CHAPTER 1 | Ombudsman's review

Introduction

This has been a year of change for the Commonwealth Ombudsman's office. New work practices, a new complaints management system and the formation of the Public Contact Team have been key activities during the year.

The core activity of the office is to handle complaints and enquiries from members of the public about government administrative action. This objective is captured in the office's outcome—administrative action by Australian Government agencies that is fair and accountable. We delivered on this objective by helping people to resolve complaints about government agencies, by fostering improved government administration and by focusing on integrity and legislative compliance in agency administration.

We investigated complaints made about 104 Australian Government departments and agencies. The complaints ranged across the spectrum of government activity. Remedies and assistance were provided to thousands of people around the country. We also made submissions to parliamentary and government inquiries, to contribute to the improvement of Australian Government administration.

'The complaints ranged across the spectrum of government activity.'

Other major activities included the investigation on the Ombudsman's initiative, or 'own motion', of the administrative actions of Australian Government agencies; and inspection of the records of agencies such as the Australian Federal Police (AFP) and the Australian Crime Commission (ACC), to gauge their compliance with legislative requirements applying to selected law enforcement and regulatory activities.

In its 29 years of operation, the Ombudsman's office has been able to stimulate improvements in government administration, through the experience and insights gained from handling complaints. Improvements have occurred in, for example, the quality of decision making, internal complaint handling, transparency, record keeping, communication with the public, sensitivity to individual needs, and government accountability generally.

Complaint and inspections workload

In 2005–06, we received a total of 28,227 approaches and complaints (29,323 in 2004–05). The pattern of complaints was similar to the previous year, with the majority (75%) of complaints received about five agencies—Australia Post, the Australian Taxation Office (ATO), Centrelink, the Child Support Agency, and the Department of Immigration and Multicultural Affairs (DIMA).

The number of total complaints to the Ombudsman in the past three years has been fairly stable. There has, however, been a steady increase in the number of more complex matters brought to the office and in complaints that alleged systemic problems in public administration (see agency-specific sections in Chapter 7). There was a decrease of 10% in the number of approaches to the office relating to out of jurisdiction matters and requests for information, but the overall number of approaches is similar to the number received in previous years.

'We received a total of 28,227 approaches and complaints ...'

This year, we investigated 35% (6,176 issues) of all complaint issues finalised (33% in 2004–05) and identified agency error or deficiency in 1% (14% in 2004–05), and no error or deficiency in 11% (43% in 2004–05). In the remaining 88% of issues, the complaints were resolved without the need to determine whether there was agency deficiency or error. See Chapter 3—Performance report for an explanation of why fewer findings of administrative deficiency were recorded.

The Ombudsman is responsible for monitoring the integrity of the records of telecommunications interceptions, use of surveillance devices and controlled operations conducted by the AFP and the ACC and some state law enforcement agencies. We inspected the records of the AFP on eight occasions and the ACC on six occasions for statutory compliance, adequacy and comprehensiveness.

Until 2006, the Ombudsman also had responsibility for auditing the use of compliance powers in the Workplace Relations Act 1996 (Cth) by members of the Building Industry Taskforce. That framework has been replaced by the Building and Construction Industry Improvement Act 2005 (Cth). We inspected the taskforce's records for the 12 months ending 12 January 2006.

Financial performance

In 2005–06, the office's operating revenues were $18.384 million and operating expenses were $17.318 million, resulting in a net surplus of $1.021 million. The surplus is due primarily to the delays involved in implementing several large projects.

The office received an unqualified audit opinion on its 2005–06 financial statements. We will continue to examine our priorities and processes to ensure that we provide the best outcome to the Australian community.

Public administration

Through our complaint handling and investigative work, we come into contact with most aspects of Australian Government. We see it as a distinct role of the Ombudsman—as stated in our strategic plan—to 'contribute to public discussion on administrative law and public administration' and to 'foster good public administration that is accountable, lawful, fair, transparent and responsive'. We mainly do this by making suggestions and recommendations to agencies, conducting own motion investigations to help foster improvements in systemic issues, and making submissions to government and parliamentary inquiries.

In 2005–06, we published reports on seven own motion and major investigations. Four of the investigations related to DIMA; one to each of the Australian Defence Force and the ATO; and the other investigation to the quality of freedom of information processing by Australian Government agencies. To the extent possible, we publish our reports on own motion investigations in full or in an abridged version on our website at www.ombudsman.gov.au.

