Features

Commonwealth Ombudsman—keeping pace with public sector change

The core role of the Commonwealth Ombudsman has been unchanged for nearly thirty years. It is to receive and investigate complaints from members of the public about government administrative action occurring in any Australian Government agency, anywhere in Australia.

That stability and tradition has been matched by adaptation and evolution over nearly thirty years in the structure and procedures of the office. One illustration of that change is that the office now hosts a range of specialist functions that sit alongside its generalist role and jurisdiction. The Commonwealth Ombudsman also holds the separately titled roles of ACT Ombudsman, Defence Force Ombudsman and Taxation Ombudsman. Legislation to add the roles of Immigration Ombudsman and Postal Industry Ombudsman has been proposed. More is said about those and other specialist roles on other feature pages of this report.

The creation of the specialist Ombudsman roles is in response to a growing trend in government and society to call for specialist review mechanisms in designated areas of government. The Ombudsman's office has followed through on that development by creating specialist teams within the office, and by targeted recruitment, training and outreach activities.

The way that complaints are handled and investigations are undertaken within the office has also undergone great change. A major activity of the office now is to monitor complaint handling by Australian Government agencies. The office has learned over time that complaints against government are often best resolved informally, quickly and knowledgeably in the area in which a complaint arises. Direct agency handling of complaints also promotes greater accountability and responsiveness in service delivery.

A related development is that the Ombudsman's office now gives comparatively more emphasis to finding a practical solution and remedy to a problem than to passing judgment on whether the complaint arose from the fault of the agency or the misapprehension of the complainant. Accompanying that change in focus has been the development of a new complaints management system (being implemented in 2005–06) to better manage complaint data and statistical recording in the office.

Australian Capital Territory Ombudsman—resolving local issues through local knowledge

A separate office of ACT Ombudsman was established when the ACT obtained self-government in 1989. The Commonwealth Ombudsman presently holds the office, under an arrangement between the ACT and Australian governments. The complaint investigation role of the ACT Ombudsman is managed under separate Territory legislation, the Ombudsman Act 1989. The Ombudsman also has a special role under other Territory legislation, of receiving and investigating whistleblower disclosures under the Public Interest Disclosure Act 1994 and issues arising under the Freedom of Information Act 1989.

The ACT Ombudsman deals with the diversity of issues that arise in territory jurisdiction, such as community policing, corrective services, public housing, parking fines, public utilities, and the location of public libraries. The combined Commonwealth and ACT Ombudsman role means that the oversight of ACT government administration is undertaken by an office with greater resources, experience, research capacity and tradition than a separate ACT office could offer. The combined office is also uniquely placed to handle complaints across all layers of Australian government, and to bring a cross-jurisdictional focus to problems in government administration.

The ACT Ombudsman office is located on the ground floor of the national office in Canberra, and was opened in June 2004 by the ACT Chief Minister. There has since been a marked increase in people attending in person to discuss or lodge complaints and to make general inquiries. For many complainants who don't know where else to go for information and advice, the office is a 'last stop shop'.

The ACT Ombudsman also covers the Jervis Bay territory, which is part of the Australian Capital Territory. The office has met with indigenous leaders and elders in that region to discuss the barriers they may face in obtaining fair and equitable access to government services, arising from the area's status as an enclave within NSW but serviced by both the State and Territory governments.

Defence Force Ombudsman—finding solutions through cooperation

An office of Defence Force Ombudsman (DFO) was created within the Department of Defence in 1975. The functions and powers of the office were given to the Commonwealth Ombudsman by an amendment to the Ombudsman Act in 1983.

The DFO can receive complaints from serving and former members of the Australian Defence Force (ADF). A complaint can be about administrative action taken by the ADF, Department of Defence, Department of Veterans' Affairs or Defence Housing Authority. A unique feature of the DFO role is that it investigates complaints about employment-related matters, such as leave, postings, promotions, discharge, pay and allowances, pensions, and internal complaint handling within the ADF.

