we received complaints about non-payment of the entitlement by Centrelink. Some parents had been told that they could not be paid the bonus payment in June because their FTB had been cancelled or suspended for various reasons prior to Budget night. This was despite the fact that their FTB had since been restored and backdated.

FaCS had taken the view that some parents were not eligible to receive the payment in June 2004 because of the terms of the family assistance legislation. However, a special administrative scheme had been established to ensure that those families would be paid by September/October 2004.

We took the view that there was no legal reason why these families should wait until September/October 2004 to be paid. FaCS agreed with this view and took steps to ensure that appropriate payments were made. FaCS later advised that the number of customers paid as a result of our office's inquiry was 6,117, with a total outlay of $3.32 million.

Marriage-like relationships

Numerous complaints to the office during the year raised a variety of issues relating to the implementation of the marriage-like relationship policy.

The relationship status of a customer is important for social security purposes. A person's eligibility for a social security payment and their rate of payment can be affected if they are considered to be a 'member of a couple'. The Social Security Act 1991 sets out a number of options for the meaning of a 'member of a couple'. For example, a person may be a member of a couple if they are considered to be in a marriage-like relationship.

Given the importance of a person's relationship status to their social security entitlements, the office commenced an own motion investigation to examine the policy underpinning the administration of marriage-like relationships under the social security law. This investigation will continue into 2005–06.

Advance payments

Advance payments are available to most income support recipients, but not for those receiving Parenting Payment (Partnered). We reported on this issue in previous annual reports and recommended to FaCS that the advance payment scheme available to income support recipients should be extended to Parenting Payment (Partnered) customers.

The basis for our recommendation was that it was unreasonable and discriminatory to exclude recipients of the partnered rate from the advance payment scheme. The Ombudsman was informed that the recommendation had merit, and that legislative change would be considered. Some time elapsed without any formal commitment to or timetable for legislative change.

In late 2004 the Ombudsman made a formal report to the Prime Minister under s 16 of the Ombudsman Act, recommending that the advance payment scheme be extended. The Prime Minister subsequently informed the Ombudsman that the government had decided that Parenting Payment (Partnered) recipients should be able to access advance payments. As matters relating to Parenting Payment customers now fall within the portfolio responsibility of the Minister for Employment and Workplace Relations, policy responsibility for this change has transferred from FaCS to DEWR.

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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.

In last year's annual report, we outlined the work we had undertaken with DEWR in relation to the administration of the General Employee Entitlements and Redundancy Scheme (GEERS). Complaint issues regarding GEERS accounted for 163 (or 44%) of the 370 DEWR complaint issues finalised in 2004–05, compared to 118 complaint issues (or 40%) in the previous year.

Of the 163 complaint issues about GEERS, we investigated 28%. While the number of complaints is small in comparison with the 11,376 GEERS claims processed by DEWR in 2004–05, there has been a noticeable increase in complaints during the year.

Following discussion with DEWR in mid-2004, our data showed a marked decline in complaints about GEERS. As the year progressed, complaint numbers again rose. This reflects the complex nature of some GEERS issues. Late in 2004–05, DEWR initiated further discussion, which has been a constructive way of addressing a range of complex issues that are highlighted in the case studies: Company restructures—the 'corporate veil' and Creditor priority. Another program administered by DEWR that directly affects individuals is the recognition of trade qualifications as part of the migration process. The Recognising differences case study illustrates the importance in such a program of tailoring procedures and processes to meet the needs of a diverse client base.

CASE STUDY | company restructures—the ‘corporate veil’

Mr A had applied to the GEERS scheme for benefits lost when company H2, his employer, had gone into liquidation. On investigation it became clear that the company H2 had taken over the business of another company, H1, about halfway through Mr A's employment.

Mr A was unaware of this corporate change: he continued to work at the same premises with the same people, doing the same work, and for a company with only a minor change in name. This corporate change placed about half of Mr A's employee entitlements outside the reach of his GEERS claim.

Following discussions with DEWR, it was agreed that we would research whether H1 had also gone into liquidation. Depending on the outcome, DEWR would be able to assist Mr A with advice about a GEERS claim for company H1 or other action against H1 if this company was still operating.

CASE STUDY | creditor priority

Mr B was employed by a company in financial difficulty. By a Deed of Company Arrangement, the creditors of the company agreed to accept a reduced repayment of debts to allow the company to keep trading. In that circumstance, GEERS will not cover the liability to employees of the company unless the deed provides that GEERS, in substitution for the employees, has priority as a creditor. The effect of a provision of that kind is to give GEERS the same priority that employees would have under legislation. Without this safeguard, GEERS will not cover the liability of the company to the employees. If GEERS did pick up that liability, it could have the practical effect of providing a government subsidy to the other creditors of the company, by eliminating the priority claim of the employees.

This restriction in the GEERS scheme is understandable, but it can impact adversely on employees of a company in financial difficulty. The employees are left in the position that they have no entitlement under GEERS, and must make individual claims against an employer, which is now the subject of a DOCA

Whether and how employees should be covered in a situation such as this raises a complex issue of public policy. The Ombudsman's office has taken the issue up with DEWR, and it is the subject of ongoing discussion.

CASE STUDY | recognising differences

A migration agent contacted us, complaining about the way Trades Recognition Australia (TRA) processed an application made by his client for recognition as a cook/chef. His client, Ms C, had paid a higher fee to get priority processing and provided contact details of her employer in Iran, a restaurateur, to verify her employment. Priority applications take on average three months to process.

There was an initial delay of nearly four months, following which TRA tried to make telephone contact with her employer in Iran. TRA rejected Ms C's claims when they were unable to contact her employer. Ms C's agent said TRA had sought to make contact during Ramadan, when restaurants in Iran are either closed or operate very limited hours.

Following our investigation of the complaint, TRA agreed to reopen Ms C's application and to make contact with her employer. Ms C's application was subsequently granted.

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Department of Transport and Regional Services

In 2004–05, we received 35 complaints about the Department of Transport and Regional Services (DOTARS), compared to 104 in 2003–04. This was a decrease of 66%, and brings complaint numbers back to the level in earlier years, which was 40 complaints in 2001–02 and 49 complaints in 2002–03. The significant increase in complaints in 2003–04 was due to numerous complaints about import approvals not being granted for vehicles already physically landed in Australia. A Full Federal Court looked at the issue and held that import approval could be granted under existing legislation: Minister for Transport and Regional Services v Marra [2003] FCAFC 294.

We continued a review into the complaint-handling mechanisms employed by DOTARS. During the 2004–05, the department developed new complaint procedures within its Vehicle Standards Safety Branch and initiated a review of internal complaint-handling procedures in other areas.

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Department of the Treasury

A complaint we investigated about the Department of the Treasury (To build or not to build? case study) illustrated the importance of an agency paying close attention to the statutory provisions being administered. The case also illustrated, for members of the public, that a change in their circumstances does not necessarily mean they will be released from obligations they have entered into.

CASE STUDY | to build or not to build?

Mr D held a temporary visa when he purchased property in an Australian city. His acquisition of the property was approved subject to specific conditions, including a requirement to build a new dwelling on the property.

Mr D later became a permanent resident. He complained to the Ombudsman after receiving a letter stating that he had failed to comply with the conditions of the approval, and requesting him to sell the property, irrespective of price, to an Australian citizen. As an Australian permanent resident, Mr D felt that he should be released from the conditions imposed when his residential status was different.

We investigated the complaint and agreed that Mr D did not fall outside the operation of the Foreign Acquisitions and Takeovers Act 1975 by reason of having become a permanent resident. On the other hand, we considered that the procedure in the statute for compulsory sale did not come into operation until a person had first been convicted of an offence under that Act. Treasury agreed with this reading of the legislation, and accepted that in future it should warn a person in this situation that the matter may be referred to the Director of Public Prosecutions.

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Australian Maritime Safety Authority

The Cape Jaffa Lighthouse platform case study, on a complaint about the Australian Maritime Safety Authority, provides a window into the diverse nature and complexity of complaints handled by the office.

Australasian gannets and pied and black-faced cormorants on the Cape Jaffa Lighthouse platform, Margaret Brock Reef, SA

CASE STUDY

Cape Jaffa Lighthouse platform

Mr E complained that the Australian Maritime Safety Authority (AMSA) had allegedly misrepresented an engineer's report by indicating that the condition of the Cape Jaffa Lighthouse platform situated on the Margaret Brock Reef in South Australia was such that it should be condemned rather than abandoned. AMSA had no further use for the structure, as the authority had relocated the maritime safety beacon. AMSA considered the obsolete structure to be a hazard to shipping and the marine environment and wanted to remove it. It was Mr E's view that the engineer's report did not recommend that the structure be demolished.

Considerable efforts had been made by AMSA to offer the structure to various South Australian Government departments, which declined to accept responsibility for it. There was notable public interest in the structure, as it has a rich maritime history. In addition, the structure is a place of environmental significance because it is a nesting site for Australasian gannets and home to pied and black-faced cormorants.

Following our investigation over a number of months, including examination of agency files, AMSA decided not to take action to commence demolition of the structure in April/May 2005 as originally planned. AMSA decided that the structure would remain in place until at least March 2006. This will allow one more breeding cycle to occur at the site and negotiations to continue with the South Australian Government before final action is taken. In reaching this decision, AMSA recognised the efforts of the local community and various members of the South Australian Parliament to develop a viable alternative to demolition of the structure.

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Insolvency and Trustee Service Australia

Agency client service charters inform the public of the service standards they can expect from agencies. It is to be expected that members of the public will rely on an agency's charter in their dealings with the agency. It is therefore important that a charter should accurately reflect the service the agency is required to provide, or aims to provide. The All or any? case study illustrates a problem that can arise when charter wording is not accurate.

CASE STUDY

all or any?

The Insolvency and Trustee Service Australia (ITSA) Client Service Charter stated that the Inspector-General in Bankruptcy maintains high national standards of bankruptcy and procedures by 'inspecting the administrations of all bankruptcy trustees' and 'investigating complaints about any administration'.

Mr O complained that ITSA's Bankruptcy Regulation Branch, which exercised the Inspector-General's powers, decided not to investigate all aspects of complaints about a registered trustee. Mr O contended that ITSA's actions were inconsistent with the ITSA Client Service Charter.

We investigated and found that, while ITSA examines all complaints, there was no legislative requirement for the Inspector-General to inspect 'all' bankruptcy trustees or to investigate complaints about 'any' bankruptcy. These decisions are at the discretion of the Inspector-General and are based on the issues raised and available alternative remedies.

We raised with ITSA the desirability of the Client Service Charter being changed to remove any ambiguity in their complaint handling, to which ITSA agreed.

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Australian Securities and Investments Commission

The Ombudsman receives a small number of complaints each year about the Australian Securities and Investments Commission (ASIC), and some of these complaints throw up challenging issues of law and administration.

In one such case, the Ombudsman raised with ASIC whether it should develop public guidelines on what constitutes 'the public interest', for the purposes of ASIC bringing civil recovery proceedings under s 50 of the Australian Securities and Investments Commission Act 2001. This arose from a complaint to the Ombudsman from a member of parliament, querying the reasons given by ASIC to a constituent for not commencing proceedings under s 50. The Ombudsman did not find error in ASIC's decision, but pointed to the role that internal agency guidelines can play in promoting clarity and consistency in the administration of indeterminate statutory phrases.

Another ASIC complaint handled during the year drew attention to an instance in which legislative requirements were not being fully met in the discharge of an ASIC supervisory function. As the Unclaimed monies case study shows, we can be useful in bringing to the attention of government agencies the failure of organisations, over which they have a supervisory function, to comply with legislative requirements.

CASE STUDY

unclaimed monies

The Banking Act 1959 requires banks and other authorised deposit-taking institutions to lodge with the Australian Securities and Investments Commission (ASIC) a statement of all unclaimed moneys held in accounts, within three months of the end of each financial year. The statement must contain the name and last known address of the account holder, the amount, and the branch at which the account was kept. This information can be of assistance in identifying the owner or whoever may now be entitled to the funds.

Following a complaint from a company whose activities included tracing potential owners of unclaimed monies, Ombudsman staff raised with ASIC a concern that some statements being lodged did not provide the last known address of the account holder or the branch where the account was held.

ASIC acknowledged that this was occurring and advised that it would write to authorised deposit-taking institutions emphasising the importance of ensuring that all required details were included in the statement. ASIC also advised that, when statements were lodged without this information, it would write to the institution requesting reasons why the information was not included.

Freedom of Information

Access to government information is integral to democratic, transparent and accountable government. The express purpose of the Freedom of Information Act 1982 (the FOI Act) is to extend, as far as possible, the legal right of individuals to obtain a range of documents held by Australian Government agencies and to seek amendment of records containing personal information within them.

The FOI Act expressly empowers the Ombudsman to investigate complaints about the actions of Australian Government agencies in response to FOI requests. It also requires agencies to inform applicants of their right to complain to the Ombudsman about FOI matters. The Ombudsman's role under the FOI Act reflects the more general role of the office in promoting transparency in government administration. This includes ensuring that agencies implement sound document management procedures, provide clear and accessible information, and are open and responsive to complaints about issues to do with access to information.

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Complaints about FOI

During the year, we received 275 complaints and finalised 289 complaint issues about the way that Australian Government agencies handled requests under the FOI Act (see Table 4.3). This is a 16% increase over the 236 complaints received in 2003–04.

Table 4.3 Freedom of Information complaints received and issues finalised, by agency, 2004–05

Table 4.3 Freedom of Information complaints received and issues finalised, by agency, 2004–05

We received a number of complaints from people who were experiencing unnecessary difficulty in making an FOI application to an agency. In one case, the agency had refused to accept an email request, despite its own policy that recognises this as a valid way to apply under the FOI Act.

