CHAPTER 6 | Promoting good administration

Introduction

Much of the work of the Commonwealth Ombudsman's office involves investigating individual complaints and administrative problems. The matters that are investigated constitute only a small fraction of the total number of transactions and administrative actions that government agencies undertake each year. A core objective of an ombudsman's office is to move beyond those individual problems and to foster good public administration that is accountable, lawful, fair, transparent and responsive. The individual problems provide an excellent window to view government in the broader setting.

This chapter discusses some of the ways the Ombudsman's office has promoted good administration. Drawing on insights gained in complaint investigations, we made submissions to parliamentary and other government inquiries. We also initiated or participated in projects, described in this chapter, that aim for systemic reform on matters such as the use of automated decision making and protection of internal whistleblowers. Own motion investigations undertaken by the office are described in other chapters, and briefly noted in this chapter. Cooperation with other oversight agencies, and with ombudsman offices in Australia and the Asian and Pacific regions, enables us to undertake joint projects, share best practice experience and develop a mutual support network.

Submissions, reviews and research

Parliamentary committees and submissions

During the year, the Ombudsman and staff made submissions and appeared before parliamentary committees inquiring into aspects of government administration and proposed legislation. The office made submissions to three inquiries or reviews by the Senate Legal and Constitutional Committee: its inquiry into the Administration and Operation of the Migration Act 1958; its review of the Telecommunications (Interception) Amendment Bill 2006; and its review of the Law Enforcement Integrity Commissioner Bill 2006 and the Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006.

Our two appearances before the Parliamentary Joint Committee on the Australian Crime Commission were to contribute to its review of the Australian Crime Commission Act 2002 and to provide an annual report on the Ombudsman's inspection of records relating to controlled operations. We also appeared before the Senate Select Committee on Mental Health (concerning immigration issues) and the Senate Foreign Affairs, Defence and Trade Legislation Committee (concerning reforms to Australia's military justice system).

The Ombudsman and the Inspector-General of Intelligence and Security made a joint submission to and appeared before the Senate Legal and Constitutional Legislation Committee inquiry into the provisions of the Anti-Terrorism Bill (No 2) 2005. We made a written submission to the Joint Committee of Public Accounts and Audit inquiry into the administration of the taxation legislation (discussed in Chapter 9—Problem areas in government decision making).

The committee hearings are always challenging, especially when the terms of reference are broad or there is a heightened media interest in headline remarks. However, parliamentary inquiries provide a unique opportunity for the Ombudsman's office to convey our experience over a large range of topics to parliamentarians. We understand this to be of value to parliamentarians, as indicated by a comment of the Parliamentary Joint Committee on the Australian Crime Commission in a report in July 2005.

The Committee also wishes to acknowledge the assistance provided by the Commonwealth Ombudsman, Professor John McMillan, and his staff. The Commonwealth Ombudsman plays a vital role in accountability mechanisms of the ACC, through investigating complaints, and auditing records. The Committee considers that regular discussions and exchange of information with the Ombudsman is vital to maintaining the overall effectiveness of the accountability regime. In addition to the briefing on telecommunication intercepts required by statute, Professor McMillan has met with the Committee privately on several occasions and the Committee appreciates his insights and experience.

The Ombudsman was a member of the Security Legislation Review Committee, which was established by statute in 2005 to review the counter-terrorism legislation enacted in 2002. The statutory membership comprised a former judge, the Privacy Commissioner, the Human Rights Commissioner, the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman, a nominee of the Attorney-General, and two nominees of the Law Council of Australia. The committee received public submissions and conducted public hearings in February and March 2006. Its report was tabled in Parliament on 15 June 2006.

'... parliamentary inquiries provide a unique opportunity for the Ombudsman's office to convey our experience ...'

Whistleblowing project

In 2004–05, we reported that the Commonwealth Ombudsman's office was taking a leading role in a national research project: Whistling while they work: internal witness management in the Australian public sector. This is a three-year collaborative national research project into the management and protection of internal witnesses in the Australian public sector.

The protection of whistleblowers and other internal witnesses of corruption, misconduct and maladministration remains a challenge in public sector governance. This project aims to identify and promote current best practice in workplace responses to public interest whistleblowing, by drawing from the experiences and perceptions of internal witnesses and managers. This will enable us to identify strategies for preventing, reducing and addressing reprisals and other related conflicts.

During 2005–06, the Ombudsman and the Merit Protection Commissioner sent a joint letter to the heads of approximately 140 Australian Government agencies inviting participation in the project's first survey into agency practices and procedures. A survey of agency employees was commenced, involving 30 selected government agencies and approximately 6,000 of their employees. The project is expected to generate several major reports and papers, with the first to be finalised in 2007.