We also commenced several own motion investigations, which we expect to complete early in 2006–07.

'We published reports on seven own motion and major investigations.'

The Ombudsman made submissions to parliamentary inquiries and commented on a range of administrative practice matters and legislative proposals during the year. Examples include submissions to the Senate Legal and Constitutional References Committee regarding the administration and operation of the Migration Act 1958, and to the Senate Legal and Constitutional Legislation Committee's inquiry into the provisions of the Law Enforcement Integrity Commissioner Bill 2006, the Law Enforcement Integrity Commissioner (Consequential and Transitional Provisions) Bill 2006 and the Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006. The Ombudsman also appeared before the Senate Committee on Mental Health and the Parliamentary Joint Committee on the Australian Crime Commission.

By fostering improved government administration, we can strengthen the community's confidence in the integrity and professionalism of government and we can support fairer and more accountable government.

'Through our complaint handling and investigative work, we come into contact with most aspects of Australian Government.'

Jack Richardson prize

In 2002, the Ombudsman's office established the Australian National University (ANU) Jack Richardson Prize in Administrative Law in recognition of the contributions made by the first Commonwealth Ombudsman, who was also a former professor of law at the ANU. The annual prize is for the best essay by an undergraduate student in Administrative Law. This year's Jack Richardson Prize was awarded to John Altin.

Developing role of the Ombudsman

The Ombudsman's office, though well established, is part of a system of government that is undergoing constant change. Several such changes in 2005–06 affect the work of the Ombudsman.

Review of Commonwealth Ombudsman legislation

Work continued on the review, initiated in 2003–04, of the Ombudsman Act 1976. The review is looking at ways to improve and modernise the legislative framework for the office, with a view to putting proposals to government for the enactment of a new Ombudsman Act.

Changes made to the Ombudsman Act in 2005 relate to jurisdiction over Commonwealth contractors, disclosure of documents to the Ombudsman, and oversight of law enforcement and the postal industry. Those changes picked up some of the issues that had earlier been identified in the review of the Ombudsman Act. The Ombudsman's report to the Prime Minister in January 2006 made further recommendations for improving and simplifying the framework for administrative investigation in the Act, and addressing some of the difficult interpretation and jurisdictional issues that can hinder efficient investigation. We expect to receive a response to our report following the government's consultations in early 2006–07.

Immigration Ombudsman

In June 2005, Parliament enacted amendments to the Migration Act 1958 that give the Ombudsman a new statutory role of reviewing the cases of persons held in immigration detention for more than two years (cumulative); a follow-up review is conducted every six months if a person remains in detention. This statutory reporting role enhances the capacity of the office to oversight the administration of important and sensitive legislation that can have a major impact on people's lives.

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 enhanced the role of the Commonwealth Ombudsman in immigration matters. The government amended the Ombudsman Act to confer the title of Immigration Ombudsman; provided the office with supplementary funding; and gave the Ombudsman the added responsibility of investigating over 200 cases referred by the Minister for Immigration and Multicultural Affairs of Australian citizens or other people lawfully in Australia who had been in immigration detention or may have been removed from Australia. See the 'Looking at the agencies—Immigration' section of Chapter 7 for information on immigration-related matters.

Postal Industry Ombudsman

Parliament passed legislation to establish the office of Postal Industry Ombudsman (PIO) in April 2006. The legislation confers the title of Postal Industry Ombudsman on the Commonwealth Ombudsman. The jurisdiction of the PIO extends to private sector postal operators who register to participate in the scheme. The PIO has the normal powers of an ombudsman to require information or documents and to publish findings. The PIO is required by the Ombudsman Act to observe procedural fairness in investigations.

During the year, we set up the framework for handling PIO complaints. The PIO scheme will begin by 6 October 2006, when regulations setting out how to calculate investigation fees have been finalised.

Law Enforcement Ombudsman

In June 2006, the Australian Parliament enacted major reforms to the AFP complaint-handling system, which also reforms the Ombudsman's current role in overseeing complaints about the alleged conduct of AFP members. These reforms are contained in the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006, which is awaiting proclamation.

