Commonwealth Ombudsman annual report 2006-2007

CHAPTER 7 | Looking at the agencies

Introduction

The majority of approaches and complaints received about Australian Government agencies within the Ombudsman’s jurisdiction (77%) concerned the following six agencies:

This chapter focuses on particular issues that arose during 2006–07 in investigating complaints, and in dealing with the agencies more broadly. It also looks at other specialised areas of our work:

The ‘Other agencies’ section of this chapter provides information about some of the range of complaints received about other agencies.

The chapter concludes with a section ‘Monitoring and inspections’ which summarises the work undertaken for Output 2—Review of statutory compliance in specified areas.

The number of approaches and complaints we receive about specific agencies usually reflects their level of interaction with members of the public. In general, the higher the number of direct transactions an agency has with members of the public, the more potential there is for things to go wrong. While we see only a very small proportion of complaints compared to the number of decisions and actions taken by agencies, those complaints can shed useful light on the problems people can face in dealing with government and areas for improving administration. The figures given for numbers of approaches and complaints include a small number of matters that are out of jurisdiction for the Ombudsman.

Figure 7.1 shows the number of approaches and complaints received in 2006–07 about agencies within the Ombudsman’s jurisdiction. Detailed information by portfolio and agency is provided in Appendix 4—Statistics.

FIGURE 7.1 Approaches and complaints received about agencies within jurisdiction 2006–07

FIGURE 7.1 Approaches and complaints received about agencies within jurisdiction 2006–07

australian taxation office

Complaints overview | Tax environment | Complaint assisted transfer project | External project work | The year ahead

The Ombudsman has been investigating complaints about the Australian Taxation Office (ATO) since 1977 when the office commenced operation. In 1995 the Ombudsman was also given the title of Taxation Ombudsman following recommendations of the Joint Committee of Public Accounts and Audit (JCPAA), to give a special focus to the office’s handling of complaints about the ATO. The committee’s recommendations recognised the imbalance that exists between the powers of the ATO and the rights of taxpayers.

The Taxation Ombudsman is assisted by a Senior Assistant Ombudsman, a specialist Tax Team, and generalist complaint investigation teams located in our state offices. Following changes to our office’s work practices during this reporting year, the Tax Team put greater emphasis on addressing a range of general taxation administration issues, providing advice to our investigation officers on tax complaints and issues, and maintaining a productive working relationship with the ATO.

During 2006–07 we continued to build on our previous efforts to encourage review and improvement in ATO tax administration, as well as improving our own handling of complaints. A particular highlight is our initiation of an ongoing program of project work focusing on aspects of tax administration. We hope this will encourage the ATO to review its own processes where this is not already being done. We also trust this will provide a higher level of assurance about the health of the tax system.

FIGURE 7.2 Australian Taxation Office approach and complaint trends, 2002–03 to 2006–07

FIGURE 7.2 Australian Taxation Office approach and complaint trends, 2002–03 to 2006–07

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Complaints overview

In 2006–07, the Ombudsman received 1,261 approaches and complaints about the ATO, compared to 1,523 in 2005–06. We believe the continuing decrease in the number of complaints about the ATO indicates that the ATO’s improvements to its own internal complaint handling system are enhancing the handling of taxpayer complaints. The office finalised 1,272 complaints, of which 187 (15%) were investigated.

During 2006–07, we received complaints about a range of ATO activities and products, including superannuation guarantee, lodgement and processing, interest and penalty remission decisions and the conduct of audits. Complaints about ATO debt recovery action, and the accuracy, clarity and timeliness of ATO advice continued to dominate. The number of complaints arising from mass-marketed scheme decisions continued to decrease as the ATO nears finalisation of scheme settlement cases.

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Tax environment

In an increasingly complex tax environment, there will always be a need for effective review and complaint-handling mechanisms to assist individuals who consider they have been wronged in some way by the ATO. In addition to statutory objection and appeal rights regarding assessment and related decisions, it is important to have an effective system for handling complaints about the ATO to provide assurance about the health of the tax system, and to indicate where possible problems may exist or arise.

‘In an increasingly complex tax environment, there will always be a need for effective review and complaint-handling mechanisms ...’

The Ombudsman acknowledges that the ATO has worked hard to establish fair and responsive remedial mechanisms that can remedy mistakes that do occur. Very few of the complaints we examined raised concerns of broader systemic or other significance to this office, and we receive few complaints alleging institutional bias or bad faith. Most of the complaints we receive relate to ‘simple errors’, such as concerns about delay or ambiguity in ATO correspondence, accounting errors, relatively straightforward disputes about tax assessments or a taxpayer’s level of debt. Often these illustrate the difficulties people have understanding ATO processes and their own obligations. In this regard, tax complaints are no different to many other types of complaints we receive.

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Complaint assisted transfer project

Our usual practice is to suggest to complainants that they first attempt to resolve their concerns directly with the ATO because we consider the agency should have the opportunity to correct any perceived problems. To test the effectiveness of this practice we conducted a survey of tax complainants in 2005. The survey identified a low take-up rate of our advice by taxpayers.

In January 2007 we began a trial of directly assisting the transfer of tax complaints to the ATO. The objective was to assist and encourage complainants who may be uncertain or uncomfortable about complaining directly to the ATO. The assisted transfer process enables taxpayer concerns to be raised with the ATO in the most effective and efficient way possible. We also reassure complainants that they can come back to our office if dissatisfied with the outcome from the ATO.

In May 2007 we assessed the assisted transfer trial and adopted it as a standard work practice during initial handling of tax complaints. We are confident this change provides a more effective complaint service for many of our tax complainants.

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External project work

Towards the end of 2005 we implemented a forward work program of external tax projects. Those projects not completed in 2006–07 will be carried forward for completion in 2007–08, and other new projects will also commence.

Our external projects generally examine the systemic issues that arise from individual tax complaints. We aim to assess the health of specific areas of tax administration, to identify potential problem areas in ATO administration and make recommendations where appropriate.

In designing the project program, we were conscious of the work of the Inspector-General of Taxation and the Australian National Audit Office (ANAO) and have attempted to avoid or minimise overlap by identifying areas that complement their work. We aim to work closely with these oversight bodies in improving tax administration. The unique perspective that we can bring to these broader projects, gained primarily through handling individual complaints, is a balanced consideration of the impact that government administration can have on individuals.

‘Our external projects generally examine the systemic issues that arise from individual tax complaints.’

External projects we initiated and reported on during 2006–07 included release from tax debts on the basis of serious hardship, debt payment arrangements, aspects of the general interest charge, use of garnishee powers, compromise of tax debts, tax issues for Indigenous communities, review of ATO correspondence, the ATO mass communication strategy and 30% child care rebate.

External projects awaiting completion include superannuation guarantee, ATO audit activity on work-related expenses, lodgement compliance, penalties and prosecution. We also plan to commence a project on call management capability and delivery towards the end of 2007. The objective of this project is to review the effectiveness of ATO call centre operations with a focus on the ATO’s client service procedures that are designed to ensure tax officers find the right person if they themselves cannot assist a taxpayer with their problem.

We also have an ongoing outreach project focused on tax agents, to help and encourage them to raise issues of concern with this office.

Not surprisingly, debt recovery action leads to a significant proportion of complaints received about the ATO. In 2006–07 around 15% of all complaints related to ATO debt collection activities. For this reason, our external project work this year had a particular focus on aspects of the ATO’s debt collection practices.

Issues dealt with in the external projects conducted in 2006–07 are outlined below.

Debt payment arrangements

This project examined the ATO’s approach to administering arrangements to pay tax-related liabilities by instalments. In the context of overall ATO debt activities, our office receives relatively few complaints about payment arrangements. In the complaints we examined, some taxpayers perceived that the ATO was inflexible, particularly in its reluctance to agree to new arrangements following taxpayer default, and where there were changes to a taxpayer’s circumstances, including those involving compassionate or compelling personal matters.

In our report to the ATO, we recognised it is reasonable for the ATO to have regard to factors such as compliance history and risk to revenue. However, we did note that the ATO needs to continue to take care to ensure its decision-making processes provide an appropriate balance between its debt recovery obligations and the need to give genuine, proper and realistic consideration to an individual taxpayer’s circumstances. We suggested to the ATO that they may wish to consider making their guidelines more explicit in relation to the weight they afford to a taxpayer’s history of non-compliance when negotiating payment arrangements.

We also suggested that the ATO consider establishing a system for internal review of ATO payment arrangement decisions. Legislation does not provide for a formal system of objections and appeals, but it is open to the ATO at an administrative level to allow taxpayers to request review of adverse ATO decisions.

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Use of garnishee powers

Where a tax-related liability is payable, the Commissioner of Taxation may issue a notice requiring a person who owes money to the taxpayer to pay that money to the Commissioner instead. A third party is treated as owing money in various circumstances, including where that person holds money for or on account of the taxpayer—for example, a bank.

Although only a small number of our complaints relate to ATO garnishee action, we recognise that the impact of garnishee action on an individual can be significant. Taxpayers often see garnishee action as being premature, intrusive and unwelcome.

We examined the ATO’s approach taken to garnishee action as reflected in approximately 60 complaints received between July 2003 and June 2006. A public report was prepared (Australian Taxation Office: Administration of garnishee action (Report No 1/2007)).

We generally found the ATO had acted reasonably in taking garnishee action, acting only after other attempts to recover a debt had been unsuccessful.

We suggested to the ATO that it might be opportune to review its policy and practices, paying particular attention to:

‘We generally found the ATO had acted reasonably in taking garnishee action ...’

The ATO welcomed our suggestions and will consider them as part of its ongoing commitment to listen and respond to community feedback. The ATO Chief Operating Officer has arranged for the best practice capability in the Debt business line to undertake a review of their administration of garnishee action including communication activities. The aim is to develop a framework of delivery based on our suggested themes.

Compromise of tax debts

The ATO defines ‘compromise’ to mean a permanent agreement not to pursue recovery of the balance of a tax debt. The Commissioner of Taxation’s power to compromise is implied from his general responsibility to administer tax law. While we receive few complaints from taxpayers who consider that the ATO has unreasonably refused to compromise their debts, we felt that this was an area worthy of closer examination.

On the whole, we were satisfied that the ATO’s processes and guidelines around compromise were appropriate, but made two general suggestions to the ATO for improvement. We suggested that the ATO could include more and/or better explanations in its publicly available information about the nature and limits of compromise, including those circumstances where it may be considered appropriate for the Commissioner to exercise his compromise power. Secondly, we flagged that appropriately edited examples of successful compromise cases might provide useful assistance to taxpayers contemplating applying for compromise.

Administration of the General Interest Charge

The administration of the General Interest Charge (GIC) was selected as a project because it generates a significant number of complaints to our office each year. The taxation legislation gives a discretion to the ATO to remit the GIC after it has been imposed as required by legislation. A taxpayer must apply for remission. The GIC also plays a significant role across a wide range of the ATO’s activities, particularly its compliance and debt recovery programs.

The primary focus of this project was to assess our complaint data to identify key issues arising about the ATO’s administration of the GIC. We identified three discrete themes—the level of GIC and its imposition, the ‘adequacy of reasons’ in communicating remission decisions, and the provision of advice.

In providing feedback to the ATO, we acknowledged that the ATO has a difficult task administering a penalty that some taxpayers consider punitive and unjust. We also acknowledged that the ATO has established clear policies on GIC remission to guide its decision makers in the exercise of the Commissioner’s discretion to remit the GIC, and generally the ATO appears to do so fairly and reasonably.

We noted that there might be more the ATO can do to help taxpayers better understand how GIC operates, how it is imposed, and how taxpayers might seek its early remission. The knowledge that a taxpayer can seek remission at an early stage in his or her dealings with the ATO could help improve community confidence in the ATO, as well as lead to a reduction in complaints. We also encouraged the ATO to continue to develop quality assurance processes and training to ensure ATO decision makers properly understand the law and policy with respect to remission of GIC.

‘... the ATO has a difficult task administering a penalty that some taxpayers consider punitive and unjust.’

We will continue to work with the ATO to address some of the issues identified in our review and may revisit this issue in the future.

The year ahead

In 2007–08, we look forward to expanding and developing the initiatives we identified in 2005–06 and carried over into 2006–07. We will continue with a work program of internal and external projects to improve our handling and understanding of tax complaints.

centrelink

Welfare to Work | Ongoing issues | Emerging issues

Centrelink continues to be the agency about which the Ombudsman receives the highest number of approaches and complaints. This is not unexpected given the high volume of transactions and the complexity of the services and payments it provides on behalf of a number of Australian Government agencies.

As discussed in Chapter 5—Challenges in complaint handling, where a number of agencies have involvement in administering legislation, setting policy, and service delivery, it can be problematic to establish the basis of problems and their resolution—a complaint about service delivery might equally be about the policies and legislation. For this reason, a number of issues discussed in this section about Centrelink also relate to other agencies, such as the Department of Employment and Workplace Relations.

In 2006–07 we received 6,987 approaches and complaints about Centrelink, compared to 7,333 in 2005–06. This represents a decrease of 5%. There has been a steady decrease in complaints about Centrelink over the past five years, as shown at Figure 7.3 .

During 2006–07 we investigated 17% of the 6,877 approaches and complaints finalised, with the most common issues being claims for payment, cancellation or suspension of payments, and changes to payment rates.

FIGURE 7.3 Centrelink approach and complaint trends, 2002–03 to 2006–07

FIGURE 7.3 Centrelink approach and complaint trends, 2002–03 to 2006–07

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Welfare to Work

On 1 July 2006 Centrelink commenced the Government’s Welfare to Work reforms, which made significant changes to the way income support payments are administered. The reforms include stricter participation requirements and compliance measures for people in receipt of activity-tested payments such as Newstart Allowance (NSA), and new assessment processes for disability support pension (DSP) claims.

We identified some key areas of concern in complaints we have received about the implementation of the Welfare to Work initiatives. The following issues are discussed in further detail below:

Eight-week non-payment periods

Centrelink customers who receive activity tested payments—that is, who need to complete certain activities and report these to Centrelink in order to receive their payment—have always faced penalties for failure to comply. Before Welfare to Work, these penalties took the form of ‘breaches’, where a person’s payment rate could be reduced or payments could be suspended entirely or for a period of time, depending on the level of non-compliance.

Under Welfare to Work, the system of ‘breaches’ was replaced by ‘participation failures’. A ‘participation failure’ is imposed when a person does not meet one of the conditions of payment under their participation or activity test requirements, such as missing a scheduled appointment with a Provider of Australian Government Employment Services (PAGES), without a reasonable excuse. If a person has three such participation failures in a 12-month period, an eight-week non-payment period will apply, during which time the person does not get any income support payment.

There are also ‘serious participation failures’ where one event triggers an eight-week non-payment period. Serious failures include refusing a suitable job offer, voluntarily leaving employment, being dismissed from employment due to misconduct or failing to attend full-time Work for the Dole.

Centrelink’s National Participation Solutions Team is responsible for investigating the incident(s) that led to the third or serious failure, and deciding whether a non-payment period should apply. As part of the decision-making process, Centrelink staff consider whether the person facing a non-payment period meets the ‘exceptionally vulnerable’ test for financial case management (for example, has a medical condition requiring treatment or prescription drugs) or has vulnerable dependants (for example, children). If Centrelink decides that a person meets the vulnerability criteria, they may be considered for financial case management. In this case, the person’s essential expenses are paid over the course of the non-payment period by a third party community organisation or Centrelink’s financial case management team. A customer may appeal the participation failure(s) or serious failure decision(s) that have resulted in an eight-week non-payment period through the normal Centrelink appeals process, and can request continued payment pending the outcome of the review.

Not surprisingly, these forms of intervention have led to complaints to this office. In considering these complaints, we have identified broader issues about administration of Welfare to Work, and about differing interpretations of policies and procedures, that we will explore more fully as systemic investigations in 2007–08. Some of these broader issues are discussed below.

‘... we have identified broader issues about administration of Welfare to Work, and about differing interpretations of policies and procedures ...’

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Suspension of payments without making a decision

We received some complaints where Centrelink had withheld payments for eight weeks when there was only a ‘possible failure’—that is, before Centrelink had made a decision that three participation failures or one serious failure had occurred without reasonable excuse. Centrelink has advised that it will attempt to make contact by phone or letter prior to payments being withheld. In the cases investigated, the people found out that their payments had been withheld when they attempted to lodge their fortnightly forms and were told that Centrelink could not accept them as they were on a payment withholding period. When they asked why Centrelink had not notified them or how they could appeal the decision, Centrelink’s response was that a formal notification could not be issued, as a formal decision had not yet been made.

This process is a serious concern and the subject of a systemic investigation on which we will report in 2007–08.

Timeliness of decision making

In some cases described above as cases of ‘possible failure’, there has been a delay of up to eight weeks to make a decision that a person has actually incurred the third or serious failure. This can leave the person in dire circumstances. During the withholding period the person has no review or appeal rights, is unable to seek payment pending review, and is not able to access financial case management even if they might otherwise have been eligible.

Although there are clear timeliness standards for Centrelink decision-making, complaints to this office highlight instances where there appear to have been lengthy delays in decision making. Again, this is an issue we will consider more fully in our program of systemic investigations in 2007–08.

Denial of appeal and review rights

Our investigations have highlighted cases where Centrelink has withheld payments before a decision was made, and later decided that the person had a reasonable excuse for the ‘serious failure’ or ‘participation failure’ and thus should not have had their payment withheld. However, because of the delay in making the decision about whether a non-payment period should be imposed, the person concerned has been forced to survive without a basic social security payment and no means of earlier resolution, because all appeal avenues were unavailable until a ‘reviewable’ decision was made. While arrears are paid for the period that the person was not receiving a social security payment, this comes after the person has had to overcome issues such as eviction notices and loss of utilities such as electricity and telephone.

The case study Action without a decision illustrates the types of issues that can arise in relation to suspending payment without making a decision, timeliness of decision making, and denial of appeal and review rights. These are areas that we will continue to monitor closely over the next year.

CASESTUDY | action without a decision

Centrelink withheld Mr A’s income support payment following three participation failures, but before making a formal decision about whether or not the failures should apply. During this period Mr A did not have access to review rights and was not considered for financial case management for seven weeks. When Centrelink finally examined Mr A’s circumstances, it determined that he had been eligible for financial case management for the entire non-payment period due to his medical condition which required treatment with prescription medication. However, as no formal decision had been reached, the referral for financial case management had not occurred.

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Combination of non-entitlement and eight-week non-payment periods

A person can have a non-entitlement period imposed during which their payment remains unpaid until they have completed an agreed activity or requirement. For example, a non-entitlement period may be applied where a person has not contacted the required number of employers to canvass employment as agreed. Non-entitlement periods continue until the person complies with the requirements.

Continued non-compliance attracts participation failures with people potentially accumulating three participation failures during a non-entitlement period and therefore attracting the eight-week non-payment period penalty in addition. An eight-week non-payment period is generally meant to begin in the payment period immediately after the regular fortnightly payment has been made, but in some cases the non-payment period is added on to the non-entitlement period—sometimes without the person being notified as there has been no formal decision. This results in people being penalised for a total of ten to twelve weeks without any income support.

We have sought all the relevant policy and legislative documentation on the issues above from both Centrelink and DEWR. Should this information support our initial views that there are inconsistencies in policy and program delivery, the Ombudsman will report on this systemic investigation in 2007–08.

Dealing with seriously ill customers

One of the new initiatives requires that a person who applies for a Centrelink payment due to an illness or disability that prevents or reduces their capacity to engage in paid work must undertake a job capacity assessment. This assessment examines the person’s medical condition to determine what, if any, capacity they have to undertake paid employment. If the person is assessed as having the capacity to work 15 or more hours per week, they must engage in some form of work which may be voluntary, paid, or a combination of both, as part of the condition for payment. People with partial capacity will, as a rule, be granted NSA rather than a DSP.

In order to qualify for the DSP, amongst other things a person must meet three criteria—their medical condition must be treated, be stabilised and be expected to persist for longer than 24 months. The job capacity assessment is used to determine if they meet these criteria and what, if any, work capacity they have.

Approaches to this office during the year indicated that, in referring people for job capacity assessments for DSP claims, Centrelink can overlook the difficulties people with serious illness can have in undertaking these formal testing processes. The case studies Incapacity for job capacity assessment and ‘Failure’ to attend interview demonstrate the types of problems that have arisen.

We are considering whether these cases and others point to potential systemic issues which we should investigate.

CASESTUDY | incapacity for job capacity assessment

Ms B was undergoing chemotherapy for leukaemia when she applied for a DSP. Centrelink correctly rejected Ms B’s claim as she did not meet the legislative requirements, and placed her on an interim NSA payment. She was advised that in order to assess her ongoing qualification for NSA, she had to undergo a two-hour job capacity assessment. Despite explaining that it would be difficult for her to attend an interview as she was still receiving chemotherapy and had recently undergone surgery, Centrelink booked a job capacity assessment appointment for Ms B. When Ms B did not attend, as she was in hospital at the time, Centrelink cancelled her interim payment.

Ms B made several unsuccessful attempts to be placed on some form of income assistance, as she was no longer able to support herself and was unable to meet the job capacity assessment requirement at the time. As a result of our investigation, Centrelink acknowledged that it could have undertaken a file assessment of Ms B’s medical condition. Centrelink subsequently made such an assessment, and placed Ms B on NSA with a medical exemption from job search activities. Ms B had endured several months of trauma and financial uncertainty before her case was resolved.

Centrelink has advised that the Job Capacity Assessment referral guidelines now state clearly that if a customer is in hospital a file assessment should be requested.

CASESTUDY | ‘failure’ to attend interview

Mr C, who suffered from severe epilepsy, was required to attend his local Centrelink office for a review of his DSP. While waiting in line, Mr C had an epileptic seizure and paramedics were called. While the paramedics were attending to Mr C, Centrelink staff called his name, as he was next in the queue. The paramedics advised the Centrelink officer that the man on the stretcher was the person concerned and that they were in the process of stabilising him before taking him to hospital.

Mr C was hospitalised for several days. On his return home he found that Centrelink had sent him a letter advising that his DSP had been suspended because he had failed to attend an interview at his local office. After several unsuccessful attempts to have Centrelink overturn the decision, Mr C approached us. As a result, Centrelink reinstated Mr C’s DSP and back-paid him to the date of the cancellation. Centrelink also discussed alternative DSP review options with Mr C.

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Ongoing issues

Internal review

For several years we have received approaches and complaints about Centrelink’s internal review processes. We have highlighted these issues with Centrelink and in our annual reports. While we note the continued improvement in complaint trends regarding Centrelink, we remain of the view that revision of internal review processes could assist in the timely and effective resolution of complaints.

