Commonwealth Ombudsman Annual Report 2005-06 | Chapter 7 | Looking at the agencies
CHAPTER 7 | Looking at the agencies
Introduction
As in previous years, the majority of approaches and complaints received within the Ombudsman's jurisdiction (75%) concerned the five Australian Government agencies listed below. This chapter focuses on particular issues that arose during 2005–06 in investigating complaints about these agencies.
- Centrelink—7,095 approaches and complaints
- Child Support Agency—1,891 approaches and complaints
- Australian Taxation Office—1,451 approaches and complaints
- Australia Post—1,303 approaches and complaints
- Department of Immigration and Multicultural Affairs—1,250 approaches and complaints.
This chapter also looks at three other specialised areas of our complaint work: the Australian Defence Force, handled by the Ombudsman discharging the role of Defence Force Ombudsman; the Australian Federal Police, handled under the Complaints (Australian Federal Police) Act 1981; and the handling by agencies of freedom of information requests.
The 'Other agencies' section of this chapter provides examples of complaints received about agencies such as the Department of Employment and Workplace Relations, Telstra Corporation, the Australian Securities and Investments Commission, and the Department of Foreign Affairs and Trade.
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 diversity of 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 problems areas. We take up some of these general themes in other chapters of this report (Chapter 8—How the Ombudsman helped people, and Chapter 9—Problem areas in government decision making). Difficulties that commonly arise are about inadequate explanation of adverse decisions, deficient record keeping, delay in decision making, and discourtesy by agency officers.
The focus on complaints about specific agencies does not by itself accurately portray the standard of administration in those agencies. Issues have been selected in part to show the aspects of government about which people approach the Ombudsman. A common feature of each of the agencies is that they engage daily in a high number of direct transactions with members of the public. While complaints to the Ombudsman are only a minor fraction of the decisions and actions taken each year by agencies, they illustrate the difficulties that people face in dealing with government and to that extent provide valuable insight into the operation of government.
'... complaints to the Ombudsman are only a minor fraction of the decisions and actions taken each year by agencies ...'
Figure 7.1 shows approaches and complaints received from particular agencies. A detailed breakdown of complaints by portfolio and agency is in Appendix 4—Statistics.
Figure 7.1 Approaches and complaints received within jurisdiction, by agency, 2005–06
australia post
Mail services | Incorrect advice | Complaint handling | Postal Industry Ombudsman
Australia Post is an incorporated government business enterprise wholly owned by the Australian Government. It operates under the Australian Postal Corporation Act 1989 (Postal Act).
Under the Postal Act, Australia Post's primary function is to supply postal services within Australia, and between Australia and other countries. Australia Post can also undertake other business functions that are incidental to its postal functions or that can be carried on as part of that business.
In recent years, Australia Post has expanded its retail and agency functions to provide a wide variety of services. Approaches and complaint issues to our office remain largely about Australia Post's most traditional functions—sending and receiving letters and parcels.
In 2005–06, we received 1,327 approaches and complaints about Australia Post. Of these, 1,303 were within the Ombudsman's jurisdiction (1,190 in 2004–05), an increase of 9%. Figure 7.2 shows the trend in complaints about Australia Post.
'... issues to our office remain largely about Australia Post's most traditional functions—sending and receiving letters and parcels.'
Figure 7.2 Australia Post complaint trends, 2001–02 to 2005–06
Mail services
We find that people who approach our office with a complaint about Australia Post often have a high expectation of the quality of the delivery service Australia Post provides. This can extend to expecting Australia Post to carry uninsured valuable items and to be liable if an item goes missing or is damaged.
Under the Postal Act and the Australia Post Terms and Conditions, Australia Post has limited liability for loss and damage incurred through the carriage of ordinary post. We explained those limits on liability to numerous complainants.
In some cases, we asked Australia Post to pay compensation above the legal limit. For example, a person complained that a package containing contact lenses sent via Express Post had been left on top of the letterboxes at her block of units, as it was too bulky to fit in her letterbox. The package was opened and the contents, worth $224, were stolen. A neighbour found the empty envelope nearby.
The delivery officer claimed he left a card so the package could be collected at the post office. Australia Post initially offered the maximum $50 compensation. We found it difficult to reconcile the complainant's version of events with that of the delivery officer. The complainant provided us with the empty envelope, supporting her claim that the package had been delivered.
Australia Post investigated further, and found that the article would not have fitted in the letterbox. In this situation, the delivery officer should have left a card advising the addressee to collect the parcel from the post office. While emphasising that the conditions on the Express Post satchel specifically warn against posting valuable items, Australia Post decided to pay the full cost of the contact lenses as a gesture of goodwill.
Incorrect advice
Customers of Australia Post rely on advice given to them by Australia Post staff and agents. This is to be expected, and reflects the high level of trust that customers have in Australia Post. We investigated complaints where individuals relied on the advice they were given and suffered loss as a result. In these circumstances we recommended compensation be paid above the limit of Australia Post's liability.
In one case we investigated, a man paid cash on delivery for motorcycle handlebars worth several hundred dollars, and took delivery of them in the post office. He immediately saw the handlebars were the wrong ones. An Australia Post employee suggested he send them back 'return to sender', although he had paid the delivery fees and technically should have paid postage to resend them. The 'return to sender' option provided no insurance on the handlebars, which went missing. Initially Australia Post argued it was liable for only the $50 maximum compensation for ordinary postage. After further discussion, Australia Post agreed to refund the full cost of the handlebars.
We investigated two complaints where Australia Post gave incorrect advice about the purchase of Western Union money orders. Two members of the public were told, on separate occasions, that the recipient of a money order would require the money transfer control number (MTCN) before being able to access the money order. This advice was incorrect.
Both complainants had sent a money order overseas to buy goods, expecting to provide the MTCN, and therefore release the money, when they received the goods. However, the overseas recipient was able to access the money immediately and the goods did not arrive.
Australia Post initially considered that the primary redress was against the sender of the products and the complainants should have put in place proper mechanisms to protect themselves when purchasing from overseas. While not disputing the legal correctness of this position, we suggested to Australia Post that the complainants would not have conducted their business dealings in this way if an Australia Post employee had not given them incorrect advice.
After further discussions, we agreed there was fault on both sides, and Australia Post refunded half of the amount of the money order. Australia Post also conducted training at the particular post office to ensure that correct advice is given in the future.
Complaint handling
Australia Post's Customer Contact Centres (CCCs) handle most complaints about postal services. We normally ask a person to contact the CCC in the first instance and to contact our office again if they are dissatisfied with the resolution provided by the CCC. During the year, we investigated some matters that had not yet reached a resolution, but had stalled within the CCC.
In one case, a customer contacted the CCC because of failures to redirect his mail as requested. Largely because of the problems encountered, the customer extended his redirection for another six months and asked Australia Post to refund the $34.50 fee. Australia Post closed the initial complaint a week after it received it without advising the customer. When he called about progress three weeks later, Australia Post reopened the matter and investigated it, but did not process the customer's request for a free extension of his mail redirection.
After experiencing continuing problems with the redirection of his mail, the customer called again three weeks later and repeated his request for a free extension. After numerous phone calls in the following month, Australia Post advised that he might receive a three-month refund.
At that point, the customer complained to our office. After we raised the central issues with Australia Post, the customer received his six-month refund. Australia Post also explained why the matter had taken so long to resolve and acknowledged that the complaint could have been handled better.
Postal Industry Ombudsman
On 29 March 2006, Parliament passed legislation to establish the office of Postal Industry Ombudsman (PIO). The PIO scheme will commence operation by 6 October 2006.
As Australia Post will automatically become a member of the scheme, the PIO will take over the existing role of the Commonwealth Ombudsman in investigating complaints against Australia Post. Participation by private postal operators in the PIO scheme is voluntary. Fees charged for investigations will fund the PIO.
The PIO will have available the normal powers of an ombudsman when investigating a complaint to:
- require information or documents
- publish findings
- make a formal report to the Minister for Communications, Information Technology and the Arts, which can be tabled in the Parliament.
The PIO is required by the Ombudsman Act to observe procedural fairness in investigations.
During 2005–06, we worked on establishing contacts within the postal and courier industries to provide information about the PIO scheme. The office is also setting up a framework for handling PIO complaints and for determining and charging investigation fees. The PIO website at www.pio.gov.au has more information about the scheme.
australian taxation office
Complaints overview | Tax environment | Update on referral survey project | Project work | Superannuation co-contribution | Debt collection | Case management | The year ahead
The Commonwealth Ombudsman has always dealt with complaints about the Australian Taxation Office (ATO). In 1995, the Ombudsman was given the title of Taxation Ombudsman to give a special focus to the office's handling of tax complaints in recognition of the unequal position of taxpayers and the ATO. In fulfilling this function, the Taxation Ombudsman is supported by the Special Tax Adviser, a small Tax Team dedicated to dealing with tax matters, and generalist complaint investigation officers in the Ombudsman's offices in each Australian capital city.
The Taxation Ombudsman is the only external complaint-handling agency for taxpayers with complaints about the ATO. The Taxation Ombudsman also continues to identify systemic issues and remedies arising from individual complaints, and works with other external oversight bodies such as the Inspector-General of Taxation and the Australian National Audit Office to improve aspects of tax administration.
Our specialist Tax Team continues to monitor complaints to identify emerging complaint trends that may warrant more active intervention by the Special Tax Adviser or the Taxation Ombudsman. This role was strengthened in 2005, enabling the Tax Team to focus its attention increasingly on providing tax-related technical and contextual advice to our generalist investigation officers, and to commence project work on areas of interest in tax administration. For example, during 2005 we identified an increase in complaints about superannuation co-contributions, initiated a project to analyse such complaints, and issued a report in March 2006. Further information on our program of tax projects is provided on page 63.
'The Taxation Ombudsman is the only external complaint-handling agency for taxpayers with complaints about the ATO.'
Complaints overview
In 2005–06, the Ombudsman received 1,523 approaches and complaints about the ATO, 1,451 of which were within the Ombudsman's jurisdiction (1,633 in 2004–05). Figure 7.3 shows the trend in complaints about the ATO.
Figure 7.3 Australian Taxation Office complaint trends, 2001–02 to 2005–06
There has been a steady decline in the number of tax complaints over the last few years. We have previously attributed this to the bedding down of the new tax system and the resolution of many of the mass-marketed scheme issues that dogged the ATO in the late 1990s and early 2000s. This year, we believe the continuing decline in the number of tax complaints is due to improvements in ATO administration, and particularly to the increasing effectiveness of the ATO's internal complaints process.
We received complaints across the full range of ATO activities and products, including debt recovery, superannuation and the goods and services tax (GST). Complaints about ATO debt recovery action and the accuracy, clarity and timeliness of ATO advice continued to dominate.
Tax environment
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.
The challenge for the ATO is to develop mechanisms and strategies that balance the tax system's complexity. Administrative systems and review processes that enable taxpayers to challenge ATO decisions are important mechanisms for achieving that balance. The ATO has formal objection and review processes, as well as an internal complaint-handling service—ATO Complaints—that it substantially revamped after a report in 2003 by the Taxation Ombudsman. The ATO's positive response to that report has resulted in a system that reflects best practice complaint management principles and that maintains a consistent approach across the ATO. For example, the new centralised complaint-recording system in the ATO includes an area dedicated to tracking, monitoring and resolving potential systemic issues; this enables the ATO to respond effectively to issues that have the capacity to impact on large numbers of taxpayers.
'The ATO's positive response to our report has resulted in a system that reflects best practice complaint management principles ...'
The ATO's responsiveness suggests a cultural commitment to complaint resolution within the agency. This commitment perhaps offers taxpayers better remedial options than externally imposed rules. While there is always room for improvement, the ATO's progress during the year in this area is acknowledged. For example, we understand that approximately 66% of all complainants using ATO Complaints receive a satisfactory outcome as a result of ATO complaint-processing action. This suggests that in some cases the ATO may not always get it right initially. However, it also suggests that the ATO has in place mechanisms that provide appropriate remedial options.
Another way to address tax complexity is for the ATO to have effective education and information strategies in place to assist taxpayers to better understand the tax system and how to comply with it. We are satisfied with the ATO's action in this regard as evidenced by improvements to the ATO website and tax agents' portal, and the ATO's publication of its approach to key issues such as its compliance strategy. Where appropriate, we make suggestions about how the ATO might improve its advice to taxpayers. In one case, we asked the ATO to consider changes in the way it responded to enquiries about eligible termination payments and advised taxpayers that income below the threshold may affect other entitlements such as the senior Australian tax offset. The ATO agreed and changed the written guidance it provided to staff on this matter.
Update on referral survey project
Our usual practice is to suggest to complainants that they first try to resolve their concerns directly with the ATO as we consider the agency should first have the opportunity to correct any perceived problems. We will either suggest they contact the ATO, or we may offer to transfer their complaint directly, with the understanding that the complainant can contact us if dissatisfied with the outcome.
Last year, we reported that we had commenced a pilot project to test the effectiveness of our complaint referral process. We surveyed a small sample of tax complainants, who we had referred back through ATO Complaints to obtain feedback on whether the advice we provided was useful in progressing their complaints. Generally, the survey produced a positive result about the service provided by the Ombudsman's office. The results indicated a moderate level of complainant confusion about the advice provided to them and highlighted the need for more work in skilling our staff to provide appropriate advice. The survey also indicated there was a high percentage of complainant satisfaction with the complaint transfer service provided for written complaints.
The area of greatest concern was the low rate of take-up when we advised complainants to contact ATO Complaints directly. We raised this issue with the ATO, and ATO Complaints is exploring what steps it might take to better encourage complainants to make contact if they have problems or concerns. We identified changes to our own work practices to help increase this take-up rate and we are working with the ATO to make the referral process as easy and efficient for complainants as possible.