In another case, the agency suggested that an application was not valid because it requested 'information' not 'documents'. The FOI Act does not require requests to use the word 'document' or the expression 'freedom of information' or 'FOI'. It only requires that enough information is provided for the agency to identify the relevant documents, which this request did.

A related matter of concern is that there continue to be examples of agencies failing to comply with their statutory obligation to help applicants make a valid FOI application. Under the FOI Act, if an agency receives a 'request' that is not in the right form, or is not accompanied by the required $30 application fee, the agency must promptly tell the person what is required.

As in previous years, the majority of FOI-related complaints continue to be about delays in processing applications. In a number of cases this was due to basic administrative error, such as the agency misplacing the FOI request, failing to interpret it as an FOI request, failing to forward it to the relevant area for processing, or forgetting to send its decision (and the documents) to the applicant. In other cases, it was due to unanticipated staff shortages or delays in consultation. In such cases, the usual remedy is for the agency to apologise and expedite processing of the request.

In some cases we have also suggested that the agency refund the application fee and/or processing charge. In one case, the agency conceded that a wider problem existed, and implemented systemic remedial action, including training staff and upgrading its computer system.

In another case, the complaint was about the agency deciding to refund processing charges paid in respect of the request, but then failing to pay back the money. In response to our inquiries, the agency implemented a new checklist procedure designed to ensure that no tasks remained outstanding before finalising FOI requests.

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Delays in processing FOI requests

During 2004–05, we received many complaints from individuals and representations from organisations about significant delays in the processing of FOI requests by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). DIMIA has been facing difficulty in complying with the statutory requirement that FOI requests be processed within 30 days. Processing times were far exceeding the statutory timeframe for responses.

We discussed our concerns with DIMIA, and were advised that a number of strategies were being implemented to address the problem, including:

The Ombudsman is satisfied that the strategy being put in place by DIMIA to resolve the problems will be appropriate to get the processing of FOI requests back under control in the longer term. DIMIA is providing us with updates on progress, and we will continue to monitor the implementation of the strategy and to ensure that DIMIA continues to give FOI processing a high priority.

In the meantime, we continue to accept complaints about FOI delays and may investigate if we consider that particular matters should be given priority. When an agency fails to comply with the statutory deadline for processing FOI requests, the FOI Act provides that the agency is deemed to have refused access and the person may appeal to the Administrative Appeals Tribunal. While we did not necessarily recommend this action, as there are costs attached, we did advise complainants about this option, as it is only proper that it be brought to their attention.

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Own Motion Investigation

As reported last year, in the last quarter of 2003–04, the Ombudsman conducted an own motion investigation into the quality of FOI processing by Australian Government agencies. The investigation report is now expected to be published in early 2005–06.

As the sample size is limited, we will not be identifying specific agencies. Issues of concern are being raised with individual agencies; the Ombudsman's public report will be in a general form.

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      Commonwealth Ombudsman Annual Report 2004-05 | Chapter 4

      Commonwealth Ombudsman annual report 2004-2005

      CHAPTER 4 | looking at the agencies

      Introduction

      During 2004–05, the majority of complaints received by the Ombudsman (78%) concerned the five Australian Government departments and agencies listed below. This chapter focuses on particular issues that arose during the year in investigating complaints about these agencies:

      • Centrelink—7,699 complaints
      • Child Support Agency—2,094 complaints
      • Australian Taxation Office—1,633 complaints
      • Australia Post—1,190 complaints
      • Department of Immigration and Multicultural and Indigenous Affairs—873 complaints.

      As well, this 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
      • complaints about the handling by agencies of freedom of information requests.

      The 'Other agencies' section of this chapter provides examples of complaints received about some other agencies, such as the Department of Family and Community Services and the Department of Employment and Workplace Relations.

      While the discussion and analysis of complaints arising in specific areas of government illustrates the role 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. Examples of difficulties that commonly arise are delay in decision making, inadequate explanation of decisions, and deficient record keeping. 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').

      '... analysis of complaints arising ... does not fully portray the work of the office.'

      Something should also be said of the agencies about which most complaints are received. A common feature is that each of those agencies engages daily in a high number of direct transactions with members of the public, on matters such as providing benefits, assessing taxation, granting visas, calculating child support liability, and providing postal services. The complaints received by the Ombudsman are a small fraction of the total number of transactions undertaken by the agencies.

      Complaints sometimes arise from the service provided by any agency, but at other times complaints are more about a perceived difficulty in the law being administered by an agency. The complaints to the Ombudsman illustrate the difficulties that people face in dealing with government, but not necessarily the standard of administration in those agencies. This point is captured in another way in the 'Performance report' chapter, which gives more emphasis to the remedies and assistance that the Ombudsman's office can provide to the public than to whether in the Ombudsman's view there was an agency defect.

      Figure 4.1 shows the proportion of complaints received by the Ombudsman from agencies about which most complaints are received.

      Figure 4.1 Complaints received, by agency, 2004–05

      Figure 4.1 Complaints received, by agency, 2004–05

      A detailed breakdown of complaints by portfolio and agency is in the 'Statistics' appendix.

      Australia Post

      Australia Post is an incorporated government business enterprise wholly owned by the Australian Government. It operates under the Australian Postal Corporation Act 1989 (the Postal Act) and Australia Post Terms and Conditions (which are approved by its Board).

      Legislation to create a separate office of Postal Industry Ombudsman was introduced into Parliament in August 2004. Under the proposed legislation, the Commonwealth Ombudsman will undertake the role of Postal Industry Ombudsman. The jurisdiction of the Postal Industry Ombudsman will extend to private sector postal operators who register to participate in the scheme. It is anticipated that Parliament will further debate the Bill during 2005–06. Pending enactment of the legislation, we have been working on establishing a framework of operations for the Postal Industry Ombudsman scheme.

      In 2004–05, we received 1,190 complaints about Australia Post, compared to 1,079 last year, an increase of 10%. See Figure 4.2 for Australia Post complaint trends from 1999–2000 to 2004–05.

      Figure 4.2 Australia Post complaint trends, 1999–2000 to 2004–05

      Figure 4.2 Australia Post complaint trends, 1999–2000 to 2004–05

      Australia Post's Customer Contact Centres handle most complaints about postal services, and we usually ask complainants to raise their concerns with a contact centre in the first instance. In many cases we are satisfied that Australia Post has handled complaints appropriately. In some cases, however, we may form an opinion that the complaint could have been handled differently. We may suggest a different outcome or broader changes to Australia Post's systems or operations.

      As in previous years, the complaints to the Ombudsman were mostly about domestic, international or parcel post mail deliveries. Some of the issues are covered below.

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      Mail services

      Australia Post has placed particular emphasis on, and committed resources to, maintaining the integrity of its mail services and improving and expanding its operations.

      '... complaints to the Ombudsman were mostly about domestic, international or parcel post mail deliveries.'

      Although Australia Post has diversified into areas such as logistics, retail sales and agency work, mail still forms the core of its operation. Equally, mail remains a vital mode of communication for many people, notwithstanding the growth of electronic means of communication, such as email and SMS. During the year, we received a number of complaints from people who were not receiving regular mail deliveries from Australia Post.

      Irregular delivery

      In one case we investigated, Australia Post had ceased mail deliveries to a residential address without notifying the person. No mail was delivered for over three weeks because an old car parked near the mail box was considered by the postal delivery officer to be a health hazard. The complainant claimed that the car had been parked on the verge intermittently for four years, and had not previously impeded access to the letterbox.

      We discussed the complaint with Australia Post and found that the postal delivery officer had taken the mail with him each day, decided not to deliver it because of the car, and had returned it to the delivery centre. The delivery officer had made a notation in Australia Post's hazard report book, but had not brought the hazard to his supervisor's attention or waited for the matter to be investigated prior to ceasing the mail delivery. Australia Post reminded all delivery officers of the proper procedures in these instances.

      Business addresses in residential areas

      Other complaints, which raised the issue of mail delivery to individuals who conduct business from residential areas, illustrated the importance that many businesses and individuals place upon efficient mail delivery. In one complaint, a business owner complained that he did not receive mail until mid-afternoon, which was too late for business purposes. He had complained previously to Australia Post, who had remedied matters, but a few months later the same problem had recurred.

      After we raised the matter with Australia Post, the relevant Australia Post delivery manager undertook to discuss the problem with the complainant, and subsequently arranged for his mail to be included in the nearby business delivery round to ensure that he received his mail earlier in the day.

      Registered mail

      We received a complaint that a registered parcel containing war medals had been collected by a person who signed for the parcel in the addressee's name. The allegation raised a concern about a possible crime and about the integrity of the registered mail service. Following our request, Australia Post investigated the allegation and concluded that the person who collected the parcel had no legal authority to do so, and considered that the addressee's signature may have been forged.

      The matter was referred to the Director of Public Prosecutions. Australia Post also took internal action, as staff had not followed the proper identity check for a registered parcel. The addressee's family was given a statement to enable them to obtain a reissue of the war medals.

      Community service obligations

      Australia Post has some community service obligations imposed by the Postal Act. Under this Act, Australia Post must provide a universal letter service for standard postal articles that is reasonably accessible to all Australians, wherever they reside. The Act also provides for performance standards relating to matters such as frequency and speed of mail delivery and availability of post boxes. These obligations define a minimum standard, and the issue can arise of whether Australia Post should go further.

      There is, for example, a community service obligation on Australia Post to provide a minimum of 10,000 street post boxes across Australia; currently there are over 15,000 street post boxes. In metropolitan areas, Australia Post aims to have a street post box within two kilometres of each resident.

      We investigated a complaint from a person who had moved into a new residential development and was concerned because there was no street box nearby. Australia Post informed us that in fact there were three street post boxes approximately one kilometre from the person's residence. In these circumstances, we did not consider Australia Post's position was unreasonable.

      Compensation delay

      Each year we receive complaints about delays by Australia Post in dealing with claims for compensation. Sometimes, despite a person being well organised in keeping relevant receipts and records, things may go awry.

      We investigated a complaint about delay by Australia Post in compensating a customer for items broken in transit. Australia Post had notified the customer that compensation was approved based on the claim information, including receipts, evidence of the breakage and demonstrated adequate packaging. Australia Post had still not posted a compensation cheque two months later, despite repeated phone calls from the customer. We contacted Australia Post, who quickly forwarded the cheque and apologised for the delay.

      Access to information

      One important outcome our office can achieve for the community is an improvement in the amount of information an agency makes publicly available. A complaint investigated by the office raised the issue of how postcodes are allocated by Australia Post. In response to our inquiries, Australia Post agreed that information regarding the assignment of postcodes would be made publicly available. This information is now available on Australia Post's website.

      Australian Tax Office 

      Improvements in ATO complaint handling | Liaison with the ATO | Complaints overview | Referral survey project | Superannuation issues | Settlements | Compensation changes

      The Australian Taxation Office (ATO) is primarily responsible for administering Australian Government taxation legislation and collecting Commonwealth revenue. Under Australia's self-assessment system of taxation—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.

      Section 4(3) of the Ombudsman Act 1976 provides that the Commonwealth Ombudsman is also the Taxation Ombudsman when dealing with complaints about the ATO. This designation, introduced in 1995, recognised the need for the Ombudsman to be able to bring a specialist focus to complaints about the ATO. Additional funding for a Special Adviser on Taxation was a part of this change.

      Since this change in the role of the Ombudsman ten years ago, we have seen a marked improvement in the relationship between the Ombudsman's office and the ATO. The volume and complexity of tax law and the extensive powers of the ATO with respect to individuals continue to generate complaints about the administrative actions of the ATO.

      The greatest challenge for those working in the tax field is the ever-increasing complexity of tax law and the tax system. The Taxation Ombudsman plays an important role in assisting taxpayers to find their way through this complexity, as well as pointing out to the ATO ways in which processes and information might usefully be simplified. The underlying approach to the Taxation Ombudsman role is to find practical solutions to administrative problems.

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      Improvements in ATO complaint handling

      In July 2003, the Ombudsman released an own motion investigation report into ATO complaint handling.

      In 2003–04, we reported that the Commissioner of Taxation had accepted all of the report's recommendations. The main recommendations were that the ATO develop a strategy for implementing best practice 'relationship management' within complaint handling across the ATO, and that it adopt a consistent single complaint-recording system as soon as practicable.

      '... the Taxation Ombudsman role is to find practical solutions to administrative problems.'

      Since that time, we have been working closely with the ATO on the implementation of the report's recommendations. In April 2005, the Commissioner wrote to the Ombudsman providing a detailed report on the measures the ATO had taken since July 2003 in response to our report; the Commissioner advised that the ATO had fully implemented all recommendations.

      The centralised complaint-recording system in the ATO commenced in November 2004. This has resulted in improvements in both the timeliness and quality of ATO complaint handling. We will continue to keep abreast of the system's further development and effectiveness. We were also provided with a comprehensive ATO Practice Statement outlining procedures and minimum standards expected in the handling of ATO complaints.

      The Commissioner also outlined other issues addressed by the ATO in response to our report, such as implementing a comprehensive quality assurance regime for complaints, identifying and managing systemic issues at a high level, and making a continuing commitment to the Taxpayer's Charter.

      For some years, the Ombudsman's office has encouraged agencies to develop their own internal complaint-handling mechanisms. We are pleased that the ATO has given priority to this issue, and the result may well be a model for other agencies.