The social security law sets out that a person who is unhappy with a Centrelink decision is entitled to have a review by an Authorised Review Officer (ARO). Although not provided for in the legislation, Centrelink’s default review procedure includes a review by the original decision maker before the matter is referred to an ARO. This continued practice of referring review requests for consideration by the original decision maker before directing them to an ARO puts people through an extra step. This can create protracted delays, as the case study To review or not to review demonstrates.

CASESTUDY | to review or not to review

Ms D sought review of a decision to raise an overpayment debt against her. She made numerous requests to have the matter reviewed by an ARO as she believed that the original decision maker was biased against her. After 17 months of inaction by Centrelink, Ms D approached this office. When we asked Centrelink about the delay, we were given an undertaking that the review would be given priority and would be referred to an ARO. However we later became aware that, despite the delays already encountered, the matter was first referred to the original decision maker before it was eventually escalated to an ARO.

In a 2004–05 audit of Centrelink’s review and appeals system, the ANAO raised similar issues as those highlighted by this office. The ANAO conducted a follow-up audit and published its final report in May 2007. The report includes a recommendation that Centrelink ensures its customers are made aware they have a legal right to have a decision reviewed by an ARO without a review by the original decision maker first. Centrelink agreed to this recommendation.

We believe that having reviews conducted by an ARO in the first instance will significantly improve the consistency and timeliness of decisions and we will continue to monitor the situation.

Banning

Last year we reported that Centrelink would implement new national guidelines on ‘banning’ difficult customers from Centrelink offices. Centrelink confirmed that the guidelines addressing ‘alternative servicing arrangements’ were released to its network in February 2007, with the expectation that all areas and their respective call centres and customer service centres would be trained in their intent, content and application.

In May 2007 we received a complaint from a customer who had recently been ‘banned’ from attending all Centrelink offices for a period of three months. Our investigation identified that staff from two separate Centrelink offices, both of which had attended the training on the new guidelines, chose to deliberately ignore the instruction given by Centrelink’s National Office.

The relevant officers acknowledged that they were aware of the instruction to implement the new guidelines for dealing with difficult customers, but had opted to ignore them as they were ‘guidelines’. They decided that it was preferable to apply a policy document from another department, which was not authorised for use by Centrelink staff. The policy they chose to use had no alternative servicing arrangement requirements, which left the customer with no way to contact Centrelink.

Centrelink was responsive in dealing with this matter. Centrelink provided alternative servicing arrangements to the customer and indicated that it would contact him to review his circumstances and those that led to the original ban.

In the Welfare to Work environment, payment is dependent on fortnightly reporting to Centrelink. A failure to report may result in non-entitlement and non-payment periods. This office acknowledges that it is often challenging to deal with people who exhibit difficult and aggressive behaviour. However, it is imperative that alternative servicing arrangements are offered in these circumstances. This ensures that people are not denied payments because they have no way of contacting Centrelink.

Since the release of its guidelines, Centrelink has been working with the Ombudsman’s office to identify and remedy any instances of non-compliance.

Further work is being undertaken in Centrelink to clarify and emphasise with employees those aspects of the guidelines that are mandatory and those that will remain subject to the discretion of senior managers. This work, expected to be completed in the latter part of 2007, will emphasise that the discretionary areas of the guidelines are determined by the individual customer’s circumstances rather than arbitrary Centrelink decision. Centrelink is also integrating occupational health and safety staff support principles and activities into the guidelines, to provide staff with a comprehensive view of the most appropriate interventions in working with customers.

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Correspondence with customers

We continue to receive complaints about Centrelink’s decision letters, templates and standard letters. A common complaint is that decision letters do not offer adequate, or even any, reasons as to why or how a particular decision was reached. Without a clear explanation, a Centrelink customer may lack the necessary information or understanding to make an informed choice about whether to seek a review of the decision.

‘We continue to receive complaints about Centrelink’s decision letters, templates and standard letters.’

In one case a customer wrote to Centrelink requesting a review of a decision to raise a carer payment debt. Centrelink sent the person a manually written letter affirming the decision. However, the letter contained a number of grammatical errors that affected the clarity of its advice and did not include the table that it referred to. If provided, the table would have shown all the payments that were made to the person’s partner that had affected the rate of carer payment. There were also extensive extracts from the relevant legislation with no explanation as to how this applied to the person’s circumstances. In response to our investigation, Centrelink agreed to review the matter again, and to provide the customer with a better explanation of reasons and an apology.

In July 2006 the Hon. Joe Hockey, then Minister for Human Services, tasked Senator Richard Colbeck with leading a review of Department of Human Services forms and letters, including those of Centrelink. We welcome this much-needed focus on the quality of Centrelink’s letters and hope that this will result in a decrease in complaints relating to unclear, ambiguous or misleading correspondence.

Own motion investigations

In September 2005 the Ombudsman commenced an own motion investigation into the policy guidelines used by Centrelink in assessing ‘marriage-like relationships’ under the social security law. We aim to publish the final report of this investigation early in 2007–08.

We also began an own motion investigation into the administration of the Pension Bonus Scheme in March 2006. In our 2005–06 annual report we anticipated this investigation would be finalised in late-2006. Due to the prioritisation of other work, it has not yet been completed. In light of the measures announced in the 2007–08 Federal Budget, which make the scheme more flexible, we are currently considering whether it remains necessary for us to continue with this report.

Emerging issues

Cross-agency approaches

The complex policy, service and contractual arrangements under the Welfare to Work initiatives, involving multiple agencies, present particular challenges to our office in dealing with complaints related to these initiatives. For example, when we decide not to investigate a complaint, it is generally on the basis that the person has not raised their complaint with the relevant agency in the first instance. However, the situation is no longer so straightforward, as it can be difficult for us to identify the most appropriate agency to which we should refer the complainant. It also complicates our complaint handling. Chapter 5—Challenges in complaint handling provides more details about the issues which arise.

‘... it can be difficult for us to identify the most appropriate agency to which we should refer the complainant.’

An example of the cross-agency issues that can arise is described in the case study Inflexible procedures. In this case, a simple administrative error had the potential to delay the assessment of a person’s claim for a disability support pension for a further 28 days due to rigidities in the bureaucratic system. Our investigation staff had to negotiate with three separate government agencies to resolve the matter.

CASESTUDY | inflexible procedures

Mr E lodged a claim with Centrelink for the DSP. Mr E was granted NSA pending the outcome of his DSP claim, and was referred for a job capacity assessment. Due to an administrative error, the job capacity assessor was not asked to provide an impairment rating to inform the DSP decision. This meant that Centrelink was unable to use the assessment in determining Mr E’s DSP claim.

Centrelink acknowledged that Mr E should have been referred for an assessment of his impairment level as well as his work capacity. Centrelink stated that the job capacity assessment system, which is administered by the DHS but uses the DEWR information technology system, did not allow Centrelink to refer Mr E for another assessment within 28 days of the original assessment.

When we contacted the DHS, we were advised that the restrictions around the timing of job capacity assessments were built into DEWR’s record-keeping system on which job capacity assessments are scheduled. The DHS acknowledged that the rigidity of the system had the potential to disadvantage people in situations such as Mr E’s. The DHS advised that it has negotiated with DEWR and the mandatory delay has been removed.

Mental health issues

Dealing with people with mental health issues has become a focus for a number of departments and agencies that deal with the public, including both Centrelink and the Ombudsman’s office. A number of complaints received over the past year highlighted the need for agencies to adapt service models to handle this client group effectively: treating them in the same manner as other customers often sees them fall between the cracks.

For example, in 2006–07 we handled an approach from a man with an anxiety disorder. His relationship with Centrelink had broken down to the point where he had become so distrustful of their actions that he would make multiple complaints to this office in anticipation that Centrelink was going to make a mistake with his payment. He expected our office to take on the role of a de facto advocate and to make all contacts with Centrelink on his behalf. Our investigation indicated that although there might have been an initial problem with Centrelink, the major issues could be attributed to the fact that he refused to remain in contact with Centrelink.

Another emerging issue is how Centrelink deals with people with undiagnosed mental illness or episodic illnesses. The new Welfare to Work requirements make it a challenge for Centrelink to appropriately service this vulnerable customer group, particularly where the person has no insight into their condition, even when staff recognise that mental illness may be a factor.

These issues are brought into sharp focus in cases where a person with an undiagnosed mental health condition applies for an income support payment and has to undergo a job capacity assessment to determine work capacity. Often the person has no medical evidence supporting their claim or, in a number of cases, the person refuses to accept that they might have a mental illness. The result is that the person is granted an activity-tested payment such as NSA instead of the more appropriate DSP, and then has difficulty in complying with the required activities. This places the person at risk of having their payments suspended or cancelled with the resultant issues that arise such as homelessness.

Given the number of people we see who are falling between the cracks, it is becoming increasingly evident that, at present, the social security system does not always provide sufficient flexibility to enable staff to effectively service these people.

child support agency

Consistency of change of assessment decisions | Service delivery

The Child Support Agency was established in 1988 to administer the Child Support Scheme, which provides for the assessment, collection and disbursement of child support. The scheme was implemented to require compulsory payment of child support based on the comparative incomes and caring responsibilities of both parents.

The Child Support Scheme operates under two pieces of legislation—the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989 (Child Support Assessment Act). Together, these Acts enable the registration of child support cases, calculation of child support assessments, enforcement of child support collection and disbursement of payments received. Payees are those parents entitled to receive child support, while payers are those responsible for paying child support.

In 2006–07 the Ombudsman received 1,790 approaches and complaints about the CSA, compared to 1,927 in 2005–06. Figure 7.4 shows the trend in approaches and complaints about the CSA over the past five years. We investigated 29% of the 1,779 approaches and complaints finalised in 2006–07.

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FIGURE 7.4 Child Support Agency approach and complaint trends, 2002–03 to 2006–07

FIGURE 7.4 Child Support Agency approach and complaint trends, 2002–03 to 2006–07

The CSA and the Child Support Scheme continued to be a topic of much discussion in 2006–07, following the government’s acceptance of the majority of the recommendations contained in the 2005 report of the Ministerial Taskforce on Child Support. Stages 1 and 2 of the child support reform package were implemented on 1 July 2006 and 1 January 2007, respectively.

From our perspective the most notable of the changes was the introduction of a right of appeal about child support matters to the Social Security Appeals Tribunal (SSAT). Prior to 1 January 2007, if parents wished to seek review outside of the CSA, it was necessary for them to make an application to a court with family law jurisdiction. Given the time and cost such an application involved, many parents would disregard this option and raise their disagreement through a complaint to the Ombudsman. Although it is difficult to accurately assess the reasons for the decrease in complaints to this office about the CSA in 2006–07, the introduction of the SSAT as a no-cost review mechanism may have contributed to this reduction.

The final and most significant part of the reforms, which is the new child support formula, will be implemented from 1 July 2008. During 2007–08 our focus will be on training our investigation staff about the changes and remaining abreast of developments as further information becomes available.

The main themes that featured in approaches and complaints in 2006–07 were the consistency of decisions made through the ‘change of assessment in special circumstances’ process, and service delivery issues in the form of delays and the quality of advice provided to customers. A brief description of our handling of these topics follows.

‘The main themes that featured in approaches and complaints ... were the consistency of decisions ... and service delivery issues ...’

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Consistency of change of assessment decisions

The Child Support (Assessment) Act sets out a statutory formula for calculating the rate of child support payable, taking into account the relative incomes and caring responsibilities of both parents. Although this formula was devised on the basis of research into the general costs of raising children, the Act provides for an alternative assessment mechanism where the child/children or either parent has special circumstances that are not readily recognised by the child support formula.

In order to be satisfied that a change to the assessment is warranted, the CSA must find that one of ten reasons involving the special circumstances of the child/children or either parent make the formula assessment unfair. Under Reason 8 a departure from the assessment may be warranted where the income, earning capacity or financial resources of one or both parents is not accurately reflected by a strict application of the formula.

During 2006–07 we received a number of complaints regarding the treatment of depreciation expenses in assessing the income of self-employed parents under the ‘change of assessment’ process. The case study Change of assessment illustrates the complexity of some of the processes.

CASESTUDY | change of assessment

Mr F, the payer, complained that in the course of assessing his child support income under the ‘change of assessment’ process, the CSA included the value of the depreciation expenses claimed against his business income. This decision resulted in Mr F’s child support income being tripled and, in turn, his child support liability being increased significantly. After unsuccessfully objecting to the CSA’s decision, Mr F appealed successfully to the Federal Magistrates Court and his child support assessment was reduced.

Mr F lodged a claim with the CSA for reimbursement for his legal costs. He complained to the Ombudsman when the CSA refused the claim. In examining the CSA’s compensation decision we formed the view that, in completely disregarding the payer’s depreciation deduction as an expense and adding the full amount back as income, the CSA’s ‘change of assessment’ and objection decisions demonstrated a lack of understanding of general accounting principles. They also created a situation such that Mr F had little choice but to appeal the outcome.

The CSA accepted our view and offered compensation to Mr F.

In response to this and other complaints, the CSA undertook to provide additional guidance to decision makers about the treatment of depreciation expenses in the ‘change of assessment’ process.

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Service delivery

The CSA had approximately 742,000 active cases at 30 June 2006, 47% of which were registered for collection of child support by the CSA. With such a large volume of active customers, CSA staff are required to provide services and advice to a sizeable section of the Australian public.

In 2006–07 we received a number of complaints about the CSA’s service delivery which centred around two main themes—delays, and the accuracy and completeness of advice.

Delays

Complaints about delays focused on three central areas:

As CSA has a well-developed complaint-handling system, we often refer such complaints back to CSA in the first instance. In one case we investigated, a CSA customer complained about the CSA’s failure to respond to his freedom of information (FOI) request after more than three months and several written requests for an update. When our office contacted the CSA, they acknowledged that one of their FOI units was experiencing difficulty in processing requests within the statutory timeframe as a result of a staffing shortage.

In response to our investigation the CSA apologised to the complainant and gave an undertaking that his FOI request would be prioritised for completion. We understand that the area involved has subsequently been allocated additional staff in an effort to ensure similar delays do not recur.

Incomplete and inadequate advice

The Child Support Scheme is a complex and often daunting system for its customers to navigate, meaning that parents may often choose to make important financial decisions based primarily on the advice given to them by CSA staff. During 2006–07 we received a number of complaints where CSA customers claimed to have been disadvantaged by incomplete or inadequate advice.

In one complaint, a payee claimed he was contacted by CSA staff who asked if he would be willing to ‘discharge’ the child support arrears owing to him. This suggestion appeared to have been framed as a gesture of goodwill that would increase the likelihood of the payer meeting her future responsibilities. The payee agreed to discharge the arrears amount, reducing the payer’s balance to nil.

‘The Child Support Scheme is a complex and often daunting system for its customers ...’

The payee was subsequently advised that, as a result of new information about the payer’s circumstances, his past child support assessments had been significantly reduced. This retrospective adjustment meant the payee was not only no longer entitled to the arrears amount he had discharged, but that he was also found to have been overpaid. The overpayment situation would not have occurred if the arrears amount had not been discharged, because the two amounts could have been offset against one another.

Our investigation led us to conclude that the CSA had not provided the payee with sufficient information about the possible ramifications of discharging the arrears to enable him to make a fully informed decision. At the conclusion of our investigation the payee advised he intended to pursue compensation from the CSA for his lost entitlement to child support.

defence

Department of Defence | Australian Defence Force | Department of Veterans’ Affairs | Defence Housing Australia

Defence-related approaches and complaints fall into two categories: the Defence Force Ombudsman 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) and Defence Housing Australia (DHA).

In 2006–07 we received 670 defence-related approaches and complaints, compared to 750 in 2005–06. This represents an 11% decrease in approaches and complaints.

TABLE 7.1 Defence-related approaches and complaints received, 2003–04 to 2006–07

TABLE 7.1 Defence-related approaches and complaints received, 2003–04 to 2006–07

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Department of Defence

We received 106 approaches and complaints about the Department of Defence (compared to 138 in 2005–06). The Fairness and Resolution Branch (FRB) within Defence has continued to assist our investigation of complaints by facilitating access to information, files and personnel across the various Defence areas that fall within our jurisdiction.

Westralia investigation

In March 2007 the Minister for Defence wrote to the Ombudsman, requesting that we consider an own motion investigation into matters involving HMAS Westralia. This followed allegations in the press and Parliament that Defence was warned in February 1998 about HMAS Westralia being in grave danger from the faulty fuel lines that caused the fire onboard Westralia on 5 May 1998.

In April 2007 the Acting Ombudsman initiated an own motion investigation into the allegations of Defence’s forewarning about the fire and the appropriateness of the Defence response, with particular reference to the procedural competence and integrity of the Inspector-General of Defence’s area at the time.

We expect to report on the outcome of this investigation in 2007–08.

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Australian Defence Force

We received 252 approaches and 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 (RAAF) (compared to 303 in 2005–06).

These approaches and complaints were based on employment-related matters resulting from a person serving or having served in the ADF. Complaints can be about 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 the internal handling of complaints by Defence.

We have observed greater timeliness in the way Defence handles complaints from serving members, with fewer complaints made to our office about delays. In addition, relatively few complaints to our office became protracted over the last year. As an indicator, we currently have no ADF-related complaints more than eight months old.

We note the positive effect recent quality assurance mechanisms have had on the ADF’s redress of grievance process. A recent initiative includes FRB providing advice to commanding officers and managers on the proposed plan of action for handling each complaint shortly after the complaint has been made. This enables complaints to be investigated and resolved in a timely manner and at the lowest possible level.

Defence has also demonstrated a willingness to involve our office in ADF training courses and seminars where we can share our views about developing good administrative practices and effective decision making with commanders and administrators in the field. Such joint outreach activities allow us to raise awareness among ADF members about their right to complain to our office and how our role relates to internal ADF complaint mechanisms.

Review of reform to the Australian military justice system

Our office appeared before the Senate Foreign Affairs, Defence and Trade Committee on a number of occasions in the last year in relation to the committee’s inquiry into the reforms to the Australian military justice system. This inquiry followed an earlier committee inquiry into the effectiveness of the military justice system (the Senate Foreign Affairs, Defence and Trade References Committee’s Inquiry into the effectiveness of Australia’s military justice system (2005)).

During our appearance before the committee in February 2007, we noted improvements in the way that Defence had interacted with our office during the past year. We also noted:

We emphasised to the committee that, based on the perspective that our investigations bring, we were satisfied that the systems in place to support military justice appeared to function in a reasonably effective manner.

‘... we noted improvements in the way that Defence had interacted with our office during the past year.’

We also noted the work undertaken by Defence in implementing the recommendations from the committee’s earlier inquiry and the joint 2004 Redress of Grievance Review conducted by our office and Defence (Review of Australian Defence Force Redress of Grievance System 2004 (Report No 01/2005)). We expressed the view that Defence continues to demonstrate a commitment to implementing the recommendations accepted from both reviews by October 2007.

ADF handling of unacceptable behaviour complaints

In August 2006 we initiated an own motion investigation into the way the ADF deals with complaints about unacceptable behaviour such as bullying and harassment. Our investigation focused on the effectiveness and accessibility of the system in place to manage, investigate and provide awareness training for internal complaints about unacceptable behaviour.

Our investigation took the form of desktop reviews of files at a number of Defence units around Australia. At the same time we also conducted a series of focus group discussions with Defence personnel to gauge the level of understanding and acceptance of the systems in place.

Our investigation revealed that generally there was a clear sense of awareness by Defence personnel of the systems in place to report and manage complaints about unacceptable behaviour. This view was expressed by both commanders and representatives of the general service population. While this was a positive result, our investigation also highlighted areas for improvement including:

We are pleased to report that Defence has accepted all of the recommendations.

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Department of Veterans’ Affairs

The Department of Veterans’ Affairs provides a wide range of services to nearly half a million Australians. The services DVA administers include service pensions, age pensions, income support supplement and allowances, disability and war widows’ and widowers’ pensions, allowances, special purpose assistance, Defence Service Home Loans Scheme assistance and Repatriation Health Cards.

During 2006–07 we received 256 approaches and complaints (compared to 276 in 2005–06). In last year’s annual report we referred to our concerns about delays in investigating complaints about DVA. We have continued to meet with DVA at a number of different levels, which has helped improve the flow of information between our offices, although timeliness remained an issue in some cases.

In last year’s annual report we reported on complaints to our office about the F-111 aircraft deseal/reseal ex gratia payment scheme. Since August 2005, when the scheme was announced, we have received 82 complaints relating to the four deseal/reseal programs. There are currently six outstanding deseal/reseal cases that demonstrate a degree of complexity not evident in other related complaints. The issue of the complexities experienced in handling these complaints is discussed in Chapter 5—Challenges in complaint handling.

The consultation between our office and DVA about the scheme has generally functioned well. While the administration of the scheme presented certain challenges, the deseal/reseal issue serves as a good example of the effective way our office and DVA have been able to interact to obtain briefings, seek information about a case or have a decision reconsidered.

‘... the deseal/reseal issue serves as a good example of the effective way our office and DVA have been able to interact ...’

One case brought to our attention by DVA highlights the range of evidence considered by DVA as part of their assessment of deseal/reseal ex gratia payment scheme claims.

A retired RAAF maintenance worker applied for recognition under the scheme. Initially DVA did not accept that the claimant could demonstrate that he had participated in one of the four deseal/reseal programs to a degree which would support recognition under the scheme. The claimant sought a reconsideration of this decision and supplied more evidence which saw him granted a lesser degree of recognition. However, the claimant continued to feel that his service in the RAAF entitled him to a higher level of recognition.

He sought a further reconsideration and on this occasion presented a ‘stubbie’ holder which was given to him as a present when he was posted from the deseal/reseal section. DVA recognised that this evidence was genuine as a number of other long term deseal/reseal workers had also been presented with similar mementos at the time. DVA advised that it was therefore reasonable to accept the claimant’s involvement and he was granted the higher level of recognition.

It is encouraging to note DVA’s openness to different kinds of evidence when considering a claimant’s eligibility and the lengths it went to in this case to reconsider the claim further.

Military Rehabilitation and Compensation

In late 2005 DVA briefed our office on proposed changes to the structure of the department, to be introduced on 1 July 2006. These changes were necessitated by the changing demographic of DVA’s client base. The emphasis of DVA’s service delivery had shifted from a more traditional notion of a veteran and the veterans’ community as reflected by Second World War veterans, to a more diverse group that increasingly includes younger servicemen and women, both serving and recently separated from the ADF.