Project work
Towards the end of 2005, the Taxation Ombudsman implemented a work program of internal and external tax projects to carry forward to the end of the 2005–06 financial year. Internal projects look at ways in which the Ombudsman's office can improve its own policy, procedures and decision making to more effectively manage tax complaints, such as the referral survey project described above. External projects generally examine individual tax complaints to assess the health of specific areas of tax administration, identifying any potential problem areas in the ATO's administration and making recommendations where appropriate.
In designing the project program, we avoided any overlap with the work of the Inspector-General of Taxation and the Australian National Audit Office, identifying instead areas that complement their work. We aim to work closely with our fellow 'watchdogs' in feeding into improvements to tax administration. Because of the knowledge we have gained through handling individual complaints, we can bring to these broader projects a valuable perspective on the impact that government administration can have on individuals.
By using those complaints as a window to tax administration, and with almost thirty years' experience in handling complaints both about the ATO and across Australian Government administration, we hope to provide useful observations and commentary on the health of the system of tax administration and to identify improvements that should benefit all taxpayers. We also hope that the projects will improve our understanding of tax administration, to the benefit of individual taxpayers who come to us with their problems. We also plan to engage more with the tax profession to identify possible topics for future projects.
'We aim to work closely with our fellow 'watchdogs' in feeding into improvements to tax administration.'
Internal projects we initiated during the year include:
- construction of a revised list of 'issue strings', which is an internal Ombudsman office device for classifying the different issues and sub-issues in complaints. This supports investigation officers in analysing and investigating issues in individual tax complaints, and provides for more effective statistical reporting and systemic trend analysis
- analysis of the way we have exercised the statutory powers in the Ombudsman Act to decline to investigate tax complaints received by the office. The aim of this project was to facilitate the appropriate exercise of those statutory discretions, by developing instructional material to assist investigation officers, particularly where taxation legislation provides for formal and informal review rights.
External projects we initiated include the review of ATO administration in areas such as the use of garnishee powers, the compromise of taxation debts, superannuation co-contribution payments, remission of the general interest charge, and release from tax debts because of financial hardship.
We also have an ongoing outreach project focused on tax agents, to help and encourage them to raise issues of concern with this office. We want to analyse the issues they raise and identify areas that we consider merit further examination.
Issues relating to some of the external projects the Tax Team undertook during the year are outlined below.
Superannuation co-contribution
The Superannuation Co-contribution Scheme (Super Co-contribution), effective from 1 July 2003, aims to assist eligible individuals to save for their retirement by providing matching government contributions for personal superannuation contributions. In March 2006, we issued a report on the ATO's administration of Super Co-contribution.
Our review of complaints relating to Super Co-contribution did not disclose any major concerns with, or systemic problems arising from, ATO administration of this scheme. As an example, almost a third of the complaints about Super Co-contribution related to concerns that the information about the scheme in ATO advertising was not sufficient for a person to make an informed decision on whether they met the requirements. However, we found that the advertising was clear in outlining the purpose of the scheme and basic eligibility criteria. In all cases, the advertisements clearly advised people about how and where they could seek further information. While we considered that the ATO advertising achieved an appropriate balance between simplicity and sufficiency, we also acknowledged that all government agencies grapple with the perennial problem of how much information is enough.
We suggested the ATO review its own complaints profile in relation to Super Co-contribution. We may revisit our review of the scheme at some future stage to see if there have been any changes of significance.
Debt collection
Release from debt
'Our examination of the ATO's handling of hardship applications indicates no major problems ...'
Garnishee action
Case management
'... we may suggest that the ATO take a case management approach to a particular complaint.'
The year ahead
- a review of the effectiveness of the ATO administration relating to matters such as superannuation guarantee
- debt collection payment arrangements
- data matching bank interest
- tax issues for Indigenous communities
- audit activity of work-related expenses
- 'conferencing' for tax disputes
- call management capability and delivery
- lodgement compliance penalties and prosecution
- issues around the private health insurance rebate.
centrelink
Correspondence with customers | Information stored on customer files | Pension bonus scheme | Ongoing issues | Welfare to work initiatives
Centrelink is responsible for delivering a wide range of programs and payments on behalf of a number of Australian Government agencies. This office receives more approaches and complaints about Centrelink than about any other agency, consistent with the high volume and complexity of the services it provides.
In 2005–06, Centrelink approaches and complaints accounted for 42% of all approaches and complaints to the Ombudsman. We received 7,333 approaches and complaints about Centrelink, 7,095 of which were within the Ombudsman's jurisdiction (7,699 in 2004–05). This was a decrease of 8%. Figure 7.4 shows the trend in complaints about Centrelink.
Figure 7.4 Centrelink complaint trends, 2001–02 to 2005–06
The Ombudsman investigated 29% of complaints received about Centrelink. The majority of complaints were about the Newstart Allowance (19%), the Family Tax Benefit (16%), the Disability Support Pension (14%), the Parenting Payment (12%) and service delivery (9%).
We also received complaints about a large range of other issues, including correspondence with customers, information stored on customer files, the pension bonus scheme, the internal review process, nominees and banning customers.
Correspondence with customers
During the year, the Ombudsman received complaints that highlighted problems in the content and style of Centrelink correspondence. Among the issues were the clarity and consistency of Centrelink decision letters and notices, the use of templates and standard letters, the absence of reasons and information for Centrelink decisions, and the adequacy of key information printed on the back of the notices. We raised all these issues with Centrelink during the year in the context of its Letters Improvement Project. We discuss some of these issues below, and in Chapter 9—Problem areas in government decision making.
'... the Ombudsman received complaints that highlighted problems in the content and style of Centrelink correspondence.'
Decision letters
Complaints about decision letters focused on either the absence of reasons for Centrelink decisions, or the adequacy of reasons. If the reasons for a decision are inadequate, a Centrelink customer may lack the necessary information or understanding to make an informed choice about whether to seek review of the decision.
One example is grant letters, which often contain information about the start date of a payment and the rate to be paid. The letters report a person's income and assets as a combined figure, rather than as separate components. This can leave the customer uncertain as to what Centrelink took into account in the assessment. Unless customers seek further detail from Centrelink, they cannot identify discrepancies in the data. In particular, where the decision is favourable (such as a grant of payment or increase in rate) most customers are likely to assume that the decision is correct, when that may not be the case.
A customer who does not check with Centrelink runs the risk of being underpaid or incurring a recoverable debt. In one complaint that we investigated, Centrelink failed to correctly calculate financial information provided by the customer. The decision letter advised of a reduced rate of age pension and only stated the total assets and income used in the assessment. As the letter did not provide sufficient information to allow the customer to realise Centrelink's mistake, the customer was underpaid over an extended period. Compensation in the amount of the underpayment was paid under the Compensation for Detriment caused by Defective Administration (CDDA) scheme.
In another complaint, a customer was unaware that calculation of his age pension rate had been incorrectly based on his being a homeowner, which resulted in a lower rate of pension being paid. The decision letter failed to include that information, making it difficult for the individual to determine the accuracy of his payment.
Templates and standard letters
The use of templates and standard letters can assist in controlling the consistency and quality of correspondence. A possible drawback is that a template letter will not be tailored to the circumstances of the recipient. Generally, it is important that template letters are of good quality and do not contain irrelevant or incorrect information.
In a number of complaints we received, the decision letter from the Authorised Review Officer used the standard phrase 'I have not had any previous involvement in your case'. This phrase was used even when the same officer had considered an earlier review request from the same customer. Another source of complaints was the use of incorrect codes for standard letters, where customers were incorrectly advised they were receiving a different payment, or about activities being undertaken with their payment.
Information stored on customer files
We investigated a complaint from a Centrelink customer who had requested to see the content of her Centrelink file under the Freedom of Information Act 1982. Among the information she obtained was a copy of an article she had written that had been published in the local press and which Centrelink had placed on her file. The individual was apprehensive that this article would prejudice any future dealings she may have with her local Centrelink office. As a result of our investigation, Centrelink developed national guidelines on the storage of media articles by customers, and how to respond to complaints on that issue.
Pension bonus scheme
In March 2006, we commenced an own motion investigation into the pension bonus scheme, because the number of complaints about the program was disproportionate to its size.
The pension bonus scheme is an incentive program that rewards people who qualify for receipt of the age pension but continue working instead of claiming their pension. Centrelink administers the scheme and pays a tax-free, lump-sum bonus when the person eventually retires and claims the age pension. The Department of Veterans' Affairs (DVA) administers a parallel pension bonus scheme.
'... the number of complaints about the pension bonus scheme was disproportionate to its size.'
A person must register for the scheme and will not be eligible for the maximum bonus payment until they have been working for five years after their initial registration. During those five years, there is no legislative requirement for the customer to contact the agency. This presents particular challenges for the agency's administration of the scheme in terms of provision of information and staying in touch.
The rules of the scheme, particularly those related to claiming the bonus, are complicated and not well understood by Centrelink staff or customers. For example, to be paid a bonus the person must have passed a work test throughout the period they have deferred claiming the age pension, and must claim within 13 weeks of when they cease work or fail to pass the work test. They must also simultaneously lodge a claim for their bonus and a claim for the age pension.
In some instances, complainants received no information about the work test requirements, and after deferring their claim for over four years found out they had failed the work test in the first year and were therefore not entitled to receive a bonus at all.
It can be difficult to decide when to claim a bonus because it is calculated on the rate of age pension when the pension is first granted. For instance, if a person has not made decisions about their superannuation and termination payments or ceased work entirely, the initial rate of pension would be reduced and result in a smaller bonus being paid. However, the person generally has only 13 weeks from when they retire to make a claim or they risk losing all or part of their bonus. Generally, Centrelink encourages people who register for the scheme to see a Financial Information Service (FIS) officer about the optimum timing to claim their bonus.
The majority of complaints made to this office about the pension bonus scheme are because the complainant received a smaller bonus than they had expected. Often they were not referred to a FIS officer and did not understand the factors affecting the amount of bonus payable. For similar reasons, the pension bonus scheme is over-represented in the volume of complaints about CDDA claims received about Centrelink.
As part of our investigation, we are examining the underlying causes for:
- complaints received by the Ombudsman
- customers appealing against their assessment
- customers seeking compensation under the CDDA scheme.
We are also examining the processing guidelines provided to Centrelink staff, the promotional material used to inform customers and potential customers about the scheme, the registration and claim procedures and forms, and the arrangements in place for ongoing contact with members of the scheme. The chief purpose in this part of the investigation is to gauge whether the problems that are encountered by Centrelink customers stem from the way the scheme is being administered. We will also examine whether these administrative documents and arrangements accurately reflect the legislation.
We are currently analysing data from Centrelink and the DVA and hope to complete our report in late 2006. We will draw from the experiences of both agencies to identify areas for improved administration. We will make recommendations after consulting the service delivery agencies and discussing policy-based issues with the relevant policy department, such as the Department of Families, Community Services and Indigenous Affairs (FaCSIA), the Department of Human Services (DHS), and the DVA.
Ongoing issues
Some of the issues outlined in the Centrelink section of our 2004–05 annual report are ongoing. These issues involve Centrelink's internal review process, its nominee arrangements and the absence of national guidelines for banning customers from contacting staff.
Internal review process
In last year's annual report we identified two problems with Centrelink's internal review process—delays and appeal fatigue. A further area of complaint that came to notice this year related to the internal review path adopted by Centrelink.
We received complaints where Centrelink considered cases under the CDDA scheme (which is a non-statutory scheme), when it would have been more appropriate to allow the case to be resolved under the social security law.
Some customers had delayed pursuing review by the Social Security Appeals Tribunal pending a decision about their claim for compensation. In some cases, the compensation decision declining payment had taken several months, well outside the 13–week period allowed for the customer to lodge an appeal with the Tribunal and be able to receive full arrears from the date of the original decision in the event of a positive outcome. In other cases, the complainant was not aware that their case had been referred for consideration for compensation.
The Ombudsman participated in a Centrelink steering committee made up of representatives from both Centrelink and external organisations. The committee considered the internal review process within Centrelink about decisions made under the social security and family assistance laws. We understand that Centrelink is yet to make final decisions on the committee's recommendations.
Nominees
A Centrelink customer can authorise a person or organisation to act and make changes and/or receive payments on their behalf. This person or organisation is called a nominee.
We keep receiving complaints about these arrangements, which continue to be problematic. These complaints raised the question of whether Centrelink is being sufficiently rigorous in its oversight of nominee arrangements.
In one case, a public trustee advised Centrelink of their appointment as a woman's financial administrator and requested that her social security pension be paid to them as the woman's nominee. At the time, the woman was also receiving another allowance that continued to be paid to her carer. Centrelink acknowledged that they should have reviewed the appropriateness of continuing to make payments to her carer. This may well have prevented a dispute when Centrelink subsequently granted the woman family tax benefit and paid a lump sum to her carer.
We plan to do further work with Centrelink on these aspects of the process in the coming year.
Banning customers
Last year, we reported that we had received a number of complaints from customers who had been banned from either attending Centrelink offices or having telephone contact with staff. We noted that although we found that the decisions to ban the individuals concerned were not unreasonable, these complaints highlighted that Centrelink did not have national guidelines for the process of banning customers. Centrelink indicated they would develop national guidelines to be implemented in the first half of 2005–06.
At 30 June 2006, the absence of national guidelines for staff on banning customers from contacting Centrelink staff is still an issue. However, significant progress has been made on developing national guidelines for dealing with difficult customers and it is expected that these will be available to all Centrelink staff later in 2006.
'... the absence of national guidelines for staff on banning customers from contacting Centrelink staff is still an issue.'
Welfare to work initiatives
Preparation for the implementation of the Welfare to Work initiatives in July 2006 was a major topic of discussion and liaison between the Ombudsman's office and Centrelink this year. The policy and assessment processes draw together a number of Australian Government agencies as well as contracted services providers. The interaction that Centrelink establishes with these agencies and providers will be critical to their administration of the initiative.
We met with other relevant government agencies to discuss the Welfare to Work initiative, including the Department of Employment and Workplace Relations (DEWR), DHS, FaCSIA, and the Child Support Agency. We also attended Centrelink's monthly Community Reference Group meeting. The reference group comprises national representatives of peak community groups, and provided a valuable forum to present information about the extended role of the Ombudsman, in particular around the complaint and appeal processes.