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      Liaison with the ATO

      During the year, the Special Tax Adviser and Tax Team staff continued their efforts to maintain the effective working relationship that the Ombudsman's office has established with the ATO and its officers over the past few years. Apart from the usual contact in the course of handling individual complaints, we met regularly with ATO staff involved with handling Ombudsman inquiries about matters such as legal issues and mass-marketed schemes. The focus of the meetings is to make the complaint processes work more effectively through an exchange of views and information on a range of issues.

      'The focus ... is to make the complaint processes work more effectively ...'

      We also met with ATO staff to address specific tax issues as they arose during the year. When the ATO becomes aware of an emerging administrative problem that could lead to increased complaints, it provides advice to the Special Tax Adviser on what action the ATO is taking to address the problem. One example is delays in processing the superannuation guarantee payment, where the ATO was quick to provide a briefing about the actions it was taking to address the problem.

      At other times, we specifically requested that the ATO provide us with a more general briefing on matters which arose out of individual complaints we investigated: an example this year was a request for advice on ATO action on old debts. The aim of such briefing is to better inform ourselves about ATO processes, and to collect information against which we can measure ATO action when investigating current and future complaints.

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      Complaints overview

      In 2004–05, the Ombudsman received 1,633 complaints about the ATO, compared with 1,711 the previous year. This was a decrease of 5% (see Figure 4.3 for ATO complaint trends from 1999–2000 to 2004–05). This suggests a return to greater stability in ATO complaint numbers, comparable with the period prior to the introduction of the new tax system and the difficulties over the tax treatment of mass-marketed investment schemes. The office finalised 1,591 complaints, of which 364 (or 23%) were investigated, a similar proportion to last year.

      Figure 4.3 Australian Taxation Office complaint trends, 1999–2000 to 2004–05

      Figure 4.3 Australian Taxation Office complaint trends, 1999–2000 to 2004–05

      We received complaints across the full range of ATO activities and products, including excise, superannuation, debt recovery, the goods and services tax (GST) and aggressive tax planning. Complaints about ATO debt recovery action and the accuracy, clarity and timeliness of ATO advice continue to dominate.

      Our specialist Tax Team continues to monitor complaints to identify emerging complaint trends that may warrant direct intervention by the Special Tax Adviser or Taxation Ombudsman. In 2004–05, we identified an increase in complaints about superannuation co-contributions, allowing the office to look at whether these were due to a systemic issue or other reason. This assessment is ongoing.

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      Referral survey project

      We will usually suggest to complainants that they first try to resolve their concerns directly with the ATO, as we consider that the agency should first have the opportunity to correct any perceived problems. We suggest that the complainant contact the ATO directly, and provide advice about making a complaint and information on specific issues such as remission of interest guidelines. In some circumstances, we will offer to transfer the complaint directly to the ATO, with the understanding that the complainant can contact us if dissatisfied with the outcome.

      Towards the end of 2004–05, we commenced a pilot project to test the effectiveness of our complaint referral process. We are surveying a sample of complainants who we referred back through the ATO complaints system to obtain feedback on whether the advice we provided was useful in progressing their complaints. The results of the survey will assist us to improve the effectiveness of our complaint referral process.

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      Superannuation issues

      In 2004–05, we received a significant increase in the number and range of superannuation complaints and issues.

      Superannuation guarantee

      The move from annual to quarterly superannuation guarantee reporting created problems for the ATO in aligning aspects of its accounting system, which in turn caused delays in processing assessments and making payments to superannuation funds. The ATO briefed the Special Tax Adviser on the issue and the course of action being taken to address the backlog of cases. The Commissioner also put in place a compensation scheme to ensure that neither employers nor employees affected by the processing delays will be out of pocket.

      We continued to receive a small number of complaints from employers caught by what the ATO has called the 'double jeopardy' effect of the superannuation guarantee legislation. The current legislative scheme does not allow any discretion where an employer makes a late payment to an employee's superannuation fund or mistakenly pays the contribution directly to the employee. The employer is liable to pay a 'superannuation guarantee charge' (SGC) to the ATO on top of the amount already outlaid.

      Recognising the burden this creates for employers who genuinely attempt to meet their obligations, the 2005 Budget included an initiative aimed at reducing the incidence of double payment. An employer's payments will be used to offset any part of the SGC relating to that quarter when payments are made to a superannuation fund within 30 days of the due date for quarterly contributions. The budget initiative will not assist all complainants, but will go some way to ameliorating the potential for, and impact of, employer double payments. We expect that this will lead to a reduction in the number of complaints about this issue.

      Superannuation surcharge

      There was also an increase in the number of complaints relating to the superannuation surcharge. In nearly all cases, the complainant's concerns and confusion were exacerbated by the complexity of the surcharge system. This was particularly true for those complainants facing a one-off surcharge liability, generally following their retirement. For this reason, we welcomed the government's abolition of the surcharge in the 2005 Budget. We anticipate that complaints about the administration of the superannuation surcharge will gradually decrease.

      Superannuation co-contribution scheme

      Towards the end of 2004–05, we received a number of complaints about the Superannuation Co-contribution Scheme. The scheme operates to provide eligible taxpayers with a matching superannuation contribution made by the Australian Government up to a maximum of $1,500 per annum. The complaints received related to eligibility, retrospective legislative amendments and the quality of ATO advice and publications. We will continue to monitor these complaints and provide feedback about the administration of the scheme to the ATO towards the end of 2005.

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      Settlements

      The settlement of disputes between taxpayers and the ATO about taxation liabilities is one area where difficulties occasionally arise. For some complaints, we have been able to help simply by encouraging discussion between the parties, or suggesting a different perspective for consideration. Other problems have been more complex.

      During the year, we discussed a range of issues relating to settlements with the ATO, including the need for senior-level involvement in settlement decisions, the nature and breadth of the Commissioner's power to settle disputes, and perceived technical difficulties with specific settlements. For example, in one case we were able to facilitate finalisation of a complex settlement involving a trust and some of its beneficiaries and the difficulties arising from the rescission of an earlier distribution of trust income outside of the timeframe for amending ordinary assessments.

      In November 2004, the Commissioner established a panel of senior officers to consider proposed settlement of widely based disputes and to provide guidance to ATO staff. The Ombudsman is providing input to the panel for the preparation of the guidelines.

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      Compensation changes

      We continue to see fewer complaints about decisions made by the ATO on whether to pay compensation to a taxpayer who claims to have been wrongly damaged by ATO action. The reduction in complaints stems from the ATO's introduction in 2003–04 of a more pragmatic approach to handling compensation claims. The changes include clear service standards on timeliness, against which we can consider complaints about delay. The changes also involved the Minister delegating to some senior taxation officers the power to handle all claims, where previously there had been a $50,000 cap. This meant that decisions formerly made by the Minister and beyond the Ombudsman's jurisdiction can now be made by the ATO and so fall within the office's jurisdiction.

      Centrelink

      Internal review process | Nominees | Customer compensation | Banning customers

      During 2004–05, Centrelink was affected by a number of changes made to Australian Government agency structures and responsibilities. The biggest change was the creation of the Department of Human Services, which was established to direct, coordinate and broker improvements to government service delivery. Centrelink was one of six Australian Government agencies brought within the responsibility of the new Department of Human Services.

      Centrelink retains responsibility for delivery of a wide range of programs and payments on behalf of Australian Government agencies. The majority of complaints that the Ombudsman receives about Centrelink relate to income support payments, family payments and other programs that Centrelink administers.

      In 2004–05, Centrelink complaints accounted for 44% of all complaints to the Ombudsman. We received 7,699 complaints about Centrelink, compared with 8,084 complaints in the previous year. This was a decrease of 5%. See Figure 4.4 for Centrelink complaint trends from 1999–2000 to 2004–05.

      Figure 4.4 Centrelink complaint trends, 1999–2000 to 2004–05

      Figure 4.4 Centrelink complaint trends, 1999–2000 to 2004–05

      We investigated 32% of complaints received about Centrelink. The majority of complaints received were about the Family Tax Benefit (20%), Newstart Allowance (20%), Disability Support Pension (13%), and Parenting Payment (13%). Complaints were received about a large range of complaint issues. Some of the more prominent topics were the internal review process, nominees, compensation, and controlling contact with certain customers. These issues are covered below.

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      Internal review process

      The internal review process in Centrelink generally comprises two stages: reconsideration by the original decision maker, and review by an Authorised Review Officer.

      If customers are dissatisfied and want a decision reviewed, the issue is generally referred back to the original decision maker to reconsider the decision. The original decision maker may decide either to affirm, set aside or vary the original decision. If a customer still remains dissatisfied, they can ask that an Authorised Review Officer review the decision.

      Delay

      Delay can occur at one or both stages of Centrelink's internal review process. There can be delay where the original decision maker is reconsidering the decision and/or where the Authorised Review Officer is reviewing the original decision. Delay can have a significant consequence for a customer, particularly if the decision being reviewed was a denial of income support.

      A number of complaints this year involved delays in Centrelink's internal review process. For example, in several cases a complainant waited approximately six months for the Authorised Review Officer to review the original decision. During this time the customer's payments were cancelled.

      Delays by the original decision maker in reconsidering the decision are of particular concern. This is intended to be a quick process to give the original decision maker the opportunity to see if there has been an error or misunderstanding between the customer and Centrelink. Excessive delay calls into question the value of a decision being reviewed both by the original decision maker and the Authorised Review Officer.

      Review by original decision maker

      The social security law does not require that the original decision maker review a decision before it can proceed to an Authorised Review Officer for review. However, under the current review system, the original decision maker will initially treat a customer's request for review as a request for reconsideration. Even if the original decision is not changed after this process, the customer must again request review by the Authorised Review Officer, rather than the decision being automatically referred for review. The Ombudsman is concerned that this review process sometimes leads to customers experiencing appeal fatigue.

      As a result of a report by the Australian National Audit Office in March 2005, Centrelink's Review and Appeals System, Centrelink agreed to consider options for the future role of the original decision maker. One option being considered by Centrelink is to restrict the role and functions of the original decision maker to that of an administrative check before an appeal progresses to an Authorised Review Officer.

      'The Ombudsman is concerned that this review process sometimes leads to customers experiencing appeal fatigue.'

      Given our concerns about unnecessary delay and appeal fatigue, we have agreed to participate in a Centrelink steering committee, which is considering the future of the review process.

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      Nominees

      A Centrelink customer can authorise a person or organisation to act and make changes on their behalf and/or to receive payments on their behalf. This person or organisation is called a nominee. Given the importance of income support for a customer, Centrelink must be careful in accepting and administering nominee arrangements.

      A number of complaints received during 2004–05 raised issues that resulted in the Ombudsman's office enquiring about Centrelink's practices and procedures for handling nominees.

      Correspondence with customers and nominees

      Complaints this year raised the question of whether Centrelink should send correspondence about a customer's payments to the nominee as well as to the customer.

      There may be an adverse consequence if a nominee is not informed about Centrelink correspondence, particularly if the correspondence potentially affects the customer's eligibility or payment. For example, a customer complained to our office this year because his payments had been suspended. That customer had a nominee handling his Centrelink affairs. When we investigated, we found that Centrelink had written to the customer about his payments, requiring that he provide information about income. Unfortunately, the nominee was unaware of this correspondence. When the customer did not respond to Centrelink's notice, his payments were suspended, causing much concern to the customer. As a result of our inquiries, the customer's payments were reinstated.

      Although Centrelink may not be required to send a copy of correspondence to nominees, we have suggested that it seems preferable that nominees in the situation described above be aware of any Centrelink correspondence concerning the customer. Centrelink has advised that current procedures now specify that both parties should be notified in such circumstances.

      Investigating requests to appoint nominees

      Although a customer may choose to change their nominee, there may be circumstances in which Centrelink should investigate the appropriateness of allowing the customer to do so.

      This issue was highlighted by a complaint from a person who was the nominee for an intellectually impaired customer. The complainant had expressed concern to Centrelink about another person who might seek to become a nominee. The other person later attended a Centrelink office with the customer and lodged a form seeking to change the nominee arrangement. Centrelink processed this request without first contacting the current nominee to discuss the situation. The complainant subsequently obtained guardianship and was reinstated as the customer's nominee.

      Centrelink has provided advice that procedures have been revised to better ensure that the interests of its customers are fully considered in such circumstances.

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      Customer compensation

      If a customer considers that Centrelink's actions have caused them to suffer loss, the customer may apply for compensation from Centrelink. In recent years, Centrelink implemented changes to improve handling of customer compensation claims. These included:

      • reviewing its Customer Compensation Guidelines
      • installing a national database to monitor the progress of compensation claims
      • conducting training for relevant Centrelink staff.

      Despite this, complaints continued to highlight deficiencies with Centrelink's administration of customer compensation claims, including considerable delay.

      In September 2004, Centrelink implemented a new system for handling customer compensation claims, which involved centralising all decision making about customer compensation. It is intended that the new system will improve the consistency and quality of decisions as a result of claims being investigated and handled by specific customer compensation caseworkers. The new database will allow Centrelink to better monitor the progress of compensation claims to ensure that they are processed in a timely fashion and are of a satisfactory and consistent quality.

      The Ombudsman's office will continue to raise with Centrelink any issues resulting from complaints about customer compensation.

      Banning customers

      We received a number of complaints from customers who had been banned from either attending Centrelink offices or having telephone contact with staff. These decisions stemmed from the behaviour of the customers, usually of an abusive or threatening kind.

      Although we found that the decisions to ban the individuals concerned were not unreasonable, these complaints highlighted that Centrelink has no national guidelines for the process of banning customers. Instead, different areas had developed guidelines specific to their particular area.