This changing demographic has been reflected in the type of complaints we have received, with an increase in complaints about military rehabilitation and compensation (MRC) claims in 2006–07. A common cause of complaint in MRC matters is delay. In early 2007 we received an approach from a lawyer, representing a number of clients, complaining about delays in the processing of 51 MRC claims. We felt it appropriate to approach DVA to investigate not just these 51 claims, but to also initiate a project looking more broadly at possible systemic issues in the handling of MRC claims by DVA.

DVA was open and cooperative in its response to our enquiries, and we welcomed their willingness to acknowledge the need for improvements in certain areas. DVA advised us of a range of initiatives it has put in place to address a backlog of older cases and to improve processing times into the next financial year.

Some examples of the initiatives underway include simultaneous processing of some claims for initial liability and permanent impairment under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). We also understand a trial screening team is improving timeliness by ensuring claims are processed under the appropriate Act (SRC Act or the more recent Military Rehabilitation and Compensation Act 2004), where it is not immediately clear which Act applies.

We also note DVA’s introduction of a Single Access Mechanism (SAM) to improve the timeliness for access to a former member’s service records with the Department of Defence, when assessing an initial liability claim. The time taken to access relevant records has reduced from several months to an average of 12 days. SAM staff now have access to Defence records held on Defence’s human resource system. This allows DVA to gather basic service details for a claimant within a few working days. Previously this took considerably longer.

DVA also acknowledged there were undue delays in its handling of some of the individual matters we had brought to its attention, and agreed to write to those claimants to apologise. DVA’s response on both these individual cases and the broader issues was sufficient for us to decide not to take the matters further, but we agreed to meet regularly to monitor the progress and achievements made in the MRC processing area.

Defence Housing Australia

Defence Housing Australia (DHA) is contracted by Defence to provide housing and relocation services for members of the ADF. The DHA sources land, undertakes land development and construction of houses, and raises funds in the private capital market through sale and leaseback. It also provides property maintenance and manages leases with property lessors. Defence has also contracted the DHA to calculate and process allowances and entitlements for ADF personnel who are moving to a new posting as part of the relocation process. The housing policies and entitlements are determined by Defence and administered under contract by the DHA.

We received 36 approaches and complaints about the DHA (compared to 29 in 2005–06). The few complaints we received centred on issues of entitlement and relocations. We continue to resolve complaints about the DHA reasonably quickly as a result of effective contact arrangements with the agency.

employment and workplace relations

Changing PAGES | Work for the Dole | Emerging issues | Ongoing issues

We received 567 approaches and complaints about the Department of Employment and Workplace Relations (DEWR) in 2006–07, compared to 418 in 2005–06. Figure 7.5 shows the trend in approaches and complaints about DEWR over the past five years. We investigated 20% of the 559 approaches and complaints finalised in the year.

FIGURE 7.5 Department of Employment and Workplace Relations approach and complaint trends, 2002–03 to 2006–07

FIGURE 7.5 Department of Employment and Workplace Relations approach and complaint trends, 2002–03 to 2006–07

The increase over the last year is indicative of the major role DEWR plays in the government’s Welfare to Work initiatives, which commenced in July 2006. Although Centrelink delivers the majority of the payments and services associated with Welfare to Work, DEWR has responsibility for developing and implementing the policies underlying the income support system.

Issues about employment programs managed by DEWR, primarily the Job Network, accounted for the majority of complaints about DEWR in 2006–07. A large number of these complaints focused on the relationship between job seekers and their designated Provider of Australian Government Employment Services (PAGES).

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Changing PAGES

PAGES (Job Network) remains the Australian government’s largest employment service for unemployed job seekers. Most job seekers will receive job search support services for an initial period of three months. Those who remain unemployed after three months will proceed into Job Network Intensive Support services where intensive job search training is provided. Job seekers with a disability have access to a range of services, including PAGES, Disability Open Employment and Vocational Rehabilitation Services, to help them find work consistent with their capacity.

Job seekers generally remain with one PAGES for the duration of their unemployment period. If a jobseeker stops using Job Network services they will normally recommence with the same PAGES if they re-register within 12 months. It is generally expected that, by remaining with the same PAGES, a stronger relationship can be developed because the PAGES will be more familiar with the needs of the jobseeker. Jobseekers may transfer to their current PAGES at a different site if they relocate, or if there is agreement between the PAGES and the job seeker.

A job seeker may transfer between PAGES in limited circumstances, including where:

The relationship between a PAGES and a job seeker is deemed to have irretrievably broken down when:

In these instances DEWR is responsible for investigating and actioning any requests for transfers between PAGES on the grounds of an irretrievable breakdown. DEWR will do so only when it is satisfied that all reasonable action has been taken by the PAGES to resolve any problems. In one case we investigated, there was a long history of conflict and the jobseeker had approached another PAGES who was willing to provide services. However, the jobseeker was unable to establish an irretrievable breakdown had occurred, because DEWR’s investigation of the jobseeker’s complaint had not brought all of the relevant circumstances to light. We are considering whether such complaints point to any wider systemic concerns about transfer arrangements.

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Work for the Dole

We continue to receive complaints related to Work for the Dole programs. The case study Injured shows how problems can arise for people injured in the course of participating in the programs.

‘We continue to receive complaints related to Work for the Dole programs.’

CASESTUDY | injured

Mr H contacted our office about difficulties he was experiencing in obtaining compensation from DEWR for an injury he sustained while participating in a Work for the Dole program. Mr H advised that, although he had contacted DEWR and its insurer numerous times over two years, he had received minimal assistance in meeting the costs of the essential medical treatment for his injuries.

A two-year time limit applied to several forms of medical treatment and assistance under the insurance cover for Work for the Dole participants. As Mr H’s medical issues were not fully resolved, he had an ongoing need for some of the medical assistance affected by the limitations to the insurance cover.

In the course of our investigation DEWR’s insurer negotiated a compensation payout to the complainant, which discharged DEWR’s liability against any future claims for his injuries. As a result of this investigation, some possible areas for DEWR to improve its handling of claims from people injured in Work for the Dole programs were identified.

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Emerging issues

Closing of CDEPs

In February 2007 the Minister for Employment and Workplace Relations announced changes to the Community Development Employment Projects (CDEP) program. CDEP is a program for unemployed Indigenous people, providing paid activities which contribute towards the local community and are aimed at developing skills and improving employability to assist people to move into employment outside CDEP programs. Indigenous Employment Centres are attached to some CDEP organisations. The Indigenous Employment Centre’s role is to help CDEP participants find long-term jobs and provide ongoing support in the workplace.

The CDEP program will no longer operate in urban and major regional centres where unemployment is below 7% from 1 July 2007. In addition to this, all Indigenous Employment Centres ceased operating from 30 June 2007.

Any major policy change in service delivery areas can be expected to generate increased complaints. Monitoring such complaints can provide valuable information on whether there are genuine problems that need to be addressed. Early intervention to address those problems can be important in safeguarding the interests of members of the public who are affected by the changes

‘Any major policy change in service delivery areas can be expected to generate increased complaints.’

Removal of remote area exemptions

People can be exempted from job search activity requirements for up to 13 weeks and sometimes longer, depending on their individual circumstances. Remote area exemptions have historically been granted for longer periods in areas where people have little or no access to a labour market or a labour market program. Remote area exemptions are being gradually removed across Australia over the next four years. Monitoring complaints in this area may also provide a window into potential difficulties resulting from this policy change.

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Ongoing issues

Last year we noted that the number of approaches about the General Employee Entitlements and Redundancy Scheme (GEERS) had declined markedly following the introduction of improved processes—most notably more detailed decision notification letters. The total number of approaches about GEERS has continued to decline significantly this year, both in terms of total numbers and as a percentage of approaches about DEWR. We closed 71 approaches regarding GEERS in 2006–07, compared to 121 in the previous year, and we investigated a smaller number (25 in 2006–07, 43 in 2005–06).

In last year’s annual report we indicated that we expected complaints about Trades Recognition Australia (TRA) to increase as TRA was preparing to process a larger number of applications to meet higher skilled migration targets. While applications to TRA increased from 20,000 in 2005–06 to 30,000 in 2006–07, the number of complaints to our office about TRA has not risen accordingly. We finalised twice as many approaches about TRA in 2006–07 (39) as in 2005–06 (20), but investigated a smaller number (9, compared to 16 in 2005–06).

Both of these examples reflect how complaint investigation, particularly in the early years of a program, can stimulate program changes that benefit members of the public. Early intervention of this kind is more likely to happen when there is a robust and constructive relationship between our office and the administrators of a scheme.

immigration

Complaints overview | Own motion investigations | Detention issues | Compliance | Referred immigration detention cases | Reporting on people held in immigration detention for two years or more | Freedom of Information | Input to Departmental processes and procedures

In 2005 amendments to the Migration Act 1958 (Migration Act) gave the Ombudsman the statutory responsibility to review the circumstances of people held in immigration detention for two years or longer. Later in that year, amendments to the Ombudsman Act 1976 (Ombudsman Act) conferred the title of Immigration Ombudsman on the Commonwealth Ombudsman. This section outlines the wide range of work we undertook in relation to immigration during 2006–07.

Complaints overview

The number of approaches and complaints to the Ombudsman about the Department of Immigration and Citizenship (DIAC) stabilised in 2006–07. We received 1,379 approaches and complaints, compared to 1,300 in 2005–06. Figure 7.6 shows the trend in approaches and complaints over the period 2002–03 to 2006–07. We finalised 1,440 approaches and complaints with 40% investigated.

FIGURE 7.6 Department of Immigration and Citizenship approach
and complaint trends, 2002–03 to 2006–07

FIGURE 7.6 Department of Immigration and Citizenship approach and complaint trends, 2002–03 to 2006–07

Complaints about DIAC fall into three distinct areas:

Complaints about visa processing can raise complex issues stretching over a number of years, as the case study Parent visa application delays shows.

CASESTUDY | parent visa application delays

Ms J approached our office in 2003 raising concerns about DIAC’s processing of parent visa applications which had been lodged in 1996. When Ms J approached us again in 2005 she identified some further concerns. The applications had been made prior to a legislative change in December 1996 that altered the order of processing for parent visa applications.

Our investigation found that Ms J had been given a queue date of 4 December 2002, when the primary criteria had been considered as satisfied. However, health checks had been completed in 1996. We raised our concern with DIAC about the delay in finalising the applications in 1996 and the decision to assess the applications against criteria introduced in December 1996 rather than those in place at the time the applications were lodged.

DIAC subsequently advised us that arrangements had been made to change the queue date and to recommence processing the applications. It was estimated that, if the remaining criteria were met, the visas would be granted in 2006–07.

Visa cancellation complaints can range from the relatively straightforward to the very complex. In some cases, DIAC decisions to cancel visas are not subject to review, making it especially important that DIAC officers follow due process in making a cancellation decision. The case study Airport turnaround shows a case where DIAC set aside a non-reviewable cancellation decision following our investigation.

CASESTUDY | airport turnaround

A man complained on behalf of his son’s partner, Ms K, who had arrived in Australia on a tourist visa. Ms K’s visa was cancelled during the immigration clearance process when DIAC staff formed the view that Ms K may not comply with the conditions of the visa. Ms K was required to leave Australia immediately.

In our investigation we listened to the taped record of interview conducted prior to the cancellation of the visa and reviewed the relevant documentation. Our investigation established that adverse information had been provided by a third party and taken into account in the decision-making process. The information had not been put to Ms K so that she could respond, as required by s 57 of the Migration Act.

We raised our concern with DIAC about the process undertaken to cancel the visa. DIAC agreed to set aside the decision to cancel the visa and to apologise to Ms K. In addition, DIAC agreed to consider any request for compensation.

An increasing proportion of complaints about visa-processing delays relate to the time taken by DIAC to obtain and assess security clearances from other government agencies including the Australian Federal Police, the Department of Foreign Affairs and Trade, and the Australian Security Intelligence Organisation (ASIO). Our investigations to date have identified that the delay in some cases was beyond the control of DIAC. In 2006–07 we closed 13 complaints where this was an issue. In some cases we have been able to refer the complaint to the Inspector-General of Intelligence and Security (IGIS). IGIS oversights the operations of ASIO and is able to consider why a matter is protracted. We are also seeking to establish liaison protocols with other agencies so that in future such complaints can be resolved as quickly as possible.

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Own motion investigations

Administration of s 501 of the Migration Act

In early 2006 we released a report of an own motion investigation DIAC’s administration of s 501 of the Migration Act (Report No 01/2006). Since then we have liaised regularly with DIAC regarding progress in implementing the report recommendations.

In December 2006 the Secretary of DIAC advised that ‘the Department has made significant progress in addressing the deficiencies that your report identified ... and has initiated a broad and comprehensive programme of reform aimed at improving the overall management and resourcing of character decision making’. DIAC also advised that a centralised processing centre had been established, with a view to improved consistency in s 501 visa cancellation decision making.

In response to one recommendation in the report, DIAC agreed to review the cancellation decisions for individuals who were still in immigration detention and/or awaiting removal. DIAC expects to finalise this review in early 2007–08. We continue to monitor the implementation of the recommendations made in the report. The case study Sole parent shows a positive outcome for one person whose case was reviewed.

CASESTUDY | sole parent

Mr L arrived in Australia in 1982 when he was 10 years old. His resident return visa was cancelled under s 501 of the Migration Act in April 2002. Mr L was detained from May 2002. At the time Mr L was detained he had custody of his 10-year-old son, whom he cared for with the assistance of the child’s grandmother.

DIAC’s review of the cancellation process identified that in making the decision to cancel Mr L’s visa, the decision maker had not given adequate weight to a primary consideration—the best interests of the child. The Ombudsman report on s 501 cases highlighted the need to ensure that information presented to decision makers is complete and up-to-date. In relation to the best interests of the child, the report recommended that an independent assessment be undertaken by a qualified social worker/psychologist on the impact on a child of the possible separation from or removal of its parent from Australia.

As a result of the review, DIAC recommended to the Minister that Mr L be granted a permanent visa. DIAC advised us in December 2006 that the Minister had granted Mr L a resident return visa using the discretionary powers provided in s 195A of the Migration Act. Mr L was released from detention when the visa was granted.

Management of a frail aged visitor

The 2005–06 Ombudsman annual report advised of the outcome of an investigation, Department of Immigration and Multicultural Affairs: Management of a frail aged visitor to Australia (Report No 05/2006). DIAC accepted all the recommendations in the report, and has implemented measures to improve communication with, and treatment of, DIAC clients. To date the changes include:

DIAC has also canvassed the issue in a bridging visa review, which is under consideration by the Minister.

Migration Agents Registration Authority

In response to a number of complaints, we conducted an own motion investigation into the complaint-handling process of the Migration Agents Registration Authority (MARA). The report (Report No 05/2007), released in June 2007, recognised that MARA’s complaint-handling processes had improved significantly in the previous 12 months. The report noted there was much still to be done by MARA to ensure that those most vulnerable are aware of MARA’s complaint-handling system and have appropriate access to it, and that both complainants and agents can have confidence in the outcomes achieved. MARA accepted the recommendations in the report.

Current and future own motion investigations

We are conducting an own motion investigation into DIAC’s notification of reasons for decision and review rights to refused visa applicants. The investigation is assessing whether decision makers are meeting their legislative obligations to inform applicants of the criteria on which an application was refused and the availability of relevant review rights. We are also assessing how effectively this information can be understood and responded to by a diversity of clients. The report will be released early in 2007–08.

‘We are conducting an own motion investigation into DIAC’s notification of reasons for decision and review rights ...’

We have developed a program of own motion investigations for 2007–08 that includes examination of DIAC’s Safeguards program, the administration of debt waivers and debt write-offs, and issues regarding police responses to allegations of assault or other criminal activity at Villawood Immigration Detention Centre.

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Detention issues

Staff from our offices conducted regular complaint-taking sessions at the mainland immigration detention centres (IDCs). Staff also regularly attended Client Consultative Meetings, Food Delegates Meetings and Community Consultative Group Meetings. These meetings provide an opportunity to monitor complaint and systemic issues and their resolution. Regular attendance at the IDCs enabled our staff to better appreciate the detention environment and provide an effective complaint service to detainees. These regular visits will continue in 2007–08.

In addition, staff visited and inspected five mainland IDCs, two immigration residential housing centres, and a motel where unaccompanied illegal foreign fisher minors are accommodated.

Our aim was to visit and examine the detention facilities with particular emphasis on assessing the provision of detention services and whether such services were being delivered in accordance with detention standards. We examined a range of services including reception and discharge procedures, property storage and recording, complaint-handling and incident-reporting systems, food preparation and storage, access to health services, and the provision of meaningful activities. We interviewed DIAC, GSL (Australia) Pty Ltd (GSL), health services and kitchen staff. At the end of each visit we provided feedback to centre management, and to DIAC’s and GSL’s national offices on selected issues. In 2007–08 we will commence visits to people in community detention as well as unannounced visits to IDCs.

Health remains an important complaint and oversight area. In 2006–07 we closed 93 complaints that raised one or more health issues. It is apparent from our investigations that detainees generally have appropriate access to a range of health services at IDCs following significant reforms in this area.

For example, one complaint we received concerned a person who had been transferred from an IDC to a hospital for psychiatric treatment. The complaint made on the person’s behalf centred on potential complications arising from the treatment. We investigated the complaint and made enquiries of the treating doctors with DIAC’s assistance. We were satisfied that the treatment was carefully considered and evaluated by the treating doctors, and was administered with the person’s consent.

More options for alternative forms of immigration detention have led to a reduction in the number of people in IDCs. However, a greater proportion of people now in the IDCs have a criminal background and have had their visas cancelled under s 501 of the Migration Act. From complaints and visits to IDCs we have become aware that this is having an adverse effect on the day-to-day experience of people in detention with incidents of assault, theft of personal items and bullying being reported.

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Compliance

As part of the Immigration Ombudsman function, we are implementing a comprehensive program of monitoring and inspecting DIAC’s compliance activities. By adopting a more proactive role, we aim to provide a higher level of independent oversight and earlier identification of problems. During 2006–07 we conducted a pilot study of the process used to remove people from Australia. We have commenced a full program of inspections/monitoring of DIAC administration in this area. We are also developing a wider inspection and monitoring program for DIAC compliance activity, with emphasis on DIAC’s identification and location of unlawful non-citizens and those who have breached their visa conditions.

‘... we are implementing a comprehensive program of monitoring and inspecting DIAC’s compliance activities.’

During the year we undertook an investigation into the administrative actions of compliance officers in relation to the death of a South Korean national during compliance activity in Sydney in July 2004. Our investigation identified serious administrative shortcomings in many areas of the DIAC compliance action—specifically record keeping, the search warrant administrative process, the execution of warrants and the clarity around the circumstances of escorting someone to other premises rather than detaining them under the Migration Act. We note that these issues have been raised in other recent inquiries, and are being addressed in DIAC’s current reform program.

DIAC has introduced new descriptors in its primary database system to more accurately reflect the reason for a person’s release from immigration detention when they are lawful. In March 2007 DIAC provided us with its first consolidated report relating to individuals released under the new descriptors in the year to February 2007. The report showed further examples of many of the problems identified in the 247 referred immigration detention cases. However, DIAC has generally been responsive in addressing each case. We will continue to receive consolidated reports for examination every six months. Our office will also continue to monitor DIAC’s use of these descriptors and may look into some cases in more detail if appropriate.

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Referred immigration detention cases

During 2006–07 we completed our investigation of 247 immigration detention cases referred to the Ombudsman by the Australian Government in 2005 and 2006.

The investigation of these cases involved reviewing DIAC’s paper files, database records and the detention dossier for each person. In some cases, we sought responses to specific questions and conducted interviews with DIAC officers, clients, their representatives or other agencies. Extensive analysis was undertaken of DIAC’s policies and procedures, and briefings were sought on a range of issues. Each investigation was reported in a case analysis, which outlined the sequence of events, discussed areas of concern and identified areas of potential administrative deficiency. In the majority of cases we recommended that DIAC consider whether a remedy should be provided to acknowledge or redress any suspected unlawful action.

‘... we completed our investigation of 247 immigration detention cases referred to the Ombudsman ...’

The issues arising from the investigation of the 247 individual cases formed the basis of six consolidated public reports and individual public reports on two of the cases. Those reports highlight areas of systemic failure in DIAC administration and compliance activity and recommended a combination of administrative, systems-based and policy changes within DIAC.

Published reports

The first report, released in March 2006, related to the immigration detention of Mr T (Report No 4/2006). Mr T, an Australian citizen, was detained on three separate occasions for a total of 253 days after the police referred him to DIAC. The report highlighted significant problems faced by DIAC in managing cases of people with mental illness.

A further three reports were released in December 2006. One dealt with the detention of a person referred to as Mr G, who was an Australian resident and also suffering from a mental illness (Report No 6/2006). The second report was the consolidated report into mental health and incapacity, where a person was suffering from poor mental health or incapacity at the time of their detention (Report No 7/2006). The third consolidated report—children in detention—dealt with cases where a child was taken into immigration detention (Report No 8/2006). It highlighted significant problems regarding DIAC’s management of cases involving children.

The remaining consolidated reports were finalised in June 2007. These reports dealt with the following issues.

The case study of Mr A in the report on ‘Other legal issues’ related to a permanent resident whose permanent residence status ceased following a DIAC error. He was subsequently detained for more than three years. We recommended that DIAC review the circumstances of his case and consider the actions of its staff and whether there were lapses in professional standards in relation to the way his case was managed. The report also recommended that DIAC give consideration to proposing a legislative amendment to allow variation of decisions based on legal or factual error.

DIAC cooperated fully with the investigations into these cases. Generally DIAC has agreed with the recommendations in the consolidated reports and is undertaking a significant reform process to address many of the issues identified. The Ombudsman will continue to monitor DIAC’s progress in implementing these recommendations and DIAC’s handling of the individual cases. All the reports are available from the Ombudsman website at www.ombudsman.gov.au.

‘The Ombudsman will continue to monitor DIAC’s progress in implementing these recommendations ...’

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Reporting on people held in immigration detention for two years or more

Under the Migration Act the Ombudsman is required to review the cases of people held in immigration detention for two years or more. Section 486O of the Act provides that the Ombudsman, upon receiving a report from DIAC, is to provide the Minister with an assessment of the appropriateness of the arrangements for the person’s detention.

DIAC’s report must be provided to the Ombudsman within 21 days of a person having been in detention for two years. If the person remains in detention, new reports to the Ombudsman are to be prepared at six-monthly intervals. 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 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’s website.