Responsibility for Welfare to Work initiatives extends across a number of government and non-government agencies. Individual complaints may be related to the work of those agencies that have responsibilities under the scheme, including Centrelink, DEWR and DHS. A large proportion of elements of Welfare to Work will be delivered by community-based agencies such as job network providers, job capacity assessors and welfare agencies. These agencies will make decisions and recommendations that will affect the lives of people claiming income support payments.
Under changes made to the Ombudsman Act 1976 in December 2005, the Ombudsman has jurisdiction to investigate the actions of 'Commonwealth service providers' as if those actions had been made by the relevant department or authority. A Commonwealth service provider is a contractor or subcontractor that provides goods or services for or on behalf of an Australian Government agency, to a person other than an agency. This effectively means that the Ombudsman now has authority to investigate complaints about organisations that are contracted to the Commonwealth as job network providers, job capacity assessors and financial case managers. The complexity of the process of complaint investigation is expected to increase because of this.
From 1 July 2006, an individual who fails to meet specific obligations required under Welfare to Work or who has a third 'participation failure' recorded, will incur an eight-week non-payment period. Centrelink staff will assess those people who are subject to the eight-week non-payment period to determine if they meet the criteria for being classified as 'exceptionally vulnerable'. Those who have children or who are considered exceptionally vulnerable will be referred to community organisations for financial case management.
The role of the financial case manager will be to assess what, if any, financial assistance an individual should be given, up to the amount the individual would have received in fortnightly payments if they had not incurred the eight-week non-payment period. The financial assistance will be in non-cash forms except in exceptional circumstances. There are criteria for what expenses can be considered 'essential' for payment by the financial case managers.
Given the impact of these measures on the individuals affected by them, we anticipate that we will receive complaints about many related issues including:
- job capacity assessments and their resulting decisions and recommendations
- reasons for and impacts of failing to meet specific obligations
- reasons for and consequences of non-payment for an eight-week period
- decisions by the financial case manager about which expenses are considered 'essential'.
The role of Centrelink in the Welfare to Work initiative is pivotal. In some cases, Centrelink will be the relevant service delivery agency for a specific function such as job capacity assessments or financial case management; in other cases, Centrelink will refer the client to a contracted external agency.
child support agency
Court orders and agreements | Accuracy of advice | Withholding and disbursement of child support funds | Emerging issues | Future directions
The Child Support Agency (CSA) was established in 1988 to administer the Child Support Scheme, which provides for the assessment, collection and disbursement of child support. The scheme was devised to enable compulsory payment of child support based on the relative incomes, earning capacities and care responsibilities 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, those Acts provide for registering child support cases, calculating child support assessments, recovering moneys owed for child support and disbursing child support payments. Payers are those parents responsible for paying child support, while payees are those parents entitled to receive child support.
In 2005–06, the Ombudsman received 1,927 approaches and complaints about the CSA, 1,891 of which were within the Ombudsman's jurisdiction (2,094 in 2004–05)—a decrease of 10%. Approaches and complaints about the CSA accounted for 11% of all complaints received by the Ombudsman this year. Figure 7.5 shows the trend in complaints about CSA.
Figure 7.5 Child Support Agency complaint trends, 2001–02 to 2005–06
The main complaint themes that featured this year were about the ongoing issue of the CSA's registration and interpretation of court orders, the accuracy of its advice to parents, and its actions in withholding or disbursing child support funds. A brief description of the scope of our investigations in these areas follows.
Court orders and agreements
Although most child support assessments are made according to the formula set out in the child support legislation, some clients negotiate their own child support agreement or obtain a court order that establishes the rate of child support payable. Agreements and court orders can be registered with the CSA, and the CSA can take on the responsibility of collecting child support on behalf of the payee. At the end of June 2005, 5.3% of all active child support assessments were based on agreements or court orders (up from 4.6% at June 2004).
In the Ombudsman's 2004–05 annual report, we drew attention to errors in registering agreements or court orders and failures to properly inform clients of the effect (or lack thereof) that particular provisions would have on their child support arrangements. These issues continue to be the subject of many complaints to the Ombudsman.
In one complaint that we investigated the payee claimed that the CSA had failed to correctly advise him in advance of its interpretation of a clause in a private child support agreement between him and his ex-wife. The parties had included a provision in their agreement that allowed either parent to withdraw from the arrangement if they were dissatisfied. This provision required the withdrawing parent to indicate their intention during a certain period at the end of each financial year, but did not clearly state to whom the written notification should be given.
In line with his understanding of the terms of this arrangement, the payee wrote to the CSA, advising of his intention to withdraw from the agreement and asking that an assessment under the child support formula be generated. The CSA subsequently advised the payee that his letter did not meet the requirements of the agreement, as he was required to advise the payer (as the other party to the agreement) rather than the CSA. By the time the payee received this advice, the allocated withdrawal period had lapsed and the payee was therefore unable to withdraw from the agreement for another year.
The payee lodged a claim with the CSA for compensation, and later complained to the Ombudsman when the CSA refused that claim. It may be that the CSA's interpretation of the relevant agreement was not unreasonable, yet the complaint nevertheless enabled us to highlight with the CSA the importance of clarifying the intention and practical impact of court orders and agreements at the time of registration, rather than some months or years later.
Accuracy of advice
The CSA had 732,634 active cases at 30 June 2005, 47.8% of which were registered for collection of child support by the CSA. With so many active cases to handle, CSA officers are responsible for providing written and verbal advice to a significant section of the Australian community.
In 2005–06, the Ombudsman received a number of complaints about the accuracy of the advice provided by the CSA and the impact of this advice on the recipients. Two common themes in the complaints were that the CSA was alleged to have provided incorrect advice about the operation of the child support scheme or had failed to provide adequate advice about a client's child support responsibility.
In one investigation, the payer's tax refund had been intercepted by the CSA so that the money could be applied to reduce her child support arrears. When she later contacted the CSA to request that the money be returned to her on the basis of hardship, she was advised by the CSA client service officer to obtain a stay order to prevent the CSA from disbursing the money to the payee. She proceeded to seek legal advice and file the appropriate applications, incurring the related costs. When she advised the CSA of her progress in this matter, she was advised that the money had already been disbursed to the other parent.
The advice to this payer to obtain a stay order was incorrect, as a stay order can only be obtained when a change of assessment or departure order application is in progress. The client service officer should have invited the payer to provide details of her assets and liabilities and request the CSA to consider releasing all or part of her refund on the basis of hardship. Such a request would then have been considered in accordance with the CSA's procedural guidelines.
As a result of the Ombudsman's involvement in this matter the CSA offered to reimburse the payer for her legal costs, under the Compensation for Detriment caused by Defective Administration scheme.
Withholding and disbursement of child support funds
The CSA has an obligation to collect overdue child support amounts where an appropriate source can be identified and to disburse these amounts to payees. The CSA can, however, decide that it is appropriate to negotiate the refund of some or all of a collected amount to the paying parent on the basis of demonstrated hardship. In some instances it has been the CSA's practice to place a 'hold' on the payment to prevent it from being disbursed until the CSA has considered the payer's hardship application.
During the year, the Ombudsman received a number of complaints about this issue. These complaints came both from payees (who were unhappy their disbursements had been delayed) and from payers (who complained that the CSA had disbursed payments to payees despite an oral agreement to delay them while considering a hardship request).
In the course of investigating these complaints we became aware that the CSA's current policy of delaying disbursement pending the determination of hardship requests is contrary to the payment provisions of s 76 of the Child Support (Registration and Collection) Act 1988. The Act clearly states that, on or before the first Wednesday following the end of the month, a payee is entitled to receive any collected amount that is owed to the payee. There is no provision in the Act for a payment to be delayed for any reason.
We highlighted this issue with the CSA in early 2006, and we are continuing to work with the CSA to identify an appropriate resolution to the current inconsistency.
Emerging issues
The Ombudsman's office cannot conduct thorough and efficient investigations unless agencies respond quickly to requests for information and documents. Although most general enquiries from our office to the CSA were addressed in a timely manner, in a small number of instances our investigation was hindered by a significant delay in obtaining information and documents from the CSA.
We also experienced some difficulties in prompting the CSA to instigate internal action to remedy an identified problem.
We initiated discussions with the CSA's executive about the resolution of these issues and will continue our focus on these matters in 2006–07.
Future directions
The CSA and the child support scheme was the subject of much public discussion in 2005–06. In June 2005, the Ministerial Taskforce on Child Support publicly released its report, In the Best Interests of Children. The taskforce made 30 recommendations for reform to child support legislation and to the way in which the CSA delivers its services. A number of these recommendations also have implications for other areas of government including Centrelink, FaCSIA, the Attorney-General's Department, and those courts with family law jurisdiction.
The government responded to the taskforce's report in February 2006, agreeing to accept the majority of its recommendations. The first phase of changes, including an increase to the minimum weekly rate of child support and a reduced income cap for high earners, take effect from 1 July 2006. Another reform to be implemented in January 2007 is that decisions made by the CSA will be subject to review by the Social Security Appeals Tribunal. Most significantly a new child support formula will be implemented from 1 July 2008.
It is unclear at this stage what, if any, effect the child support reforms will have on the number or type of complaints to the Ombudsman's office. As with any substantial legislative change, it is possible that in the early years there will be an increase in complaints while parents adjust to the new child support regime. We will track the progress of these changes and ensure our staff are given training on the technical changes to the child support law and on the CSA's new service delivery model.
defence
Department of Defence | Australian Defence Force | Department of Veterans' Affairs | Defence Housing Authority
Complaints relating to 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 Department of Veterans' Affairs (DVA), the Defence Housing Authority (DHA) and Defence Service Homes.
We received 750 Defence-related approaches and complaints, 690 of which were within the Ombudsman's jurisdiction (662 in 2004–05). Table 7.1 shows the trend in Defence complaints.
Table 7.1 Defence-related approaches and complaints, 2003–2004 to 2005–06
Department of Defence
We received 121 approaches and complaints about the Department of Defence (125 in 2004–05). The relative stability in complaint numbers observed over recent years has continued. Importantly, the proportion of protracted and older complaints has been reduced, reflecting action taken by the department to improve access by Defence personnel to internal complaint-handling processes. The newly established Fairness and Resolution Branch in the department has played a key role as the conduit between operational areas and our office, facilitating the timely flow of information and monitoring and following up on complaints.
Australian Defence Force
We received 286 complaints from serving and former members about the actions and decisions of the Royal Australian Navy, the Australian Army and the Royal Australian Air Force (298 in 2004–05).
An important distinction in the work of our office in relation to ADF complaints is that we consider employment complaints if they come from people who are serving or have served in the defence forces. Types of complaints can include access to entitlements associated with conditions of service, promotion, posting, return of service obligation, termination of enlistment or appointment, pay and allowances, medical categorisation, debt management and Defence's internal handling of complaints.
The office is pleased that in the past twelve months it has been able to finalise complaints about ADF matters more quickly. By 30 June 2006, only four complaints had been open for six months or more. The improvement in our performance can be attributed to a more effective working relationship with the department and the ADF, and the department's implementation in 2005 of a number of the recommendations made by the joint Ombudsman and Department of Defence review of the effectiveness of the Redress of Grievance (ROG) process.
Review of the ADF redress of grievance system
Released in April 2005, the Review of Australian Defence Force Redress of Grievance System 2004 report recommended changes to improve the process and reduce the time taken by the ADF to investigate complaints from members. As at June 2006, the department advised that 23 of the 72 recommendations made in the review had been implemented. The other recommendations should be implemented within the agreed timeframes.
The Department of Defence took an important step in streamlining the ROG process by establishing the Fairness and Resolution Branch. The branch was formed in January 2006 by amalgamating a number of complaint agencies within the Defence portfolio—the Complaint Resolution Agency, the Defence Equity Organisation and the Directorate of Alternative Dispute Resolution.
It is encouraging to note that there has been a significant improvement in the department's handling of ROGs over the past year, with a reduction in both the number of cases awaiting allocation to a case officer and the time taken to finalise ROGs. There has also been a reduction in the number of complaints to the Ombudsman about ROG processes.
Senate inquiry into the effectiveness of the military justice system
On 5 October 2005, the government announced its response to the recommendations of an inquiry into the effectiveness of the military justice system conducted by the Senate Foreign Affairs, Defence and Trade References Committee. The then minister for defence, Senator the Hon. Robert Hill, noted that implementation of recommendations from the joint Ombudsman and Department of Defence review of the ROG process would 'improve the accountability, impartiality and timeliness of processing and monitoring'. The government also advised that a decision had been made not to create an Administrative Review Board as recommended by the committee, noting that the DFO already provides an independent and external complaint-handling mechanism for members of the ADF.
The Senate committee conducted a further hearing in June 2006 to consider the action taken by the government in response to the earlier report. The Ombudsman appeared before the committee and reported on the positive steps that had been taken within Defence during the previous year to meet many of the criticisms made in earlier reports. Much of the reform was in response to the joint review of the ROG process.
'Much of the reform was in response to the joint review of the ROG process.'
Young people in the military
In October 2005, we published a report of an own motion investigation into the ADF's management of service personnel under the age of 18.
The investigation was initiated in 2003 after several serious complaints were received from parents of young people in the ADF. The chief findings of the investigation were that:
- establishments and commanding officers require a comprehensive and unambiguous definition of the ADF's duty of care to minors so that a consistent level of care can be provided to all minors within the ADF
- many training establishments are yet to develop a culture that allows trainees to feel confident about seeking support while undergoing training
- commanding officers require support so that they can deliver appropriate care to minors.
In responding to the report, the Chief of the Defence Force (CDF), Air Chief Marshal Angus Houston AO, AFC, advised that the ADF will implement all but one of the recommendations. The recommendation that was not accepted was that the ADF analyse the costs and benefits of accepting minors for enlistment in the ADF with a view to determining whether the enlistment age should be raised to 18.