      Centrelink examined this issue and decided to develop national guidelines for banning customers with the aim of improving consistency. These guidelines are expected to be implemented in the first half of 2005–06.

      Child Support Agency 

      Registration of court orders and agreements | Accuracy of income information | Privacy breaches | Compensation decisions—future recovery opportunities

      The Child Support Agency (CSA) was set up in the late 1980s to administer the Child Support Scheme, which provides for the assessment, collection and disbursement of child support. The scheme paved the way for compulsory payment of child support based on the income and earning capacity of both parents.

      The Child Support Scheme operates under two statutes—the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989. Together, these Acts provide for the registration of child support cases, the calculation of a child support assessment, and the recovery and disbursement of child support payments. Payers are those paying child support and payees are those receiving child support.

      Following a recommendation from the House of Representatives Standing Committee, a ministerial taskforce was convened during the year to examine the Child Support Scheme. The taskforce's report was released in June 2005. It recommended a number of significant legislative changes to the scheme, which are being considered by the government.

      In 2004–05, the Ombudsman received 2,094 complaints about the CSA, compared with 1,951 last year, an increase of 7%. Complaints about the CSA account for 12% of all complaints received by the Ombudsman. See Figure 4.5 for CSA complaint trends from 1999–2000 to 2004–05.

      Figure 4.5 Child Support Agency complaint trends, 1999–2000 to 2004–05

      Figure 4.5 Child support agency complaint trends, 1999–2000 to 2004–05

      The main areas of complaint related to assessments, and collection and recovery of child support. Complaints about assessments focused on three matters: the application of the basic formula; decisions made under the 'change of assessment' process; and income processing. Complaints about collection and child support recovery activities included failure to collect, the method of collection, and calculation of arrears.

      A complaint theme that featured this year was the registration of child support agreements and court orders. Other themes included privacy breaches in change of assessment decisions, the accuracy of income information, and compensation decisions. A brief description of the scope of our investigations in these areas follows.

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      Registration of court orders and agreements

      Although most child support amounts are set by the CSA according to formulas contained in the child support legislation, some people independently enter into child support agreements or obtain court orders that set the amount of child support payable. A payee may register a child support agreement or court order with the CSA and may request the CSA to collect child support on their behalf. At the end of June 2004, 4.6% of child support assessments were based on agreements or court orders.

      The Ombudsman received a number of complaints about the registration and enforcement of child support agreements and court orders. Two examples of the issues raised in these complaints (discussed below) related to registration errors and to unemployment clauses.

      Registration errors

      The Ombudsman received complaints about errors that had occurred in registering child support agreements and court orders. Often complaints did not come to light until several months, or in some cases several years, after the child support agreement or court order was registered.

      In one complaint we examined, the parents had entered into a child support agreement for their two children that ended when each child turned 15 years old. Unfortunately, the incorrect end date for the agreement was registered by the CSA. This had the effect of continuing the child support liability of one child for three years past the agreed date. The payer was subsequently assessed as having to pay child support beyond the child's fifteenth birthday, yet the complaint nevertheless raised questions about the quality controls in place to prevent simple errors from occurring. Discussions with the CSA are continuing on this issue.

      Unemployment clauses

      Child support agreements may contain clauses reducing the child support payable by the payer during periods of unemployment. Such clauses can state that the payer must be in receipt of income support from the government for the unemployment clause to operate. This means that even if the payer is unemployed, the child support liability will not reduce unless the payer is receiving income support from the government.

      This year we investigated a complaint where the CSA incorrectly advised a payer that the unemployment clause applied. The payer advised the CSA that he was unemployed, but not entitled to income support payments from Centrelink because his partner's income was too high. The CSA said that it would activate the unemployment clause in the agreement if he provided a letter from Centrelink confirming that he was unemployed, but not eligible for an income tested payment due to his partner's income. When the payer provided the letter, the CSA accepted it and reduced the child support payable from $184 to $5 per week.

      This application of an unemployment clause was incorrect, as the agreement clearly stated that the payer must be in receipt of income support payments to effect a reduction in his child support payments during a period of unemployment. The error was not identified until almost 12 months later when the payee questioned the payer's employment status. As a result, the CSA reviewed its decision to activate the clause and reverted the child support payable to $184 per week effective from the date the unemployment clause was incorrectly activated. This action raised a significant debt against the payer.

      The CSA has taken action to ensure that all staff are aware of the meaning of unemployment clauses in child support agreements. The CSA has also advised that the topic will receive additional attention in future training programs.

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      Accuracy of income information

      The accuracy of income information is vital to properly assess the rate of child support payable. In the absence of the last relevant year of taxable income, the CSA may seek information about a person's taxable income and supplementary income from sources such as Centrelink, the ATO, employers, and change of assessment and estimate information. The CSA has a range of investigative powers available to seek information about a client's income and financial resources.

      In some circumstances, the CSA can retrospectively increase or decrease a child support assessment if it later discovers new income information. This can result either in an overpayment of child support that the payee has to repay, or a child support debt raised against the payer.

      'The accuracy of income information is vital to properly assess the rate of child support payable.'

      If the CSA has been responsible for collection of child support during the period over which the overpayment or debt is raised, it may take action to collect the money owed. This option may not be possible where payees have elected to collect child support privately. This was highlighted in a complaint this year where a child support debt was raised as a result of a retrospective child support assessment for the previous three to four years. The payee changed the method of collection and asked the CSA to collect the child support debt. Under the child support law, where a person transfers from private collection to agency collection, the CSA can only seek to collect a maximum of nine months in arrears. Unless the payer agrees to pay the remaining arrears privately, the payee's only recourse involves pursuing civil legal action.

      Parents are encouraged to collect child support privately, and currently more than 50% of child support payments are collected this way. We are particularly concerned that the CSA take appropriate steps to ensure that income information is accurate, given the limited options these parents have in pursuing any arrears or overpayments that may arise through correction of inaccurate incomes.

      When we raised this matter, the CSA advised that there was scope for improving its procedures to identify incomes that may warrant further investigation.

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      Privacy breaches

      The CSA holds sensitive and personal information about its clients, including other dependent children being cared for by a parent. Although this information can affect the amount of child support payable, the names of other dependent children are private and should not be released to the other party.

      The Ombudsman received complaints this year about the inappropriate inclusion of the names of dependent children in documents provided by the CSA to the other party. Ombudsman staff examined two complaints in which the CSA acknowledged that it inappropriately disclosed information about these children, despite advising that the information would not be accessed by or released to the other party.

      In response to our inquiries, the CSA advised that it has instituted a quality assurance process that requires all notices of decisions to be checked for accuracy and relevance of material. It is hoped that tightening this process will prevent similar breaches of privacy in the future.

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      Compensation decisions—future recovery opportunities

      A CSA client who has suffered financial loss due to the wrongful action of the agency can apply for compensation under the Compensation for Detriment Caused by Defective Administration (CDDA) Scheme. While our investigations generally find that the CSA's client compensation decisions made under the CDDA scheme are reasonably based, we are of the view that in some instances the CSA has been too strict in its application of the scheme.

      We have received complaints where the CSA admitted that it failed to collect child support owed by a payer (for example, it failed to garnishee a bank account), but declined to pay compensation on the ground that the loss incurred by the claimant was not permanent. In other words, the CSA argued that there might be an opportunity for it to collect the arrears of child support at some time in the future.

      Compensation can be paid under the Department of Finance and Administration CDDA guidelines when there has been a detriment, which is defined to mean quantifiable financial loss as opposed to financial disappointment. Accordingly, it may be reasonable to deny payment under the CDDA scheme where, for example, there has been a failure to collect child support but significant collection action is now occurring or can reasonably be expected to occur in the foreseeable future.

      On the other hand, it will sometimes be speculative whether a child support debt can be realised by future collection. For example, a payer's health may have resulted in a drastic reduction in income with few employment opportunities in the future. Consequently, there may be instances in which it may be more realistic to classify a debt that has arisen from CSA default as a permanent loss rather than as a financial disappointment that is liable to be repaid. We consider that a claimant may be disadvantaged if CDDA is denied by regarding this as a case where the payee has simply suffered financial disappointment rather than a permanent loss.

      The CSA has agreed to review such cases after a reasonable time to determine if in fact a collection opportunity is likely to arise. In the event the CSA determines it is unlikely, the agency has agreed to review the decision not to pay compensation.

      Defence 

      Department of Defence | Australian Defence Force | Department of Veterans' Affairs | Defence Housing Authority

      Complaints under the heading of Defence fall into two categories: the Defence Force Ombudsman (DFO) jurisdiction, covering employment-related matters for serving and former members of the Australian Defence Force (ADF); and the Commonwealth Ombudsman jurisdiction, covering complaints about administrative actions of the Department of Defence.

      The combined DFO and Commonwealth Ombudsman jurisdiction also encompasses complaints about the Department of Veterans' Affairs (DVA), the Defence Housing Authority (DHA), Defence Service Homes and the Defence Force Retirement and Death Benefits Authority. There has been a steady decline in the number of Defence complaints, dropping to 662 in 2004–05, compared to 690 in the previous year. See Figure 4.6 for Defence complaint trends from 1999–2000 to 2004–05.

      Figure 4.6 Defence complaint trends, 1999–2000 to 2004–05

      Figure 4.6 Defence complaint trends, 1999–2000 to 2004–05

      Department of Defence

      We received 125 complaints about the Department of Defence in 2004–05, compared to 135 in 2003–04, down 7%. Complaints included concerns from individuals who had been unsuccessful in their application to join the ADF (accounting for 12% of complaints received), and from successful and unsuccessful applicants for contracts and tenders (accounting for 8% of complaints received).

      The Department of Defence spends significant public funds each year acquiring goods and services from the commercial market through a contracting and tendering process. Given the commercial value of the contracts and tenders involved, it is not surprising that from time to time complaints are made about the way the department has managed the tenders and contracts.

      Issues raised in complaints included disagreement about whether the termination of a contract was warranted, and criticism of a decision to deny a previous contractor the opportunity to tender. Our investigation of such complaints examined the level of the department's compliance with government procurement guidelines, as well as issues such as procedural fairness. The department has, in some cases, shown a commendable willingness to have its tendering processes reviewed by an external consultant, without the Ombudsman needing to suggest such an approach.

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      Australian Defence Force

      During the year, 298 complaints were received from serving and former members of the Australian Army, the Royal Australian Navy (RAN) and the Royal Australian Air Force (RAAF), a decrease of 15% on the previous year. Complaints received about the actions of the RAAF fell by 23%; the Army by 17%; and the RAN by 1.4%.

      The ADF's campaign to extend measures to prevent and detect the use of prohibited substances was reflected in complaints received by the Ombudsman throughout the year. Approximately 13% of complaints finalised in the Ombudsman role were about dissatisfaction with the processes undertaken by the ADF that resulted in decisions to involuntarily discharge members.

      In most of these cases, discharge action initiated by the ADF related to a finding that the member had been involved in the use of a prohibited substance. In none of the cases investigated was a recommendation made that discharge action be reconsidered. The Ombudsman instead raised with the Chief of the Defence Force (CDF) the need for detailed documentation of termination decisions and for a quality control mechanism to ensure that briefs prepared for the decision makers are consistent with natural justice principles. It is pleasing to note that recently released Defence Instructions relating to these processes reflect a number of issues raised by our office.

      It was interesting to observe throughout the year that very few complaints were received about matters such as payment of allowances (accounting for only 1% of complaints finalised) and that no complaints were received from members involved in operations overseas.

      In October 2004, the Ombudsman publicly released an abridged version of a report into the investigation of a complaint by a young person (under the age of 18) of an incident involving unacceptable behaviour at a Navy training establishment in mid-1996. The complaint alleged a failure of the RAN to adequately investigate and address issues arising from an incident of an alleged sexual assault of a young woman by other RAN members.

      The jurisdiction of the Ombudsman did not extend to investigating whether the complainant had been sexually assaulted; this was more properly a matter for the courts. The Ombudsman's investigation focused instead on whether appropriate action had been taken in response to her allegation, given the nature of the allegation, her age and circumstances; whether the Chief of Navy should consider taking further action; and whether RAN practices and procedures are sufficient to address any similar situation that might arise in the future.

      After a detailed investigation of those matters the Ombudsman formed the view that the complaint had been substantiated. As a result of the investigation, the RAN accepted our recommendation to provide an apology to the complainant; provide appropriate investigative training for relevant RAN personnel; revise instructions to require alleged sexual assault cases to be referred to the civilian police at an early stage; reinforce the importance of accurate record keeping; and equip divisional officers to provide proper support to any person making an allegation of sexual assault. (An abridged report is available at www.ombudsman.gov.au)

      Reviews

      In 2004–05, two significant reviews relating to complaint management in the ADF, which will affect the DFO role in the immediate future, were completed.

      Review of effectiveness of Redress of Grievance process

      The former CDF, General Peter Cosgrove AC MC, and the Ombudsman sponsored a joint review of the Redress of Grievance (ROG) process in the ADF. A joint report was released in April 2005 and is available online at www.ombudsman.gov.au. Dissatisfaction with the process used and/or time taken by the ADF to investigate complaints from members has been a major source of complaint for many years. In 2004–05, this accounted for approximately 17% of complaints finalised by the DFO . Many of the issues identified in the complaint investigations were addressed in the context of the joint review of the ROG process.

      It is encouraging to report that a number of the recommendations in the report have been implemented, which is having a positive impact on the timeliness and quality of ROG investigations within the ADF. The Ombudsman has met with the new CDF, Air Chief Marshal Angus Houston AO AFC, to discuss strategies for continuing the improvement process. (More detail on this review is contained in the 'Promoting good administration' chapter of this report.)