Progress on the oversight function

As at the end of June 2007, this function had been operating for two years. The priority remains focused on preparing reports for people in IDCs, families with children in detention, people who have a significant illness, people on temporary visas and people with other compelling reasons for an early report.

We conduct face-to-face interviews with those in detention wherever possible, especially in relation to the initial report. Telephone interviews are generally conducted for the subsequent interviews as well as in situations where a person has been granted a permanent visa and is no longer in detention.

‘We conduct face-to-face interviews with those in detention wherever possible ...’

Table 7.2 sets out the number of s 486N reports the Ombudsman received from DIAC in relation to long-term detainees, including the second, third, fourth and fifth reports for people who remain in detention.

TABLE 7.2 Reports under s 486N of the Migration Act received by the Ombudsman, 2006–07

TABLE 7.2 Reports under s 486N of the Migration Act received by the Ombudsman, 2006–07

From the introduction of the function until the end of June 2007, the Ombudsman had provided 211 reports to the Minister, of which 199 had been tabled in Parliament. A number of the reports provided to the Minister were combined reports—for example, combined first and second reports for someone on whom we had not reported before we received their second s 486N report from DIAC.

One third of the people covered in the reports were citizens of the People’s Republic of China, 10% were citizens of Iran, 8% were citizens of Afghanistan, and 8% were citizens of Vietnam.

Significant mental health issues are a continuing area of concern for long-term detainees and 40% of the reports completed by the Ombudsman raised this issue.

Analysis

A total of 218 recommendations were made in the 211 reports sent to the Minister, with about 40% of the reports containing no recommendation. The following statistics are based on an analysis of the responses in the Minister’s statements tabled in the Parliament:

On some occasions a decision providing a different outcome followed the tabling statement.

The lack of detail in Ministerial tabling statements may mean that it will not be possible to provide a similar analysis of the s 486O report recommendations in future.

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Freedom of Information

In 2004–05 and 2005–06 we reported on significant delays in the processing of FOI requests by DIAC, and the strategies that were being implemented to address the situation.

Whilst DIAC has increased the resources within the area and introduced a range of initiatives aimed at improving FOI processing, the situation has still not improved to the degree we expected. The processing of many FOI requests far exceeds the statutory timeframe. At 30 June 2007 there were 2,793 FOI requests outside the statutory timeframe, compared to 1,101 at 30 June 2006. This continues to be unsatisfactory.

We are aware that DIAC has recently conducted an internal audit into their management of FOI requests and it is expected that the final report will identify opportunities to streamline processes or reduce the number of FOI requests received. It is also expected that a recent amendment to the Migration Act will mean that individuals no longer need to use FOI to access their international movement records. This should reduce the FOI workload.

DIAC is continuing to provide our office with regular two-monthly reporting on progress in dealing with the backlog. We will continue to monitor the number of FOI requests outside the statutory timeframe. In the meantime, we accept complaints about FOI delays and may investigate individual complaints if we consider that a particular matter should be given priority, or that a complaint raises a special area of concern in relation to DIAC’s handling of requests.

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Input to Departmental processes and procedures

We were pleased to be invited by DIAC to provide comment on draft departmental documents on numerous occasions. For example, with Dr Vivienne Thom as a member of the Values and Standards Committee and the College of Immigration Board, we have commented on a wide range of proposed training modules for compliance and detention officers attending the College.

We also commented on a range of DIAC policy and information documents, including the s 501 Handbook, detainee information material, DIAC’s Compliments and Complaints Policy, DIAC’s Stakeholder Engagement Practitioner Handbook and a discussion paper on measures to improve settlement outcomes for humanitarian entrants.

These opportunities allowed our office to reinforce issues raised during the investigation of complaints, including the need for improved record-keeping practices, the importance of effective proof of identity procedures, and the need to provide interpreters during interviews.

It has been pleasing to have the opportunity to contribute comments to the policy and information products under development for the introduction of DIAC’s revised Compliments and Complaints Policy. The revised policy indicates that DIAC is committed to becoming more responsive to the needs of customers and to improving customer service through responding to customer complaints and feedback.

As an observer on DIAC’s Detention Health Advisory Group, the office was invited to comment on new overarching health policies, including the Detention Health Framework and Detention Health Standards devised by the Royal Australian College of General Practitioners. DIAC also invited us to comment on various other draft detention documents, including the request for tender exposure drafts for detention services and detention health services, and detention complaints and visits policies.

‘... DIAC is committed to becoming more responsive to the needs of customers and to improving customer service ...’

Ombudsman representatives attended community stakeholder consultation sessions held by the Immigration Detention Advisory Group (IDAG) in Darwin and Melbourne. We will also attend the IDAG community stakeholder consultation sessions scheduled for later in 2007 in Adelaide, Brisbane, Perth and Sydney.

law enforcement

Australian Federal Police | Review of complaint handling | Own motion and special investigations | Australian Crime Commission | Australian Commission for Law Enforcement Integrity

The Commonwealth Ombudsman deals with complaints made about the Australian Federal Police (AFP) and the Australian Crime Commission (ACC). This year there was considerable change in the legislation under which the office undertakes this role, with the repeal of the Complaints (Australian Federal Police) Act 1981 (Complaints Act) and amendments to the Australian Federal Police Act 1979 (AFP Act) and the Ombudsman Act. A complete list of the relevant legislation is contained in Table 7.3.

During 2006–07 the Commonwealth Ombudsman became the Law Enforcement Ombudsman with the commencement of new legislation that also brought new responsibilities to the office. Despite these changes the core work of dealing with complaints from members of the public about AFP members continued, along with several special and own motion investigations.

TABLE 7.3 Legislative basis for Commonwealth Ombudsman oversight of law enforcement activities

TABLE 7.3 Legislative basis for Commonwealth Ombudsman oversight of law enforcement activities

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Australian Federal Police

The majority of the Ombudsman’s law enforcement work in 2006–07 related to complaints from members of the public about the actions of members of the AFP. This year 60% of all complaints were made about AFP members acting in their ACT community policing role. Our work in this area is described in more detail in the ACT Ombudsman Annual Report 2006–2007, available at www.ombudsman.act.gov.au.

The remaining 40% of complaints relate to the work of the AFP in national and international operations. The most common issues raised by complainants include:

This year complaints have been dealt with under two different legislative regimes. The relevant provisions of the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 commenced on 30 December 2006, repealing the Complaints Act and replacing it with Part V of the AFP Act and amendments to the Ombudsman Act. The Complaints Act remains in force for complaints made before 30 December 2006. These legislative changes have had a significant impact on how the Ombudsman’s office works and the statistics that are provided in this report. These changes are discussed further in following sections.

Implementation of the Law Enforcement Ombudsman function

The Law Enforcement Ombudsman is a new role vested in the Commonwealth Ombudsman as part of a broader reform of the system for handling complaints made about the AFP. The intention of the reform is to highlight the special role of the Ombudsman in dealing with complaints against the AFP, while creating a more flexible and responsive complaint-handling process that better meets the needs of all stakeholders.

‘The Law Enforcement Ombudsman is a new role vested in the Commonwealth Ombudsman ...’

The Ombudsman, Prof. John McMillan, and the AFP Commissioner, Mr Mick Keelty, signing a legislative instrument on categories.The reforms include the removal of the system for joint handling of complaints by the AFP and the Ombudsman, which was the central feature of the Complaints Act. Under the new model the AFP has primary responsibility for dealing with all complaints. Minor matters are allocated to local area management to resolve and serious matters are dealt with by the AFP’s Professional Standards team.

The Ombudsman has an enhanced investigatory and inspection role, and is no longer involved in the resolution of all complaints. The Ombudsman continues to be notified by the AFP of all serious misconduct matters: these are defined as ‘Category 3’ matters in s 40RP of the AFP Act. The Ombudsman may also investigate any complaint against the AFP, including the AFP’s handling of any case, under the Ombudsman Act.

For the purposes of complaints management under the AFP Act, conduct is divided into four categories, of which the highest is conduct giving rise to a corruption issue (s 40RK). The three other categories are minor management or customer service matters, minor misconduct and serious misconduct. The principles for determining the kind of conduct that falls within these three categories were agreed on by the AFP Commissioner and the Ombudsman and set out in a legislative instrument made under s 40RM of the AFP Act (see Australian Federal Police Categories of Conduct Determination 2006, Legislative Instrument F2006L04145 at www.comlaw.gov.au). Allegations of corruption against AFP officers are now referred both by the Ombudsman and the AFP to the Law Enforcement Integrity Commissioner. The role of the Integrity Commissioner is discussed later in this section.

As Law Enforcement Ombudsman, the Commonwealth Ombudsman has a new responsibility to review the administration of the AFP’s handling of complaints, through inspection of AFP records. An aspect of this responsibility is to comment on the adequacy and comprehensiveness of the AFP’s dealing with conduct and practices issues as well as its handling of inquiries ordered by the Minister. The results of these reviews must be provided to Parliament on an annual basis, pursuant to s 40XD of the AFP Act.

Work is continuing on developing an administratively efficient process for the examination of the AFP’s investigations into serious issues of conduct and practice. The AFP elected not to enter into an arrangement under s 8D of the Ombudsman Act for jointly dealing with such issues, and the absence of such an arrangement means that effective examination of these issues must be by separate Ombudsman investigation.

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Review of complaint handling

In 2007 we commenced reviewing the administration of the AFP’s handling of complaints. We inspected AFP records of finalised complaints made under Part V of the AFP Act during May and June 2007. A report on the adequacy and comprehensiveness of the AFP complaint system will be tabled in Parliament.

FIGURE 7.7 Australian Federal Police approach and complaint trends, 2002–03 to 2006–07

FIGURE 7.7 Australian Federal Police approach and complaint trends, 2002–03 to 2006–07

Complaints received

The change in the complaint-handling system means that the statistics in this report are not comparable with those of previous years. In 2006–07 we received a total of 694 approaches and complaints about the actions of AFP members (801 in 2005–06).

We received 517 complaints under the Complaints Act. This is a sharp increase of 47% compared to complaints received during the same six-month period in 2005 (351). Complaints relating to ACT Policing accounted for 61% of this increase and complaints relating to areas of Commonwealth responsibility represented the remaining 39%. The reason for the increase is not readily ascertainable.

We also received 172 complaints under the Ombudsman Act after 30 December 2006.

As noted above, under the new complaint-handling arrangements, the AFP is required to notify the Ombudsman of serious misconduct issues. The AFP notified the Ombudsman of 125 Category 3 complaints in the first half of 2007.

Complaints finalised

We finalised 745 complaints and 886 complaint issues in 2006–07. Complaints can contain a number of issues, each requiring separate investigation and possibly resulting in different outcomes. The following statistics cover AFP community policing, including in the ACT, as well as AFP national and international policing.

Complaints made under the Complaints Act

We finalised 591 complaints containing 729 complaint issues under the Complaints Act.

Of the 729 issues finalised, a large number (275 or 38%, compared to 48% in 2005–06) related to minor discourtesy or service delivery failures and were referred to the AFP’s workplace-resolution process. This process allows members of the public to provide feedback about their interaction with police; provides AFP members with the opportunity to acknowledge and learn from minor mistakes; and facilitates a more timely and flexible response to complaint issues than does formal investigation.

Of the 275 issues referred for workplace resolution, 191 issues (69%) were successfully conciliated with the complainant. The AFP forwarded reports to the Ombudsman for consideration in relation to the remaining 84 issues (31%) where the complainant was not satisfied with the AFP’s attempts to conciliate the matter.

‘... a large number ... related to minor discourtesy or service delivery failures ...’

We decided not to investigate 349 issues after receiving the complaints directly or after considering the AFP’s initial evaluation of the complaint. The lower proportion of complaints subjected to workplace resolution reflects the increased proportion of complaints that we considered did not warrant further action in light of the AFP’s initial evaluation. The Ombudsman made additional enquiries of the AFP on 43 issues and later decided that further action was not required.

Sixty-two complaint issues were investigated by the AFP and reviewed by the Ombudsman’s office (compared to 87 in 2005–06). Of these issues, 16 were substantiated, 9 were incapable of determination and 37 were unsubstantiated.

Our review of AFP investigation reports suggests that there was a comprehensive investigation and analysis in most cases, with reasonable and appropriate recommendations for remedial action. On a few occasions an investigation report was returned to the AFP for further action—such as a quality assurance review of the report, further clarification of a particular issue, or consideration of a broader issue. We also worked with the AFP to ensure that, where appropriate, the investigation outcome considered systemic issues and included a response from the AFP directly to the complainant.

Complaints made under the Ombudsman Act

We finalised 154 approaches containing 157 issues under the Ombudsman Act, with 145 issues being in the Ombudsman’s jurisdiction. Under the new legislative arrangements, we have adopted the policy that we take with other Australian Government agencies—that a complainant should contact the relevant agency about a complaint before asking the Ombudsman to conduct an investigation. As a result, we referred the complainant to the AFP or another oversight or advice body in relation to 120 issues (76%) and decided that the remaining 37 issues (24%) did not warrant investigation. Some investigations commenced during the period are yet to be completed.

Time taken to finalise complaints

Overall, 81% of complaints about the AFP under both legislative regimes were finalised within six months of receipt (compared to 88% in 2005–06). The remaining 19% of complaints (144) took more than six months to finalise (compared to 12% in 2005–06).

Concerned about the delay in finalising many AFP complaints, we analysed the cases to identify the causes. The analysis revealed that the Ombudsman’s office finalised complaints made under the Ombudsman Act in an average of 23 days. Complaints jointly managed with the AFP under the Complaints Act took an average of 150 days to finalise, comprising 107 days for the AFP to prepare a report to the Ombudsman, and 43 days for the Ombudsman’s office to consider that report.

There was a delay in some instances between the AFP receiving a complaint and notifying it to the Ombudsman. There were also delays from when the Ombudsman notified a complaint to the AFP and the AFP advised us how they intended to deal with it. The AFP informed us that these delays resulted from a backlog in the evaluation of new complaints, which had subsequently been resolved. Weekly meetings were held between the AFP and the Ombudsman’s office to discuss these and other issues.

In the next financial year we will work with the AFP to resolve the remaining 169 complaints made under the Complaints Act and to reduce our own consideration times.

‘Weekly meetings were held between the AFP and the Ombudsman’s office ...’

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Own motion and special investigations

ACT Policing Watchhouse operations

In February 2007, at the request of the AFP, we conducted a joint review with the AFP of City Watchhouse operations in the ACT. The report, which was published in June 2007 (Report No 6/2007), is described more fully in the ACT Ombudsman Annual Report 2006–2007. The review recommended many changes in Watchhouse procedures, as well as a more far-reaching consideration of the way in which the Watchhouse is operated and staffed.

Among the matters covered by the report were:

The AFP accepted all the recommendations, with one being a matter for consideration by the ACT Government. The steering committee oversighting the review will meet by December 2007 to report on progress in implementing the review recommendations. The report is available on our website at www.ombudsman.gov.au.

Review of management of property and exhibits

In last year’s annual report we noted that we were considering conducting an investigation into the AFP’s management of property and exhibits. Some of the issues that were to be taken up in this investigation related to the AFP’s management of property while a person was in ACT police custody. These have now been addressed in the report on ACT Policing Watchouse operations. As a result, we decided not to pursue a separate investigation on property and exhibit handling at this time.

Security vetting

We conducted an own motion investigation into AFP security vetting procedures during 2006–07. In the investigation we examined issues such as whether natural justice was properly observed in security vetting decisions, whether security vetting policies were applied consistently to international security vetting applications, and whether there was excessive delay in the vetting process.

The investigation revealed that since 2006 the AFP had improved its security vetting practices and had addressed the main problems raised in complaints to the Ombudsman. The process for conducting a review and observing natural justice had been amended to comply with good administrative practice, and the policy for conducting international enquiries had been clarified and structured to enable it to be applied more efficiently and consistently. The AFP had also introduced deadlines for processing security vetting applications to reduce delays, and increased the training requirements for AFP security vetting staff.

Special investigations

Ombudsman staff are progressing two special investigations under the Complaints Act. One investigation is examining whether a ‘directed’ interview conducted between AFP Professional Standards officers and an AFP member (as a result of a conduct issue) was biased due to an alleged ‘perceived or actual conflict of interest’ held by one of the AFP Professional Standards officers involved in conducting the interview. The second investigation revolved around the interview technique used by some AFP Professional Standards officers when investigating conduct issues. This special investigation has been completed and a report provided to the AFP for comment.

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Australian Crime Commission

Complaints about the ACC are managed under the Ombudsman Act. While the ACC is not required to notify complaints to the Ombudsman’s office, the ACC notifies us about significant matters, allowing us to consider whether further investigation by Ombudsman staff is warranted.

In 2006–07 we received nine approaches about the ACC (the same as in 2005–06). We finalised eight approaches, three of which were complaints within the Ombudsman’s jurisdiction. Some of the other approaches were from people seeking to report criminal activity in the community. We gave these people the contact details for the ACC.

One complaint was referred to the ACC for its consideration. An independent officer (arranged through the ACC) investigated this complaint, which related to an allegation that ACC officers executing a search warrant in Melbourne had stolen $20,000 in cash from the premises being searched. A full investigation of this matter was conducted by the ACC and we reviewed the final investigation report. The investigation included examination of videotapes recorded during the execution of the search warrant. The investigation uncovered no evidence to suggest that any ACC or AFP officers involved in the search warrant execution had removed any item from the premises without authority or without an official seizure receipt.

Another complaint centred on matters relating to security protection being provided to a witness. After some investigation of this matter we decided not to take any further action as the ACC had already provided an appropriate remedy to the complainant.

The other complaint within jurisdiction centred on matters that had allegedly occurred many years ago and had been before the courts some years ago. We decided not to investigate this matter as an investigation so long after the event would have been problematic and was unlikely to achieve the remedy sought by the complainant.

Australian Commission for Law Enforcement Integrity

An important change in 2006–07 was the creation of the new position of Law Enforcement Integrity Commissioner, assisted by the Australian Commission for Law Enforcement Integrity (ACLEI). The Law Enforcement Integrity Commissioner Act 2006 commenced on 30 December 2006. The core function of the Integrity Commissioner is to investigate and report on corruption in the ACC and the AFP.

The Ombudsman can refer allegations of corruption against law enforcement officers to the Integrity Commissioner. In 2007 the Ombudsman referred two allegations of corruption to the Integrity Commissioner. One related to the AFP and the other to the ACC.

Discussions were held in 2007 between the Ombudsman’s office and ACLEI to clarify arrangements between both offices for cooperation and referral of complaints and allegations. It is expected that there will be a close working relationship between the Ombudsman’s office and ACLEI.

postal industry

Postal Industry menu: Commonwealth jurisdiction | Australia Post complaints

The Postal Industry Ombudsman (PIO) started operating on 6 October 2006. The PIO is a new role for the Commonwealth Ombudsman, and is the office’s first function that routinely investigates complaints about private sector organisations.

The PIO scheme is a voluntary scheme which postal operators or courier companies can choose to join. Australia Post is automatically a member. At the start date, five businesses had joined the scheme, and two more joined shortly after. At 30 June 2007, the members of the PIO scheme were:

The scheme was officially launched in July 2006 in Sydney by the Minister for Communications, Information Technology and the Arts, Senator the Hon. Helen Coonan. Speakers at the launch were Senator Coonan, the Managing Director of Australia Post, Mr Graeme John AO, and the Commonwealth and Postal Industry Ombudsman, Prof. John McMillan.

Mr Graeme John, Senator Coonan and Prof. McMillan at the launch of the PIO Scheme.

In 2006–07 our office worked on raising the profile of our new function in the broader community. We focused particularly on providing information about the PIO to those who, in turn, give advice to members of the community. We began a program of writing to all federal, state and territory parliamentarians during 2006–07, and talked to organisations that help consumers—for example, the state and territory bureaus of consumer affairs.

From 6 October 2006 to 30 June 2007, the PIO received 1,018 approaches and complaints. The number of approaches and complaints to our office, and investigations undertaken by the PIO, are shown in Table 7.4.

TABLE 7.4 Approaches and complaints received, and investigations, by the PIO, 2006–07

TABLE 7.4 Approaches and complaints received, and investigations, by the PIO, 2006–07

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Commonwealth jurisdiction

The PIO can only investigate complaints about postal services, and where the action complained of occurred on or after 6 October 2006. Other complaints about Australia Post can be investigated by the Commonwealth Ombudsman. This includes complaints about non-postal issues—for example, Australia Post’s banking or billpay services.

In 2006–07 the Commonwealth Ombudsman received 802 approaches about Australia Post, in addition to the approaches received by the PIO referred to above. The 802 approaches comprised approaches about Australia Post made before 6 October 2006, and approaches about non-postal issues made after that date.

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Australia Post COMPLAINTS

Australia Post deals with a high volume of transactions—on average, it handles some 21 million items every working day and delivers mail to approximately 10.3 million delivery points.

We received significantly more approaches and complaints about Australia Post in 2006–07 compared to previous years, with a total of 1,819 approaches and complaints compared to 1,327 in 2005–06. One reason may be the start of the PIO, with increased publicity about our office’s role in handling Australia Post complaints. Another reason may be changes in the use of the postal system. Although overall mail volumes remain steady, the proportion of parcel transactions has increased in recent years. This seems to be driven by an increase in consumers purchasing by email or over the internet, from suppliers both in Australia and overseas. It is possible that postal customers are more likely to notice, and complain about, a service failure by Australia Post in relation to parcels than in relation to letters such as bank statements.

As well as complaints about items lost or damaged in the mail, other complaint themes included the express post service (for example complaints about service failure and the limited nature of the ‘guarantee’), registered post (including complaints about signatures for items being accepted from people who were not entitled to them), and the method of mail delivery (ranging from complaints about mail being left in the rain, to a complaint alleging the fumes from the postie’s bike polluted the caller’s house).

The number of approaches and complaints to our office about Australia Post (received by both the PIO and the Commonwealth Ombudsman) is shown in Figure 7.8.

FIGURE 7.8 Australia Post approach and complaint trends, 2002–03 to 2006–07*

FIGURE 7.8 Australia Post approach and complaint trends, 2002–03 to 2006–07*

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Recurring problems

As consumers become more likely to complain, it is increasingly important that Australia Post gives a high quality initial response to customer problems. Postal customers are encouraged to contact an Australia Post Customer Contact Centre (CCC) if they have an enquiry or a complaint. The CCCs handled on average 75,000 calls per week nationally during 2006–07.