A key recommendation accepted by the CDF is the need to seek legal advice on the extent of the ADF's duty of care to minors and how that should be interpreted in service and training establishments. The CDF has advised that once the extent of the duty of care has been defined, procedural guidelines for commanding officers and training officers will be developed to meet the gap identified in current reference material.
Other recommendations, when implemented, will have a positive impact on the selection and training of instructional and support staff in training establishments, the provision and access to health services for trainees, and the capture of feedback from trainees about their experiences.
'A key recommendation is the need to seek legal advice on the extent of the ADF's duty of care to minors ...'
The CDF also announced that many of the recommendations in the report would be extended to all young members in their first year of service and not merely to those members under the age of 18. This is a pleasing response to the report.
Department of Veterans' Affairs
Services administered by DVA affect the lives of up to half a million Australians. These services include service pensions, income support supplement and allowances, disability pensions, war widows' and widowers' pensions, allowances, special purpose assistance, Defence Service Home Loans Scheme assistance and concession cards.
We received 276 approaches and complaints, 253 of which were within the Ombudsman's jurisdiction (203 in 2004–05), an increase of 25%. A continuing concern in our investigation of these complaints has been delays in receiving responses to our enquiries from the DVA.
Consequently, we have worked with the DVA to achieve more timely responses to our queries and resolution of complaints. We introduced regular monthly meetings with representatives of the DVA to discuss outstanding complaint issues. Senior Ombudsman staff discussed more complex and protracted complaints with their DVA counterparts in an effort to find a productive resolution to particularly difficult cases.
This consultation resulted in a reduction in the time taken to handle DVA complaints. By 30 June 2006, only five DVA complaints had been open for six months or more. This achievement is particularly significant given that more complaints were received in 2005–06 than in previous years.
F-111 (fuel tank) deseal/reseal programs
Shortly after the F-111 aircraft entered service with the Royal Australian Air Force in 1973, it was discovered that the sealant in the integral fuel tanks of most of the aircraft had degraded to the point that extensive maintenance was required. A program adapted from the United States Air Force was introduced requiring fuel tanks to be desealed and then resealed to correct the problem and prevent serious fuel leaks. Over the course of the next 27 years, four separate 'deseal/reseal' programs were conducted. In 2000, it was determined that the deseal/reseal processes could be damaging to the health of the individuals involved and the programs were discontinued.
As a result of the findings of a board of inquiry, the government implemented a series of health care schemes to provide treatment for personnel affected by involvement in deseal/reseal work. In August 2005, the government announced ex gratia lump sum payments of $10,000 or $40,000 for defined groups of F-111 deseal/reseal participants. The payments are in addition to assistance provided for medical treatment.
As the payment arrangements had the capacity to give rise to complaints to our office, the DVA briefed us on the mechanism used prior to the government's announcement and on how they intended to consider complaints from unsuccessful applicants. This enabled us to understand how the DVA would be assessing claims and identify any potential problems with the process before any claims were lodged.
The DVA advised that at 30 June 2006, 1,131 applications had been received and 715 had been determined. Sixty-two of the applications assessed were unsuccessful. Between August 2005 and June 2006 we received 28 complaints from unsuccessful applicants.
Decisions made under this ex gratia scheme cannot be appealed to the Veterans' Review Board or the Administrative Appeals Tribunal. The Ombudsman is not authorised to review the definitions that determine which groups of individuals are eligible for a payment (as these criteria were adopted by the Minister for Veterans' Affairs). However, we can consider the process undertaken by the DVA to determine an application, ensuring that the application has been considered thoroughly and fairly against the established criteria, taking into account all relevant information.
DVA staff have consistently demonstrated a willingness to respond quickly to our enquiries about the deseal/reseal ex gratia payment decisions, which has enabled us to finalise complaints in a timely manner.
Military Rehabilitation and Compensation Scheme
The Military Rehabilitation and Compensation Act 2004 was enacted in July 2004. All claims relating to injury, disease or death due to service in the ADF are dealt with under this Act. In 2005–06, we received a range of complaints about the processing of claims under the provisions of the Military Rehabilitation and Compensation Scheme (MRCS). Often the cause of complaint was the time the DVA took to determine a claim. Our investigations established that the delays were not generally due to the DVA's inaction. Often the processing of a claim was suspended while the DVA awaited the receipt of documentation from the claimant or the ADF. We understand that the ADF and the DVA are working to improve liaison and communication so that MRCS claims can be determined more quickly.
In one case, a member complained that his application for payment of a specific allowance had been refused. We established that while the member's claim had been correctly assessed according to the current policy, the outcome did not appear consistent with the intention of the legislation. Enquiries with the DVA and the Department of Defence confirmed that the member's claim had highlighted a deficiency in the existing provisions.
Following discussions between the DVA and the department, action was taken to rectify the deficient provisions. An additional allowance was also added to the schedule of available payments as a result of the investigation of this case.
Defence Housing Authority
The DHA is responsible for providing housing and relocation services for all 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 27 approaches and complaints about the actions and decisions of the DHA (24 in 2004–05). The majority of the complaints were about the suitability of housing provided or relocation entitlements. In most cases we were able to resolve the matter quickly through informal liaison with DHA representatives.
immigration
Complaints overview | Detention | Compliance | Reporting on people held in detention for two years or more | Referred immigration detention matters | Strengthening relationships | Feedback from complainants
The role of the Ombudsman's office in oversighting immigration changed substantially during 2005–06. The change followed the report prepared by former police commissioner Mick Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau (Palmer report). The changes stemmed also from vigorous debate in parliament and the public about the rules governing immigration detention and compliance.
The title of Immigration Ombudsman was conferred on the Ombudsman, with the responsibility of undertaking a more intensive oversight role in relation to immigration administration. The office has responded by establishing a more active program of visiting detention centres, and monitoring and inspecting immigration compliance activity.
A new function was also conferred on the office, of conducting a review of the case of each detainee who has been held in immigration detention for more than two years, and thereafter every six months for those who remain in detention. The office was also asked by the Australian Government to investigate over 200 cases in which Australian citizens or people lawfully in Australia had been either held in detention for some period or removed from Australia.
In addition to those new functions and activities the office has continued to discharge its accustomed role of handling complaints about immigration matters.
Complaints overview
The Ombudsman responded to a steady flow of complaints about immigration matters in 2005–06. Overall we received 1,300 approaches and complaints about DIMA,1,250 of which were within the Ombudsman's jurisdiction (873 in 2004–05). This represents a 43% increase on the number of approaches and complaints, and is the highest number the office has dealt with about DIMA in any one year. The probable reason for the increase is the higher profile of the office in discharging the oversight role of Immigration Ombudsman.
The team reviewing the circumstances of people who have been held in detention two years or more also handled complaints that have not been included in those statistics. Figure 7.6 shows the trend in complaints about DIMA.
Figure 7.6 Department of Immigration and Multicultural
Affairs complaint trends, 2001–02 to 2005–06
Issues arising in complaint handling
Complaints about DIMA 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 applications and citizenship processes. This year complaints about detention issues replaced complaints about migration issues as the largest category.
The office investigates a higher proportion of the approaches and complaints received about DIMA (45% in 2005–06), compared to the average rate of investigation across all Australian Government departments and agencies (35% in 2005–06). We have discussed this issue with DIMA, pointing out that Ombudsman staff will not refer a complainant to an agency unless the staff are confident that the agency's complaint-handling system is adequate to deal with the particular complaint. We recognise that a project is underway within DIMA to develop an improved complaint-handling system. It is an issue that we will continue to monitor.
The following two cases illustrate the kinds of issues that arise in the Ombudsman's complaint jurisdiction.
The investigation of a complaint about DIMA's policy on conjugal visits at immigration detention centres led to reconsideration of the policy. The complaint highlighted the lack of clear guidelines as well as the inconsistent and restrictive application of the policy. The initial response we received from DIMA was that a conjugal visit would not be facilitated where it is requested by a detainee's partner who is not in immigration detention. DIMA argued that to allow such visits might compromise the good order and security of the detention facility. After discussion of the issue at a senior level between our offices, DIMA indicated that policy and operational guidelines would be reviewed to allow for conjugal visits as part of the wider review of its visits policy flowing from the Palmer report.
Another complaint investigation concerned the detention of a husband and wife and their two children, who had their bridging visas cancelled when they went to renew them at a DIMA office. They were detained at the same time. They complained to the Ombudsman that it was unnecessary to cancel their bridging visas and detain the whole family, and that they were not given the opportunity to pick up their car or collect personal items and medication from their home before being taken into detention. The Ombudsman's investigations supported the complainants' broad claims and proposed a series of remedies, which included compensation and the waiver of debts resulting from detention.
DIMA acknowledged that the situation might have been handled with more care. The department did not reinstate the visas, but did offer to facilitate a request to waive their debts, to improve departmental officer awareness of the protocols and procedures for detaining people, and to write to the family apologising for any distress its actions had caused.
Administration of s 501 of the Migration Act
Following a number of complaints to the Ombudsman from long-term permanent residents of Australia whose visas had been cancelled on character grounds, the Ombudsman decided to conduct an own motion investigation into DIMA's administration of s 501 of the Migration Act 1958 (Migration Act). The report of this investigation was released in February 2006.
Under s 501, the Minister for Immigration and Multicultural Affairs (or delegate) can cancel the visa of a non-citizen who is unable to satisfy the minister that they are of good character, most commonly because they have a criminal record. The person can be removed from Australia after their visa is cancelled. Some of the people to whom s 501 has been applied are long-term permanent residents of Australia, who have lived here with their families since infancy and have well-established family and community ties, including parental responsibilities. They have served, or are serving, the correctional sentence imposed after conviction for their criminal activities. While our investigation did not question the underlying policy of protecting the Australian community from non-citizens who have committed serious crimes, it assessed whether the highest standards of procedural and substantive fairness were observed in cancellation decisions.
The report concluded that in a majority of the cases that were examined in this investigation, there were significant omissions or inaccuracies in the information provided to the decision maker. Given the gravity of the decisions, it could be expected that a higher standard of procedural fairness should have been observed.
'The report concluded that in a majority of the cases ... there were significant omissions or inaccuracies ...'
The investigation made nine recommendations, including that DIMA should:
- develop guidelines for sourcing the information on which to base a decision to cancel the visa of a long-term non-citizen; reliable information should be obtained on matters such as the best interests of family members, and the implications for the health of the visa holder of their removal from Australia
- develop quality assurance mechanisms to ensure consistency in the decisions made by delegates of the minister, and to ensure that visa holders are warned of the possibility of visa cancellation and have the opportunity to respond to the documents on which a decision may be based
- provide advice to government on whether s 501 should be applied to residents who came to Australia as children, have strong family and community ties to Australia, and have lived here for more than ten years before committing an offence.
DIMA agreed to the recommendations relating to procedural deficiencies in the administration of s 501 in the report and indicated that it has introduced a help desk to provide assistance to decision makers applying the relevant legal and policy framework. A 'sensitive case' register has also been developed for referring cases to senior management as early as possible in the decision-making process. DIMA advised that it was an issue for government as to when and whether s 501 should be applied to those who have lived in Australia for more than ten years.
Detention
In 2006, the Ombudsman's office expanded its program of visits to detention facilities. Visits enable us to take complaints, provide information about the Ombudsman to detainees and their representatives, resolve complaint issues, and identify emerging issues for further investigation with DIMA. Two issues that attracted special attention during our visits are mental health concerns and restrictive accommodation arrangements.
Mental health
The mental welfare of those in detention was raised often with the office during the year. Sometimes it was said that detention had exacerbated a mental health problem a person had prior to their detention; at other times it was suggested that a person's period in detention caused their mental health to deteriorate. Such issues were raised frequently with the office during its review of those who have been held in detention for more than two years. In some reports on those cases, the Ombudsman recommended that a person who had been held in detention for a long time be released and be granted a permanent visa. The person's mental illness could then be addressed in a different context to detention. We also encouraged DIMA to ensure that individuals who are released into the community after long periods of detention are provided with medical and psychiatric assistance.
In one case (reported as Immigration Report No. 36, 2006), a man who arrived in Australia by air in 1999 with his wife and three children claimed political asylum before being cleared by immigration authorities. He and his family were then detained in an immigration detention centre. His wife and children were released from detention and granted protection visas in August 2000, but the man remained in detention because of concerns about his character. He appealed the decision to the Administrative Appeals Tribunal (AAT), the Federal Court and the Full Federal Court; the Full Court upheld his appeal and sent the case back to the AAT. The AAT set aside the decision and allowed him to lodge a fresh application for a protection visa.
Ombudsman staff interviewed him in detention in late 2005. A psychiatric report received by the Ombudsman noted that the man was suffering from major depression and that 'indefinite detention and consequent separation from his wife and family contributed directly to the onset and perpetuation of psychiatric illness'. He had been placed on suicide watch many times. The medical report also spoke of the effect of his detention on his children, stating that 'their preoccupation with their father and sense of perplexity and shame about his detention limits their peer relationships ... [They] will never arrange to do anything with friends at the weekend in case they are able to visit their father'.
The Ombudsman recommended to the minister on 17 January 2006 that the man be released from detention pending any final decision on his immigration status. He was granted a permanent protection visa on 31 January 2006 and released from detention.
Restrictive detention
We continued to monitor the use of restrictive accommodation arrangements in detention facilities. As mentioned in last year's annual report, we have paid close attention to the use of the Red One compound at Baxter Immigration Detention Facility. DIMA, in collaboration with GSL (Australia) Pty Ltd (GSL), addressed many of the issues we had previously raised about Red One, in the context of developing a new generic operational procedure for 'Management Support Unit—Transfer and Accommodation'.
We welcomed this review of the operational procedures. However, we note that DIMA envisages making further changes as an outcome of a much broader review of immigration detention policy and programs following the Palmer report. We will monitor this ongoing review, as well as the use of restrictive accommodation arrangements in immigration detention facilities, including the Red One compound.