      'It is encouraging to report that a number of the review recommendations in the report have been implemented ...'

      Senate Inquiry Report on the Effectiveness of the Military Justice System

      In last year's annual report, we summarised the concerns raised in our submission to the Senate Foreign Affairs, Defence and Trade Committee Inquiry into the Effectiveness of Australia's Military Justice System. In June 2005, the committee released its report, which recommends extensive changes to the framework for the investigation of complaints about military justice issues (disciplinary and administrative action against members of the ADF). The implications of the recommendations in the report have been the subject of discussion between the Ombudsman and the CDF.

      Meetings between the Ombudsman and the CDF also provided an opportunity to discuss the DFO role in complaint resolution within the ADF more generally and to inform the CDF of issues of concern which have arisen during the investigation of complaints. The CDF has indicated that complaint management within the ADF will benefit from a closer working relationship between our two agencies.

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      Department of Veterans' Affairs

      Services administered by the Department of Veterans' Affairs (including service pension, age pension, income support supplement and allowances, disability and war widows' and widowers' pensions, allowances, special purpose assistance, Defence Service Homes Loans Scheme assistance and concession cards) impact on the daily lives of almost a half a million veterans and their dependants. During 2004–05, the Ombudsman received 203 complaints about the DVA's decisions and actions (up from 172 in 2003–04).

      It was pleasing that, for complaints about delays in processing claims for compensation under the Military Rehabilitation and Compensation Scheme, we have generally been able to quickly resolve the matter by contacting the processing area and discussing any reason for delay. In some cases where such a resolution was not possible, DVA staff agreed to contact the complainant personally to explain documentation required to progress the application or to provide details of action being taken.

      The Ombudsman was also able to assist complainants to understand and accept that the DVA had in fact applied the current, often complex, legislation and policy correctly. This applied particularly in regard to compensation offsetting arrangements, where a disability pension can be reduced if a lump sum payment of compensation is received for the same injury or illness from another source.

      Legislative changes

      During 2004–05, a number of legislative changes impacted on the administration of veterans' entitlements by the DVA.

      Military Rehabilitation and Compensation Act 2004 (enacted 1 July 2004)

      All claims relating to injury, disease or death due to service in the ADF will be dealt with under the provisions of the new Act, rather than requiring consideration under two separate schemes (the Veterans' Entitlements Act 1986 and the Military Compensation and Rehabilitation Scheme). The transition to the new scheme has not generated any substantial change to the number or nature of complaints referred to us for consideration.

      Administrative Appeals Tribunal Amendment Act 2005 (enacted 16 May 2005)

      The Act introduces what are considered to be significant reforms to the practices and procedures of the Administrative Appeals Tribunal, which will affect individuals who progress their claims with the DVA through the appeals process. Among the changes is an expansion of alternative dispute resolution processes available to the tribunal and greater flexibility for the tribunal in allocating resources so that panels can be constituted by members with the expertise and experience required to resolve the matter. The Ombudsman's office will monitor how the changes contribute to the timely resolution of disputes about decisions made by the DVA.

      Delay in decision making

      In 2005–06, the Ombudsman will liaise with the DVA about the strategies the department has put in place to facilitate more timely decision making in relation to requests, and applications for review of decisions, under the Compensation for Detriment Caused by Defective Administration (CDDA) Scheme provisions.

      The Ombudsman has investigated a range of such complaints about the DVA in recent years. Some matters have gone on for some years before the complainant approaches our office for assistance.

      Unfortunately, our investigation of such complaints has often also become protracted. One factor that can extend the time taken to resolve such complaints is the nature of the administrative deficiency being claimed by the individual, which can require detailed research of complex pension-processing arrangements. In a number of instances, the issues involved have necessitated the involvement of senior officers within both agencies, rather than a more informal approach.

      During the year, we discussed the issue of delays in the resolution of matters being investigated by the Ombudsman and involving the DVA. An observation of this office for many years is that legalistic approaches to complaints can often contribute to delays and detract from finding simple administrative solutions to them. As with some other agencies, this has been a feature in a number of the cases we have discussed with the DVA during the year. We have begun productive discussions with the DVA about this issue and will continue to liaise with the department about ways in which to seek speedier resolution of matters.

      'An observation of this office is that legalistic approaches to complaints can often contribute to delays and detract from finding simple administrative solutions to them.'

      Defence Housing Authority

      The Defence Housing Authority (DHA) is responsible for providing housing and relocation services for entitled members of the ADF. The role includes providing property maintenance as required. DHA staff also calculate all allowances and entitlements for ADF personnel who are moving to a new posting as part of the relocation process.

      We received 24 complaints about the actions and decisions of the DHA in 2004–05, compared to 23 in the previous year. The majority of the complaints considered related to the suitability of housing provided. In most cases we were able to resolve the matter quickly through informal liaison with DHA representatives.

      Immigration 

      New immigration functions for the Ombudsman | Issues arising in complaint handling | Detention | Compliance activity | Migration Issues

      The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) continued to be a significant source of complaints to the Ombudsman during 2004–05. Overall, we received 873 complaints about DIMIA, compared with 865 complaints in 2003–04. See Figure 4.7 for DIMIA complaint trends from 1999–2000 to 2004–05.

      Figure 4.7 Department of Immigration and Multicultural and Indigenous Affairs complaint trends, 1999–2000 to 2004–05

      Figure 4.7 Department of Immigration and Multicultural and Indigenous Affairs complaint trends, 1999–2000 to 2004–05

      Complaints about DIMIA can be categorised into three distinct areas: migration issues, which are usually about decisions on visa applications; immigration detention issues raised by or on behalf of detainees; and other issues such as freedom of information (FOI) applications and citizenship processes. Complaints about migration issues continue to form the largest category.

      New immigration functions for the Ombudsman

      In June 2005, Parliament passed amendments to the Migration Act 1958. These changes give the Ombudsman a statutory role in reviewing the cases of detainees who have been held in immigration detention for more than two years (cumulative), with follow-up reviews every six months if the person remains in detention. This statutory monitoring role will substantially enhance our capacity to oversee the administration of important and sensitive legislation that can have a major impact on people's lives.

      Shortly after the end of the reporting year, in July 2005, a report from an independent inquiry conducted by Mr Mick Palmer into the immigration detention of Ms Cornelia Rau was followed by an intense public and political focus on immigration issues. Arising from this report, the government proposed enhancing the role of the Commonwealth Ombudsman in immigration matters by designating the office as the Immigration Ombudsman and providing additional funding. The development of these new functions will be reported on in our 2005–06 annual report.

      'This statutory monitoring role will substantially enhance our capacity to oversee the administration of important and sensitive legislation ...'

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      Issues arising in complaint handling

      In general we investigate a higher proportion of the complaints we receive about DIMIA (43% in 2004–05), than the general average of 33% across all Australian Government departments and agencies. This reflects our experience that DIMIA does not have a robust complaint-handling system in place. Where an agency does have such a system, we feel more confident in suggesting that complainants take up their concerns with the agency involved in the first instance. We can also focus our efforts on dealing with more complex or systemic matters, and on periodically reviewing the effectiveness of the complaint-handling arrangements.

      During the year, we continued to discuss this matter with DIMIA, which is working on developing an improved and expanded internal complaint-handling system. We also experienced delays in getting responses from DIMIA to some matters we raised in the course of investigations. We will continue to address these issues with DIMIA during 2005–06.

      Detention

      The Ombudsman and other staff made a number of visits to immigration detention facilities during the year including Villawood Immigration Detention Facility (IDF), Maribyrnong IDF, Baxter IDF, the Port Augusta Housing Project, Brisbane Women's Correctional Centre, Arthur Gorrie Correctional Centre, the Perth Immigration Detention Centre and the Christmas Island IDF.

      Many detainees who approached us during these visits complained about access to medical services, including dental, psychiatric and specialist services. Their concerns included delays in referrals to specialists and other appropriate services, the frequency of visits by medical staff to IDFs, and the quality of medical services. These concerns were exacerbated in isolated locations such as Baxter in South Australia. We expect to have a specific new role in relation to medical services as part of our broader Immigration Ombudsman function.

      Restrictive placement and accommodation—Red One

      During the year, we pursued the issue of detainees being placed in more restrictive accommodation units at IDFs. Particular concerns related to the processes, procedures and practices of the Red One 'behavioural management compound' and the 'management unit' at Baxter IDF. A prominent issue was whether Red One is appropriate and adequate as a behaviour management tool, and whether due regard is paid to each individual's circumstances.

      DIMIA and the IDF service provider, Global Solutions Limited (GSL), are revising the operational procedures that deal with detainees being placed in more restrictive regimes. This revision is in response partly to the concerns we raised and partly to the issues uncovered during the Palmer Inquiry.

      We will continue to monitor the development and implementation of appropriate procedures. One option is to conduct an own motion investigation into the use of such restrictive placement and accommodation.

      'We will continue to monitor the development and implementation of appropriate procedures.'

      Assaults

      In May 2004, we wrote to DIMIA expressing concern over the way in which allegations of assaults within IDFs were being investigated by DIMIA and GSL. Our concerns included:

      • confusion over responsibilities for reporting, investigating and referring matters (including to State and federal police)
      • the quality of information referred to the police, which is used as the basis of their decision to investigate or not investigate
      • delays in access to a medical assessment
      • delays in reporting allegations to police and lack of direct access by detainees to police
      • lack of feedback to detainees on the status and outcome of investigations.

      We recommended a number of changes, including:

      • providing better information to detainees on how allegations of assault will be dealt with
      • improving arrangements for, and direct access to, medical officers
      • having more rigorous processes in place for internal investigation where the matter is not referred to the police
      • arranging for police to have immediate access to detainees
      • providing better feedback to detainees on the progress and outcomes of investigations.

      We are pleased that DIMIA has accepted the majority of our recommendations. Specific amendments have been made to the GSL operational procedures to reflect our recommendations. We are continuing to discuss the outstanding issue of the amount of information provided to detainees on the outcome of investigations.

      Maintenance costs arising from detention

      We received a number of complaints relating to the costs incurred by detainees when in detention centres. Migration policy instructions specify that detained non-citizens should be informed of the likely costs as soon as detention commences, and be given updated information weekly. This policy has not been complied with in a number of cases. It is therefore not surprising that concerns are raised when detainees receive notification of sizeable debts at the end of their detention period.

      We recommended that DIMIA take steps to ensure that officers are aware of the guidelines relating to detention costs and that they comply with migration instructions.

      Videotaping incidents in detention centres

      When we are investigating alleged incidents at detention centres, DIMIA provides us with any relevant videotapes. We have appreciated DIMIA's willingness to provide these tapes, but have raised some concerns about the quality of the tapes.

      DIMIA considered that the quality of the footage was generally adequate, given the context within which it was taken. The department did acknowledge it needed to strengthen its records management guidelines to articulate more clearly the procedures for handling electronic media such as video footage. DIMIA is now developing new guidelines.

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      Compliance activity

      In our 2003–04 annual report, we foreshadowed our intention to concentrate on complaints about compliance activity in 2004–05. To facilitate this, we modified our complaints management system to separately identify complaints about compliance activity.

      We finalised 26 complaints about compliance activity during the year. These complaints largely related to the use of search and entry powers and the demeanour of DIMIA officers in discharging their duties. We also held a number of meetings with DIMIA staff throughout the country to better understand the issues involved. We will continue to pay close attention to compliance issues during 2005–06.

      It is important to ensure that compliance activity is carried out with due regard to the legislation and proper procedures. The following two cases on which formal reports were made under s 15 of the Ombudsman Act illustrate the issues we encountered during the year.

      In one case, a person alleged that DIMIA officers took him from his home to an IDF. He complained to DIMIA that the keys to his home were missing, and subsequently so had many of his personal possessions. When we made preliminary inquiries, DIMIA told us that State police officers had taken him to the detention facility. However, he continued to maintain they were DIMIA officers.

      Our subsequent investigation was lengthy and difficult. DIMIA could provide no satisfactory record of the events under examination, and there was no relevant documentation. We were eventually able to conclude that the complainant had, in fact, been removed from his home by State police officers, not DIMIA officers.

      We reported our findings to DIMIA, making a number of recommendations, which included the need for DIMIA to:

      • conduct remedial training for all compliance officers in its regional offices about the legal and policy requirements for the recording of significant official actions, including the transfer of custody of detained persons
      • put into writing any 'informal agreements' it had with local police services about the police removing people into an IDF
      • remind its compliance managers of the requirement to regularly audit registers of official notebooks
      • issue national guidelines about how official notebooks are to be issued, returned and accounted for
      • review the conduct of an individual DIMIA officer.

      DIMIA subsequently implemented most of our recommendations and is in the process of implementing the remainder. The Minister also acknowledged the seriousness of our findings and undertook to consider them in light of the government's response to the Palmer Inquiry into the circumstances of the immigration detention of Ms Cornelia Rau.

      'DIMIA subsequently implemented most of our recommendations and is in the process of implementing the remainder.'

      The other case related to a complaint from a person who was being held in an IDF about DIMIA unduly delaying making a decision on his application for a Bridging Visa E (BVE). The Migration Act provides that such applications must be decided within two working days, failing which the applicant is taken to have been granted a visa. If the applicant and the department agree, the timeframe can be extended.

      During our investigation we raised concerns about a number of matters, including:

      • adequacy of record keeping—there was no record of critical events relating to the statutory requirement that the detainee and DIMIA had to reach agreement to extend the normal two-day deadline for processing of his BVE application
      • timeliness of departmental decisions and failure to provide appropriate notification
      • apparent lack of a structured departmental process for tracking the processing of, and eventual decision on, BVE applications.