During the year we noticed that some ongoing complaints are not always handled well by the CCCs. Although staff of the CCCs are generally able to handle and resolve one-off issues, recurring or ongoing problems are not always identified and managed in an appropriate manner.

We found that postal customers experience a high degree of frustration if problems continue after a complaint to a CCC. A particularly troubling area is when a customer is having problems with delivery and is concerned about mail not being delivered. The customer may not know what mail they should have received and cannot tell if there was a delivery failure. It can be difficult for Australia Post to regain the trust of an addressee after ongoing delivery problems.

‘We found that postal customers experience a high degree of frustration if problems continue ...’

Over the year our office was able to assist Australia Post to identify and focus on recurring problems experienced by individuals, and to put in place longer-term solutions to solve the core cause, as shown in the case studies On the boundary and Unwanted redirection.

CASESTUDY | on the boundary

Ms M complained to us about mail regularly arriving 8 to 10 days after it was sent. She had approached Australia Post two years earlier, and the problem was fixed for about 12 months, but had recurred.

We established that the problem occurred because Ms M lived on the boundary of two delivery areas, and her address appeared twice in the address database. Mail sorted to the incorrect delivery area was then resent to the correct delivery area, resulting in the delay.

As a result of the complaint to our office, Australia Post put in place new processes for dealing with mail to this address, eliminating the double handling and the consequent delay. Australia Post was also able to give Ms M information on how to read the markings on her mail to see where the mail had been, and gave both Ms M and any affected neighbours a direct number to call to deal with future problems.

CASESTUDY | unwanted redirection

Mr N approached our office on behalf of his business, complaining that for the last month the bulk of the mail addressed to his business had been returned to sender for various reasons such as ‘left address’ or ‘delivery refused’. Mr N said this was causing cash flow difficulties for his business. He had contacted Australia Post more than 25 times, but the problem continued.

It transpired that a redirection in place for a previous business in the premises had been wrongly applied to Mr N’s business mail. As a result of our investigation, the relevant operations manager contacted Mr N and obtained a list of all company and personal names that received mail at that address. This was given to the delivery officer, and an alert placed in the relevant redirections folder. Australia Post also put in place a short-term automatic diversion for all mail at that address until the new processes were fully operational.

Dilution of responsibility

Australia Post is a large organisation, with approximately 35,000 staff. Many of the complaints to our office involve actions by different parts of Australia Post. In order to find out why a problem occurred, and whether changes can be made to prevent it happening again, it is often necessary for several different operational areas of Australia Post to be involved.

Although a customer’s initial contact is with a CCC, the resolution of the problem and notifying the customer of the outcome will often become the responsibility of the local delivery centre. If another area of Australia Post is also involved—for example, the sending post office—it can become difficult for a customer to keep track of the progress of their complaint.

We assisted complainants negotiate their way through Australia Post to someone who was able to help them and resolve their problem. As much of Australia Post’s work is done locally, our office has found that face-to-face contact with local representatives is invaluable in improving postal services, as the case study Indirect delivery demonstrates.

CASESTUDY | indirect delivery

Mr O complained about a problem with his mail going via another delivery centre before being redirected to the correct delivery area. He believed this was because his area had an incorrect postcode. He approached his local post office and delivery centre about the problem in 2003 and 2004.

Mr O initially complained to us in May 2006. As a result of our investigation, Australia Post changed the local procedures to ensure that mail was correctly transferred for direct local delivery. Mr O returned to our office in July concerned that the amount of mail he was receiving had decreased significantly. He had not been able to contact anyone who was able to say what was going on.

Our office was able to help Mr O and the local delivery manager make contact. The delivery manager explained the new delivery network changes to Mr O, and how the changes should solve his concerns.

other agencies

Australian Customs Service | Australian Film Commission | Australian Securities and Investments Commission | Department of Families, Community Services and Indigenous Affairs | Department of Foreign Affairs and Trade | Insolvency and Trustee Service Australia | Telstra Corporation

Each year we receive approaches and complaints about more than 100 Australian Government departments and agencies. There are a number of agencies about which we generally receive 50 to 200 approaches and complaints each year. These agencies are shown in Table 7.5.

TABLE 7.5 Agencies about which a modest number of approaches and complaints are received, by number received, 2002–03 to 2006–07

TABLE 7.5 Agencies about which a modest number of approaches and complaints are received, by number received, 2002–03 to 2006–07

While we may receive only a small number of complaints about some agencies, they can sometimes highlight important issues in public administration. This section gives an example of the range of complaints with which we dealt. It also outlines some complaints which raised broader issues of public administration.

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Australian Customs Service

In 2006–07 we received 123 approaches and complaints about the Australian Customs Service, compared to 121 in 2005–06. As with last year, the primary source of complaints about Customs were issues associated with passenger processing. Complaints tended to relate to baggage inspections, routine questioning by Customs officers, the imposition of duty and/or the seizure of prohibited goods.

The case study Damaged souvenir shows how we were able to help resolve a complainant’s concerns in relation to baggage inspection.

CASESTUDY | damaged souvenir

When Mr P arrived home from a trip to Asia, he noticed that a wooden souvenir he brought back had been damaged. Mr P was concerned that the damage may have occurred during a routine baggage inspection by a Customs officer at Melbourne Airport. Following an investigation of Mr P’s complaint, Customs was able to provide our office with CCTV footage of the actual inspection. The footage showed that the item had not been mishandled or damaged by the Customs officer. To further alleviate Mr P’s concerns, our office was able to facilitate a private viewing of the footage for Mr P at Customs House.

Our office also continued to receive complaints about passenger duty free concessions. Some complainants argued that the current concessions have not been adequately publicised since their implementation in 2005. Other complainants suggested that the current by-laws relating to the concessions are inflexible, in that they do not allow for the partial disposal of amounts that exceed the duty free limits.

In most instances, our office was able to provide these complainants with a better explanation of how the concessions are now applied, and to confirm whether Customs had applied the by-laws correctly in respect of their particular goods. We will continue to monitor how Customs publicises the concessions and responds to these types of complaints.

During the year, our office also engaged in a number of visits to Customs’ sites, including Passenger Processing and Container Examination facilities. Through an improved understanding of how Customs manages its operations, our office will be better equipped to deal with complaints about Customs and its associated processes.

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Australian Film Commission

There are a number of agencies about which we usually receive very few, if any, complaints. However, the complaints we receive can sometimes illustrate broader issues of public administration. One such matter arose involving the Australian Film Commission (AFC).

In May 2007 the Ombudsman released a report Australian Film Commission: Investigation into the assessment of film funding applications (Report No 2/2007). After dealing with a complaint from a person that he had not been given an adequate explanation as to why his application for film funding was rejected, we identified some broader procedural and policy issues which appeared to warrant further examination. The report of the investigation recommended the AFC review its policy and procedures for the assessment of funding applications. The recommendations proposed that the AFC should:

While the subject matter of this report (film funding) was agency-specific, similar principles are applicable across all areas where applications are subject to a competitive assessment process. The Ombudsman’s report drew attention to earlier reports of the Administrative Review Council and the ANAO that dealt with the administration of grants and funding applications. The number of complaints in such grant funding areas can be low, yet single complaints can identify important issues that need careful attention. This is important in meeting the community expectation that the management of competitive grant processes by Australian Government agencies will be accountable, transparent and grounded in objective and rational decision making processes.

‘... single complaints can identify important issues that need careful attention.’

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Australian Securities and Investments Commission

The Australian Securities and Investments Commission (ASIC) has responsibilities in the areas of company registration and regulation of the corporate sector. We received 192 approaches and complaints about ASIC in 2006–07, compared to 188 in 2005–06.

Registry function complaints

The most common theme of these complaints continued to be about late fees imposed on companies. Many of these complaints were dealt with by explaining to the complainant the way in which the late fee system works. Where a deadline for filing a document or paying a fee is missed, a late fee is applied automatically by operation of the relevant legislation. The company concerned can apply for the fee to be waived.

Usually ASIC will only waive the fee where the circumstances that led to it being imposed were beyond the control of the company, its officers or agents. We have accepted that it is reasonable for ASIC to apply this policy.

We considered a number of complaints that ASIC had not sent electronic company statements in advance of a company’s annual review date, causing the company to fail to pay its annual review fee on time. In the complaints that we investigated, we did not find grounds to be critical of ASIC.

We also received some complaints about registration of company names. The relevant regulations are specific as to what company names may or may not be registered. Complaints are sometimes made to us when a person is dissatisfied with ASIC’s decision to register a company with a particular name. An example is shown in the case study Same name.

CASESTUDY | same name

A company complained to us that ASIC had registered a competitor with a name that was almost identical to theirs. The company believed the competitor would operate in the same geographical area and the similarity of name would confuse customers and damage the company’s business.

ASIC had explained to the company that a name was available to a new company except in circumstances specified in the legislation, and none of those circumstances applied in this instance. However, ASIC had suggested that the company could seek legal advice about other ways to protect its trading reputation.

We considered that ASIC’s view of the legislation was reasonable, and reiterated to the company the suggestion that it could seek legal advice about its options.

Corporate watchdog complaints

We continue to receive complaints that ASIC has declined to investigate allegations made to it of breaches of the corporations legislation, or has refused to advise people what regulatory action it intends to take.

ASIC takes the view that complaints made to it are a source of information about corporate wrongdoing, which it analyses as part of its functions. ASIC considers that the legislation does not impose a responsibility on it to pursue any particular complaint, however well-founded. ASIC has advised us that it seeks to direct its resources to those matters that best meet its regulatory priorities.

Often, a person complaining to ASIC about the actions of a corporation or liquidator will have a right of action in the courts. Although people may have difficulty in affording court proceedings, this is only one matter to be considered by ASIC in deciding whether to pursue a matter on behalf of an individual.

During 2006–07 we investigated a number of the complaints made to us about ASIC declining to take regulatory action, particularly where ASIC had not given reasons for its decision to the complainant. In doing so, our aim was to consider whether the processes that had led to ASIC’s decision were sound, and whether there had been adequate communication with the complainant.

The case study Decision examined illustrates one case where there was a tension between ASIC providing an explanation while maintaining confidentiality.

CASESTUDY | decision examined

Ms Q complained to ASIC about a company. She considered that her complaint clearly showed that the company had breached corporations legislation, but ASIC declined to take action against it and Ms Q could not understand why.

ASIC gave us further information about why it had not taken action against the company. Although we considered that its explanation was not unreasonable, ASIC advised us of its view that this explanation could not be given to Ms Q for reasons of confidentiality.

We told Ms Q that our investigation had not identified any grounds for considering ASIC’s decision to be unreasonable. However, we suggested to ASIC that it might in the future consider ways in which it could balance its need to maintain confidentiality in accordance with legislative requirements, with the need to explain its decisions to complainants in the interests of good administration.

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Department of Families, Community Services and Indigenous Affairs

Generally we receive few approaches and complaints about the Department of Families, Community Services and Indigenous Affairs (FaCSIA). One complaint we received in 2006–07 illustrates again the difficulties that can arise when a number of agencies are involved in providing services to an individual, as shown in the case study Complaint unresolved.

CASESTUDY | complaint unresolved

Our office received a complaint from Mr R, a jobseeker, who was dissatisfied with the way in which the Complaints Resolution and Referral Service (CRRS) was dealing with his complaint about his Disability Employment Network (DEN) provider. The CRRS is an independent organisation funded by FaCSIA to help resolve complaints about services funded under the Disability Services Act 1986. Mr R advised he had attempted to complain about this to the DEWR Customer Service Line, which referred him back to the CRRS.

We approached FaCSIA about this complaint, understanding that it was responsible for contracting the CRRS to provide a complaints service about disability employment services. We were advised that a memorandum of understanding existed between DEWR and FaCSIA, stating that DEWR would handle escalated complaints about DEN providers. Although FaCSIA did not raise this complaint with DEWR, a FaCSIA contact officer agreed to act as a liaison point between this office and the CRRS in relation to the complaint.

In the course of our investigation we identified that the CRRS policy and procedure document of November 2003 stated that complaints about the CRRS should be directed to the CRRS in the first instance and can then be escalated by the CRRS to the then Department of Family and Community Services. In this instance, however, Mr R’s complaint was clearly not escalated to FaCSIA.

At the conclusion of our investigation we formed the view that the CRRS’s process for handling complaints was flawed, and that it had not handled Mr R’s complaint properly.

DEWR and FaCSIA are renegotiating the memorandum of understanding, and seeking to strengthen the provisions on escalation of complaints to ensure greater transparency of the CRRS complaint resolution process.

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Department of Foreign Affairs and Trade

During 2006–07 the office received 155 approaches and complaints about the Department of Foreign Affairs and Trade (DFAT), compared to 140 in 2005–06.

The majority of complaints related to passport processing, including the cost associated with replacing lost or stolen passports, passport fees in general, the renewal requirements for passports, and delays associated with processing passport applications. Many complaints did not proceed to investigation stage because complainants had not attempted to resolve their problem with DFAT in the first instance. The case study Expired and lost shows how we were able to help one person, and assist DFAT to provide better information to future passport applicants.

CASESTUDY | expired and lost

Mr S’s passport had expired more than two years before he decided to apply for a new passport. He was not able to find the expired passport, and ticked ‘previous passport lost/destroyed’ on the application form. The Australia Post employee who took Mr S’s application form told him that he would have to pay a lost passport replacement fee of over $60, in addition to the $197 fee for the issue of a new passport.

Mr S considered this unfair because his old passport had expired, there was nothing on the passport application form requiring him to produce the old passport, and nothing on any of the passport documentation or guidelines advising a passport holder they need to retain an expired passport. He approached DFAT’s Passport Office, which told him that the ‘lost or stolen’ fee was a policy intended to deter people from losing their passports.

As a result of our investigation DFAT decided to refund the ‘lost or stolen’ fee to Mr S because his previous passport had expired. In addition, DFAT advised it would provide additional information about the need to retain expired passports on its passport website, and would review the content of passport brochures.

We also received complaints about identification requirements for passports. This was a key source of complaints during 2005–06, primarily due to the introduction of new legislation that resulted in more stringent proof of identity requirements for passport applicants. As a result of one case we investigated, DFAT undertook to update information on its website in relation to the requirements for proof of place of birth.

A few complaints related to passport applications for children under the age of 18 where the child’s natural parents were separated. In some cases, parents complained that the other parent had refused permission for a passport to be issued to their child. For example, one father contacted our office regarding DFAT’s refusal to issue a passport for his 14-year-old daughter, of whom he had full custody, because the child’s mother had objected to her daughter being given a passport. We clarified some matters with DFAT, following which the father decided to appeal DFAT’s decision to not grant a passport to his daughter to the Administrative Appeals Tribunal. He also considered seeking an order from the Family Court that would allow his daughter to travel overseas.

In other cases, parents complained that a passport had been issued to their child without their consultation and consent, and as a result the child had been able to travel overseas, sometimes without their knowledge. Some of the cases involved sensitive personal issues such as domestic violence and cultural differences between the parents.

Other complaints covered a wide range of issues, including the actions of DFAT embassy and consular staff located in overseas offices. No trends of note were detected amongst this group of complaints. We received a few complaints about the quality of advice given by embassy and consular staff in relation to eligibility for visas required for travel to Australia, and the lack of assistance provided to Australian citizens who were seeking to return home from overseas urgently after an unforeseen event such as the outbreak of war or civil unrest. For example, a few complaints were about the evacuation of Australians following the outbreak of war in Lebanon in July 2006. Most of these complaints did not proceed to investigation stage because evacuation occurred relatively quickly and complainants no longer wished to pursue the matter.

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Insolvency and Trustee Service Australia

We receive complaints about the administration of personal insolvency law by the Insolvency and Trustee Service Australia (ITSA). In 2006–07 we received 60 approaches and complaints about ITSA, compared to 76 in 2005–06.

Usually we ask people with a complaint about the handling of a bankruptcy, including by the Official Trustee, to complain first to the Bankruptcy Regulation branch of ITSA. If the person is not satisfied with the way their complaint is handled, we may investigate it.

We receive complaints from both bankrupts and creditors. Many complaints can be resolved by an explanation of the legal framework in which bankruptcy operates. For example, fees are charged to bankrupt estates in accordance with legislation, and while a bankrupt or creditor might be dissatisfied with the amount of fees charged, our role will usually be limited to considering whether the legislation has been followed.

The case study No notice shows the interaction between complying with legislative requirements and delivering good service.

CASESTUDY | no notice

A trustee in bankruptcy lodged an objection under bankruptcy legislation to Mr U being discharged from bankruptcy (in other words, to the bankruptcy being finalised).

Under the legislation Mr U had 60 days to apply for this objection to be reviewed, after receiving notice of the objection. Failure to seek a review means that the bankruptcy continues. However Mr U claimed that he never received notice of the objection. ITSA advised Mr U that, as his request was out of time, it could not consider his request as valid under the legislation.

We asked ITSA to consider Mr U’s argument that he did not receive the notice. ITSA acknowledged that it should have made enquiries about this, and on doing so found that Mr U had not received the notice or been advised of his rights. ITSA then exercised its discretion to review the objection, with a favourable outcome for Mr U.

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Telstra Corporation

Following the government’s decision to fully privatise Telstra, the Ombudsman no longer deals with complaints about Telstra.

The loss of jurisdiction was triggered by a declaration by the Minister for Communications, Information Technology and the Arts on 24 November 2006 that the Australian Government no longer held a majority of shares in Telstra. Any complaints made about Telstra on or after that date are not within the Ombudsman’s jurisdiction.

In the 2006–07 reporting year we received 228 approaches and complaints about Telstra during the period it was in the Ombudsman’s jurisdiction. We closed 229 approaches and complaints, of which we investigated less than 3%. The matters investigated generally related to workers’ compensation and Telstra’s response to requests made under the Freedom of Information Act.

Most complainants were referred to the Telecommunications Industry Ombudsman (TIO), who continues to handle disputes over billing, contracts, faults and customer service.

People who wish to complain about Telstra’s response to a ‘000’ emergency number call may contact the Community and National Interests Section of the Australian Communications and Media Authority.

freedom of information

The purpose of the Freedom of Information Act 1982 (FOI Act) is to extend, as far as possible, the 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 empowers the Ombudsman to investigate complaints about actions of Australian Government agencies under the FOI Act (s 57). The Act 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.

In 2006–07 we finalised 303 complaint issues (259 in 2005–06) about the way 46 Australian Government agencies handled requests under the FOI Act. The majority of complaint issues were about Centrelink (33%) and DIAC (12%).

Most complaint issues related to delays in processing FOI requests (26%) and to the correctness of the primary decision (27%). In most cases, delay in processing FOI requests is resolved by encouraging agencies to expedite a decision in cases already outside the statutory timeframe. Often the delays are not extensive—though there was a delay of nearly 12 months in responding to a request in one case investigated during the year, and (as noted earlier in this chapter) there have been extensive FOI delays and backlog in DIAC.

Complaints to the Ombudsman about delay can often be avoided if agencies better inform applicants of the progress of their application and the causes for the delay. The Ombudsman continues to encourage agencies to improve the level of contact with applicants to decrease the need for our intervention.

The FOI (Fees and Charges) Regulations set a scale of charges, which are significantly below the real cost to agencies of handling FOI requests. Depending on the nature of an FOI request, the estimated charge can still be high. This occurred in one case investigated during the year, when a request of a relatively straightforward nature attracted a charge that seemed very high. The explanation was that a large number of third parties needed to be consulted in relation to the release of the information, and the Regulations permitted that time to be included as a charge.

A decision to impose a charge can be challenged on internal review or before the Administrative Appeals Tribunal. The FOI Act also gives a discretion 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, journalists or social security recipients. An agency must consider hardship and the public interest in considering requests for waiver.

Complaints to the office sometimes focus on that issue, arguing that an agency should have waived a charge—for example, where the person believes that the document could have been obtained by a parliamentary committee, or it relates to a current issue of public controversy and 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, reviewable discretion on agencies to impose or waive a charge. The office will generally not recommend waiver if an agency has followed a proper process, considered the relevant factors and made a decision within a reasonable range.

The FOI complaints handled during the year underscore the important role that efficient administration of the FOI Act plays in meeting open government objectives.

Many of these issues were raised in the own motion report Scrutinising Government: Administration of the Freedom of Information Act 1982 in Australian Government agencies (Report No 2/2006). A proposal in that report was that a statutory office of FOI Commissioner (possibly located within the office of the Commonwealth Ombudsman) could play a constructive role in addressing complaints about the operation of the FOI Act and promoting its effective operation. An FOI Commissioner could provide valuable assistance both to agencies and to the public. The proposal for an FOI Commissioner has also been supported by other bodies and commentators, who see the FOI Act as a cornerstone of Australian democracy.

monitoring and inspections activities

Monitoring and inspections activities menu: Expansion of Ombudsman’s monitoring and inspection role | Telecommunications interceptions | Surveillance devices | Controlled operations | Regional inspections

Expansion of Ombudsman’s monitoring and inspection role

The Ombudsman’s responsibility for inspecting the records of law enforcement and other enforcement agencies, and reporting on those inspections, expanded significantly in 2006 with changes to the Telecommunications (Interception and Access) Act 1979 (TIA Act). The amendment introduced a scheme by which enforcement agencies can obtain access to stored communications. An example of a stored communication is a text message or email electronically stored, usually temporarily, on a telecommunications carrier or internet service provider’s system.

The potential workload in identifying and inspecting the agencies that access stored communications is considerable. This office is not presently aware of any agency other than the AFP and the ACC having used the new provisions. As awareness grows of the potential benefits the provisions provide to other enforcement agencies, that situation may change.

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 on a service belonging to a person who is not suspected of committing a serious offence, but who may communicate with the suspected offender via that service.

The statutory creation of ACLEI in 2006 expanded the inspection role of the Ombudsman further. ACLEI is authorised to exercise the same powers as the AFP and ACC to undertake telecommunications interception and access to stored communications under the TIA Act, to use surveillance devices under the Surveillance Devices Act 2004 (Surveillance Devices Act) and to carry out controlled (covert) operations under Part 1AB of the Crimes Act 1914 (Crimes Act).

The use of those powers by ACLEI will be subject to regular inspection and monitoring by the Ombudsman’s office. To date, ACLEI has not made use of these provisions, and consequently we did not conduct any inspection. ACLEI has indicated that this will not remain the case, although the number of times the provisions are utilised is expected to be low in comparison with the AFP and ACC.