Automated assistance in administrative decision making

The Administrative Review Council (ARC) released a report about Automated Assistance in Administrative Decision Making (AAADM) in November 2004. That report commented on the various ways in which AAADM uses computer systems to automate or guide administrative decision making on matters ranging from the calculation of payment rates to the assessment of eligibility for beneficial schemes.

Representatives from the Ombudsman's office are participating in an Advisory Working Group established to address the ARC's recommendations. Our representatives are also members of a subgroup that is developing a better practice guide on transparency and accountability in the design and implementation of AAADM systems. The project will be completed in 2006–07.

Review of extradition law and practice

In December 2005, we were invited to contribute to the Attorney-General's review of Australia's extradition regime. Extradition is of critical importance in effectively combating transnational and domestic crime. A review of current legislation and processes was considered necessary to ensure that the extradition process is efficient and responsive to the heightened need for cooperative law enforcement arrangements between countries.

We provided a response in March 2006 to a discussion paper prepared by the Attorney-General's Department. Our comments were drawn from the complaints we received about extradition, as well as our understanding of good administrative practice. In particular, we noted the importance of providing sufficient safeguards where individual liberty is at risk. We suggested there might be a role for the Ombudsman in auditing the briefing papers prepared within government to inform extradition decisions. This audit would not affect individual decisions, but could increase public confidence in the process and provide the department with feedback about the quality of its briefs.

Cooperation with other oversight agencies

The Ombudsman's office is one of many independent statutory agencies that discharge a 'watchdog' role in relation to government. Some of those agencies have a similar role to the Ombudsman of receiving and investigating complaints from the public, initiating inquiries into systemic issues in government administration, or auditing compliance by agencies with legislative requirements. Examples are the Inspector-General of Intelligence and Security (IGIS), the Australian National Audit Office (ANAO), and the Privacy Commissioner. Given our similar objective of oversighting and improving government administration, we have looked for ways to work cooperatively with these agencies, to complement each other's work and to avoid unnecessary duplication of effort.

'... we have looked for ways to ... avoid unnecessary duplication of effort.'

Inspector-General of Intelligence and Security

In December 2005, the Ombudsman and the IGIS signed a memorandum of understanding that formally recognises the strong ties between the two offices.

The Ombudsman and the IGIS worked closely together during the year, discussing common issues that arose in handling complaints and inspecting the records of Australian Government agencies. They worked together in preparing a joint submission to the Senate Legal and Constitutional Legislation Committee inquiry into the provisions of the Anti-Terrorism Bill (No 2) 2005. When the IGIS is either absent from the country or on extended leave, the Commonwealth Ombudsman is appointed to serve as acting IGIS. The Ombudsman and the IGIS are both members of the ARC, and both served on the Security Legislation Review Committee in its inquiry into Australian counter-terrorism legislation.

Inspector-General of the Australian Defence Force

The Ombudsman works closely with the Inspector-General of the Australian Defence Force (IGADF) to ensure the most appropriate agency coordinates issues within their particular areas of responsibility. This approach has proven effective in dealing with persistent complainants, in finalising complaints that have become protracted, and in avoiding successive investigation of the same complaint issue by both organisations.

We also participate in joint training activities. The Deputy Ombudsman regularly presents at IGADF training courses, and a similar level of involvement for IGADF staff is planned for Ombudsman training courses. We have also discussed the possible benefits of secondments to each office. In May 2006, Ombudsman staff and the IGADF, with a number of other Defence complaint-handling agencies, participated in a cost of conflict seminar dealing with the problem of managing unreasonable complainant behaviour.

Administrative Review Council

The Ombudsman is an ex-officio member of the ARC, established by the Administrative Appeals Tribunal Act 1977 Part V. The council provides advice to the government on administrative law reform in Australia. The Ombudsman was actively involved in many projects undertaken by the council during the year, including the publication of the council report The Scope of Judicial Review. The work of the council is more fully covered in a separate annual report prepared by the council.

Liaison with Australian National Audit Office

During the year, the Deputy Ombudsman and the Deputy Auditor-General met to discuss co-operation on areas of joint interest with a view to holding regular liaison meetings.

The Special Tax Adviser also met with ANAO staff to discuss ATO performance audits on the cash economy taskforce, superannuation lost members list, and high-risk refunds. The discussions involved a brief outline of the complaints profile for the area under audit and an explanation of our experience and understanding drawn from the complaints we received. The very low level of complaint about the cash economy taskforce and the superannuation lost members list suggested no notable problems with ATO administration of these areas as they affect individual taxpayers. We provided more useful feedback about the high-risk refund audit, particularly as complaints about delay are often sourced to issues of the treatment of high-risk refunds.