      In the light of those concerns, we made a number of recommendations that DIMIA accepted, including procedural changes to:

      • amend internal instructions to ensure that agreements with detainees are appropriately documented and signed by both parties
      • notify in writing a person who has lodged an invalid visa application
      • improve quality assurance and administrative procedures to ensure that all decision making is lawful, timely and in accordance with departmental instructions.

      Visa cancellations for long-term Australian residents

      During 2004–05, we received several complaints from long-term Australian residents whose permanent residency had been cancelled under s 501 of the Migration Act. Under s 501, the Minister or a delegate can refuse or cancel a visa on character grounds. Each of the complainants had been in Australia for many years and was then held in detention facing possible removal from Australia.

      These complaints raised a number of concerns about how s 501 cancellations relating to long-term Australian residents are being administered. As a result, we commenced an own motion investigation, which is due to be completed in the first half of 2005–06.

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      Migration Issues

      Regulating migration agents

      The Migration Agents Registration Authority (MARA) is responsible for overseeing the registration of migration agents and for investigating complaints about their actions. It is important for an agency that discharges a regulatory role of this kind to deal with complaints received by the agency properly and fairly.

      In one instance investigated by our office, MARA had received a number of complaints against a migration agent and had written to him requiring that he respond to the complaints by a particular date. The agent requested an extension of time but his request was refused. He then complained to the Ombudsman about this decision.

      We investigated and concluded that MARA's decision to refuse the extension of time was one that was reasonably open for it to make in the circumstances. However, we were concerned that MARA had not responded to the agent's request until two weeks after the due date expired. The problem appeared to arise because a decision on this issue could only be made by the Board, which meets infrequently, and on this occasion did not meet until after the deadline expired. We were also concerned that MARA had not provided any reasons for the refusal of the request.

      In response, MARA agreed to put in place a process to keep agents informed about processing of their requests. MARA also agreed that notices of decision issued by the Authority will contain full details of the reasons for the decisions.

      Advice to applicants

      Applying for a visa can be a complex and lengthy process, and in some cases applicants may incur costs in addition to the application fee. It is important that DIMIA provide clear information to applicants about liability for costs.

      We received a complaint from a person whose mother applied for a tourist visa in India and had to undergo a number of medical examinations in order to receive a visa. She complained about the costs of these examinations and alleged that they were unnecessary.

      We considered that DIMIA's actions were not unreasonable, but that the information provided to potential visa applicants relating to the cost of health checks could be misleading. We recommended that DIMIA improve the advice it provides in such cases. DIMIA is amending its forms to alert applicants to the potential costs for certain medical examinations.

      Interpreting legislation

      The Migration Act and the regulations made under the Act are complex. It is essential that DIMIA staff understand the legislation and apply it correctly in their decision making.

      A migration agent complained to us about a number of cases where applicants needed to prove that they had been employed in their nominated skilled occupation for 24 months during the period of 36 months immediately before making an application for a permanent visa. In each case, the applicant was employed with an individual employer for a period greater than the 36-month period.

      DIMIA initially refused the applications on the basis that a period of employment in Australia must not be counted unless the person held a substantive visa authorising him or her to work during that period, and that they complied with the conditions of the visa. Even though each applicant had a substantive visa allowing them to work during the relevant 36-month period, they had also worked for the same employer earlier while on a bridging visa. The decision maker disallowed the entire period with the employer, rather than only that period while the applicant was on a bridging visa.

      We took the view that in each of the cases DIMIA was not correctly interpreting the legislative provisions. DIMIA accepted our view, subsequently vacated the original decisions and continued to process the applications.

      Notification of decisions

      It is important for DIMIA to correctly notify visa applicants of decisions, as the time in which to appeal a decision is limited. In some cases, errors by applicants or their migration agents may compound problems.

      A complaint received from a person's migration agent in mid-2004 raised concerns about DIMIA refusing his client a visa application in March 2002 without advising her of the decision. By this time, she was well outside the statutory time limit of 21 days in which she could apply for review by the Migration Review Tribunal (MRT). The agent had asked DIMIA to renotify the decision, but DIMIA refused. The client was 80 years old and about to leave the country.

      DIMIA had sent the original decision letter to a post office box no longer used by the migration agent. The agent had recorded the incorrect address in one field of a form. Elsewhere in the form, however, and in other documents, the agent had recorded the correct address. The agent had also made several attempts to contact DIMIA about the visa application, but DIMIA had not responded.

      The relevant regulations require DIMIA to address the document to 'the last address for service provided to the Minister by the recipient for the purposes of receiving the document'. We considered that, while some responsibility for the error lay with the agent, the serious effect of refusing to renotify may represent an unjust application of the regulations in these circumstances.

      During our investigation DIMIA decided to renotify in August 2004, enabling an appeal to be submitted to the MRT.

      Applying online

      Australian citizenship and a number of visas can be applied for online, making the process faster and easier for people. However, in some cases this may introduce other problems.

      This was illustrated in a complaint which alleged that, during an incomplete online application process, DIMIA had taken $120 from a person's credit card without authorisation. The client believed that her attempt to complete an application for citizenship on DIMIA's website had failed because the computer had 'crashed' before she could formally submit the application and authorise payment. DIMIA's computer records showed that the online application transaction had been successfully completed.

      DIMIA initially rejected the complainant's refund claim, stating that the legislation prevented DIMIA from refunding the application fee based on a change of mind by an applicant. The complainant maintained that she had not changed her mind. She had believed that her online application had not been successfully processed. Our inquiries revealed that there had been a problem with DIMIA's system and, while the transaction had been completed at DIMIA's end, the complainant had been unaware of this at her end.

      Following our inquiries, DIMIA reviewed its decision and agreed to give her the benefit of the doubt, refunding the application fee of $120.

      Law Enforcement 

      Australian Federal Police | Australian Crime Commission | Monitoring and inspection activities

      Two law enforcement agencies fall within the Ombudsman's jurisdiction—the Australian Federal Police (AFP) and the Australian Crime Commission (ACC). During 2004–05, the Ombudsman's office was actively engaged across a range of issues in oversighting the law enforcement responsibilities of those agencies. Major activities included handling complaints about actions taken by the law enforcement agencies, oversighting the use by those agencies of intrusive powers, and completing several own motion investigations.

      This section provides an overview of the activities undertaken by the Ombudsman's office this year in relation to the two law enforcement agencies.

      Table 4.1 lists the functions of law enforcement that come within the Ombudsman's independent complaint and oversight role and the legislative underpinning for each role.

      Table 4.1 Legislative basis for Commonwealth Ombudsman oversight of law enforcement activities

      Table 4.1 Legislative basis for Commonwealth Ombudsman oversight of law enforcement activities

      The oversight of the AFP's complaint handling constitutes the majority of our work in law enforcement. This is largely because of the AFP's high level of interaction with the public (especially through community policing in the ACT) and the requirement, specific to the AFP, that all complaints received by the AFP be disclosed to the Ombudsman for external assessment. The Ombudsman submits an annual report to the ACT Legislative Assembly on the performance of the ACT Ombudsman function, which includes ACT Policing (see www.ombudsman.act.gov.au).

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      Australian Federal Police

      The Ombudsman's office and the AFP share responsibility for investigating complaints about the AFP and AFP Protective Service members. The AFP's Professional Standards team investigates most complaints about AFP members. The Ombudsman reviews all AFP complaint investigations conducted by the Professional Standards team and, where appropriate, conducts other independent inquiries and investigations.

      During the year, the AFP's community policing role remained the primary source of complaints, the majority of which were resolved through workplace resolution. Most complaints were of a relatively minor nature and concerned the alleged conduct of police, such as incivility or rudeness. Under the Complaints (Australian Federal Police) Act 1981 (Complaints Act), the AFP conciliates these complaints directly between the complainant and senior operational staff through its workplace resolution process. When a complaint is finalised through this process, the AFP provides a report to the Ombudsman explaining how the AFP managed or investigated the complaint.

      Many police complaints were effectively resolved with an explanation of police powers and priorities, or acknowledgment of a relatively minor mistake by a member. One example concerned the execution of a search warrant on the wrong person: the person had a name similar to the person for whom the search warrant was intended. The AFP apologised to the person, explained how the mistake had been made and acknowledged the need for due diligence in future when providing details for search warrants. Another complaint related to the execution of a recovery order on a young child—this resulted in a change to the AFP Practical Guide on actioning Family Law Court process.

      The AFP's Professional Standards team formally investigates serious complaints about police actions, with greater involvement from Ombudsman staff. We received briefings on the progress of investigations, and worked with AFP investigators to ensure the appropriate management of systemic issues and contact with complainants. We reviewed all complaint investigation reports and were generally satisfied that investigations were comprehensive and robust.

      The majority of our requests to the AFP concerned the need for the AFP to persevere with a complainant in resolving a problem. In one case, we asked the AFP to persist in arranging a conciliation meeting despite problematic behaviour from the complainant, who alternately was insisting on a conciliation but then declining to participate. We also asked the AFP to deal with substantive issues raised by a complainant who appeared to have been prevented from providing information relevant to his complaint.

      For some investigations, we requested the AFP to reconsider certain aspects of, or responses to, complaints. The AFP's responses to our requests were invariably professional and helpful, which is illustrative of the mature relationship between this office and the AFP.

      Complaints overview

      In 2004–05, the Ombudsman's office received 696 complaints about the AFP, compared to 712 in 2003–04, a decrease of 2%. There was an increase in complaints finalised, to 751 from 664 in the previous year (up 13%). Fluctuations in complaint numbers have occurred over the past six years, as shown in Figure 4.8.

      Figure 4.8 Australian federal police complaint trends, 1999–2000 to 2004–05

      Figure 4.8 Australian federal police complaint trends, 1999–2000 to 2004–05

      This year, we continued to observe that many complainants remained dissatisfied with the explanations for police actions provided to them through the conciliation process. In most cases, we felt that the conciliation represented an adequate approach to the complainant's concerns. Despite dissatisfaction from the complainant, we decided that further consideration by our office was not warranted for the 258 unsuccessful conciliations.

      Even when the result of a workplace resolution process may not be the outcome sought by the complainant, the process is nearly always beneficial. The process achieves improved understanding by all parties involved in the complaint, and the complainant has the opportunity to discuss the matter directly with senior police. Our assessment is that this approach has led to improved outcomes for complainants and the accountability framework as a whole.

      Discretionary decision making

      Ombudsman staff have worked collaboratively with the AFP since 2003 on a project to improve administrative processes associated with the adjudication of traffic infringement notices (TINs). The project was initiated because of the high level of complaints over a number of years about the AFP's traffic adjudication responsibility.

      The project has led to changed administrative practices, including those relating to the AFP's role in deciding whether to withdraw an individual TIN or to allow the dispute to be resolved in court. The Ombudsman is confident the changes will reduce complaints about the AFP in this area. The Ombudsman provided the results of the project to the AFP Commissioner in early July 2005.

      In 2004–05, a significant number of complaints about ACT Policing related to TINs—specifically about rudeness or bias on the part of the officer issuing the TIN. It appears that members of the public felt they were not treated respectfully, or that the AFP officer issuing the TIN was not prepared to consider exercising the discretionary power available to the officer not to issue a TIN.

      We continued to emphasise that decisions by AFP members that impose a financial penalty on a person (for example, through the issue of a TIN or a defect notice) or deprive a person of their liberty (through arrest or a refusal to grant bail), should include consideration of any available discretionary powers to take a different course of action.

      The reality of operational policing is that AFP members are required to make decisions in pressured circumstances and often when dealing with people who are agitated or aggressive. While the focus in policing is upon maintaining appropriate control of the situation and circumstances, it is also important that AFP members allow people to explain their actions and request the application of police discretion.

      Special investigations

      Ombudsman staff worked on four special investigations under powers conferred by the Complaints Act. Two investigations were completed in 2004–05, with the other two investigations to be completed in 2005–06.

      One of the investigations examined the adequacy of an internal AFP investigation of alleged corrupt behaviour in the building and accommodation area of the AFP. Following notification by the AFP to the Ombudsman of a series of complaints and internal allegations of possible corruption, it was agreed that the Ombudsman's office would oversight the AFP's internal investigation of the matter.

      The investigation focused on two issues: the AFP's ability to identify systemic weaknesses that might have enabled the individual concerned to act corruptly; and whether the AFP's response to the individual's actions was appropriate. We recommended that the AFP Commissioner implement all of the recommendations made by the internal investigation, and consider the apparent systemic failures within the AFP that contributed to the incident. The Commissioner accepted the recommendations and has commenced implementation. He also advised that he has referred the matter to the Director of Public Prosecutions and that criminal charges have been laid. We will continue to take an interest in this matter.

      Witness protection program

      We received two complaints about the AFP's administration of the National Witness Protection Program (NWPP).

      One complaint was from a person who stated that he was offered participation in the NWPP if he assisted the AFP and that the offer was withdrawn when the person was considered 'less useful' to the AFP. This matter raised potentially serious issues for the administration of the NWPP, as participation in the program cannot be used to induce a person to cooperate with police; an offer of that kind would be in contravention of the Witness Protection Act.

      The process of deciding who will be accepted as a participant in the program is handled by a specialist area of the AFP that must consider a range of factors separate from the assistance that a person may have provided in an investigation. The making of 'informal' offers might jeopardise the effective operation of the NWPP.