The Defence Team meets regularly with key personnel in the Defence portfolio to discuss complaint management issues and to develop strategies for resolving individual complaints. There is regular interaction with two agencies in the Department of Defence that have an overlapping function—the Complaints Resolution Agency, which internally investigates requests for a redress of grievance; and the Inspector-General of the Australian Defence Force, which investigates complaints of unacceptable behaviour, including victimisation, abuse of authority, and avoidance of due process. The Inspector-General is independent of the chain of command, reporting directly to the Chief of the Defence Force. In 2004-05, the Department of Defence and the Ombudsman conducted a joint review of the ADF Redress of Grievance process, making many proposals for improving the complaint management process for ADF members.

Members of the DFO Team visit ADF establishments to meet the staff responsible for internal complaint management, as well as serving members and their families, to explain the DFO role and how it deals with problems faced within military units. During 2004–05, visits were made to bases in Brisbane, Darwin, Katherine, Adelaide, Jervis Bay, Wagga Wagga, Singleton and Perth. These visits included meetings with ADF support groups including representatives from the RSL and the Defence Community Organisation.

Taxation Ombudsman—finding practical solutions to administrative problems

The Commonwealth Ombudsman has always dealt with complaints about the Australian Taxation Office (ATO). A specialist role of Taxation Ombudsman was established within the office in 1995, in recognition of the imbalance that exists between the powers of the ATO and the rights of taxpayers. The creation of the office, by amendment of the Ombudsman Act, arose from a recommendation made by the Parliamentary Joint Committee of Public Accounts. The Taxation Ombudsman is assisted by a Special Tax Adviser and a Tax Team.

The Taxation Ombudsman is the only external complaint-handling agency for taxpayers with complaints about the ATO. The special focus of the role is tax administration, and practical resolution of the individual and myriad problems encountered by taxpayers. Drawing from this individual complaint handling, the Taxation Ombudsman also highlights systemic problems and remedies in tax administration. In this broader role, the Taxation Ombudsman works with other external oversight bodies to improve tax administration, notably the Inspector-General of Taxation and the Australian National Audit Office.

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 be usefully simplified. The underlying approach to the Taxation Ombudsman role is to find practical solutions to administrative problems. These issues are taken up in a separate annual report by the Taxation Ombudsman.

We aim to better engage with the tax professional community, to tap into their expertise, pick up on their concerns and provide another avenue for their feedback about the health and integrity of the tax system. To do this, we have developed a tax-specific outreach package focusing on the needs of small businesses and tax practitioners operating in rural and regional Australia.

Law Enforcement—oversighting police investigations and policing

The Commonwealth Ombudsman's role in oversighting the administration of policing by the Australian Federal Police is anchored in separate legislation, the Complaints (Australian Federal Police) Act 1981. Complaints to the Ombudsman are initially referred for investigation to the AFP Professional Standards team. The AFP reports to the Ombudsman on all complaints received by or investigated within the AFP.

The Ombudsman's primary role is to oversight AFP investigations. A professional and effective working relationship with the Professional Standards team is essential to this oversight role. The relationship is maintained through weekly meetings between senior staff of both agencies to discuss complaints and emerging issues, and to keep abreast of police policy and practices. At any time during an investigation, or at its conclusion, the Ombudsman can initiate a special investigation under the Complaints Act.

An infrequent but important aspect of the Ombudsman's role is to be notified of critical incidents. AFP Professional Standards contacts the Ombudsman if an incident occurs that raises an integrity issue or that could damage public confidence in policing or AFP complaint handling. We also investigate allegations of corruption, excessive use of police force, protection of whistleblowers and the effectiveness of witness protection. Depending upon the nature of the issue, the Ombudsman may conduct a separate and formal investigation, maintain close oversight of a police investigation, or conduct a joint investigation.