Information privacy principles

This year we initiated a collaborative project with the Australian Public Service Commissioner, the Inspector-General of Intelligence and Security and the Privacy Commissioner about the effect on the Australian Government complaint system of the Information Privacy Principles (part of the Privacy Act 1988). The project focuses on Information Privacy Principle 11 (IPP11), which constrains the public disclosure of personal information, including personal information about the staff of Australian Government agencies.

IPP11 is especially relevant when a complaint agency has to decide, in finalising an investigation, whether the information or explanation that is given to the complainant can include findings or views that are critical of an agency staff member. The same issue arises more generally for government agencies when making a public report on a complaint investigation or administrative inquiry undertaken by the agency.

This project will be completed in 2007 after government agencies have been consulted.

Own motion and major investigations

The Ombudsman can conduct an investigation as a result of a complaint or on his own motion, or initiative. During the year, we publicly released reports on seven own motion and major investigations. Those reports, which are more fully described in Chapter 7—Looking at the agencies, made recommendations designed to produce systemic improvement in the administrative processes of government agencies. The reports contained a total of 51 individual agency recommendations—agencies accepted 49 of the 51 recommendations. The generic issues taken up in those reports included the need for better training and clearer guidance for government officers, for further review of some contentious features of agency administration, and for senior level engagement in resolving problems of the kind addressed in those reports.

Four of the investigations dealt with matters relating to the Department of Immigration and Multicultural Affairs (DIMA). The topics of those four reports were: the immigration detention and removal from Australia of an Australian citizen, Ms Vivian Alvarez; the immigration detention of an Australian citizen, Mr T; the administration of s 501 of the Migration Act 1958; and the management of a frail aged visitor to Australia, Mrs Agha.

The other three investigations dealt with the Australian Defence Force's management of service personnel under the age of 18; the Australian Taxation Office's administration of the Superannuation Co-contribution Scheme; and the administration of the Freedom of Information Act 1982 in Australian Government departments and agencies.

Ongoing investigations

During the year, we commenced a number of own motion investigations that will be completed in 2006–07. These include investigations into:

• issues relating to the implementation of the marriage-like relationship policy, outlined in 'Looking at the agencies—other agencies' section in Chapter 7
• the administration of the pension bonus scheme, outlined in 'Looking at the agencies—Centrelink' section in Chapter 7
• complaint-handling procedures available in airports, outlined in Chapter 9—Problem areas in government decision making
• the management of complaints about unacceptable behaviour in the Australian Defence Force
• the complaint-handling process of the Migration Agents Registration Authority,
• the quality of the notification of reasons by DIMA for decisions and review rights for refused visa applicants.

International cooperation and regional support

The office's international program is focused on strengthening mutual support among ombudsmen in our region through exchanging knowledge and skills. We are fostering this agenda with placements, seminars and training activities. In 2005–06, investigative, information technology (IT) and training officers from our office worked directly with staff with similar skills from other ombudsman offices in our region.

Key geographic areas for international program involvement are two near South-East Asian neighbours, Indonesia and Thailand, and some countries in the South Pacific, including Fiji, the Cook Islands, Papua New Guinea (PNG), Samoa, Solomon Islands, Tonga and Vanuatu. The Australian Agency for International Development (AusAID) has provided financial support for many of the office's international program activities.

'The office's international program is focused on strengthening mutual support among ombudsmen in our region ...'

Participation in the international program offers many benefits to our staff, including an increased familiarity with the people of our region, a sense of accomplishment in collegiate work across borders, a sharpening of skills and ideas, and a much better understanding of the many common purposes we share with our neighbouring ombudsmen. The challenge for our office is having sufficient staff to participate in the program. We have met that challenge by building networks with Australian state ombudsmen and the New Zealand Ombudsman, who have generously assisted with staff and support for the international program.

Thailand

The Thai Ombudsman's office has developed strongly since it was established in January 2000. Over that period, our office supported Thai Ombudsman staff through training in complex investigations and generalist ombudsman issues aimed at improving an understanding of the ombudsman role.

The rapid development of the Thai Ombudsman staff resulted in a more specialist approach in 2005–06, including support for IT, outreach and training activities. We worked with the New South Wales Ombudsman to provide a two-week 'train the trainer course' for 10 Thai Ombudsman staff; and the Commonwealth Ombudsman worked with the three Thai ombudsmen in Bangkok and presented a seminar to staff. The Thai Ombudsman provided financial support for these activities, in addition to that provided by AusAID and the Commonwealth Ombudsman.