      In this case, records showed that the AFP case officers made a formal request for the complainant and his partner to be considered for entry into the NWPP, and that after an appropriate assessment of the complainant's circumstances, this request was rejected. The AFP was also able to satisfy Ombudsman staff that the AFP officers involved were careful not to create an expectation of witness protection when dealing with the person. This was supported by detailed notes prepared at the time by the AFP about the interaction between its members and the person.

      The second complaint concerned promises that the AFP allegedly made to a person before assessment of the complainant's suitability to enter the NWPP. The person also made complaints about the standard of accommodation provided during the time that they were under the AFP's protection. This investigation will be completed in 2005–06.

      AFP powers to combat terrorism

      Recent amendments to the Australian Security Intelligence Organisation Act 1979 (ASIO Act) provide for the entry and search of property by police in order to arrest and detain persons on behalf of the Australian Security Intelligence Organisation (ASIO). The ASIO Act amendments preserve the complaints role of the Commonwealth Ombudsman under the Complaints Act, by confirming that a detainee can complain about the actions of AFP members making an arrest or overseeing detention.

      During the year, we provided a submission to a review of ASIO questioning and detention powers being conducted by the Parliamentary Joint Committee on the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service and the Defence Signals Directorate. We also worked 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 did not receive any complaints in 2004–05 arising from the amendments to the ASIO Act.

      Australian Federal Police Protective Service

      The number of complaints received by, or notified to, our office concerning the Australian Federal Police Protective Service (AFPPS) in 2004–05 was 46, compared to seven in the previous year. This increase was an expected consequence of the AFPPS falling under the proactive notification requirements of the Complaints Act from July 2004.

      The complaints received about the AFPPS fell broadly into two categories:

      • airport security issues—complaints from people who had been delayed by having to undergo explosives trace detection tests in airports, and from drivers who had been issued with parking tickets for illegal parking at airports
      • personal protection being given to VIPs and diplomatic staff—complaints primarily about AFPPS members undertaking diplomatic escort or protection duties who directed members of the public to move on.

      We also received complaints associated with AFPPS activities at Parliament House from people who were dissatisfied with the way in which AFPPS members spoke to them.

      The AFPPS reported a serious matter to the Ombudsman during the year concerning an AFPPS member who was using a mobile phone to photograph women travelling on escalators. During investigation by the AFP's Professional Standards team, the member admitted to misconduct and subsequently resigned from the AFPPS. The AFP decided not to lay criminal charges against the member, and we were satisfied that the complaint has been managed appropriately.

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      Australian Crime Commission

      Complaints against the ACC are managed under the Ombudsman Act. While the ACC is not required to proactively report complaints to the Ombudsman's office, we have appreciated a strong and open working relationship with the ACC. The ACC notifies the Ombudsman's office about any significant matters, allowing us to consider whether further investigation by Ombudsman staff is warranted.

      During the year, we conducted a follow-up investigation into the ACC's response to the recommendations from independent consultants and our own investigation of alleged corrupt activity by two former secondees. In response to the allegations, the ACC had developed policies and programs to promote professionalism and integrity within the ACC as primary elements of a corruption risk management approach. The Ombudsman formed the opinion that the actions taken by the ACC were appropriate and proportional responses to the issues, and indicated that further investigation of this matter was not warranted.

      Ombudsman staff also conducted an own motion investigation into the ACC's conduct of controlled operations carried out by the ACC under State and Territory legislation. The results of this investigation are discussed later in this section.

      Complaints

      In 2004–05, we received 12 complaints about the ACC, compared to six last year. Three of the complaints related to issues of property. We are not obliged to refer all complaints to the ACC. The ACC has been highly responsive to the complaints referred to it, as demonstrated below.

      One of the property complaints related to the ACC's failure to return seized property and to respond to freedom of information (FOI) requests about the property. Following our inquiries, the ACC quickly remedied the situation by providing compensation for the property that had been destroyed, revising its procedures to ensure adherence to FOI statutory time limits, and reviewing its exhibit management policies and procedures.

      We received briefings from the ACC about non-property related complaints, which we decided did not warrant further investigation. Complaints related to matters such as a person's concern that they were under surveillance by the ACC, the application of proceeds of crime legislation, and aspects of a major operation conducted by the ACC and its management of a registered informant connected to that matter.

      We also conducted a formal investigation into a complaint about the ACC relating to the National Witness Protection Program. The complainant alleged that the ACC had misled him about participation in the witness protection program and whether he was entitled to immunity for certain offences he had committed. Ombudsman staff found no grounds for criticism of the ACC in this matter. The process of reviewing these activities was complicated by an ongoing, difficult and rapidly evolving operational context that involved three law enforcement agencies and understandably dispersed communication between the complainant and the ACC. A number of observations were made to the ACC highlighting the importance in this context of accurate and contemporaneous record keeping. The ACC has taken action to further enhance its informant handling procedures.

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      Monitoring and inspection activities

      The Ombudsman's monitoring and inspection role expanded during 2004–05 with passage of the Surveillance Devices Act 2004 and amendments to the Workplace Relations Act 1996. The office's monitoring and inspection role now encompasses the following areas:

      • telecommunications intercepts by the AFP and ACC
      • use of surveillance devices by the AFP and ACC and, in some instances, use of Commonwealth powers by State law enforcement agencies
      • controlled (covert) operations by the AFP and ACC
      • the use of compliance powers by members of the Building Industry Taskforce under Part VA of the Workplace Relations Act.

      The initial inspections of the use of surveillance devices by members of the AFP and ACC, and the use of compliance powers by members of the Building Industry Taskforce, will be conducted in the first half of 2005–06. Inspection methodologies and checklists were developed during the year in preparation for the first inspections of surveillance device records.

      The Ombudsman sponsored inspection workshops in November 2004 and June 2005. Representatives from agencies with similar accountability responsibilities (such as State Ombudsmen) attended the workshops, which offered a forum to share best practice and other information.

      Telecommunications 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 the accuracy of records and the extent of compliance of the records in accordance with the provisions of the Act.

      A report on these inspections is then presented to the agency and later to the Attorney-General. Ordinarily, two inspections of each agency are carried out each year, but in 2004–05 three inspections were conducted because of a change in practice within the office concerning the inspection period covered by a report. Three inspections were conducted at the AFP (including a regional inspection) and three at the ACC.

      Reports on the results of the inspections covering 2003–04 were presented to the Attorney-General in September 2004. The reports provided to the agencies after each inspection concluded that there is a high degree of compliance with the detailed record-keeping requirements of the TI Act. We did make some recommendations for improving the administrative and compliance systems of both agencies and for assisting staff in administering telecommunications interception warrants.

      We have been grateful for ongoing policy assistance from staff from the Attorney-General's Department in clarifying issues relating to the TI Act.

      Controlled operations

      Controlled operations can be broadly described as covert operations carried out by law enforcement officers under the Crimes Act 1914 for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious offence. These operations may also result in 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.

      During the year, four inspections of controlled operations records were conducted. Two inspections were conducted at the AFP and two at the ACC. The inspections concluded that with some minor exceptions both agencies are complying with the requirements of the Crimes Act and providing comprehensive information in formal reports. These inspections resulted in reports to both agencies, a briefing to the Parliamentary Joint Committee on the ACC, and an annual report for 2003–04 presented to the Parliament in December 2004.

      As stated in our 2003–04 annual report, following a briefing by the Ombudsman to the Parliamentary Joint Committee on the ACC in October 2003, an own motion investigation was initiated into record keeping related to ACC controlled operations authorised under State or Territory legislation. These operations were not caught by the mandatory inspection requirements of the Crimes Act. The purpose of the investigation was to assess the adequacy of the mechanisms the ACC had developed for ensuring that controlled operations complied with State and Territory legislative requirements and administrative best practice. The Ombudsman investigation looked also at whether there was any indication that the ACC was choosing to conduct controlled operations under particular State or Territory legislation in order to minimise the application of the Commonwealth accountability framework to controlled operations.

      Ombudsman staff reviewed the application, authorisation and record-keeping practices of the ACC for all jurisdictions in which ACC controlled operations occurred. The investigation found no evidence that the ACC was choosing to conduct and/or participate in controlled operations under particular State legislation in order to escape the rigour of Commonwealth controls. There was no basis to criticise the ACC for the way in which it was handling controlled operations under State laws. We provided results of the investigation to the ACC and the Parliamentary Joint Committee into the ACC in April 2005.

      Other agencies

      Department of Family and Community Services | Department of Employment and Workplace Relations | Department of Transport and Regional Services | Department of the Treasury | Australian Maritime Safety Authority | Insolvency and Trustee Service Australia | Australian Securities and Investments Commission

      The jurisdiction of the Commonwealth Ombudsman extends to nearly all Australian Government agencies. However, the vast majority of the complaints we receive relate to the agencies covered earlier in this chapter. The remaining 2,002 (or 12%) of the complaints we received in 2004–05 related to 84 agencies in 16 portfolios. Table 4.2 sets out the ten other agencies about which most complaints were received.

      Table 4.2 Complaints received about top ten other agencies, 2001–02 to 2004–05

      Table 4.2 Complaints received about top ten other agencies, 2001–02 to 2004–05

      This section provides some examples of complaints handled by the Ombudsman and the themes taken up by the office, to illustrate the diversity of issues handled each year. These examples show the variety of situations in which people seek assistance in handling the difficulties they encounter with government. Complaints also present an opportunity to improve government administrative practice.

      Some of the more interesting complaints came from agencies that do not make the list of 'top ten other agencies', as can be seen from the complaint issues relating to the Department of Family and Community Services (FaCS).

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      Department of Family and Community Services

      During 2004–05, significant changes were made to the policy responsibilities of FaCS. Previously, the department had policy responsibility for most payments and programs administered by Centrelink. Responsibility for a number of these assistance programs and payments has been transferred to the Department of Education, Science and Training and the Department of Employment and Workplace Relations (DEWR).

      We gave particular attention to three areas of FaCS's responsibility during the year: the $600 one-off payment for families; the marriage-like relationship policy; and the extension of advance payments.

      $600 one-off payment for families

      The 2004 Budget provided that a $600 one-off payment (per child) would be paid to families who, on Budget night on 11 May 2004, were entitled to receive fortnightly instalments of Family Tax Benefit Part A (FTB). The bonus payment was to be paid in June 2004.

      Following the introduction of this bonus payment, we received complaints about non-payment of the entitlement by Centrelink. Some parents had been told that they could not be paid the bonus payment in June because their FTB had been cancelled or suspended for various reasons prior to Budget night. This was despite the fact that their FTB had since been restored and backdated.

      FaCS had taken the view that some parents were not eligible to receive the payment in June 2004 because of the terms of the family assistance legislation. However, a special administrative scheme had been established to ensure that those families would be paid by September/October 2004.

      We took the view that there was no legal reason why these families should wait until September/October 2004 to be paid. FaCS agreed with this view and took steps to ensure that appropriate payments were made. FaCS later advised that the number of customers paid as a result of our office's inquiry was 6,117, with a total outlay of $3.32 million.

      Marriage-like relationships

      Numerous complaints to the office during the year raised a variety of issues relating to the implementation of the marriage-like relationship policy.

      The relationship status of a customer is important for social security purposes. A person's eligibility for a social security payment and their rate of payment can be affected if they are considered to be a 'member of a couple'. The Social Security Act 1991 sets out a number of options for the meaning of a 'member of a couple'. For example, a person may be a member of a couple if they are considered to be in a marriage-like relationship.

      Given the importance of a person's relationship status to their social security entitlements, the office commenced an own motion investigation to examine the policy underpinning the administration of marriage-like relationships under the social security law. This investigation will continue into 2005–06.

      Advance payments

      Advance payments are available to most income support recipients, but not for those receiving Parenting Payment (Partnered). We reported on this issue in previous annual reports and recommended to FaCS that the advance payment scheme available to income support recipients should be extended to Parenting Payment (Partnered) customers.

      The basis for our recommendation was that it was unreasonable and discriminatory to exclude recipients of the partnered rate from the advance payment scheme. The Ombudsman was informed that the recommendation had merit, and that legislative change would be considered. Some time elapsed without any formal commitment to or timetable for legislative change.

      In late 2004 the Ombudsman made a formal report to the Prime Minister under s 16 of the Ombudsman Act, recommending that the advance payment scheme be extended. The Prime Minister subsequently informed the Ombudsman that the government had decided that Parenting Payment (Partnered) recipients should be able to access advance payments. As matters relating to Parenting Payment customers now fall within the portfolio responsibility of the Minister for Employment and Workplace Relations, policy responsibility for this change has transferred from FaCS to DEWR.

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      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.

      In last year's annual report, we outlined the work we had undertaken with DEWR in relation to the administration of the General Employee Entitlements and Redundancy Scheme (GEERS). Complaint issues regarding GEERS accounted for 163 (or 44%) of the 370 DEWR complaint issues finalised in 2004–05, compared to 118 complaint issues (or 40%) in the previous year.

      Of the 163 complaint issues about GEERS, we investigated 28%. While the number of complaints is small in comparison with the 11,376 GEERS claims processed by DEWR in 2004–05, there has been a noticeable increase in complaints during the year.

      Following discussion with DEWR in mid-2004, our data showed a marked decline in complaints about GEERS. As the year progressed, complaint numbers again rose. This reflects the complex nature of some GEERS issues. Late in 2004–05, DEWR initiated further discussion, which has been a constructive way of addressing a range of complex issues that are highlighted in the case studies: Company restructures—the 'corporate veil' and Creditor priority. Another program administered by DEWR that directly affects individuals is the recognition of trade qualifications as part of the migration process. The Recognising differences case study illustrates the importance in such a program of tailoring procedures and processes to meet the needs of a diverse client base.