Over two-thirds of complaints to the Ombudsman are about community policing by the AFP in the Australian Capital Territory. The expansion of AFP policing functions in Australia and abroad could throw up new issues.

Reform of the AFP complaints system was proposed in a report on AFP professional standards by the Hon. William Fisher AO QC (discussed in last year's annual report). Under the proposed model, the Ombudsman would be less involved in minor complaints management and more concerned with handling serious or unresolved complaints.

Inspections—putting intrusive powers under periodic scrutiny

The Commonwealth Ombudsman's role in auditing statutory compliance by agencies in selected areas has developed as a distinct and major activity of the office.

The Ombudsman is responsible under the Crimes Act 1914, Telecommunications (Interception) Act 1979 and Surveillance Devices Act 2004 for monitoring whether there is compliance with those Acts in the records maintained by the Australian Federal Police and the Australian Crime Commission concerning telecommunications intercepts, use of surveillance devices and controlled (covert) operations. The Ombudsman also has responsibility under the Workplace Relations Act 1996 for reviewing statutory compliance in the records maintained by the Building Industry Taskforce as to its use of coercive powers.

Interceptions, surveillance, controlled operations and building inspections are intrusive activities that can interfere with personal privacy and individual rights. The possibility of misuse of the powers is reduced by tight legislative controls, for example, on who is authorised to conduct an interception, how an authority is granted, the length of time it is active, and use of the intercept information. Those and other controls are the subject of detailed record-keeping requirements that are spelled out in the legislation.

The role of the Ombudsman's office is to examine, through an annual schedule of audit visits, whether those statutory requirements are being met. Reports are given to the agency, the Minister, and the Parliament. Staff of the Ombudsman's office have observed that periodic auditing of this kind encourages a strong culture of compliance within law enforcement agencies. It is a systematic means of ensuring that external accountability is a reality.

While the role is essentially an inspection and auditing role, it can throw up difficult issues of judgment. In particular, the review of the use of coercive powers by the Building Industry Taskforce may necessitate some examination of whether the decision to use those powers is sustained by the material available to the decision maker. Some challenging oversight issues have also arisen. As described elsewhere in this report, we conducted own motion investigation into controlled operations undertaken by the Australian Crime Commission under State rather than Commonwealth legislation.

Postal Industry Ombudsman—safeguarding consumer rights in the postal industry

Legislation to establish the office of Postal Industry Ombudsman was introduced into the Commonwealth Parliament in August 2004. Under the proposed legislation, the Commonwealth Ombudsman will undertake the role of Postal Industry Ombudsman.

The creation of a separate office of Postal Industry Ombudsman is an important step in safeguarding consumer rights in the postal industry. Each year in Australia the public and business send and receive hundreds of millions of postal items. With such high volume, problems will occur, and it is important that there is an independent, external, high-profile agency to deal with complaints. Creating an ombudsman is now a recognised way in Australia for ensuring integrity and professionalism in complaint investigation.

The office of the Postal Industry Ombudsman will:

• take over the existing role of the Commonwealth Ombudsman of investigating postal complaints against Australia Post (the Ombudsman receives about one thousand complaints each year)
• have jurisdiction to investigate complaints against private sector postal operators that register to participate in the scheme
• develop a costing regime in accordance with Regulations for the scheme to be self-funding and for the cost of investigations to be charged on a proportionate basis to participants in the scheme
• have available the normal powers of an ombudsman to require information or documents, and to publish findings; and be required to observe procedural fairness in investigations.

The scheme is distinctive, in conferring jurisdiction upon a single ombudsman to investigate complaints in the public and the private sector. This private sector jurisdiction poses a new challenge for the Commonwealth Ombudsman. The commercial focus in the postal operations of Australia Post will also need to be reflected in the Ombudsman's approach to complaint handling.

Pending enactment of the legislation, which is expected to occur in 2005–06, we have been working to establish a framework of operations for the Postal Industry Ombudsman scheme.