The office’s monitoring and inspection role now includes:

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Telecommunications interceptions

Under the TIA Act, the Ombudsman is required to inspect the records of the AFP, ACC and ACLEI twice a year to ensure the records are in compliance with the requirements of the Act. The Ombudsman is also expected to follow up any concerns about compliance or other aspects of record keeping disclosed by the inspection. A report on an inspection is then presented to the agency. An annual report is presented to the Minister on the results of inspections carried out each financial year. We presented a report on the results of inspections undertaken in 2005–06 to the Attorney-General in September 2006.

Two inspections of AFP and ACC records were carried out in 2006–07. The reports, which were provided to the agencies after each inspection, concluded that there was general compliance with the detailed record-keeping requirements of the TIA Act. A number of recommendations were made after each inspection to improve record keeping. The recommendations were generally accepted by both the AFP and the ACC, which have since implemented a range of measures to improve record keeping.

The record-keeping requirements in relation to the practical effects of the new stored communications provisions are not yet fully defined. Discussions are ongoing with the AFP, the ACC, the Attorney-General’s Department and telecommunications carriers to settle the processes required to ensure the integrity of the stored communications regime.

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Surveillance devices

The Surveillance Devices Act came into operation in December 2004. In 2005 we commenced a program of two inspections each year of AFP and ACC records. This inspection regime continued in 2006–07.

During 2006–07 we also inspected the records of two state law enforcement agencies, the South Australia Police and the New South Wales Police, under the Surveillance Devices Act. These were the only state police forces that used powers under the Act. As the number of records held by state police forces is far less than that of the AFP and the ACC, less frequent inspections will be conducted. It is expected that inspections of records relating to the Surveillance Devices Act held by state police will take place once every year.

A report on the results from the first bi-annual AFP and ACC inspections was provided to the Attorney-General in February 2007. Overall there was a satisfactory level of compliance by each agency. However, some compliance issues were identified, including a requirement for more detailed and consistent records on the use and communication of information obtained from a surveillance device. We have noted improvements in the record keeping and procedures of the AFP and the ACC in subsequent inspections.

‘Overall there was a satisfactory level of compliance by each agency.’

The results of inspections that were finalised earlier this year, including the inspections of the state police, have been passed to respective agencies and a report is due to be provided to the Attorney-General in August 2007.

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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 engaging in conduct that would constitute an offence unless authorised by a controlled operations certificate.

The Ombudsman has an oversight role in ensuring that controlled operations are approved and records maintained in accordance with Part 1AB of the Crimes Act and that, in relation to these activities, information supplied by agencies in quarterly reports to the Minister and Ombudsman is 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 each at the AFP and the ACC. The inspections concluded 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 a briefing to the Parliamentary Joint Committee on the ACC. An annual report for 2005–06 was presented to Parliament in December 2006.

Regional inspections

The Ombudsman also undertook an inspection of records relating to telecommunications interceptions, surveillance devices and controlled operations at the AFP’s Perth regional office in November 2006. The Perth office was found to be generally compliant with the record-keeping requirements of the relevant Acts.

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      Chapter 7 | Looking at the agencies | Commonwealth Ombudsman Annual Report 2006-07

      Commonwealth Ombudsman annual report 2006-2007

      CHAPTER 7 | Looking at the agencies

      Introduction

      The majority of approaches and complaints received about Australian Government agencies within the Ombudsman’s jurisdiction (77%) concerned the following six agencies:

      • Australia Post
      • Australian Taxation Office
      • Centrelink
      • Child Support Agency
      • Department of Employment and Workplace Relations
      • Department of Immigration and Citizenship.

      This chapter focuses on particular issues that arose during 2006–07 in investigating complaints, and in dealing with the agencies more broadly. It also looks at other specialised areas of our work:

      • dealing with complaints by current and former members of the Australian Defence Force (Defence Force Ombudsman)
      • dealing with complaints about the Australian Federal Police, including under the role of Law Enforcement Ombudsman
      • the broader Immigration Ombudsman role
      • the handling by agencies of freedom of information requests.

      The ‘Other agencies’ section of this chapter provides information about some of the range of complaints received about other agencies.

      The chapter concludes with a section ‘Monitoring and inspections’ which summarises the work undertaken for Output 2—Review of statutory compliance in specified areas.

      The number of approaches and complaints we receive about specific agencies usually reflects their level of interaction with members of the public. In general, the higher the number of direct transactions an agency has with members of the public, the more potential there is for things to go wrong. While we see only a very small proportion of complaints compared to the number of decisions and actions taken by agencies, those complaints can shed useful light on the problems people can face in dealing with government and areas for improving administration. The figures given for numbers of approaches and complaints include a small number of matters that are out of jurisdiction for the Ombudsman.

      Figure 7.1 shows the number of approaches and complaints received in 2006–07 about agencies within the Ombudsman’s jurisdiction. Detailed information by portfolio and agency is provided in Appendix 4—Statistics.

      FIGURE 7.1 Approaches and complaints received about agencies within jurisdiction 2006–07

      FIGURE 7.1 Approaches and complaints received about agencies within jurisdiction 2006–07

      australian taxation office

      Complaints overview | Tax environment | Complaint assisted transfer project | External project work | The year ahead

      The Ombudsman has been investigating complaints about the Australian Taxation Office (ATO) since 1977 when the office commenced operation. In 1995 the Ombudsman was also given the title of Taxation Ombudsman following recommendations of the Joint Committee of Public Accounts and Audit (JCPAA), to give a special focus to the office’s handling of complaints about the ATO. The committee’s recommendations recognised the imbalance that exists between the powers of the ATO and the rights of taxpayers.

      The Taxation Ombudsman is assisted by a Senior Assistant Ombudsman, a specialist Tax Team, and generalist complaint investigation teams located in our state offices. Following changes to our office’s work practices during this reporting year, the Tax Team put greater emphasis on addressing a range of general taxation administration issues, providing advice to our investigation officers on tax complaints and issues, and maintaining a productive working relationship with the ATO.

      During 2006–07 we continued to build on our previous efforts to encourage review and improvement in ATO tax administration, as well as improving our own handling of complaints. A particular highlight is our initiation of an ongoing program of project work focusing on aspects of tax administration. We hope this will encourage the ATO to review its own processes where this is not already being done. We also trust this will provide a higher level of assurance about the health of the tax system.

      FIGURE 7.2 Australian Taxation Office approach and complaint trends, 2002–03 to 2006–07

      FIGURE 7.2 Australian Taxation Office approach and complaint trends, 2002–03 to 2006–07

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      Complaints overview

      In 2006–07, the Ombudsman received 1,261 approaches and complaints about the ATO, compared to 1,523 in 2005–06. We believe the continuing decrease in the number of complaints about the ATO indicates that the ATO’s improvements to its own internal complaint handling system are enhancing the handling of taxpayer complaints. The office finalised 1,272 complaints, of which 187 (15%) were investigated.

      During 2006–07, we received complaints about a range of ATO activities and products, including superannuation guarantee, lodgement and processing, interest and penalty remission decisions and the conduct of audits. Complaints about ATO debt recovery action, and the accuracy, clarity and timeliness of ATO advice continued to dominate. The number of complaints arising from mass-marketed scheme decisions continued to decrease as the ATO nears finalisation of scheme settlement cases.

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      Tax environment

      In an increasingly complex tax environment, there will always be a need for effective review and complaint-handling mechanisms to assist individuals who consider they have been wronged in some way by the ATO. In addition to statutory objection and appeal rights regarding assessment and related decisions, it is important to have an effective system for handling complaints about the ATO to provide assurance about the health of the tax system, and to indicate where possible problems may exist or arise.

      ‘In an increasingly complex tax environment, there will always be a need for effective review and complaint-handling mechanisms ...’

      The Ombudsman acknowledges that the ATO has worked hard to establish fair and responsive remedial mechanisms that can remedy mistakes that do occur. Very few of the complaints we examined raised concerns of broader systemic or other significance to this office, and we receive few complaints alleging institutional bias or bad faith. Most of the complaints we receive relate to ‘simple errors’, such as concerns about delay or ambiguity in ATO correspondence, accounting errors, relatively straightforward disputes about tax assessments or a taxpayer’s level of debt. Often these illustrate the difficulties people have understanding ATO processes and their own obligations. In this regard, tax complaints are no different to many other types of complaints we receive.

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      Complaint assisted transfer project

      Our usual practice is to suggest to complainants that they first attempt to resolve their concerns directly with the ATO because we consider the agency should have the opportunity to correct any perceived problems. To test the effectiveness of this practice we conducted a survey of tax complainants in 2005. The survey identified a low take-up rate of our advice by taxpayers.

      In January 2007 we began a trial of directly assisting the transfer of tax complaints to the ATO. The objective was to assist and encourage complainants who may be uncertain or uncomfortable about complaining directly to the ATO. The assisted transfer process enables taxpayer concerns to be raised with the ATO in the most effective and efficient way possible. We also reassure complainants that they can come back to our office if dissatisfied with the outcome from the ATO.

      In May 2007 we assessed the assisted transfer trial and adopted it as a standard work practice during initial handling of tax complaints. We are confident this change provides a more effective complaint service for many of our tax complainants.

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      External project work

      Towards the end of 2005 we implemented a forward work program of external tax projects. Those projects not completed in 2006–07 will be carried forward for completion in 2007–08, and other new projects will also commence.

      Our external projects generally examine the systemic issues that arise from individual tax complaints. We aim to assess the health of specific areas of tax administration, to identify potential problem areas in ATO administration and make recommendations where appropriate.

      In designing the project program, we were conscious of the work of the Inspector-General of Taxation and the Australian National Audit Office (ANAO) and have attempted to avoid or minimise overlap by identifying areas that complement their work. We aim to work closely with these oversight bodies in improving tax administration. The unique perspective that we can bring to these broader projects, gained primarily through handling individual complaints, is a balanced consideration of the impact that government administration can have on individuals.

      ‘Our external projects generally examine the systemic issues that arise from individual tax complaints.’

      External projects we initiated and reported on during 2006–07 included release from tax debts on the basis of serious hardship, debt payment arrangements, aspects of the general interest charge, use of garnishee powers, compromise of tax debts, tax issues for Indigenous communities, review of ATO correspondence, the ATO mass communication strategy and 30% child care rebate.

      External projects awaiting completion include superannuation guarantee, ATO audit activity on work-related expenses, lodgement compliance, penalties and prosecution. We also plan to commence a project on call management capability and delivery towards the end of 2007. The objective of this project is to review the effectiveness of ATO call centre operations with a focus on the ATO’s client service procedures that are designed to ensure tax officers find the right person if they themselves cannot assist a taxpayer with their problem.

      We also have an ongoing outreach project focused on tax agents, to help and encourage them to raise issues of concern with this office.

      Not surprisingly, debt recovery action leads to a significant proportion of complaints received about the ATO. In 2006–07 around 15% of all complaints related to ATO debt collection activities. For this reason, our external project work this year had a particular focus on aspects of the ATO’s debt collection practices.

      Issues dealt with in the external projects conducted in 2006–07 are outlined below.

      Debt payment arrangements

      This project examined the ATO’s approach to administering arrangements to pay tax-related liabilities by instalments. In the context of overall ATO debt activities, our office receives relatively few complaints about payment arrangements. In the complaints we examined, some taxpayers perceived that the ATO was inflexible, particularly in its reluctance to agree to new arrangements following taxpayer default, and where there were changes to a taxpayer’s circumstances, including those involving compassionate or compelling personal matters.

      In our report to the ATO, we recognised it is reasonable for the ATO to have regard to factors such as compliance history and risk to revenue. However, we did note that the ATO needs to continue to take care to ensure its decision-making processes provide an appropriate balance between its debt recovery obligations and the need to give genuine, proper and realistic consideration to an individual taxpayer’s circumstances. We suggested to the ATO that they may wish to consider making their guidelines more explicit in relation to the weight they afford to a taxpayer’s history of non-compliance when negotiating payment arrangements.

      We also suggested that the ATO consider establishing a system for internal review of ATO payment arrangement decisions. Legislation does not provide for a formal system of objections and appeals, but it is open to the ATO at an administrative level to allow taxpayers to request review of adverse ATO decisions.

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      Use of garnishee powers

      Where a tax-related liability is payable, the Commissioner of Taxation may issue a notice requiring a person who owes money to the taxpayer to pay that money to the Commissioner instead. A third party is treated as owing money in various circumstances, including where that person holds money for or on account of the taxpayer—for example, a bank.

      Although only a small number of our complaints relate to ATO garnishee action, we recognise that the impact of garnishee action on an individual can be significant. Taxpayers often see garnishee action as being premature, intrusive and unwelcome.

      We examined the ATO’s approach taken to garnishee action as reflected in approximately 60 complaints received between July 2003 and June 2006. A public report was prepared (Australian Taxation Office: Administration of garnishee action (Report No 1/2007)).

      We generally found the ATO had acted reasonably in taking garnishee action, acting only after other attempts to recover a debt had been unsuccessful.

      We suggested to the ATO that it might be opportune to review its policy and practices, paying particular attention to:

      • development of a specific practice statement about garnishee action
      • better documentation of reasons for taking garnishee action
      • the adequacy of reasons provided to debtors at the warning and notice issue stages
      • the adequacy of guidance to ensure the issue of garnishee notices does not affect the taxpayer’s ability to appeal
      • better statistical data
      • complaints about garnishee action.

      ‘We generally found the ATO had acted reasonably in taking garnishee action ...’

      The ATO welcomed our suggestions and will consider them as part of its ongoing commitment to listen and respond to community feedback. The ATO Chief Operating Officer has arranged for the best practice capability in the Debt business line to undertake a review of their administration of garnishee action including communication activities. The aim is to develop a framework of delivery based on our suggested themes.

      Compromise of tax debts

      The ATO defines ‘compromise’ to mean a permanent agreement not to pursue recovery of the balance of a tax debt. The Commissioner of Taxation’s power to compromise is implied from his general responsibility to administer tax law. While we receive few complaints from taxpayers who consider that the ATO has unreasonably refused to compromise their debts, we felt that this was an area worthy of closer examination.

      On the whole, we were satisfied that the ATO’s processes and guidelines around compromise were appropriate, but made two general suggestions to the ATO for improvement. We suggested that the ATO could include more and/or better explanations in its publicly available information about the nature and limits of compromise, including those circumstances where it may be considered appropriate for the Commissioner to exercise his compromise power. Secondly, we flagged that appropriately edited examples of successful compromise cases might provide useful assistance to taxpayers contemplating applying for compromise.

      Administration of the General Interest Charge

      The administration of the General Interest Charge (GIC) was selected as a project because it generates a significant number of complaints to our office each year. The taxation legislation gives a discretion to the ATO to remit the GIC after it has been imposed as required by legislation. A taxpayer must apply for remission. The GIC also plays a significant role across a wide range of the ATO’s activities, particularly its compliance and debt recovery programs.

      The primary focus of this project was to assess our complaint data to identify key issues arising about the ATO’s administration of the GIC. We identified three discrete themes—the level of GIC and its imposition, the ‘adequacy of reasons’ in communicating remission decisions, and the provision of advice.

      In providing feedback to the ATO, we acknowledged that the ATO has a difficult task administering a penalty that some taxpayers consider punitive and unjust. We also acknowledged that the ATO has established clear policies on GIC remission to guide its decision makers in the exercise of the Commissioner’s discretion to remit the GIC, and generally the ATO appears to do so fairly and reasonably.

      We noted that there might be more the ATO can do to help taxpayers better understand how GIC operates, how it is imposed, and how taxpayers might seek its early remission. The knowledge that a taxpayer can seek remission at an early stage in his or her dealings with the ATO could help improve community confidence in the ATO, as well as lead to a reduction in complaints. We also encouraged the ATO to continue to develop quality assurance processes and training to ensure ATO decision makers properly understand the law and policy with respect to remission of GIC.

      ‘... the ATO has a difficult task administering a penalty that some taxpayers consider punitive and unjust.’

      We will continue to work with the ATO to address some of the issues identified in our review and may revisit this issue in the future.

      The year ahead

      In 2007–08, we look forward to expanding and developing the initiatives we identified in 2005–06 and carried over into 2006–07. We will continue with a work program of internal and external projects to improve our handling and understanding of tax complaints.

      centrelink

      Welfare to Work | Ongoing issues | Emerging issues

      Centrelink continues to be the agency about which the Ombudsman receives the highest number of approaches and complaints. This is not unexpected given the high volume of transactions and the complexity of the services and payments it provides on behalf of a number of Australian Government agencies.

      As discussed in Chapter 5—Challenges in complaint handling, where a number of agencies have involvement in administering legislation, setting policy, and service delivery, it can be problematic to establish the basis of problems and their resolution—a complaint about service delivery might equally be about the policies and legislation. For this reason, a number of issues discussed in this section about Centrelink also relate to other agencies, such as the Department of Employment and Workplace Relations.

      In 2006–07 we received 6,987 approaches and complaints about Centrelink, compared to 7,333 in 2005–06. This represents a decrease of 5%. There has been a steady decrease in complaints about Centrelink over the past five years, as shown at Figure 7.3 .

      During 2006–07 we investigated 17% of the 6,877 approaches and complaints finalised, with the most common issues being claims for payment, cancellation or suspension of payments, and changes to payment rates.

      FIGURE 7.3 Centrelink approach and complaint trends, 2002–03 to 2006–07

      FIGURE 7.3 Centrelink approach and complaint trends, 2002–03 to 2006–07

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      Welfare to Work

      On 1 July 2006 Centrelink commenced the Government’s Welfare to Work reforms, which made significant changes to the way income support payments are administered. The reforms include stricter participation requirements and compliance measures for people in receipt of activity-tested payments such as Newstart Allowance (NSA), and new assessment processes for disability support pension (DSP) claims.

      We identified some key areas of concern in complaints we have received about the implementation of the Welfare to Work initiatives. The following issues are discussed in further detail below:

      • eight-week non-payment periods
      • suspension of payments without making a decision
      • timeliness of decision making
      • denial of appeal and review rights
      • combination of non-entitlement and non-payment periods
      • dealing with seriously ill customers.

      Eight-week non-payment periods

      Centrelink customers who receive activity tested payments—that is, who need to complete certain activities and report these to Centrelink in order to receive their payment—have always faced penalties for failure to comply. Before Welfare to Work, these penalties took the form of ‘breaches’, where a person’s payment rate could be reduced or payments could be suspended entirely or for a period of time, depending on the level of non-compliance.

      Under Welfare to Work, the system of ‘breaches’ was replaced by ‘participation failures’. A ‘participation failure’ is imposed when a person does not meet one of the conditions of payment under their participation or activity test requirements, such as missing a scheduled appointment with a Provider of Australian Government Employment Services (PAGES), without a reasonable excuse. If a person has three such participation failures in a 12-month period, an eight-week non-payment period will apply, during which time the person does not get any income support payment.

      There are also ‘serious participation failures’ where one event triggers an eight-week non-payment period. Serious failures include refusing a suitable job offer, voluntarily leaving employment, being dismissed from employment due to misconduct or failing to attend full-time Work for the Dole.

      Centrelink’s National Participation Solutions Team is responsible for investigating the incident(s) that led to the third or serious failure, and deciding whether a non-payment period should apply. As part of the decision-making process, Centrelink staff consider whether the person facing a non-payment period meets the ‘exceptionally vulnerable’ test for financial case management (for example, has a medical condition requiring treatment or prescription drugs) or has vulnerable dependants (for example, children). If Centrelink decides that a person meets the vulnerability criteria, they may be considered for financial case management. In this case, the person’s essential expenses are paid over the course of the non-payment period by a third party community organisation or Centrelink’s financial case management team. A customer may appeal the participation failure(s) or serious failure decision(s) that have resulted in an eight-week non-payment period through the normal Centrelink appeals process, and can request continued payment pending the outcome of the review.

      Not surprisingly, these forms of intervention have led to complaints to this office. In considering these complaints, we have identified broader issues about administration of Welfare to Work, and about differing interpretations of policies and procedures, that we will explore more fully as systemic investigations in 2007–08. Some of these broader issues are discussed below.

      ‘... we have identified broader issues about administration of Welfare to Work, and about differing interpretations of policies and procedures ...’

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      Suspension of payments without making a decision

      We received some complaints where Centrelink had withheld payments for eight weeks when there was only a ‘possible failure’—that is, before Centrelink had made a decision that three participation failures or one serious failure had occurred without reasonable excuse. Centrelink has advised that it will attempt to make contact by phone or letter prior to payments being withheld. In the cases investigated, the people found out that their payments had been withheld when they attempted to lodge their fortnightly forms and were told that Centrelink could not accept them as they were on a payment withholding period. When they asked why Centrelink had not notified them or how they could appeal the decision, Centrelink’s response was that a formal notification could not be issued, as a formal decision had not yet been made.

      This process is a serious concern and the subject of a systemic investigation on which we will report in 2007–08.

      Timeliness of decision making

      In some cases described above as cases of ‘possible failure’, there has been a delay of up to eight weeks to make a decision that a person has actually incurred the third or serious failure. This can leave the person in dire circumstances. During the withholding period the person has no review or appeal rights, is unable to seek payment pending review, and is not able to access financial case management even if they might otherwise have been eligible.

      Although there are clear timeliness standards for Centrelink decision-making, complaints to this office highlight instances where there appear to have been lengthy delays in decision making. Again, this is an issue we will consider more fully in our program of systemic investigations in 2007–08.

      Denial of appeal and review rights

      Our investigations have highlighted cases where Centrelink has withheld payments before a decision was made, and later decided that the person had a reasonable excuse for the ‘serious failure’ or ‘participation failure’ and thus should not have had their payment withheld. However, because of the delay in making the decision about whether a non-payment period should be imposed, the person concerned has been forced to survive without a basic social security payment and no means of earlier resolution, because all appeal avenues were unavailable until a ‘reviewable’ decision was made. While arrears are paid for the period that the person was not receiving a social security payment, this comes after the person has had to overcome issues such as eviction notices and loss of utilities such as electricity and telephone.

      The case study Action without a decision illustrates the types of issues that can arise in relation to suspending payment without making a decision, timeliness of decision making, and denial of appeal and review rights. These are areas that we will continue to monitor closely over the next year.

      CASESTUDY | action without a decision

      Centrelink withheld Mr A’s income support payment following three participation failures, but before making a formal decision about whether or not the failures should apply. During this period Mr A did not have access to review rights and was not considered for financial case management for seven weeks. When Centrelink finally examined Mr A’s circumstances, it determined that he had been eligible for financial case management for the entire non-payment period due to his medical condition which required treatment with prescription medication. However, as no formal decision had been reached, the referral for financial case management had not occurred.