      CASE STUDY | company restructures—the ‘corporate veil’

      Mr A had applied to the GEERS scheme for benefits lost when company H2, his employer, had gone into liquidation. On investigation it became clear that the company H2 had taken over the business of another company, H1, about halfway through Mr A's employment.

      Mr A was unaware of this corporate change: he continued to work at the same premises with the same people, doing the same work, and for a company with only a minor change in name. This corporate change placed about half of Mr A's employee entitlements outside the reach of his GEERS claim.

      Following discussions with DEWR, it was agreed that we would research whether H1 had also gone into liquidation. Depending on the outcome, DEWR would be able to assist Mr A with advice about a GEERS claim for company H1 or other action against H1 if this company was still operating.

      CASE STUDY | creditor priority

      Mr B was employed by a company in financial difficulty. By a Deed of Company Arrangement, the creditors of the company agreed to accept a reduced repayment of debts to allow the company to keep trading. In that circumstance, GEERS will not cover the liability to employees of the company unless the deed provides that GEERS, in substitution for the employees, has priority as a creditor. The effect of a provision of that kind is to give GEERS the same priority that employees would have under legislation. Without this safeguard, GEERS will not cover the liability of the company to the employees. If GEERS did pick up that liability, it could have the practical effect of providing a government subsidy to the other creditors of the company, by eliminating the priority claim of the employees.

      This restriction in the GEERS scheme is understandable, but it can impact adversely on employees of a company in financial difficulty. The employees are left in the position that they have no entitlement under GEERS, and must make individual claims against an employer, which is now the subject of a DOCA

      Whether and how employees should be covered in a situation such as this raises a complex issue of public policy. The Ombudsman's office has taken the issue up with DEWR, and it is the subject of ongoing discussion.

      CASE STUDY | recognising differences

      A migration agent contacted us, complaining about the way Trades Recognition Australia (TRA) processed an application made by his client for recognition as a cook/chef. His client, Ms C, had paid a higher fee to get priority processing and provided contact details of her employer in Iran, a restaurateur, to verify her employment. Priority applications take on average three months to process.

      There was an initial delay of nearly four months, following which TRA tried to make telephone contact with her employer in Iran. TRA rejected Ms C's claims when they were unable to contact her employer. Ms C's agent said TRA had sought to make contact during Ramadan, when restaurants in Iran are either closed or operate very limited hours.

      Following our investigation of the complaint, TRA agreed to reopen Ms C's application and to make contact with her employer. Ms C's application was subsequently granted.

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      Department of Transport and Regional Services

      In 2004–05, we received 35 complaints about the Department of Transport and Regional Services (DOTARS), compared to 104 in 2003–04. This was a decrease of 66%, and brings complaint numbers back to the level in earlier years, which was 40 complaints in 2001–02 and 49 complaints in 2002–03. The significant increase in complaints in 2003–04 was due to numerous complaints about import approvals not being granted for vehicles already physically landed in Australia. A Full Federal Court looked at the issue and held that import approval could be granted under existing legislation: Minister for Transport and Regional Services v Marra [2003] FCAFC 294.

      We continued a review into the complaint-handling mechanisms employed by DOTARS. During the 2004–05, the department developed new complaint procedures within its Vehicle Standards Safety Branch and initiated a review of internal complaint-handling procedures in other areas.

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      Department of the Treasury

      A complaint we investigated about the Department of the Treasury (To build or not to build? case study) illustrated the importance of an agency paying close attention to the statutory provisions being administered. The case also illustrated, for members of the public, that a change in their circumstances does not necessarily mean they will be released from obligations they have entered into.

      CASE STUDY | to build or not to build?

      Mr D held a temporary visa when he purchased property in an Australian city. His acquisition of the property was approved subject to specific conditions, including a requirement to build a new dwelling on the property.

      Mr D later became a permanent resident. He complained to the Ombudsman after receiving a letter stating that he had failed to comply with the conditions of the approval, and requesting him to sell the property, irrespective of price, to an Australian citizen. As an Australian permanent resident, Mr D felt that he should be released from the conditions imposed when his residential status was different.

      We investigated the complaint and agreed that Mr D did not fall outside the operation of the Foreign Acquisitions and Takeovers Act 1975 by reason of having become a permanent resident. On the other hand, we considered that the procedure in the statute for compulsory sale did not come into operation until a person had first been convicted of an offence under that Act. Treasury agreed with this reading of the legislation, and accepted that in future it should warn a person in this situation that the matter may be referred to the Director of Public Prosecutions.

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      Australian Maritime Safety Authority

      The Cape Jaffa Lighthouse platform case study, on a complaint about the Australian Maritime Safety Authority, provides a window into the diverse nature and complexity of complaints handled by the office.

      Australasian gannets and pied and black-faced cormorants on the Cape Jaffa Lighthouse platform, Margaret Brock Reef, SA

      CASE STUDY

      Cape Jaffa Lighthouse platform

      Mr E complained that the Australian Maritime Safety Authority (AMSA) had allegedly misrepresented an engineer's report by indicating that the condition of the Cape Jaffa Lighthouse platform situated on the Margaret Brock Reef in South Australia was such that it should be condemned rather than abandoned. AMSA had no further use for the structure, as the authority had relocated the maritime safety beacon. AMSA considered the obsolete structure to be a hazard to shipping and the marine environment and wanted to remove it. It was Mr E's view that the engineer's report did not recommend that the structure be demolished.

      Considerable efforts had been made by AMSA to offer the structure to various South Australian Government departments, which declined to accept responsibility for it. There was notable public interest in the structure, as it has a rich maritime history. In addition, the structure is a place of environmental significance because it is a nesting site for Australasian gannets and home to pied and black-faced cormorants.

      Following our investigation over a number of months, including examination of agency files, AMSA decided not to take action to commence demolition of the structure in April/May 2005 as originally planned. AMSA decided that the structure would remain in place until at least March 2006. This will allow one more breeding cycle to occur at the site and negotiations to continue with the South Australian Government before final action is taken. In reaching this decision, AMSA recognised the efforts of the local community and various members of the South Australian Parliament to develop a viable alternative to demolition of the structure.

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      Insolvency and Trustee Service Australia

      Agency client service charters inform the public of the service standards they can expect from agencies. It is to be expected that members of the public will rely on an agency's charter in their dealings with the agency. It is therefore important that a charter should accurately reflect the service the agency is required to provide, or aims to provide. The All or any? case study illustrates a problem that can arise when charter wording is not accurate.

      CASE STUDY

      all or any?

      The Insolvency and Trustee Service Australia (ITSA) Client Service Charter stated that the Inspector-General in Bankruptcy maintains high national standards of bankruptcy and procedures by 'inspecting the administrations of all bankruptcy trustees' and 'investigating complaints about any administration'.

      Mr O complained that ITSA's Bankruptcy Regulation Branch, which exercised the Inspector-General's powers, decided not to investigate all aspects of complaints about a registered trustee. Mr O contended that ITSA's actions were inconsistent with the ITSA Client Service Charter.

      We investigated and found that, while ITSA examines all complaints, there was no legislative requirement for the Inspector-General to inspect 'all' bankruptcy trustees or to investigate complaints about 'any' bankruptcy. These decisions are at the discretion of the Inspector-General and are based on the issues raised and available alternative remedies.

      We raised with ITSA the desirability of the Client Service Charter being changed to remove any ambiguity in their complaint handling, to which ITSA agreed.

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      Australian Securities and Investments Commission

      The Ombudsman receives a small number of complaints each year about the Australian Securities and Investments Commission (ASIC), and some of these complaints throw up challenging issues of law and administration.

      In one such case, the Ombudsman raised with ASIC whether it should develop public guidelines on what constitutes 'the public interest', for the purposes of ASIC bringing civil recovery proceedings under s 50 of the Australian Securities and Investments Commission Act 2001. This arose from a complaint to the Ombudsman from a member of parliament, querying the reasons given by ASIC to a constituent for not commencing proceedings under s 50. The Ombudsman did not find error in ASIC's decision, but pointed to the role that internal agency guidelines can play in promoting clarity and consistency in the administration of indeterminate statutory phrases.

      Another ASIC complaint handled during the year drew attention to an instance in which legislative requirements were not being fully met in the discharge of an ASIC supervisory function. As the Unclaimed monies case study shows, we can be useful in bringing to the attention of government agencies the failure of organisations, over which they have a supervisory function, to comply with legislative requirements.

      CASE STUDY

      unclaimed monies

      The Banking Act 1959 requires banks and other authorised deposit-taking institutions to lodge with the Australian Securities and Investments Commission (ASIC) a statement of all unclaimed moneys held in accounts, within three months of the end of each financial year. The statement must contain the name and last known address of the account holder, the amount, and the branch at which the account was kept. This information can be of assistance in identifying the owner or whoever may now be entitled to the funds.

      Following a complaint from a company whose activities included tracing potential owners of unclaimed monies, Ombudsman staff raised with ASIC a concern that some statements being lodged did not provide the last known address of the account holder or the branch where the account was held.

      ASIC acknowledged that this was occurring and advised that it would write to authorised deposit-taking institutions emphasising the importance of ensuring that all required details were included in the statement. ASIC also advised that, when statements were lodged without this information, it would write to the institution requesting reasons why the information was not included.

      Freedom of Information

      Access to government information is integral to democratic, transparent and accountable government. The express purpose of the Freedom of Information Act 1982 (the FOI Act) is to extend, as far as possible, the legal right of individuals to obtain a range of documents held by Australian Government agencies and to seek amendment of records containing personal information within them.

      The FOI Act expressly empowers the Ombudsman to investigate complaints about the actions of Australian Government agencies in response to FOI requests. It also requires agencies to inform applicants of their right to complain to the Ombudsman about FOI matters. The Ombudsman's role under the FOI Act reflects the more general role of the office in promoting transparency in government administration. This includes ensuring that agencies implement sound document management procedures, provide clear and accessible information, and are open and responsive to complaints about issues to do with access to information.

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      Complaints about FOI

      During the year, we received 275 complaints and finalised 289 complaint issues about the way that Australian Government agencies handled requests under the FOI Act (see Table 4.3). This is a 16% increase over the 236 complaints received in 2003–04.

      Table 4.3 Freedom of Information complaints received and issues finalised, by agency, 2004–05

      Table 4.3 Freedom of Information complaints received and issues finalised, by agency, 2004–05

      We received a number of complaints from people who were experiencing unnecessary difficulty in making an FOI application to an agency. In one case, the agency had refused to accept an email request, despite its own policy that recognises this as a valid way to apply under the FOI Act.

      In another case, the agency suggested that an application was not valid because it requested 'information' not 'documents'. The FOI Act does not require requests to use the word 'document' or the expression 'freedom of information' or 'FOI'. It only requires that enough information is provided for the agency to identify the relevant documents, which this request did.

      A related matter of concern is that there continue to be examples of agencies failing to comply with their statutory obligation to help applicants make a valid FOI application. Under the FOI Act, if an agency receives a 'request' that is not in the right form, or is not accompanied by the required $30 application fee, the agency must promptly tell the person what is required.

      As in previous years, the majority of FOI-related complaints continue to be about delays in processing applications. In a number of cases this was due to basic administrative error, such as the agency misplacing the FOI request, failing to interpret it as an FOI request, failing to forward it to the relevant area for processing, or forgetting to send its decision (and the documents) to the applicant. In other cases, it was due to unanticipated staff shortages or delays in consultation. In such cases, the usual remedy is for the agency to apologise and expedite processing of the request.

      In some cases we have also suggested that the agency refund the application fee and/or processing charge. In one case, the agency conceded that a wider problem existed, and implemented systemic remedial action, including training staff and upgrading its computer system.

      In another case, the complaint was about the agency deciding to refund processing charges paid in respect of the request, but then failing to pay back the money. In response to our inquiries, the agency implemented a new checklist procedure designed to ensure that no tasks remained outstanding before finalising FOI requests.

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      Delays in processing FOI requests

      During 2004–05, we received many complaints from individuals and representations from organisations about significant delays in the processing of FOI requests by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). DIMIA has been facing difficulty in complying with the statutory requirement that FOI requests be processed within 30 days. Processing times were far exceeding the statutory timeframe for responses.

      We discussed our concerns with DIMIA, and were advised that a number of strategies were being implemented to address the problem, including:

      • allocating additional resources
      • setting up a separate FOI section
      • implementing a prioritisation system for backlog and new cases
      • pursuing IT improvements to better track applications and complaints
      • working with migration agents to seek their assistance in narrowing the scope of their requests to specific documents rather than asking for whole files.

      The Ombudsman is satisfied that the strategy being put in place by DIMIA to resolve the problems will be appropriate to get the processing of FOI requests back under control in the longer term. DIMIA is providing us with updates on progress, and we will continue to monitor the implementation of the strategy and to ensure that DIMIA continues to give FOI processing a high priority.

      In the meantime, we continue to accept complaints about FOI delays and may investigate if we consider that particular matters should be given priority. When an agency fails to comply with the statutory deadline for processing FOI requests, the FOI Act provides that the agency is deemed to have refused access and the person may appeal to the Administrative Appeals Tribunal. While we did not necessarily recommend this action, as there are costs attached, we did advise complainants about this option, as it is only proper that it be brought to their attention.

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      Own Motion Investigation

      As reported last year, in the last quarter of 2003–04, the Ombudsman conducted an own motion investigation into the quality of FOI processing by Australian Government agencies. The investigation report is now expected to be published in early 2005–06.

      As the sample size is limited, we will not be identifying specific agencies. Issues of concern are being raised with individual agencies; the Ombudsman's public report will be in a general form.