Compliance
Complaints were received this year about DIMA's use of its compliance powers, particularly the quality of information relied on to issue a search warrant, the manner in which warrants were executed and the lack of documentation by DIMA officers of what occurred. We are establishing an inspection and monitoring function to oversee DIMA's compliance activities, including its use of search and entry powers and removal operations. This will bring the oversight arrangements for DIMA more into line with oversight in other areas of government administration that involve use of coercive warrant powers.
Two cases illustrate some of the problems that can arise in compliance. In one case, a person complained to the Ombudsman that DIMA had unduly delayed responding to his complaint that its officers had behaved inappropriately at the time of cancelling the visa of his then fiancé. Our investigation of this complaint unearthed significant breaches by DIMA officers of the department's procedures concerning privacy, the visa cancellation process, dealing with conflicts of interest and pursuing prosecution action. We were also concerned with the way DIMA had dealt with the person's complaint before it was brought to the Ombudsman. We recommended improving staff awareness of the relevant procedures, strengthening mechanisms to monitor compliance with the procedures, apologising and paying compensation to the complainant, and that DIMA consider the adequacy of its code of conduct guidelines and associated procedural matters. DIMA accepted the bulk of the recommendations. Among the steps since taken by DIMA are the issuing of a comprehensive set of guidelines (National Fraud Investigations Guidelines) to all investigations staff in September 2005 and the drafting of new code of conduct guidelines.
In the second case, a community organisation complained to the Ombudsman about how one of their clients had been treated by a DIMA compliance officer. The person was initially detained for overstaying his visa. He had advised DIMA officers on a number of occasions that he feared execution if returned to his home country and that he wished to lodge an application for a protection visa. DIMA failed to provide him with the documentation, instead informing the embassy of his home country of his details and seeking to arrange return travel documents.
Following our investigation, DIMA acknowledged that it should have given him the relevant visa forms when he first requested them, which may have meant he did not have to spend almost two years in detention. Following his release on a protection visa, DIMA agreed to apologise to the complainant and direct him to the relevant compensation scheme, to draw the seriousness of the issue to the attention of departmental officers, and to review instructions to ensure that clearer advice is provided to staff.
'... DIMA agreed to apologise to the complainant and ... to draw the seriousness of the issue to the attention of departmental officers ...'
Reporting on people held in detention for two years or more
The Migration Act was amended in June 2005 to confer upon the Commonwealth Ombudsman the specific role of reviewing the cases of people held in immigration detention for two years or more. Section 486O of the Migration Act provides that the Ombudsman, upon receiving a report from DIMA, is to provide the Minister for Immigration and Multicultural Affairs with an assessment of the appropriateness of the arrangements for the person's detention.
DIMA must give its report to the Ombudsman no later than 21 days after a person has been in detention for two years. If the person remains in detention, new reports to the Ombudsman are to be prepared every six months. The Ombudsman is required to undertake an assessment, even if the person has since been released from detention.
The Ombudsman's report on a person is to be provided to the minister as soon as practicable and the minister is required to table the report in the parliament, suitably modified to protect privacy, within 15 sitting days. A copy of the report with identifying details deleted, together with the minister's tabling statement, is published on the Ombudsman website at www.ombudsman.gov.au.
The Ombudsman can use the investigation powers conferred by the Ombudsman Act. These include the powers to obtain information or documents from an agency, to interview people, and to enter premises such as a detention centre.
Each person on whom a report is prepared is given an opportunity to be interviewed and to provide additional information. Each report deals with the circumstances of a person's detention, visa claims and litigation, their health, family issues, attitude to detention or removal, problems occurring in detention, and recommendations on matters such as detention arrangements and whether the granting of a visa should be considered. The report is made available to the relevant person when the minister has tabled the report in parliament.
During the year, our priority was to prepare reports on those who had been in detention the longest, and on those who presented with mental health or other significant health concerns, or whose family members were affected directly or indirectly by their detention.
Progress on the oversight function
In July 2005, we recruited and trained new staff to discharge this function, fitted out new premises, and commenced work on initiating a tendering process to provide the office with translation, interpreting and transcription services.
DIMA initially identified 149 persons who had been detained for two years or more and an additional 77 persons who had been detained for more than 18 months but less than 24 months. In conjunction with DIMA, the Ombudsman set priorities and sought urgent reports on all people who had been in detention for a lengthy period, who suffered significant health problems, or who had a compelling reason for an early report.
We conducted our first interview with a person in detention on 29 July 2005. By the end of August 2005, we had interviewed all the people who had suffered mental health problems serious enough to cause their admission to Glenside Hospital in Adelaide. We sent the first reports to the minister on 12 October 2005. On average, we took four months to prepare a report on people within that priority group.
At the end of June 2006, we had received 235 reports from DIMA concerning 262 people who had been in detention for two years. In 65 cases we had received a second report (covering 75 people), where the person had been in detention for a further six months since the first report was received. We had interviewed 167 people, and provided reports on 70 cases. The minister had tabled responses to 66 of those reports.
Of the 66 reports containing 106 different recommendations, the minister agreed to 54 (51%) of the recommendations, disagreed with 26 (25%) and delayed making a decision on a further 25 (24%). One recommendation was no longer relevant because the person had left Australia.
Of the 26 recommendations where the minister disagreed with the Ombudsman, 12 (46%) concerned the grant of bridging visa; 11 (42%) concerned the Ombudsman's recommendation that the minister make a decision before tabling of the report in parliament; and the remaining three (12%) involved consideration of an alternative to detention, the issue of a permanent visa or the revocation of a decision to cancel a visa.
'We had interviewed 167 people, and provided reports on 70 cases.'
It should be noted that this data is an analysis of the responses in the minister's statements tabled in parliament. The Ombudsman is aware that on some occasions a decision providing a different outcome has followed the tabling statement.
Referred immigration detention matters
In July 2005, the Australian Government asked the Ombudsman to take responsibility for completing the investigation of the removal from Australia of an Australian citizen, Ms Vivian Alvarez. The investigation could be completed using the existing team that had been assembled under Mr Neil Comrie (a former Victorian police commissioner). The government also asked the Ombudsman to investigate a further 199 immigration detention cases. The Ombudsman accepted the request, and advised that these matters would be investigated as an own motion investigation under s 5 of the Ombudsman Act 1976. At 30 June 2006, a further 48 matters had been referred for investigation.
Additional staff were recruited and trained, and we first identified and investigated the most difficult and complex cases. The cases were categorised so that similar matters could be investigated at the same time to maximise efficiency, still allowing a full investigation of each individual case.
The common issue in all cases is that a person who was taken into detention was later released with their computer record marked with the descriptor 'not unlawful'. This might mean that they should not have been detained or could no longer lawfully be detained. For example, in some cases the person was an Australian citizen, or they held a visa that entitled them to live in the community, or something had occurred (such as a court case) which meant they should no longer be detained. The core issue in each investigation is whether all or any part of the person's detention was unlawful or wrongful. A subsidiary issue in some cases is whether there is a systemic problem in DIMA administration that needs to be addressed, or whether a remedy should be provided to a person who was wrongly detained.
The cases have been divided into seven categories that raise some of the following issues.
- Children in detention: was a child taken into detention when the child was an Australian citizen or lawful non-citizen, or was a child in detention released at an appropriate time, for example, when the child became a citizen on their tenth birthday by operation of the Australian Citizenship Act 1948, or when an issue concerning the child's paternity was resolved?
- Data problems: did DIMA hold incorrect or out-of-date data on a person that led either to their initial or continuing detention?
- Mental health: did DIMA detain a person because they failed to take proper account of the person's mental illness when attempting to identify the person or their immigration status?
- Validity of notification: was a person not notified of a decision in accordance with the procedures in the Migration Act and detained when the person still held a valid visa?
- Srey case: was a person taken into detention, or held in detention longer than necessary, because the decision of the Federal Court in Chan Ta Srey and Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 was not applied to their circumstances?
- Other legal issues: was a person wrongly held in detention because of some other legal misunderstanding or deficiency, or did the immigration status of a detained person change because of a subsequent legal action?
- Detention process issues: was there a procedural deficiency in DIMA administration that led to the initial or continuing detention of a person?
Progress on the referred cases
The office's initial target was to complete all the investigations by 30 June 2006. We were unable to because the investigations were more complex and time consuming than first thought and the government referred additional matters to the office. By 30 June 2006, we had published two reports; and completed the draft of one further report relating to the detention of a mentally ill person, sought comments from individual DIMA employees and submitted the draft to DIMA. We had finished investigating more than 60 individual cases and prepared them for comment by DIMA. We had also nearly completed reports relating to the categories of children in detention, data issues and mental health issues; we expect to release these reports in the first half of 2006–07.
Published reports
We published the first report, Inquiry into the Circumstances of the Vivian Alvarez Matter, in September 2005. This report found that Ms Alvarez, an Australian citizen, had been wrongly removed to the Philippines. The report made 12 recommendations, all of which were accepted by DIMA. These included recommendations to:
- redress a negative culture in the Brisbane Compliance and Investigations Office and examine whether a similar problem existed in other compliance areas in the department
- conduct a thorough and independent review of DIMA information management systems and IT training requirements
- take steps to improve departmental administrative practices on matters such as record keeping, interviewing people in detention, dealing with known or suspected mental health problems, providing health and medical assistance, and arranging the removal of a person from Australia
- investigate further whether some officers had acted in breach of the Australian Public Service Code of Conduct in relation to Ms Alvarez.
The next report, released in March 2006, dealt with the circumstances of the detention, on three separate occasions totalling 253 days, of Mr T, a mentally ill Australian citizen. Mr T's mental illness, his homelessness, and his lack of English language skills and an effective personal social support structure, all contributed to his repeated detention by DIMA and DIMA's prolonged inability to correctly identify him. Evidence gathered during the investigation revealed many of the systemic failures in immigration administration that had previously been identified in the reports into the circumstances of the detention of Cornelia Rau and Vivian Alvarez.
The report on Mr T highlighted serious problems in the management of people with a mental illness. Building on the recommendations in the Alvarez and Rau reports, the report drew attention to a number of shortcomings in immigration administration and detention management, including:
- inadequate detention release procedures, which in this case failed to ensure continuity of care upon release for a person suffering from mental illness
- poor record-keeping practices
- inconsistent and inadequate file and data system input
- a lack of understanding by officers of language and naming conventions
- deficient use of interpreters.
The practice of taking suspected unlawful non-citizens into detention on a Friday and not interviewing them until the following week was of particular concern. The Ombudsman raised this concern during the course of the investigation and DIMA immediately took steps to stop this practice. DIMA accepted all of the Ombudsman's recommendations.
Management of a frail aged visitor to Australia
Another matter that was referred to the Ombudsman was the case of Mrs Agha, a frail aged visitor from Lebanon who died shortly after attending a medical examination in Melbourne requested by DIMA. The Ombudsman investigated the administrative actions of the department in this case, following a request from the Secretary. The Ombudsman found no evidence to support a conclusion that the actions of DIMA officers constituted 'harassment', as had been claimed in some media reports.
The Ombudsman found a number of deficiencies in administration, but concluded that although the errors were not, on their own, of major concern, their cumulative effect put unnecessary stress on Mrs Agha and her family. Areas highlighted for review by DIMA included:
- adequacy of the management of health assessments at overseas posts for elderly persons seeking to travel to Australia
- adequacy of the guidelines for granting bridging visas in cases such as this, and the period for which visas are granted
- adequacy of the advice provided to visitors about conditions attached to their visa
- effectiveness of the departmental procedures for identifying matters that require urgent attention or senior management supervision.
'The Ombudsman found no evidence to support a conclusion that the actions of DIMA officers constituted 'harassment'...'
DIMA has accepted the recommendations and the Ombudsman will seek a formal progress report against each of them within six months.
Strengthening relationships
In the new Immigration Ombudsman role we have implemented an active consultation program, both within and outside government.
Over the past year we have focused on developing a positive working relationship with DIMA. We have regular liaison meetings and briefings to establish effective communication on all aspects of immigration administration and detention. We also participate in more formal arrangements that strengthen external oversight of immigration activities. Senior representatives of the Ombudsman's office are members of DIMA's Values and Standards Committee, the Detention Services Steering Committee and the Detention Health Advisory Group.
In April 2006, DIMA's Secretary issued a directive to all staff emphasising the department's focus on improving accountability in decision making:
A strategic theme of the department's work is to ensure we have 'fair and reasonable' dealings with all our clients. Being 'fair and reasonable' in DIMA is to provide clients with accurate, consistent and relevant information about our products and processes; a clear view of next steps, remaining requirements and likely timeframes, as well as options as to how they might contact us and lawful, sensible decisions based on all of a client's circumstances.
DIMA has actively sought input from the Ombudsman's office on policy and procedural changes, both in direct response to our recommendations and in DIMA's general program of reform. We welcomed the opportunity to assist the department in reviewing its operating instructions on privacy, in developing training modules for compliance officers, in commenting on the guidelines on the Minister's Detention Intervention Powers, and in clarifying the information to be provided to visitors to immigration detention facilities. We also provided advice to GSL, the operator contracted by DIMA to manage detention facilities, who requested urgent advice on the process for relocating detainees when Villawood Immigration Detention Centre was vacated briefly due to concerns about asbestos.
A similar effort has been made to engage with interest groups and non-government agencies that take an interest in immigration issues. During the year, we consulted a broad range of organisations and community groups across the country, from the Mental Health Council of Australia to Amnesty International, legal aid commissions, migration agents and refugee advocacy and support services. These consultations ensure that we have a comprehensive understanding of immigration and detention issues. They also assist us in meeting detainees who are now living in the community, and in improving public awareness of the scope and potential of the Ombudsman's role in this area.
'... we consulted a broad range of organisations and community groups ...'
Feedback from complainants
The guiding principle in ombudsman work is to be impartial and balanced in dealing with each complaint and problem that comes to the office. This is essential if the Ombudsman's findings and recommendations are to be accepted by the government and public alike.