The proposals contained in the Act are based on the findings of a review of AFP professional standards conducted by Justice William Fisher AO, QC, in 2003 (the Fisher review). The Fisher review recommended that the AFP adopt a managerial model, or administrative approach, in dealing with professional standards issues, with a greater emphasis on managing performance and changing poor behaviour.

The Act designates the Commonwealth Ombudsman as the Law Enforcement Ombudsman. In that role the office will oversee complaint handling and conduct issues in the AFP as well as investigating more serious conduct issues. During the year, we made changes to our complaints management system and adapted work practices to meet the changing role of the Ombudsman in handling complaints about the AFP.

International cooperation

The Ombudsman's international program continued to expand during the year. Funding from Australian Agency for International Development (AusAID) programs supported our international activities to facilitate the exchange of specialist advice, training, technical assistance and support to the National Ombudsman Commission of Indonesia, the Thailand Ombudsman, and the ombudsmen in the Cook Islands, Fiji, Papua New Guinea, Samoa, Solomon Islands, Tonga and Vanuatu.

During the year, ombudsmen from Fiji, Papua New Guinea and Samoa visited our Canberra office, providing a valuable opportunity to exchange knowledge and ideas.

The Commonwealth Ombudsman's office is well placed to continue to play a key supporting role in developing and enhancing ombudsman offices throughout the Asia–Pacific region.

Key strategic achievements

Achievements for 2005–06 include the following.

• We received 28,227 approaches and complaints, finalised 17,508 complaint issues, and handled 10,843 approaches related to out of jurisdiction matters and requests for information.
• We completed seven own motion and major investigations, which contained a total of 51 individual agency recommendations—agencies accepted 49 of the 51 recommendations.
• We rolled out a new complaints management system, supported by new work practices on the conduct of investigations, a comprehensive online work practice manual, and training for staff.
• We established the Public Contact Team to receive and assess all telephone approaches to the office, to enhance overall performance and ensure consistency at a national level.
• We developed and implemented policies and procedures for our enhanced role and responsibilities in immigration oversight.
• We established improved oversight of the use of surveillance devices.
• We conducted a five-day Advanced Investigation Course, with Ombudsman staff, representatives from other government agencies, and AusAID-sponsored participants from the Thailand Ombudsman's office attending the course.
• In conjunction with the Merit Protection Commissioner, we surveyed 140 Australian Government agencies on their practices and procedures in relation to whistleblowers, and commenced a survey of approximately 6,000 employees in 30 selected agencies.
• We conducted 104 outreach activities, which together covered all states and territories.
• We commissioned a market research company to conduct a public awareness benchmark survey, which showed that 74% of rural and regional Australians recognise the Commonwealth Ombudsman as a complaint resolution agency.
• We launched a new internet site with a web content management system framework and an enhanced search facility. We improved content and added features, including an improved online complaint form.
• We hosted several senior-level delegations from other countries, including from Bangladesh, Canada, China, India, Indonesia, Korea, Laos, Malaysia, Taiwan and Vietnam in addition to major international cooperation activities
• We successfully negotiated a new three-year certified agreement that was endorsed by all of the 91% of staff who voted.
• The Ombudsman and staff delivered over 45 papers and made presentations at conferences and seminars held around Australia.

Challenges

The office also faced major challenges, some of a continuing nature, including:

• maintaining an effective national office structure that integrates the work of all staff in a consistent manner
• maintaining the traditions and stability of the office, while responding to increases in the size and functions of the office
• balancing the urgent and immediate pressures of resolving individual complaints with the broader gains achievable by careful targeting of major and systemic issues in own motion and major investigations

The year ahead

In the coming year, the Ombudsman's office aims to:

• consolidate the office's work practice changes introduced in 2005–06
• increase the emphasis on timeliness, quality assurance and consistency in complaint handling
• exploit the efficiencies of our new complaints management system and work practices to target review of selected categories of administrative decisions in key agencies
• establish an inspections and monitoring function to oversee DIMA's compliance activities, including its use of search and entry powers and removal operations
• pursue the review of the Ombudsman Act 1976 to establish a modernised framework for administrative investigation
• commence operation of the Postal Industry Ombudsman scheme
• implement changes to manage AFP complaints in line with the reforms contained in the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006
• implement strategies to deal more effectively with persistent complainants to the office
• implement a redeveloped intranet site for the office
• continue to build the profile of the office and to develop the office's outreach program to rural and regional Australia.