Pacific islands regional strengthening

In 2005–06, our work centred on creating a collegiate regional network with the South Pacific ombudsmen. We commenced a trial of short-term activities to support the exchange of information, staff and ideas across the network. Ultimately, we envisage that the network will be self-sustaining. It presently consists of the Commonwealth Ombudsman, the New Zealand Ombudsman, the state ombudsmen of New South Wales (NSW), Queensland (Qld), and Western Australia (WA) and ombudsmen institutions in the South Pacific nations.

A deputy ombudsman worked with the Ombudsmen from Fiji, Samoa, Solomon Islands and Vanuatu on strategic and business planning. Legal counsel from the New Zealand Ombudsman's office and our office helped the Tongan Ombudsman and staff draft enabling legislation for the ombudsman function in Tonga.

Papua New Guinea

In 2005, we entered into a three-year twinning program with the Ombudsman Commission of PNG that includes staff placements for professional development. Our office supports three placements from PNG to Australia each calendar year and two placements from Australia to PNG.

In 2005–06, two officers from the Commonwealth Ombudsman's office were placed with the PNG Ombudsman's office (the first for three months and the second for four months) to work with staff in the head office in Port Moresby and in the Kokopo regional office.

Two officers from the PNG Ombudsman's office each worked in Australia for two months, honing their investigation skills. One officer worked mainly in our Hobart office, and also worked with staff from the Tasmanian Ombudsman's office. The other officer worked in our Canberra office.

During the year, we hosted an IT scoping mission from the PNG Ombudsman's office. There was particular interest in our experience in implementing a new complaints management system and revising our online work practice manual and intranet.

A deputy ombudsman also visited PNG to assist with the strategic planning for the Ombudsman Commission.

Indonesia

The National Ombudsman Commission (NOC) of Indonesia is a small office that provides ombudsman services to approximately 240 million people living on 6,000 islands. In recent years we have assisted the Indonesian Ombudsman and his staff by providing training in Australia, international networking, decentralisation activities and IT planning. In 2005–06, we focused on decentralisation activities and IT planning, and provided support to assist the NOC in nine decentralisation activities that included work to establish offices and take complaints from locals.

The Commonwealth Ombudsman visited Indonesia in September 2005 as a member of a high-level Australian delegation to scope a program of public sector governance reform. This is part of the Australia Indonesia Partnership for Reconstruction and Development.

Following the high-level visit to Indonesia, the Ombudsman took a coordinating role in bringing together representatives from the NSW and WA ombudsmen offices to work with our office and the NOC in developing a three-year program to June 2009. The program will build on activities to provide citizens across a larger part of Indonesia with greater access to more effective and sustainable complaint management services. We will continue to support the strengthening of both the central NOC office in Jakarta and the establishment of decentralised regional services in Indonesia.

Other international activities

Another means of international cooperation has been to host senior-level delegations from several foreign offices, including from Bangladesh, Canada, China, India, Indonesia, Korea, Laos, Malaysia, Taiwan and Vietnam.

In November 2005, the Commonwealth Ombudsman participated in the 9th Asian Ombudsman Association Conference, held in Hong Kong. The Ombudsman presented a paper 'Freedom of information and whistleblower legislation: an Australian perspective'.

Cooperation among Australian Ombudsmen

We enjoy a close working relationship with the large number of public and private sector ombudsman offices established in both Australia and the Asia–Pacific area. Those relationships are strengthened by the Ombudsman's participation in groups such as the Australian and New Zealand Ombudsman Association (ANZOA) and the International Ombudsman Institute (IOI).

The IOI, which is an international association of public sector ombudsman offices, is divided into regions. The local region, the Australasia and Pacific Ombudsman Region (APOR), has established a mutual support network for ombudsman offices in the Pacific region. The APOR members meet annually: the annual meeting was held in Perth in April 2006, hosted by the WA Ombudsman.

The Commonwealth Ombudsman is a member of the Executive of ANZOA, which is an association of some industry and public sector ombudsman offices. Projects on which ANZOA has been active during the year include external review of ombudsman schemes, internal review of complaint handling by ombudsmen, benchmarking of workloads and efficiency measures, statistical significance of data, and the use of the term 'ombudsman'.

The deputy ombudsmen from all of the state ombudsmen offices and our office meet twice a year to discuss issues of common concern. The network of deputies is also used more informally to deal with a range of shared issues. One specific example is a joint project that was initiated by the NSW Ombudsman's office on the most effective handling of difficult complainant behaviour. This project is in its early stages and will continue into 2006–07. Further information is in Chapter 5—Challenges in complaint handling.