The preceding discussion has outlined the steps taken by the office to secure government confidence in our immigration oversight work and government acceptance of the Ombudsman's recommendations. Though harder to gauge, public acceptance is equally important, especially in an area as sensitive and complex as immigration administration. This area illustrates well the maxim that at the end of every government decision or program is an individual who is affected in a unique and unscripted manner. We therefore close this section with a couple of anecdotes from the last year that provide a poignant reminder of the importance of the Immigration Ombudsman function.
We sent a copy of the report Administration of s 501 of the Migration Act 1958 as it applies to long-term residents, with DIMA's response to it, to those who were used as case studies in the investigation. One person we wrote to at the Villawood Immigration Detention Centre rang and said that he had been dealing with the issue of his visa cancellation and his removal from Australia for a number of years; he had appealed to the department, the AAT and the courts; and they had all rejected his claims. He had given up hope; even his solicitors could not do anything for him. He thought no-one cared about what happened to people like him and that there was nowhere he could turn for assistance. He said that as he was reading the report, he felt for once that there was someone out there who understood the issues, who cared about the plight of people like him, and who was willing to investigate the issue.
Another person who had been detained for many years was admitted to hospital with major depression with psychotic features, anxiety and complex post-traumatic stress disorder. On 9 December 2005, the Ombudsman recommended in a two-year detention report that the minister use her discretion under the Migration Act to decide that the person not be returned to an immigration detention facility. The minister tabled the Ombudsman's report in parliament on 28 March 2006; two days later a decision was made to allow him to live in the community on a residence determination while a decision was being made about his permanent status in Australia. He rang the Ombudsman's office to thank us for the report, saying that it was honest, kind and just. He was pleased that the report picked up the issues he had been talking about for years.
law enforcement
Australian Federal Police | Australian Crime Commission | Monitoring and inspections activities
This section provides an overview of the work of the Ombudsman's office in oversighting the Australian Federal Police (AFP) and the Australian Crime Commission (ACC). Table 7.2 lists the areas of law enforcement that come within the Ombudsman's independent complaint and oversight role and the legislative underpinning for each role.
Table 7.2 Legislative basis for Commonwealth Ombudsman oversight of law enforcement activities
The Ombudsman continued to deal with complaints from members of the public against the actions of the officers of these law enforcement agencies. We also started a number of special investigations, conducted jointly with the AFP Commissioner. The Ombudsman was also closely involved in developing legislation to modernise the AFP complaint-handling system.
Australian Federal Police
During 2005–06, most of the Ombudsman's law enforcement work involved complaints from members of the public about the conduct of AFP officers. Many of these complaints arose from the AFP's community policing role in the ACT. 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).
Another significant area of complaint was the conduct of the Australian Federal Police Protective Service officers, arising from their higher security profile at Australian airports. A small number of complaints were also made about the conduct of AFP and Protective Service officers in their international deployment role in Solomon Islands and Papua New Guinea.
The complaints about community policing, airport security and international deployment reflect the high level of public contact involved in those areas of policing. The highest frequency complaints about the AFP, in its national and international policing roles, involved issues of:
- surveillance or unwarranted scrutiny
- rudeness at Australian airports
- property handling
- disclosure of information
- excessive use of force
- requests for compensation.
Many of the complaints about these issues were resolved without the need for an investigation, or were not substantiated on investigation.
Complaints about the AFP are managed under the Complaints (Australian Federal Police) Act 1981 (Complaints Act). The Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 will replace the Complaints Act. This is discussed further under 'The Fisher reforms'.
Complaints
In 2005–06, we received 801 complaints about the conduct of the AFP, 769 of which were within the Ombudsman's jurisdiction (696 in 2004–05), an increase of 10%. We finalised 723 complaints (751 in 2004–05). Figure 7.7 shows the trend in complaints about the AFP.
Figure 7.7 Australian Federal Police complaint trends, 2001–02 to 2005–06
Fluctuations in complaint numbers have occurred over the past seven years and are not easily explained. However, some of the increase can be attributed to a steady rise across the range of national complaints, with a small number of international complaints due to the AFP's ongoing commitment to overseas deployments. Further complaints may have arisen from the increase in AFP staffing numbers during the year.
Security vetting
Some complaints received by the office this year raised the question of whether security-vetting methods employed by the AFP accord with good administrative practice. We have decided to explore the matter further by conducting an own motion investigation into AFP security vetting during 2006–07.
One issue to be examined is whether there are adequate procedural safeguards in the security vetting process for those subject to an adverse decision. The AFP is responsible for processing a large number of security clearances each year, and has had to develop a streamlined vetting process to deal with the volume of work. It is nevertheless important that procedural fairness is observed in the process and that there is an opportunity for adverse decisions to be reviewed.
Another issue raised in some of the complaints to the Ombudsman is the efficiency of the vetting process in dealing with difficult issues, such as checking a person's overseas background, criminal history or personal integrity. The own motion investigation will look at whether candidates for security vetting are disadvantaged when difficult issues arise.
Practice and procedural guidelines
Regular access by Ombudsman staff to current AFP Practice and Procedural Guidelines is a necessary part of our work. The Complaints Act enables the Ombudsman to gain access to AFP documents by issuing a statutory notice, but this level of formality can be unproductive. We generally rely on agencies to make documents available without a formal notice.
During 2005–06, the AFP was reluctant, and in some cases refused, to provide copies or access to relevant AFP Practice and Procedural Guidelines without a formal notice. The Ombudsman wrote to the AFP in April 2006, pointing to the need for ongoing access by Ombudsman staff to documents within the AFP's Corporate Governance Framework contained on the AFP's intranet. The AFP responded positively by granting two Ombudsman staff access to its intranet in June 2006. This access will enable the office to more efficiently handle investigations.
Review of management of property and exhibits
The Ombudsman conducted an own motion investigation in 1999 into the procedures for handling property and exhibits, following an AFP internal review. The investigation found there was a need for improved registry practices and procedures for exhibit recording and management of property and exhibits.
Following complaints received this year about the loss of property seized by the AFP, we are considering a review to assess the adequacy of the AFP's current guidelines on handling property and exhibits and how effectively changes resulting from the recommendations of the 1999 own motion investigation have been implemented.
Special investigations
Ombudsman staff are conducting two special investigations under the Complaints Act. One of the investigations is looking at the interviewing techniques used by the AFP Professional Standards when interviewing other police about conduct matters. The other investigation stems from a complaint that the AFP did not conduct an adequate investigation into a sensitive personal issue the complainant had earlier raised with the AFP.
Critical incidents
The AFP notifies the Ombudsman of all critical incidents involving the actions of AFP officers. During 2005–06, two incidents were reported to this office about AFP ACT Policing matters.
The first incident concerned the death of a young woman after she was struck by a vehicle that was being pursued by an AFP vehicle in the Canberra city centre on 30 July 2005.
It is generally not our policy to become actively involved in the investigation of critical incidents. In this case, the Ombudsman requested regular updates on the investigation due to the seriousness of the incident and community concern about police pursuits.
The regular updates allowed our office to monitor the progress of the police internal investigation and to clarify issues as they arose. The AFP also provided a copy of the final report of its investigation for our comment. We were generally satisfied with the quality of the investigation, but felt that some issues dealt with in the report required further consideration, particularly in relation to the police pursuit. The AFP agreed and took up those issues in a revised report.
Further involvement by this office in the AFP's investigation was discontinued pending a decision by the Coroner as to whether to hold an inquiry. The Ombudsman supported the option of holding a coronial inquiry to provide a public forum where all interested parties would have an opportunity to make submissions. At 30 June 2006, the Coroner had not yet decided whether to hold an inquest.
On 23 May 2006, the AFP notified the Ombudsman of a second critical incident. It involved an intoxicated person with disabilities who was arrested under the Intoxicated Persons (Care and Protection) Act 1994 (ACT). The person sustained a broken collarbone during the intake process in the ACT's City Watch House. The Ombudsman decided not to investigate, as the AFP advised that the complainant had withdrawn the complaint. This matter is within the scope of an own motion investigation the Ombudsman is considering conducting in 2006–07 to look at current practices and procedures in relation to a number of systemic issues identified in complaints received involving the processing of intoxicated people since 2001.
Australian Federal Police Protective Services
In 2005–06, we received 36 complaints about the conduct of officers of the Australian Federal Police Protective Service (AFPPS) (46 in 2004–05). Sixty-eight per cent of the complaints were about issues arising at airports, which may be related to the higher visibility of AFPPS officers at airports due to increased security measures.
There was a matching increase in the number of complaints made about some other Australian Government agencies with a role in managing Australian airports. Many of the complaints stemmed from the increased scrutiny of the public at airports by public and private sector security personnel. An issue that we highlighted, and that we have taken up in a separate own motion investigation, is the effectiveness of complaint handling at airports. There is further discussion of this own motion investigation in Chapter 9—Problem areas in government decision making.
The Fisher reforms
The Australian Parliament recently enacted major reforms to the AFP complaint-handling system, which flow on to the Ombudsman's current role in overseeing complaints about the conduct of AFP members. The reforms are contained in the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006, which passed through parliament on 23 June 2006 and is awaiting proclamation.
The Act is 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 in dealing with professional standards issues the AFP adopt a managerial model, or administrative approach, with a greater emphasis on performance management and changing poor behaviour. The Ombudsman was consulted on the reforms and supported the introduction of the new complaint-handling model in the Act.
The reforms streamline the current system. At present, the Complaints Act requires all complaints from members of the public to be dealt with jointly by the AFP and the Commonwealth Ombudsman. This has resulted in disproportionate resources being allocated to minor complaints, and causes delay in the resolution of more serious matters. It is also likely to mislead people into thinking that the Ombudsman has been more actively involved in conducting an investigation than is sometimes the case.
The new model removes the requirement for joint handling of all complaints. AFP line management will deal with minor matters, providing a faster and more efficient method for resolving these issues. The AFP will notify the Ombudsman's office of more serious complaints, allowing us to decide whether to become further involved in their resolution; the AFP will have primary responsibility for resolving the complaints. The categorisation of complaints into minor or serious matters will be agreed by the AFP Commissioner and the Ombudsman and set out in a legislative instrument to be made under the new Act.
The Act designates the Commonwealth Ombudsman as the Law Enforcement Ombudsman. In this role, the office will oversee complaint handling and conduct issues in the AFP and investigate more serious conduct issues.
'The Act designates the Commonwealth Ombudsman as the Law Enforcement Ombudsman.'
The new model also requires the Ombudsman to audit the records of all AFP complaints on at least an annual basis. During the first few years of the new system, we will conduct more frequent audits. This new auditing obligation will ensure that the quality of AFP complaint-handling procedures is assessed and reviewed on a regular basis.
It is anticipated that the increased flexibility of the new system will allow the Ombudsman's office to increase its focus on serious complaints and allow more time to undertake own motion investigations into systemic issues arising in the AFP.
AFP powers to combat terrorism
Amendments to the Australian Security Intelligence Organisation Act 1979 (ASIO Act) allow police to enter and search property to arrest and detain persons on behalf of the Australian Security Intelligence Organisation (ASIO). Those amendments to the ASIO Act preserve the complaint role of the Commonwealth Ombudsman under the Complaints Act, by confirming that a person taken into detention can complain about the actions of AFP members.
We received one complaint in 2005–06 under these new provisions. Our initial enquiries with the AFP identified that the complaint related to issues involving the NSW Police, and the matter was referred to the NSW Ombudsman for attention.
Anti-Terrorism Act
In November 2005, the Ombudsman and the Inspector-General of Intelligence and Security provided a joint submission to the Senate Inquiry into the Anti-terrorism (No 2) Bill 2005. The joint submission recognised their shared interest in oversighting law enforcement and security intelligence activities that have a potential to infringe the liberty of individuals or adversely affect them.
In May 2006, the AFP briefed the Ombudsman on new procedures to be adopted in relation to Control Orders and Preventative Detention Orders contained in the anti-terrorism legislation that was enacted in June 2004. That legislation likewise preserves the right of any person detained under the preventative detention provisions to contact the Commonwealth Ombudsman under the Complaints Act.
The AFP has produced a document setting out an individual's rights that will be handed to all detainees and persons subjected to Control Orders. These rights will include contact telephone numbers for the Commonwealth Ombudsman on a 24–hour basis.
Australian Crime Commission
Complaints about the ACC are managed under the Ombudsman Act. While the ACC is not required to proactively report complaints to the Ombudsman's office, we continue to have an open working relationship with the ACC. The ACC notifies the Ombudsman's office about significant matters, allowing us to consider whether further investigation by Ombudsman staff is warranted.
In 2005–06, we received nine complaints about the ACC (12 in 2004–05). While we are not obliged to refer all complaints to the ACC, it was highly responsive to the complaints that were referred.
One complaint we investigated involved a registered informant. The complaint related to an agreement between the informant and the agency about security measures for the informant. The complainant believed that the ACC had not met the requirements of the agreement. The ACC advised us that the offer made to the registered informant in the agreement was still valid, but due to communication difficulties between the ACC and the informant, the matter remained unresolved. We advised the informant that the offer was still open. The ACC has advised us that the security measures are now being put in place.
Monitoring and inspections activities
Significant new functions were added to the Ombudsman's inspecting functions of monitoring law enforcement agencies' compliance with specified legislation. These arose from the passage, firstly, of amendments to the Telecommunications (Interception) Act 1979 (renamed the Telecommunications (Interception and Access) Act 1979) (TI Act) and, secondly, of legislation to establish an office of Law Enforcement Integrity Commissioner (Law Enforcement Integrity Commissioner Act 2006). The office made submissions about both pieces of legislation to the Senate Legal and Constitutional Legislation Committee.
'Significant new functions were added to the Ombudsman's inspecting functions ...'
The amendments to the TI Act authorised law enforcement agencies to access stored communications. The Ombudsman has a new function of monitoring and reporting on agencies' compliance with the procedures governing that new power. As there is a greater number of agencies authorised to access stored communications than are authorised to access telecommunications, the number of agencies requiring inspection by the Ombudsman's office will increase.