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      Combination of non-entitlement and eight-week non-payment periods

      A person can have a non-entitlement period imposed during which their payment remains unpaid until they have completed an agreed activity or requirement. For example, a non-entitlement period may be applied where a person has not contacted the required number of employers to canvass employment as agreed. Non-entitlement periods continue until the person complies with the requirements.

      Continued non-compliance attracts participation failures with people potentially accumulating three participation failures during a non-entitlement period and therefore attracting the eight-week non-payment period penalty in addition. An eight-week non-payment period is generally meant to begin in the payment period immediately after the regular fortnightly payment has been made, but in some cases the non-payment period is added on to the non-entitlement period—sometimes without the person being notified as there has been no formal decision. This results in people being penalised for a total of ten to twelve weeks without any income support.

      We have sought all the relevant policy and legislative documentation on the issues above from both Centrelink and DEWR. Should this information support our initial views that there are inconsistencies in policy and program delivery, the Ombudsman will report on this systemic investigation in 2007–08.

      Dealing with seriously ill customers

      One of the new initiatives requires that a person who applies for a Centrelink payment due to an illness or disability that prevents or reduces their capacity to engage in paid work must undertake a job capacity assessment. This assessment examines the person’s medical condition to determine what, if any, capacity they have to undertake paid employment. If the person is assessed as having the capacity to work 15 or more hours per week, they must engage in some form of work which may be voluntary, paid, or a combination of both, as part of the condition for payment. People with partial capacity will, as a rule, be granted NSA rather than a DSP.

      In order to qualify for the DSP, amongst other things a person must meet three criteria—their medical condition must be treated, be stabilised and be expected to persist for longer than 24 months. The job capacity assessment is used to determine if they meet these criteria and what, if any, work capacity they have.

      Approaches to this office during the year indicated that, in referring people for job capacity assessments for DSP claims, Centrelink can overlook the difficulties people with serious illness can have in undertaking these formal testing processes. The case studies Incapacity for job capacity assessment and ‘Failure’ to attend interview demonstrate the types of problems that have arisen.

      We are considering whether these cases and others point to potential systemic issues which we should investigate.

      CASESTUDY | incapacity for job capacity assessment

      Ms B was undergoing chemotherapy for leukaemia when she applied for a DSP. Centrelink correctly rejected Ms B’s claim as she did not meet the legislative requirements, and placed her on an interim NSA payment. She was advised that in order to assess her ongoing qualification for NSA, she had to undergo a two-hour job capacity assessment. Despite explaining that it would be difficult for her to attend an interview as she was still receiving chemotherapy and had recently undergone surgery, Centrelink booked a job capacity assessment appointment for Ms B. When Ms B did not attend, as she was in hospital at the time, Centrelink cancelled her interim payment.

      Ms B made several unsuccessful attempts to be placed on some form of income assistance, as she was no longer able to support herself and was unable to meet the job capacity assessment requirement at the time. As a result of our investigation, Centrelink acknowledged that it could have undertaken a file assessment of Ms B’s medical condition. Centrelink subsequently made such an assessment, and placed Ms B on NSA with a medical exemption from job search activities. Ms B had endured several months of trauma and financial uncertainty before her case was resolved.

      Centrelink has advised that the Job Capacity Assessment referral guidelines now state clearly that if a customer is in hospital a file assessment should be requested.

      CASESTUDY | ‘failure’ to attend interview

      Mr C, who suffered from severe epilepsy, was required to attend his local Centrelink office for a review of his DSP. While waiting in line, Mr C had an epileptic seizure and paramedics were called. While the paramedics were attending to Mr C, Centrelink staff called his name, as he was next in the queue. The paramedics advised the Centrelink officer that the man on the stretcher was the person concerned and that they were in the process of stabilising him before taking him to hospital.

      Mr C was hospitalised for several days. On his return home he found that Centrelink had sent him a letter advising that his DSP had been suspended because he had failed to attend an interview at his local office. After several unsuccessful attempts to have Centrelink overturn the decision, Mr C approached us. As a result, Centrelink reinstated Mr C’s DSP and back-paid him to the date of the cancellation. Centrelink also discussed alternative DSP review options with Mr C.

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      Ongoing issues

      Internal review

      For several years we have received approaches and complaints about Centrelink’s internal review processes. We have highlighted these issues with Centrelink and in our annual reports. While we note the continued improvement in complaint trends regarding Centrelink, we remain of the view that revision of internal review processes could assist in the timely and effective resolution of complaints.

      The social security law sets out that a person who is unhappy with a Centrelink decision is entitled to have a review by an Authorised Review Officer (ARO). Although not provided for in the legislation, Centrelink’s default review procedure includes a review by the original decision maker before the matter is referred to an ARO. This continued practice of referring review requests for consideration by the original decision maker before directing them to an ARO puts people through an extra step. This can create protracted delays, as the case study To review or not to review demonstrates.

      CASESTUDY | to review or not to review

      Ms D sought review of a decision to raise an overpayment debt against her. She made numerous requests to have the matter reviewed by an ARO as she believed that the original decision maker was biased against her. After 17 months of inaction by Centrelink, Ms D approached this office. When we asked Centrelink about the delay, we were given an undertaking that the review would be given priority and would be referred to an ARO. However we later became aware that, despite the delays already encountered, the matter was first referred to the original decision maker before it was eventually escalated to an ARO.

      In a 2004–05 audit of Centrelink’s review and appeals system, the ANAO raised similar issues as those highlighted by this office. The ANAO conducted a follow-up audit and published its final report in May 2007. The report includes a recommendation that Centrelink ensures its customers are made aware they have a legal right to have a decision reviewed by an ARO without a review by the original decision maker first. Centrelink agreed to this recommendation.

      We believe that having reviews conducted by an ARO in the first instance will significantly improve the consistency and timeliness of decisions and we will continue to monitor the situation.

      Banning

      Last year we reported that Centrelink would implement new national guidelines on ‘banning’ difficult customers from Centrelink offices. Centrelink confirmed that the guidelines addressing ‘alternative servicing arrangements’ were released to its network in February 2007, with the expectation that all areas and their respective call centres and customer service centres would be trained in their intent, content and application.

      In May 2007 we received a complaint from a customer who had recently been ‘banned’ from attending all Centrelink offices for a period of three months. Our investigation identified that staff from two separate Centrelink offices, both of which had attended the training on the new guidelines, chose to deliberately ignore the instruction given by Centrelink’s National Office.

      The relevant officers acknowledged that they were aware of the instruction to implement the new guidelines for dealing with difficult customers, but had opted to ignore them as they were ‘guidelines’. They decided that it was preferable to apply a policy document from another department, which was not authorised for use by Centrelink staff. The policy they chose to use had no alternative servicing arrangement requirements, which left the customer with no way to contact Centrelink.

      Centrelink was responsive in dealing with this matter. Centrelink provided alternative servicing arrangements to the customer and indicated that it would contact him to review his circumstances and those that led to the original ban.

      In the Welfare to Work environment, payment is dependent on fortnightly reporting to Centrelink. A failure to report may result in non-entitlement and non-payment periods. This office acknowledges that it is often challenging to deal with people who exhibit difficult and aggressive behaviour. However, it is imperative that alternative servicing arrangements are offered in these circumstances. This ensures that people are not denied payments because they have no way of contacting Centrelink.

      Since the release of its guidelines, Centrelink has been working with the Ombudsman’s office to identify and remedy any instances of non-compliance.

      Further work is being undertaken in Centrelink to clarify and emphasise with employees those aspects of the guidelines that are mandatory and those that will remain subject to the discretion of senior managers. This work, expected to be completed in the latter part of 2007, will emphasise that the discretionary areas of the guidelines are determined by the individual customer’s circumstances rather than arbitrary Centrelink decision. Centrelink is also integrating occupational health and safety staff support principles and activities into the guidelines, to provide staff with a comprehensive view of the most appropriate interventions in working with customers.

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      Correspondence with customers

      We continue to receive complaints about Centrelink’s decision letters, templates and standard letters. A common complaint is that decision letters do not offer adequate, or even any, reasons as to why or how a particular decision was reached. Without a clear explanation, a Centrelink customer may lack the necessary information or understanding to make an informed choice about whether to seek a review of the decision.

      ‘We continue to receive complaints about Centrelink’s decision letters, templates and standard letters.’

      In one case a customer wrote to Centrelink requesting a review of a decision to raise a carer payment debt. Centrelink sent the person a manually written letter affirming the decision. However, the letter contained a number of grammatical errors that affected the clarity of its advice and did not include the table that it referred to. If provided, the table would have shown all the payments that were made to the person’s partner that had affected the rate of carer payment. There were also extensive extracts from the relevant legislation with no explanation as to how this applied to the person’s circumstances. In response to our investigation, Centrelink agreed to review the matter again, and to provide the customer with a better explanation of reasons and an apology.

      In July 2006 the Hon. Joe Hockey, then Minister for Human Services, tasked Senator Richard Colbeck with leading a review of Department of Human Services forms and letters, including those of Centrelink. We welcome this much-needed focus on the quality of Centrelink’s letters and hope that this will result in a decrease in complaints relating to unclear, ambiguous or misleading correspondence.

      Own motion investigations

      In September 2005 the Ombudsman commenced an own motion investigation into the policy guidelines used by Centrelink in assessing ‘marriage-like relationships’ under the social security law. We aim to publish the final report of this investigation early in 2007–08.

      We also began an own motion investigation into the administration of the Pension Bonus Scheme in March 2006. In our 2005–06 annual report we anticipated this investigation would be finalised in late-2006. Due to the prioritisation of other work, it has not yet been completed. In light of the measures announced in the 2007–08 Federal Budget, which make the scheme more flexible, we are currently considering whether it remains necessary for us to continue with this report.

      Emerging issues

      Cross-agency approaches

      The complex policy, service and contractual arrangements under the Welfare to Work initiatives, involving multiple agencies, present particular challenges to our office in dealing with complaints related to these initiatives. For example, when we decide not to investigate a complaint, it is generally on the basis that the person has not raised their complaint with the relevant agency in the first instance. However, the situation is no longer so straightforward, as it can be difficult for us to identify the most appropriate agency to which we should refer the complainant. It also complicates our complaint handling. Chapter 5—Challenges in complaint handling provides more details about the issues which arise.

      ‘... it can be difficult for us to identify the most appropriate agency to which we should refer the complainant.’

      An example of the cross-agency issues that can arise is described in the case study Inflexible procedures. In this case, a simple administrative error had the potential to delay the assessment of a person’s claim for a disability support pension for a further 28 days due to rigidities in the bureaucratic system. Our investigation staff had to negotiate with three separate government agencies to resolve the matter.

      CASESTUDY | inflexible procedures

      Mr E lodged a claim with Centrelink for the DSP. Mr E was granted NSA pending the outcome of his DSP claim, and was referred for a job capacity assessment. Due to an administrative error, the job capacity assessor was not asked to provide an impairment rating to inform the DSP decision. This meant that Centrelink was unable to use the assessment in determining Mr E’s DSP claim.

      Centrelink acknowledged that Mr E should have been referred for an assessment of his impairment level as well as his work capacity. Centrelink stated that the job capacity assessment system, which is administered by the DHS but uses the DEWR information technology system, did not allow Centrelink to refer Mr E for another assessment within 28 days of the original assessment.

      When we contacted the DHS, we were advised that the restrictions around the timing of job capacity assessments were built into DEWR’s record-keeping system on which job capacity assessments are scheduled. The DHS acknowledged that the rigidity of the system had the potential to disadvantage people in situations such as Mr E’s. The DHS advised that it has negotiated with DEWR and the mandatory delay has been removed.

      Mental health issues

      Dealing with people with mental health issues has become a focus for a number of departments and agencies that deal with the public, including both Centrelink and the Ombudsman’s office. A number of complaints received over the past year highlighted the need for agencies to adapt service models to handle this client group effectively: treating them in the same manner as other customers often sees them fall between the cracks.

      For example, in 2006–07 we handled an approach from a man with an anxiety disorder. His relationship with Centrelink had broken down to the point where he had become so distrustful of their actions that he would make multiple complaints to this office in anticipation that Centrelink was going to make a mistake with his payment. He expected our office to take on the role of a de facto advocate and to make all contacts with Centrelink on his behalf. Our investigation indicated that although there might have been an initial problem with Centrelink, the major issues could be attributed to the fact that he refused to remain in contact with Centrelink.

      Another emerging issue is how Centrelink deals with people with undiagnosed mental illness or episodic illnesses. The new Welfare to Work requirements make it a challenge for Centrelink to appropriately service this vulnerable customer group, particularly where the person has no insight into their condition, even when staff recognise that mental illness may be a factor.

      These issues are brought into sharp focus in cases where a person with an undiagnosed mental health condition applies for an income support payment and has to undergo a job capacity assessment to determine work capacity. Often the person has no medical evidence supporting their claim or, in a number of cases, the person refuses to accept that they might have a mental illness. The result is that the person is granted an activity-tested payment such as NSA instead of the more appropriate DSP, and then has difficulty in complying with the required activities. This places the person at risk of having their payments suspended or cancelled with the resultant issues that arise such as homelessness.

      Given the number of people we see who are falling between the cracks, it is becoming increasingly evident that, at present, the social security system does not always provide sufficient flexibility to enable staff to effectively service these people.

      child support agency

      Consistency of change of assessment decisions | Service delivery

      The Child Support Agency was established in 1988 to administer the Child Support Scheme, which provides for the assessment, collection and disbursement of child support. The scheme was implemented to require compulsory payment of child support based on the comparative incomes and caring responsibilities of both parents.

      The Child Support Scheme operates under two pieces of legislation—the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989 (Child Support Assessment Act). Together, these Acts enable the registration of child support cases, calculation of child support assessments, enforcement of child support collection and disbursement of payments received. Payees are those parents entitled to receive child support, while payers are those responsible for paying child support.

      In 2006–07 the Ombudsman received 1,790 approaches and complaints about the CSA, compared to 1,927 in 2005–06. Figure 7.4 shows the trend in approaches and complaints about the CSA over the past five years. We investigated 29% of the 1,779 approaches and complaints finalised in 2006–07.

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      FIGURE 7.4 Child Support Agency approach and complaint trends, 2002–03 to 2006–07

      FIGURE 7.4 Child Support Agency approach and complaint trends, 2002–03 to 2006–07

      The CSA and the Child Support Scheme continued to be a topic of much discussion in 2006–07, following the government’s acceptance of the majority of the recommendations contained in the 2005 report of the Ministerial Taskforce on Child Support. Stages 1 and 2 of the child support reform package were implemented on 1 July 2006 and 1 January 2007, respectively.

      From our perspective the most notable of the changes was the introduction of a right of appeal about child support matters to the Social Security Appeals Tribunal (SSAT). Prior to 1 January 2007, if parents wished to seek review outside of the CSA, it was necessary for them to make an application to a court with family law jurisdiction. Given the time and cost such an application involved, many parents would disregard this option and raise their disagreement through a complaint to the Ombudsman. Although it is difficult to accurately assess the reasons for the decrease in complaints to this office about the CSA in 2006–07, the introduction of the SSAT as a no-cost review mechanism may have contributed to this reduction.

      The final and most significant part of the reforms, which is the new child support formula, will be implemented from 1 July 2008. During 2007–08 our focus will be on training our investigation staff about the changes and remaining abreast of developments as further information becomes available.

      The main themes that featured in approaches and complaints in 2006–07 were the consistency of decisions made through the ‘change of assessment in special circumstances’ process, and service delivery issues in the form of delays and the quality of advice provided to customers. A brief description of our handling of these topics follows.

      ‘The main themes that featured in approaches and complaints ... were the consistency of decisions ... and service delivery issues ...’

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      Consistency of change of assessment decisions

      The Child Support (Assessment) Act sets out a statutory formula for calculating the rate of child support payable, taking into account the relative incomes and caring responsibilities of both parents. Although this formula was devised on the basis of research into the general costs of raising children, the Act provides for an alternative assessment mechanism where the child/children or either parent has special circumstances that are not readily recognised by the child support formula.

      In order to be satisfied that a change to the assessment is warranted, the CSA must find that one of ten reasons involving the special circumstances of the child/children or either parent make the formula assessment unfair. Under Reason 8 a departure from the assessment may be warranted where the income, earning capacity or financial resources of one or both parents is not accurately reflected by a strict application of the formula.

      During 2006–07 we received a number of complaints regarding the treatment of depreciation expenses in assessing the income of self-employed parents under the ‘change of assessment’ process. The case study Change of assessment illustrates the complexity of some of the processes.

      CASESTUDY | change of assessment

      Mr F, the payer, complained that in the course of assessing his child support income under the ‘change of assessment’ process, the CSA included the value of the depreciation expenses claimed against his business income. This decision resulted in Mr F’s child support income being tripled and, in turn, his child support liability being increased significantly. After unsuccessfully objecting to the CSA’s decision, Mr F appealed successfully to the Federal Magistrates Court and his child support assessment was reduced.

      Mr F lodged a claim with the CSA for reimbursement for his legal costs. He complained to the Ombudsman when the CSA refused the claim. In examining the CSA’s compensation decision we formed the view that, in completely disregarding the payer’s depreciation deduction as an expense and adding the full amount back as income, the CSA’s ‘change of assessment’ and objection decisions demonstrated a lack of understanding of general accounting principles. They also created a situation such that Mr F had little choice but to appeal the outcome.

      The CSA accepted our view and offered compensation to Mr F.

      In response to this and other complaints, the CSA undertook to provide additional guidance to decision makers about the treatment of depreciation expenses in the ‘change of assessment’ process.

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      Service delivery

      The CSA had approximately 742,000 active cases at 30 June 2006, 47% of which were registered for collection of child support by the CSA. With such a large volume of active customers, CSA staff are required to provide services and advice to a sizeable section of the Australian public.

      In 2006–07 we received a number of complaints about the CSA’s service delivery which centred around two main themes—delays, and the accuracy and completeness of advice.

      Delays

      Complaints about delays focused on three central areas:

      • the CSA’s core business of assessing (under the formula and the ‘change of assessment’ process), collecting and disbursing child support
      • responding to customer complaints and correspondence
      • decision making, specifically in relation to compensation claims and requests under the Freedom of Information Act 1982.

      As CSA has a well-developed complaint-handling system, we often refer such complaints back to CSA in the first instance. In one case we investigated, a CSA customer complained about the CSA’s failure to respond to his freedom of information (FOI) request after more than three months and several written requests for an update. When our office contacted the CSA, they acknowledged that one of their FOI units was experiencing difficulty in processing requests within the statutory timeframe as a result of a staffing shortage.

      In response to our investigation the CSA apologised to the complainant and gave an undertaking that his FOI request would be prioritised for completion. We understand that the area involved has subsequently been allocated additional staff in an effort to ensure similar delays do not recur.

      Incomplete and inadequate advice

      The Child Support Scheme is a complex and often daunting system for its customers to navigate, meaning that parents may often choose to make important financial decisions based primarily on the advice given to them by CSA staff. During 2006–07 we received a number of complaints where CSA customers claimed to have been disadvantaged by incomplete or inadequate advice.

      In one complaint, a payee claimed he was contacted by CSA staff who asked if he would be willing to ‘discharge’ the child support arrears owing to him. This suggestion appeared to have been framed as a gesture of goodwill that would increase the likelihood of the payer meeting her future responsibilities. The payee agreed to discharge the arrears amount, reducing the payer’s balance to nil.

      ‘The Child Support Scheme is a complex and often daunting system for its customers ...’

      The payee was subsequently advised that, as a result of new information about the payer’s circumstances, his past child support assessments had been significantly reduced. This retrospective adjustment meant the payee was not only no longer entitled to the arrears amount he had discharged, but that he was also found to have been overpaid. The overpayment situation would not have occurred if the arrears amount had not been discharged, because the two amounts could have been offset against one another.

      Our investigation led us to conclude that the CSA had not provided the payee with sufficient information about the possible ramifications of discharging the arrears to enable him to make a fully informed decision. At the conclusion of our investigation the payee advised he intended to pursue compensation from the CSA for his lost entitlement to child support.

      defence

      Department of Defence | Australian Defence Force | Department of Veterans’ Affairs | Defence Housing Australia

      Defence-related approaches and complaints fall into two categories: the Defence Force Ombudsman 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) and Defence Housing Australia (DHA).

      In 2006–07 we received 670 defence-related approaches and complaints, compared to 750 in 2005–06. This represents an 11% decrease in approaches and complaints.

      TABLE 7.1 Defence-related approaches and complaints received, 2003–04 to 2006–07

      TABLE 7.1 Defence-related approaches and complaints received, 2003–04 to 2006–07

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      Department of Defence

      We received 106 approaches and complaints about the Department of Defence (compared to 138 in 2005–06). The Fairness and Resolution Branch (FRB) within Defence has continued to assist our investigation of complaints by facilitating access to information, files and personnel across the various Defence areas that fall within our jurisdiction.

      Westralia investigation

      In March 2007 the Minister for Defence wrote to the Ombudsman, requesting that we consider an own motion investigation into matters involving HMAS Westralia. This followed allegations in the press and Parliament that Defence was warned in February 1998 about HMAS Westralia being in grave danger from the faulty fuel lines that caused the fire onboard Westralia on 5 May 1998.

      In April 2007 the Acting Ombudsman initiated an own motion investigation into the allegations of Defence’s forewarning about the fire and the appropriateness of the Defence response, with particular reference to the procedural competence and integrity of the Inspector-General of Defence’s area at the time.

      We expect to report on the outcome of this investigation in 2007–08.

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      Australian Defence Force

      We received 252 approaches and 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 (RAAF) (compared to 303 in 2005–06).

      These approaches and complaints were based on employment-related matters resulting from a person serving or having served in the ADF. Complaints can be about 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 the internal handling of complaints by Defence.

      We have observed greater timeliness in the way Defence handles complaints from serving members, with fewer complaints made to our office about delays. In addition, relatively few complaints to our office became protracted over the last year. As an indicator, we currently have no ADF-related complaints more than eight months old.

      We note the positive effect recent quality assurance mechanisms have had on the ADF’s redress of grievance process. A recent initiative includes FRB providing advice to commanding officers and managers on the proposed plan of action for handling each complaint shortly after the complaint has been made. This enables complaints to be investigated and resolved in a timely manner and at the lowest possible level.

      Defence has also demonstrated a willingness to involve our office in ADF training courses and seminars where we can share our views about developing good administrative practices and effective decision making with commanders and administrators in the field. Such joint outreach activities allow us to raise awareness among ADF members about their right to complain to our office and how our role relates to internal ADF complaint mechanisms.