The Ombudsman's inspection role in regard to telecommunications interception has also been extended by the same legislative amendments to cover B-party warrants. A warrant of that type can be used to intercept a communication occurring between people who are not suspected offenders.
The new office of Law Enforcement Integrity Commissioner (LEIC) will be authorised to exercise the same coercive powers as the AFP and the ACC to undertake telecommunications interception and to access stored communications under the TI Act, to use surveillance devices under the Surveillance Devices Act 2004 and to carry out controlled (covert) operations under Part 1AB of the Crimes Act 1914 (Crimes Act). The use of those powers by the Commissioner will be subject to regular inspection and monitoring by the Ombudsman's office.
Passage of the Building and Construction Industry Improvement Act 2005 brought to an end the Building Industry Taskforce and the function of the Ombudsman under the Workplace Relations Act 1996 to review the use of coercive powers by the taskforce. We conducted a final review of the taskforce's use of coercive powers before it ceased to exist. The new body that replaces the taskforce, the Australian Building and Construction Commissioner, will be subject to the jurisdiction of the Ombudsman in the same way as other Australian Government agencies.
The office's monitoring and inspection role now encompasses:
- telecommunications intercepts by the AFP, ACC and LEIC
- access to stored communications by the AFP, ACC, LEIC and other Commonwealth and State law enforcement agencies
- use of surveillance devices by the AFP, ACC and LEIC and, in some instances, use of Commonwealth powers by State law enforcement agencies
- controlled (covert) operations by the AFP, ACC and LEIC.
Telecommunications interceptions
Under the 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 to which the agencies have complied with the provisions of the Act. A report on these inspections is then presented to the agency and to the Attorney-General. Reports on the results of the inspections undertaken in 2004–05 were presented to the Attorney-General in September 2005.
We carried out two inspections of each agency in 2005–06. The reports provided to the agencies after each inspection concluded that generally there was a high degree of compliance with the detailed record-keeping requirements of the TI Act. We made recommendations after each inspection and both agencies implemented a range of measures aimed at improving compliance.
Surveillance devices
The Surveillance Devices Act 2004 came into operation in December 2004 and a program of two inspections each year for law enforcement agencies was commenced in 2005. The first inspections of records under the Surveillance Devices Act were held at the AFP in October 2005 and at the ACC in November 2005.
Although we identified some compliance issues, overall there was a satisfactory level of compliance, particularly taking into account the challenge faced by both the AFP and the ACC to settle procedures under the new regime within a short time. It was apparent that the ACC, in particular, had done a considerable amount of work to ensure that their law enforcement officers complied with the Act.
Both the AFP and the ACC responded positively to our recommendations to amend templates or procedures to ensure compliance.
We conducted further inspections of surveillance device records at the ACC in February 2006 and the AFP in April 2006.
Controlled operations
Controlled operations can be broadly described as covert operations carried out by law enforcement officers under the Crimes Act 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 behaving unlawfully if they take part in controlled operations without a controlled operations certificate.
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 adequate. At present, relatively low numbers of controlled operations are undertaken in the federal law enforcement arena.
During the year, we conducted four inspections of controlled operations records, two at the AFP and two at the ACC. We found that both agencies are generally complying with the requirements of the Crimes Act and providing comprehensive information in formal reports. We provided reports on the inspections to both agencies, and briefed the Parliamentary Joint Committee on the Australian Crime Commission.
An annual report on controlled operations for 2004–05 was presented to parliament in November 2005.
other agencies
Department of Employment and Workplace Relations | Telstra corporation | Australian Securities and Investments Commission | Department of Foreign Affairs and Trade | Australian Customs Service | Department of Health and Ageing | Insolvency and Trustee Service Australia | Department of Families, Community Services and Indigenous Affairs
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 2,451 (14%) of the approaches and complaints we received within our jurisdiction in 2005–06 related to 90 Australian Government agencies.
The consistently high numbers of approaches and complaints about some agencies has resulted in their being included in our 'top ten other agencies' for several years (Table 7.3). Although FaCSIA does not make the top ten list, we comment on some noteworthy issues raised in complaints about it.
Table 7.3 Approaches and complaints received within the Ombudsman’s jurisdiction about top ten other agencies 2003–04 to 2005–06
Common themes in the complaints we receive about most agencies are to do with matters such as record keeping, oral advice and agency complaint handling. We also receive a rich diversity of complaint issues about government. The diversity of the issues illustrates the challenge that government agencies face in maintaining a high standard of administrative practice and service delivery. This section provides some examples.
Department of Employment and Workplace Relations
We received 394 approaches and complaints within the Ombudsman's jurisdiction about the Department of Employment and Workplace Relations (DEWR). We finalised 376 approaches and complaints, which contained 388 issues. Issues about employment programs managed by DEWR, primarily the Job Network, accounted for 176 (45%) of the 388 issues finalised in 2005–06. This compares to 152 (41%) in 2004–05. The increase in complaint numbers is not statistically significant in the context of the scope of activity in the Job Network program, but it is an issue that we will monitor in 2006–07. The introduction of the Welfare to Work initiative on 1 July 2006 makes it all the more important to keep an eye on complaint trends in this area.
In our last two annual reports, we reported on the steps taken by DEWR to address systemic problems we had identified about the administration of the General Employee Entitlements and Redundancy Scheme (GEERS). The number of approaches and complaints about GEERS has declined markedly in the past year: 121 issues (31%) of the 388 DEWR complaint issues finalised (163, or 44%, in 2004–05).
The decline in GEERS complaints follows the introduction by DEWR of improved processes that addressed identified problem areas. An important step was an improvement in the detail provided to applicants in decision notification letters.
There was also an increase (though small in overall terms) in the number of complaints about Trades Recognition Australia (TRA). TRA provides international skills assessment for people intending to migrate to Australia and domestic skills assessments for Australian residents. The increase in complaint numbers may stem from an Australian Government decision to increase the targets for skilled migration, which led to a significant increase in the number of applications TRA processed in 2005–06.
One of the main areas of complaint about TRA has been its delay in processing applications. During the year, TRA streamlined its assessment processes and delay is no longer an issue of concern for our office. We will continue to monitor developments in complaint issues, as we expect the trend of increasing complaint numbers to continue in 2006–07 as TRA processes a large number of applications.
Telstra corporation
While the Commonwealth Ombudsman retains jurisdiction over Telstra, we have investigated very few Telstra complaints since the introduction of the Telecommunications Industry Ombudsman (TIO) scheme. Most approaches to our office about Telstra relate to disputes over billing, contracts, faults or customer service. Generally, we advise a person complaining about Telstra to raise their concerns with the TIO. (In 2004–05, the TIO received 78,915 complaints about telecommunication suppliers.)
The Ombudsman receives a small number of complaints about Telstra that fall outside the charter of the TIO. One example was a complaint about Telstra's response to a '000' emergency call. In that case, the complainant was left listening to a recorded message for between four and five minutes when she called an ambulance after a child was rescued unconscious from a swimming pool.
The child survived the accident, and although Telstra provided the complainant with an apology, she wanted to ensure that such a delay did not occur again. In response to our investigation, Telstra advised that the delay was a result of an unprecedented demand placed on the '000' service because of bushfires in South Australia. We were able to provide the complainant with specific details about the delay and the steps Telstra had taken to address the problem. The complainant was satisfied that the delay was an isolated incident and that Telstra was doing what it could to ensure a reliable emergency call service.
'We were able to provide the complainant with specific details about the delay and the steps taken to address the problem.'
Australian Securities and Investments Commission
Most complaints we receive about the Australian Securities and Investments Commission (ASIC) fall into two broad categories: complaints about ASIC's company registry functions under the Corporations Act 2001; and complaints about the way in which ASIC discharges its role as corporate watchdog, particularly regarding the investigation of alleged breaches of company law.
Registry function complaints
A common ground of complaint is that a penalty was imposed on a company for failing to pay an annual review fee or other charge. Although ASIC has to impose a late fee, in certain circumstances it may waive the fee on application by the company affected. It is a prerequisite for waiver that the circumstances leading to the fee being imposed were beyond the control of the company or its officers or agents.
In some cases, companies have complained to us that a penalty was imposed for non-payment of a fee, even though the company had not received an invoice for the fee. In response to our enquiries, ASIC advised that annual fees are payable on a company's annual review date regardless of whether a reminder or invoice is sent, and that it is the company's responsibility to be aware of its review date and pay any fees due accordingly. We have concluded that, generally speaking, this interpretation of the relevant legislation is reasonably open to ASIC.
A number of complaints arose from the changes to the company reporting rules in the Corporations Legislation Economic Reform Program (CLERP) 7 reforms of 2003. Some people complained that they were charged a penalty for failing to provide information that they had provided before 2003. Before the CLERP 7 amendments there was no requirement for ASIC to record details of some matters. That requirement was imposed in 2003 and, consequently, companies had to submit this information again.
In response to our queries, ASIC explained that a penalty was imposed on a company if it failed to respond to a notice requiring it to submit the information again. The fact that a company had provided information in the past did not excuse it from responding to a notice requiring it to provide the information again. As in the case of penalties for non-payment of fees, it was open to the affected companies to apply to ASIC for waiver of those penalties. This could occur where a company was able to show that the failure to respond to a notice was outside the control of the company, its officers or agents.
Corporate watchdog complaints
We receive a number of complaints each year about ASIC declining to investigate allegations of breaches of the laws governing corporations or declining to take regulatory action in relation to such breaches.
ASIC has wide legislative discretion to decide which allegations it investigates. Often our role is to explain the nature of that discretion to complainants and the fact that it is lawful for ASIC to decline to investigate or take regulatory action even in relation to a well-founded complaint.
The statutory duty of confidentiality imposed on ASIC in relation to information acquired in the course of its functions means that ASIC is often prevented from providing full reasons to a complainant for a decision not to take action in a particular case. However, we are able to consider confidential information and, without disclosing it to a complainant, satisfy ourselves that an ASIC decision was reasonably open to it in the light of all the information in its possession. We are then able to advise a complainant that, although we cannot disclose ASIC's reasons, we have conducted an impartial review of the decision-making process.
One example is where a company in the financial services market had been the subject of regulatory action about the way it presented information in its product disclosure statement (PDS). The company complained that it had reported a competitor to ASIC for presenting information in a similar way in its PDS. ASIC declined to take regulatory action against the competitor, which the complainant considered to be unfair treatment. We sought an explanation from ASIC for its differing decisions in two apparently similar sets of circumstances. We were unable to advise the complainant of the confidential explanation provided by ASIC, but could advise that our independent review of the basis for ASIC's decision confirmed that it was within the limits of the broad discretion given to ASIC by legislation.
Department of Foreign Affairs and Trade
The great majority of complaints we received about the Department of Foreign Affairs and Trade (DFAT) related to the cost, processing and identification requirements for passports. The increase in complaints in 2005–06 appears to be linked to the introduction of the Australian Passports Act 2005 and the Australian Passports (Application Fees) Act 2005, which came into effect on 1 July 2005.
Passport complaints
A significant number of complaints were received from women who had been married for more than 12 months and sought to have a passport issued in their married name. The women had been charged a fee by DFAT to process their request even where they held a valid passport in their maiden name. The Australian Passports Determination 2005 provides that a fee can be waived or refunded if an application for a new passport is made within one year of the person's marriage.
A common criticism in these cases was that the person had not been told that a fee would be charged when they applied for a passport in their married name or when they made a preliminary inquiry with DFAT. Nor were they notified of the fee on the passport application form. In response to our enquiries, DFAT advised that their staff had been well informed about the legislative changes, which were also included on the passport website. The passport application form in circulation from that date made it clear that the applicant needed to contact DFAT to discuss possible waiver of fees. Because of the complaints about this issue, changes were made to the application form to provide additional information to people in this situation.
Other complaints to our office were about a range of passport issues, including the non-refundable nature of fees for passport processing in general; the issuing of passports to children and the involvement of estranged parents in this process; problems with meeting identification requirements; the cost of replacing a lost or stolen passport even where the original is subsequently located.
The new passports legislation in 2005 resulted in more stringent proof of identity requirements for passport applicants. We received a number of complaints about DFAT's refusal to accept a person's birth certificate as proof of identity where the person had changed their name since birth. In these cases the person must register their new name with the births, deaths and marriages authority in their state or territory and provide relevant documentation with their application form.
Foreign staff entitlements
We resolved a long-running and complex investigation about the entitlements of local staff employed by DFAT at an Australian embassy. A locally employed staff member at the Australian Embassy in Belgrade complained to the Ombudsman that he and other former Belgrade staff were receiving less retirement income from the Serbian state social security fund than they should have received, because of DFAT contributions to the fund.
DFAT explained that the locally employed staff had received additional assistance in the context of the hyperinflation gripping the former Yugoslavia during the Balkan wars of the 1990s; the trade-off was that DFAT made a reduced level of contributions to the former Yugoslav state fund. Further, some of the former staff had signed a 'no further claims' declaration at the time they left DFAT service.
The investigation was complex, and resulted in a recommendation that DFAT institute a mechanism to assess whether the additional assistance rendered to locally employed staff in the 1990s balanced any long-term losses in retirement income. Among the issues that arose in the investigation, but which did not need to be finally resolved, were whether DFAT was required either by Serbian law or by Australian law to make a higher level of contribution; and whether the 'no further claims' declaration would be effective under Australian legislation.
After obtaining legal advice and actuarial assessments, DFAT offered to settle the claim by providing a supplementary lump sum pension payment to affected current and former staff. This affected staff employed by DFAT, DIMA, Austrade and Centrelink. DFAT has set aside funding (around $2 million) to cover accrued liabilities for current and former staff.
Australian Customs Service
The most common cause of complaint about the Australian Customs Service was passenger processing at Australian airports. In particular, Customs searches, questioning of travellers and the seizure of goods were frequent sources of complaints. The imposition of duties or taxes on goods brought in by arriving passengers also accounted for many complaints.
In November 2005, the Ombudsman commenced an own motion investigation into complaint handling at Australian airports. Customs participated in a workshop, facilitated by our office, in February 2006, aimed at sharing information and ideas about how Australian Government agencies can work together to improve complaint handling in Australian airports. Further details are included Chapter 9—Problem areas in government decision making.
'... the Ombudsman commenced an own motion investigation into complaint handling at Australian airports.'
Department of Health and Ageing
During the year, the Ombudsman finalised his view on a long-running investigation about a New South Wales aged care provider's refusal to refund an accommodation bond to the estate of a deceased resident of the facility unless probate was obtained on the will. It is not compulsory to obtain probate on a will in New South Wales and the executors of the will chose not to do so. The Aged Care Act 1997 (Aged Care Act) did not oblige the provider to require probate prior to repayment, and the provider's refusal to repay the balance within two months of the death of the resident may have been in breach of their responsibilities under the Act at that time.
The Department of Health and Ageing is responsible for administering the Aged Care Act. The Ombudsman therefore took the view that the department was obliged to address the impasse reached by the parties. Further, a determination had been made by the Commissioner for Complaints under the Aged Care Complaints Resolution Scheme that the provider was in breach of the Aged Care Act in not repaying the bond.
The department advised that it had been in contact with the aged care provider, which had proposed a means of resolving the impasse that had been rejected by the executor. After considerable further correspondence between the Ombudsman and the department, the department and the provider, and the complainant and all parties, the provider agreed to repay the bond without probate being obtained. (Although there is continuing discussion about the conditions of repayment between the executor and the provider.) The Ombudsman formed the view that DHA's decision not to impose sanctions created a delay in the resolution of the impasse between the two parties.
A recent amendment to the Aged Care Act specifically allows aged care providers to require that probate be obtained before bond monies will be released. The Secretary of the department advised the Ombudsman that the department would remind providers of aged care services that the law requires that an accommodation bond agreement must specify that probate will be required before release if the provider proposes to insist on this procedure. We have also been advised that the department will normally regard any failure to draw this provision to the attention of the signatory as a breach of the provider's responsibility under s 56–1(1) of the Aged Care Act.
The Ombudsman has accepted that these steps will reduce the likelihood of similar situations arising in the future.
Insolvency and Trustee Service Australia
We received a number of complaints about the administration of personal insolvency law by the Insolvency and Trustee Service Australia (ITSA). These complaints were generally made by people in bankruptcy who alleged that the actions of ITSA were unreasonably harsh or that their fees were too high. Many of the complaints were resolved by an explanation of the legal framework in which bankruptcy operates.
One complaint we received was about ITSA's regulation of the activities of a private trustee in bankruptcy. In that case a trustee did not take action to recover funds allegedly transferred by the bankrupt to defeat creditors because there were insufficient funds to support legal action. We explained that it was reasonable for ITSA to take the view that the trustee in bankruptcy was justified in not taking court action in these circumstances.
Department of Families, Community Services and Indigenous Affairs
Although it is not part of the Ombudsman's role to investigate or take issue with government policy in a broad sense, we can investigate whether legislation is being administered correctly or has unintended or unfair consequences. As a result of complaints by Centrelink customers in 2005–06, we pursued a number of issues of that kind with FaCSIA.
Among the issues were the delayed payment of the family tax benefit supplement, unfair outcomes under the assets test, and assessment of marriage-like relationships.
Delayed payment of family tax benefit supplement
We approached FaCSIA about information in its 'Guide to the Family Assistance Law' relating to the timing of payments of the family tax benefit supplement. We received a complaint from a person who had separated in the last twelve months in circumstances involving domestic violence. The FaCSIA policy guideline relating to payment of the family tax benefit supplement requires a customer in these circumstances to wait until their former partner has lodged their tax return or until 31 October, whichever is the earlier.
As the complainant's former partner had not lodged his tax return within the lodgement period, the family tax benefit supplement was based on an estimate of his income and was paid after 31 October. The Ombudsman's investigation established that the complainant was legally entitled to have received her supplement several months earlier in July, when she was trying to find suitable accommodation for herself and the children.
Based on our approach, FaCSIA agreed to properly align the guidelines and procedures with the provisions of the law, which allow for the supplement to be paid as early as July where the person meets all qualifying criteria.
'... FaCSIA agreed to properly align the guidelines and procedures with the provisions of the law ...'
Towards the end of 2005–06, concerned that no changes had been made, the Ombudsman urged FaCSIA to resolve the matter. FaCSIA subsequently advised the Ombudsman that it had arranged to implement a short-term solution from July to November 2006. This solution allows any customer who separated in the immediate past financial year to ask Centrelink to conduct an interim reconciliation of their family tax benefit supplement entitlement to avoid having to wait. FaCSIA is working to arrange a longer-term solution that does not require customers to self-identify themselves to Centrelink staff. The solution is to be put in place by July 2007.
Unfair outcomes under the assets test
We wrote to FaCSIA about a complaint that showed how the social security law can have a variable application depending on the order in which an existing home is sold and a replacement home purchased. In this instance, the complainant purchased a replacement principal home before selling their existing home.
The social security law currently allows a person intending to replace their existing home to sell it and have the proceeds excluded from asset assessment for 12 months. The complainant delayed the sale of their existing home until after they had found a new home and took a mortgage over both properties to secure the purchase. (This often occurs when a person is buying into a retirement village or home.) Both the existing and the new home were counted as assets using the formula applied under s 1121(4) of the Social Security Act 1991, with the result that the complainant did not qualify for a benefit.
FaCSIA advised that this issue would be considered along with the overall impact of the assets test changes announced in the 2006–07 Federal Budget.
Assessment of marriage-like relationships
In June 2005, we commenced an own motion investigation into marriage-like relationships. There are several complex concepts to be considered in determining whether or not customers are in a 'marriage-like relationship' for social security purposes. The decision has a direct impact on entitlement to certain payments, rates of payment, and how income and assets tests are applied.
We have completed a draft report. We will seek comments from FaCSIA and complete the final report in 2006–07.
freedom of information
The purpose of the Freedom of Information Act 1982 (FOI Act) is to extend, as far as possible, the legal right of individuals to obtain access to documents held by Australian Government agencies. The Act also enables individuals to seek amendment of records that contain inaccurate personal information.
The FOI Act expressly empowers the Ombudsman to investigate complaints about the actions of Australian Government agencies under the FOI Act (s 57). It also requires agencies to inform applicants of their right to complain to the Ombudsman about FOI matters (s 26).
The Ombudsman's role under the FOI Act reflects the more general role of the office in promoting transparency and accountability in government administration.
Scrutinising government
In March 2006, the Ombudsman released a report titled Scrutinising Government: Administration of the Freedom of Information Act 1982 in Australian Government Agencies, which dealt with the way Australian Government agencies managed their responsibilities under the FOI Act. The report surveyed previous Australian studies of freedom of information laws and noted that there had been no response by government to many of the recommendations in those earlier studies. This included an earlier report by the Commonwealth Ombudsman in 1999, Needs to Know (available at www.ombudsman.gov.au).
The most recent Ombudsman report examined FOI administration by undertaking a case study analysis of how FOI requests were handled in 22 Australian Government agencies. Some major problem areas were identified, including excessive delays in processing FOI requests, a lack of consistency among agencies in acknowledging FOI requests in a timely manner, delay in notifying charges and inconsistencies in their application, and variable quality in the standard of decision letters, particularly regarding the explanation of why documents were exempted from access.
The report also acknowledged that there was a clear commitment to FOI in some agencies, and a high degree of compliance with the spirit and detailed requirements of the FOI Act. Drawing from these examples of good and bad practice, the report set out guidelines for achieving better FOI practice. These include clear procedures on FOI processing, close monitoring of incoming correspondence, quality control of FOI correspondence, and open communication between the agency and FOI applicants.
'The Ombudsman's report dealt with the way agencies managed their responsibilities under the FOI Act.'
Two findings stand out from the recent study: there is an uneven culture of support for FOI among Australian Government agencies; and the vitality and success of the FOI scheme depend heavily on the way the Act is administered within agencies. The report recommended that agency heads indicate a clear commitment to sound FOI practice and the objectives of the FOI Act, having regard to the kinds of good and bad practice identified in the Ombudsman report.
In the course of the report's preparation, a number of agencies wrote to express support for the review and to indicate systemic changes they had made to bring about better FOI management. Following the release of the report, the Secretary of the Department of Defence wrote commending the report and indicated his intention to release a statement, jointly with the Chief of the Defence Force, identifying the consequences of failing to manage FOI and to seek continuing briefings about the department's management of FOI requests. This is a good example to other agencies. We are aware that some other agencies are taking similar action, and one sought our advice in drafting a statement to be issued by the agency head. We will follow up this issue more generally during 2006–07.
The report also recommended (as had some previous reports from the Australian Law Reform Commission, the Administrative Review Council, and the Senate Legal and Constitutional Legislation Committee) the creation of a statutory position of FOI Commissioner. An FOI Commissioner could provide leadership in promoting the ideals of FOI, monitoring compliance with the Act, and promoting its effective operation. As well as providing more effective FOI oversight, such an office could also work with Australian Government agencies in addressing areas of administrative difficulty that sometimes arise in FOI administration. At 30 June 2006, there had been no response to this recommendation.
Complaints overview
In 2005–06, we finalised 259 complaint issues (289 in 2004–05) about the way 44 Australian Government agencies handled requests under the FOI Act.
The majority of complaint issues were about three agencies: Centrelink (25%); the Department of Immigration and Multicultural Affairs (DIMA) (15%); and the Child Support Agency (11%). The remaining 49% were about 41 agencies.
Most complaints related to delays by agencies in processing FOI requests (23%) and to the primary decision reached by agencies (21%). In cases of delay, we contacted the relevant agency about expediting a decision.
In a number of cases, the agency told the FOI applicant that it did not have a specific document that the person believed it should have. The FOI Act provides a right for an agency to refuse a request for a document that does not exist or that cannot be found. These agency decisions are reviewable by the Administrative Appeals Tribunal (AAT). Sometimes it is more expedient if we enquire of an agency whether it has made reasonable attempts to locate the document—for example, whether the agency has checked correspondence logs and asked all staff likely to have dealt with such a matter if they have any recollection of the document.
Other cases raised a familiar issue—the extent of an agency's obligation under the FOI Act to assist applicants to make valid requests (s 15(2)). An associated question is the scope of an agency's obligation to give an applicant an opportunity to consult before refusing a request on the ground of breadth or because the request does not adequately specify a document (s 24(6)).
One complaint to the office concerned a decision by an agency to refuse a request at a point where the applicant considered he was still negotiating its scope. While the agency did not accept our view that it had erred, following our investigation the agency agreed to allow the applicant to pursue the request. In a similar matter, another agency appeared to have construed an applicant's submission about the level of fees as a request for internal review and made a review decision. The general effect of the agency taking that course is that the applicant would then be restricted to an appeal to the AAT, because the applicant would have exhausted his internal review rights.
In a case received towards the end of the year, a government officer complained about the proposed disclosure of sensitive personal information about her to another officer. The agency had provided her with an opportunity to comment before making the initial decision to exempt the document from disclosure under the Act; no similar opportunity was given when a different decision to disclose the document was made on internal review. The agency's decision is now being reviewed by the AAT. We are continuing to consider some of the processing issues that led to the complaint.
Access to policy-related information
During the year, parliamentarians, their staff and journalists contacted the Ombudsman to discuss FOI issues relating to requests for policy and similar information. The Scrutinising Government report observed that the FOI Act works well in facilitating public access to personal information, but not so well in providing access to policy-related information. There appear to be two major concerns—the level of charges assessed and the involvement of ministers and their staff in relation to requests made to agencies.
The FOI (Fees and Charges) Regulations set a scale of charges, which are below the real cost to agencies of handling FOI requests. A decision by an agency to impose a charge can be challenged on internal review or before the AAT. The FOI Act also confers a discretion on agencies to waive a charge, for reasons such as hardship and the public interest. The policy of successive governments has been that FOI applicants should contribute to the costs of their requests. There is no automatic waiver for parliamentarians or journalists. Complaints to the office sometimes focus on that issue, and argue that an agency should have waived a charge because, for example, the document could have been obtained by a parliamentary committee, or the document relates to a current issue of public controversy on which there is a public interest in disclosure.
It is difficult for the Ombudsman's office to take a definitive stance on those issues, when the Act confers a clear (and reviewable) discretion on agencies to impose or waive a charge. If some of these charging decisions were challenged in the AAT, it may result in principles being established that provide better guidance.
Ministers have a proper interest in the management of government agencies within their portfolio and it will often be appropriate for an agency to consult its minister about an FOI request. In the same way, agencies often consult other agencies about possible disclosure. While a minister's views are entitled to great weight, they are not determinative of the public interest unless a conclusive certificate is issued (in relation to a limited class of exemptions). The larger issue for the Ombudsman's office is whether a decision was reasonably available to the decision maker. If so, we will usually suggest that the AAT is a better forum to decide the merits of the FOI decision.
Delays in processing FOI requests by DIMA
In 2004–05, we reported on significant delays in the processing of FOI requests by DIMA and the range of strategies DIMA was implementing to address the situation.
While the Ombudsman was satisfied that the strategies DIMA was putting in place were appropriate to get the processing of FOI requests under control in the longer term, the situation has not improved to the degree we expected over the past year. DIMA has experienced some delays in implementing its strategies, such as recruiting and training additional staff. The processing of many FOI requests far exceeds the statutory timeframe. At 30 June 2006, there were 1,101 FOI requests outside the statutory timeframe that required processing, compared to 907 at 30 June 2005. This continues to be an unsatisfactory outcome.
We are pursuing a number of specific issues with DIMA about its processing of FOI requests and will ask for more frequent reporting on progress in dealing with the backlog of cases. In the meantime, we continue to accept complaints about FOI delays and may investigate individual complaints if we consider that particular matters should be given priority or that the complaint raises a special area of concern in relation to DIMA's handling of requests.