      Review of reform to the Australian military justice system

      Our office appeared before the Senate Foreign Affairs, Defence and Trade Committee on a number of occasions in the last year in relation to the committee’s inquiry into the reforms to the Australian military justice system. This inquiry followed an earlier committee inquiry into the effectiveness of the military justice system (the Senate Foreign Affairs, Defence and Trade References Committee’s Inquiry into the effectiveness of Australia’s military justice system (2005)).

      During our appearance before the committee in February 2007, we noted improvements in the way that Defence had interacted with our office during the past year. We also noted:

      • closer ties between our office and other oversight bodies such as the Inspector-General of the Australian Defence Force
      • the historical nature of the higher profile cases that had attracted significant media attention during the earlier committee inquiry
      • a decreasing trend in the number of complaints we receive about the ADF.

      We emphasised to the committee that, based on the perspective that our investigations bring, we were satisfied that the systems in place to support military justice appeared to function in a reasonably effective manner.

      ‘... we noted improvements in the way that Defence had interacted with our office during the past year.’

      We also noted the work undertaken by Defence in implementing the recommendations from the committee’s earlier inquiry and the joint 2004 Redress of Grievance Review conducted by our office and Defence (Review of Australian Defence Force Redress of Grievance System 2004 (Report No 01/2005)). We expressed the view that Defence continues to demonstrate a commitment to implementing the recommendations accepted from both reviews by October 2007.

      ADF handling of unacceptable behaviour complaints

      In August 2006 we initiated an own motion investigation into the way the ADF deals with complaints about unacceptable behaviour such as bullying and harassment. Our investigation focused on the effectiveness and accessibility of the system in place to manage, investigate and provide awareness training for internal complaints about unacceptable behaviour.

      Our investigation took the form of desktop reviews of files at a number of Defence units around Australia. At the same time we also conducted a series of focus group discussions with Defence personnel to gauge the level of understanding and acceptance of the systems in place.

      Our investigation revealed that generally there was a clear sense of awareness by Defence personnel of the systems in place to report and manage complaints about unacceptable behaviour. This view was expressed by both commanders and representatives of the general service population. While this was a positive result, our investigation also highlighted areas for improvement including:

      • aspects of record keeping
      • annual awareness refresher training
      • data collection and reporting
      • the role of inquiry officers and equity advisers
      • quality assurance.

      We are pleased to report that Defence has accepted all of the recommendations.

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      Department of Veterans’ Affairs

      The Department of Veterans’ Affairs provides a wide range of services to nearly half a million Australians. The services DVA administers include service pensions, age pensions, income support supplement and allowances, disability and war widows’ and widowers’ pensions, allowances, special purpose assistance, Defence Service Home Loans Scheme assistance and Repatriation Health Cards.

      During 2006–07 we received 256 approaches and complaints (compared to 276 in 2005–06). In last year’s annual report we referred to our concerns about delays in investigating complaints about DVA. We have continued to meet with DVA at a number of different levels, which has helped improve the flow of information between our offices, although timeliness remained an issue in some cases.

      In last year’s annual report we reported on complaints to our office about the F-111 aircraft deseal/reseal ex gratia payment scheme. Since August 2005, when the scheme was announced, we have received 82 complaints relating to the four deseal/reseal programs. There are currently six outstanding deseal/reseal cases that demonstrate a degree of complexity not evident in other related complaints. The issue of the complexities experienced in handling these complaints is discussed in Chapter 5—Challenges in complaint handling.

      The consultation between our office and DVA about the scheme has generally functioned well. While the administration of the scheme presented certain challenges, the deseal/reseal issue serves as a good example of the effective way our office and DVA have been able to interact to obtain briefings, seek information about a case or have a decision reconsidered.

      ‘... the deseal/reseal issue serves as a good example of the effective way our office and DVA have been able to interact ...’

      One case brought to our attention by DVA highlights the range of evidence considered by DVA as part of their assessment of deseal/reseal ex gratia payment scheme claims.

      A retired RAAF maintenance worker applied for recognition under the scheme. Initially DVA did not accept that the claimant could demonstrate that he had participated in one of the four deseal/reseal programs to a degree which would support recognition under the scheme. The claimant sought a reconsideration of this decision and supplied more evidence which saw him granted a lesser degree of recognition. However, the claimant continued to feel that his service in the RAAF entitled him to a higher level of recognition.

      He sought a further reconsideration and on this occasion presented a ‘stubbie’ holder which was given to him as a present when he was posted from the deseal/reseal section. DVA recognised that this evidence was genuine as a number of other long term deseal/reseal workers had also been presented with similar mementos at the time. DVA advised that it was therefore reasonable to accept the claimant’s involvement and he was granted the higher level of recognition.

      It is encouraging to note DVA’s openness to different kinds of evidence when considering a claimant’s eligibility and the lengths it went to in this case to reconsider the claim further.

      Military Rehabilitation and Compensation

      In late 2005 DVA briefed our office on proposed changes to the structure of the department, to be introduced on 1 July 2006. These changes were necessitated by the changing demographic of DVA’s client base. The emphasis of DVA’s service delivery had shifted from a more traditional notion of a veteran and the veterans’ community as reflected by Second World War veterans, to a more diverse group that increasingly includes younger servicemen and women, both serving and recently separated from the ADF.

      This changing demographic has been reflected in the type of complaints we have received, with an increase in complaints about military rehabilitation and compensation (MRC) claims in 2006–07. A common cause of complaint in MRC matters is delay. In early 2007 we received an approach from a lawyer, representing a number of clients, complaining about delays in the processing of 51 MRC claims. We felt it appropriate to approach DVA to investigate not just these 51 claims, but to also initiate a project looking more broadly at possible systemic issues in the handling of MRC claims by DVA.

      DVA was open and cooperative in its response to our enquiries, and we welcomed their willingness to acknowledge the need for improvements in certain areas. DVA advised us of a range of initiatives it has put in place to address a backlog of older cases and to improve processing times into the next financial year.

      Some examples of the initiatives underway include simultaneous processing of some claims for initial liability and permanent impairment under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). We also understand a trial screening team is improving timeliness by ensuring claims are processed under the appropriate Act (SRC Act or the more recent Military Rehabilitation and Compensation Act 2004), where it is not immediately clear which Act applies.

      We also note DVA’s introduction of a Single Access Mechanism (SAM) to improve the timeliness for access to a former member’s service records with the Department of Defence, when assessing an initial liability claim. The time taken to access relevant records has reduced from several months to an average of 12 days. SAM staff now have access to Defence records held on Defence’s human resource system. This allows DVA to gather basic service details for a claimant within a few working days. Previously this took considerably longer.

      DVA also acknowledged there were undue delays in its handling of some of the individual matters we had brought to its attention, and agreed to write to those claimants to apologise. DVA’s response on both these individual cases and the broader issues was sufficient for us to decide not to take the matters further, but we agreed to meet regularly to monitor the progress and achievements made in the MRC processing area.

      Defence Housing Australia

      Defence Housing Australia (DHA) is contracted by Defence to provide housing and relocation services for members of the ADF. The DHA sources land, undertakes land development and construction of houses, and raises funds in the private capital market through sale and leaseback. It also provides property maintenance and manages leases with property lessors. Defence has also contracted the DHA to calculate and process allowances and entitlements for ADF personnel who are moving to a new posting as part of the relocation process. The housing policies and entitlements are determined by Defence and administered under contract by the DHA.

      We received 36 approaches and complaints about the DHA (compared to 29 in 2005–06). The few complaints we received centred on issues of entitlement and relocations. We continue to resolve complaints about the DHA reasonably quickly as a result of effective contact arrangements with the agency.

      employment and workplace relations

      Changing PAGES | Work for the Dole | Emerging issues | Ongoing issues

      We received 567 approaches and complaints about the Department of Employment and Workplace Relations (DEWR) in 2006–07, compared to 418 in 2005–06. Figure 7.5 shows the trend in approaches and complaints about DEWR over the past five years. We investigated 20% of the 559 approaches and complaints finalised in the year.

      FIGURE 7.5 Department of Employment and Workplace Relations approach and complaint trends, 2002–03 to 2006–07

      FIGURE 7.5 Department of Employment and Workplace Relations approach and complaint trends, 2002–03 to 2006–07

      The increase over the last year is indicative of the major role DEWR plays in the government’s Welfare to Work initiatives, which commenced in July 2006. Although Centrelink delivers the majority of the payments and services associated with Welfare to Work, DEWR has responsibility for developing and implementing the policies underlying the income support system.

      Issues about employment programs managed by DEWR, primarily the Job Network, accounted for the majority of complaints about DEWR in 2006–07. A large number of these complaints focused on the relationship between job seekers and their designated Provider of Australian Government Employment Services (PAGES).

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      Changing PAGES

      PAGES (Job Network) remains the Australian government’s largest employment service for unemployed job seekers. Most job seekers will receive job search support services for an initial period of three months. Those who remain unemployed after three months will proceed into Job Network Intensive Support services where intensive job search training is provided. Job seekers with a disability have access to a range of services, including PAGES, Disability Open Employment and Vocational Rehabilitation Services, to help them find work consistent with their capacity.

      Job seekers generally remain with one PAGES for the duration of their unemployment period. If a jobseeker stops using Job Network services they will normally recommence with the same PAGES if they re-register within 12 months. It is generally expected that, by remaining with the same PAGES, a stronger relationship can be developed because the PAGES will be more familiar with the needs of the jobseeker. Jobseekers may transfer to their current PAGES at a different site if they relocate, or if there is agreement between the PAGES and the job seeker.

      A job seeker may transfer between PAGES in limited circumstances, including where:

      • the job seeker has changed address to a location not serviced by their current PAGES
      • there is agreement between the new and old PAGES and the job seeker
      • there is an ‘irretrievable breakdown’ in the relationship between the job seeker and the PAGES.

      The relationship between a PAGES and a job seeker is deemed to have irretrievably broken down when:

      • it appears there is no chance that the job seeker will receive the employment services that are outlined in the job seeker’s Preparing for Work Agreement
      • the job seeker or any staff member of a PAGES is likely to be harmed as a result of a continuing relationship: ‘harm’ may include violence or harassment, or a lack of sensitivity to the cultural needs of special needs groups such as Indigenous job seekers and job seekers from culturally and linguistically diverse backgrounds.

      In these instances DEWR is responsible for investigating and actioning any requests for transfers between PAGES on the grounds of an irretrievable breakdown. DEWR will do so only when it is satisfied that all reasonable action has been taken by the PAGES to resolve any problems. In one case we investigated, there was a long history of conflict and the jobseeker had approached another PAGES who was willing to provide services. However, the jobseeker was unable to establish an irretrievable breakdown had occurred, because DEWR’s investigation of the jobseeker’s complaint had not brought all of the relevant circumstances to light. We are considering whether such complaints point to any wider systemic concerns about transfer arrangements.

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      Work for the Dole

      We continue to receive complaints related to Work for the Dole programs. The case study Injured shows how problems can arise for people injured in the course of participating in the programs.

      ‘We continue to receive complaints related to Work for the Dole programs.’

      CASESTUDY | injured

      Mr H contacted our office about difficulties he was experiencing in obtaining compensation from DEWR for an injury he sustained while participating in a Work for the Dole program. Mr H advised that, although he had contacted DEWR and its insurer numerous times over two years, he had received minimal assistance in meeting the costs of the essential medical treatment for his injuries.

      A two-year time limit applied to several forms of medical treatment and assistance under the insurance cover for Work for the Dole participants. As Mr H’s medical issues were not fully resolved, he had an ongoing need for some of the medical assistance affected by the limitations to the insurance cover.

      In the course of our investigation DEWR’s insurer negotiated a compensation payout to the complainant, which discharged DEWR’s liability against any future claims for his injuries. As a result of this investigation, some possible areas for DEWR to improve its handling of claims from people injured in Work for the Dole programs were identified.

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      Emerging issues

      Closing of CDEPs

      In February 2007 the Minister for Employment and Workplace Relations announced changes to the Community Development Employment Projects (CDEP) program. CDEP is a program for unemployed Indigenous people, providing paid activities which contribute towards the local community and are aimed at developing skills and improving employability to assist people to move into employment outside CDEP programs. Indigenous Employment Centres are attached to some CDEP organisations. The Indigenous Employment Centre’s role is to help CDEP participants find long-term jobs and provide ongoing support in the workplace.

      The CDEP program will no longer operate in urban and major regional centres where unemployment is below 7% from 1 July 2007. In addition to this, all Indigenous Employment Centres ceased operating from 30 June 2007.

      Any major policy change in service delivery areas can be expected to generate increased complaints. Monitoring such complaints can provide valuable information on whether there are genuine problems that need to be addressed. Early intervention to address those problems can be important in safeguarding the interests of members of the public who are affected by the changes

      ‘Any major policy change in service delivery areas can be expected to generate increased complaints.’

      Removal of remote area exemptions

      People can be exempted from job search activity requirements for up to 13 weeks and sometimes longer, depending on their individual circumstances. Remote area exemptions have historically been granted for longer periods in areas where people have little or no access to a labour market or a labour market program. Remote area exemptions are being gradually removed across Australia over the next four years. Monitoring complaints in this area may also provide a window into potential difficulties resulting from this policy change.

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      Ongoing issues

      Last year we noted that the number of approaches about the General Employee Entitlements and Redundancy Scheme (GEERS) had declined markedly following the introduction of improved processes—most notably more detailed decision notification letters. The total number of approaches about GEERS has continued to decline significantly this year, both in terms of total numbers and as a percentage of approaches about DEWR. We closed 71 approaches regarding GEERS in 2006–07, compared to 121 in the previous year, and we investigated a smaller number (25 in 2006–07, 43 in 2005–06).

      In last year’s annual report we indicated that we expected complaints about Trades Recognition Australia (TRA) to increase as TRA was preparing to process a larger number of applications to meet higher skilled migration targets. While applications to TRA increased from 20,000 in 2005–06 to 30,000 in 2006–07, the number of complaints to our office about TRA has not risen accordingly. We finalised twice as many approaches about TRA in 2006–07 (39) as in 2005–06 (20), but investigated a smaller number (9, compared to 16 in 2005–06).

      Both of these examples reflect how complaint investigation, particularly in the early years of a program, can stimulate program changes that benefit members of the public. Early intervention of this kind is more likely to happen when there is a robust and constructive relationship between our office and the administrators of a scheme.

      immigration

      Complaints overview | Own motion investigations | Detention issues | Compliance | Referred immigration detention cases | Reporting on people held in immigration detention for two years or more | Freedom of Information | Input to Departmental processes and procedures

      In 2005 amendments to the Migration Act 1958 (Migration Act) gave the Ombudsman the statutory responsibility to review the circumstances of people held in immigration detention for two years or longer. Later in that year, amendments to the Ombudsman Act 1976 (Ombudsman Act) conferred the title of Immigration Ombudsman on the Commonwealth Ombudsman. This section outlines the wide range of work we undertook in relation to immigration during 2006–07.

      Complaints overview

      The number of approaches and complaints to the Ombudsman about the Department of Immigration and Citizenship (DIAC) stabilised in 2006–07. We received 1,379 approaches and complaints, compared to 1,300 in 2005–06. Figure 7.6 shows the trend in approaches and complaints over the period 2002–03 to 2006–07. We finalised 1,440 approaches and complaints with 40% investigated.

      FIGURE 7.6 Department of Immigration and Citizenship approach
      and complaint trends, 2002–03 to 2006–07

      FIGURE 7.6 Department of Immigration and Citizenship approach and complaint trends, 2002–03 to 2006–07

      Complaints about DIAC fall into three distinct areas:

      • visa issues—complaints relating to processing and decisions relating to visa applications, and complaints about visa cancellations
      • immigration detention issues raised by or on behalf of detainees
      • other issues—such as freedom of information applications and citizenship processes.

      Complaints about visa processing can raise complex issues stretching over a number of years, as the case study Parent visa application delays shows.

      CASESTUDY | parent visa application delays

      Ms J approached our office in 2003 raising concerns about DIAC’s processing of parent visa applications which had been lodged in 1996. When Ms J approached us again in 2005 she identified some further concerns. The applications had been made prior to a legislative change in December 1996 that altered the order of processing for parent visa applications.

      Our investigation found that Ms J had been given a queue date of 4 December 2002, when the primary criteria had been considered as satisfied. However, health checks had been completed in 1996. We raised our concern with DIAC about the delay in finalising the applications in 1996 and the decision to assess the applications against criteria introduced in December 1996 rather than those in place at the time the applications were lodged.

      DIAC subsequently advised us that arrangements had been made to change the queue date and to recommence processing the applications. It was estimated that, if the remaining criteria were met, the visas would be granted in 2006–07.

      Visa cancellation complaints can range from the relatively straightforward to the very complex. In some cases, DIAC decisions to cancel visas are not subject to review, making it especially important that DIAC officers follow due process in making a cancellation decision. The case study Airport turnaround shows a case where DIAC set aside a non-reviewable cancellation decision following our investigation.

      CASESTUDY | airport turnaround

      A man complained on behalf of his son’s partner, Ms K, who had arrived in Australia on a tourist visa. Ms K’s visa was cancelled during the immigration clearance process when DIAC staff formed the view that Ms K may not comply with the conditions of the visa. Ms K was required to leave Australia immediately.

      In our investigation we listened to the taped record of interview conducted prior to the cancellation of the visa and reviewed the relevant documentation. Our investigation established that adverse information had been provided by a third party and taken into account in the decision-making process. The information had not been put to Ms K so that she could respond, as required by s 57 of the Migration Act.

      We raised our concern with DIAC about the process undertaken to cancel the visa. DIAC agreed to set aside the decision to cancel the visa and to apologise to Ms K. In addition, DIAC agreed to consider any request for compensation.

      An increasing proportion of complaints about visa-processing delays relate to the time taken by DIAC to obtain and assess security clearances from other government agencies including the Australian Federal Police, the Department of Foreign Affairs and Trade, and the Australian Security Intelligence Organisation (ASIO). Our investigations to date have identified that the delay in some cases was beyond the control of DIAC. In 2006–07 we closed 13 complaints where this was an issue. In some cases we have been able to refer the complaint to the Inspector-General of Intelligence and Security (IGIS). IGIS oversights the operations of ASIO and is able to consider why a matter is protracted. We are also seeking to establish liaison protocols with other agencies so that in future such complaints can be resolved as quickly as possible.

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      Own motion investigations

      Administration of s 501 of the Migration Act

      In early 2006 we released a report of an own motion investigation DIAC’s administration of s 501 of the Migration Act (Report No 01/2006). Since then we have liaised regularly with DIAC regarding progress in implementing the report recommendations.

      In December 2006 the Secretary of DIAC advised that ‘the Department has made significant progress in addressing the deficiencies that your report identified ... and has initiated a broad and comprehensive programme of reform aimed at improving the overall management and resourcing of character decision making’. DIAC also advised that a centralised processing centre had been established, with a view to improved consistency in s 501 visa cancellation decision making.

      In response to one recommendation in the report, DIAC agreed to review the cancellation decisions for individuals who were still in immigration detention and/or awaiting removal. DIAC expects to finalise this review in early 2007–08. We continue to monitor the implementation of the recommendations made in the report. The case study Sole parent shows a positive outcome for one person whose case was reviewed.

      CASESTUDY | sole parent

      Mr L arrived in Australia in 1982 when he was 10 years old. His resident return visa was cancelled under s 501 of the Migration Act in April 2002. Mr L was detained from May 2002. At the time Mr L was detained he had custody of his 10-year-old son, whom he cared for with the assistance of the child’s grandmother.

      DIAC’s review of the cancellation process identified that in making the decision to cancel Mr L’s visa, the decision maker had not given adequate weight to a primary consideration—the best interests of the child. The Ombudsman report on s 501 cases highlighted the need to ensure that information presented to decision makers is complete and up-to-date. In relation to the best interests of the child, the report recommended that an independent assessment be undertaken by a qualified social worker/psychologist on the impact on a child of the possible separation from or removal of its parent from Australia.

      As a result of the review, DIAC recommended to the Minister that Mr L be granted a permanent visa. DIAC advised us in December 2006 that the Minister had granted Mr L a resident return visa using the discretionary powers provided in s 195A of the Migration Act. Mr L was released from detention when the visa was granted.

      Management of a frail aged visitor

      The 2005–06 Ombudsman annual report advised of the outcome of an investigation, Department of Immigration and Multicultural Affairs: Management of a frail aged visitor to Australia (Report No 05/2006). DIAC accepted all the recommendations in the report, and has implemented measures to improve communication with, and treatment of, DIAC clients. To date the changes include:

      • improvements in procedures for referring clients to Health Services Australia for medical assessments
      • improvements in health policy advice and fit-to-travel guidelines when assessing whether a person is fit to travel from Australia
      • review of DIAC guidelines for the issue of bridging visas and waiver of visa condition 8503 (no further stay)
      • improvements in information and instruction to DIAC officers about dealing sensitively with clients who are frail, have special needs or medical conditions, or whose immigration status is complex and/or potentially vulnerable.

      DIAC has also canvassed the issue in a bridging visa review, which is under consideration by the Minister.

      Migration Agents Registration Authority

      In response to a number of complaints, we conducted an own motion investigation into the complaint-handling process of the Migration Agents Registration Authority (MARA). The report (Report No 05/2007), released in June 2007, recognised that MARA’s complaint-handling processes had improved significantly in the previous 12 months. The report noted there was much still to be done by MARA to ensure that those most vulnerable are aware of MARA’s complaint-handling system and have appropriate access to it, and that both complainants and agents can have confidence in the outcomes achieved. MARA accepted the recommendations in the report.

      Current and future own motion investigations

      We are conducting an own motion investigation into DIAC’s notification of reasons for decision and review rights to refused visa applicants. The investigation is assessing whether decision makers are meeting their legislative obligations to inform applicants of the criteria on which an application was refused and the availability of relevant review rights. We are also assessing how effectively this information can be understood and responded to by a diversity of clients. The report will be released early in 2007–08.

      ‘We are conducting an own motion investigation into DIAC’s notification of reasons for decision and review rights ...’

      We have developed a program of own motion investigations for 2007–08 that includes examination of DIAC’s Safeguards program, the administration of debt waivers and debt write-offs, and issues regarding police responses to allegations of assault or other criminal activity at Villawood Immigration Detention Centre.

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      Detention issues

      Staff from our offices conducted regular complaint-taking sessions at the mainland immigration detention centres (IDCs). Staff also regularly attended Client Consultative Meetings, Food Delegates Meetings and Community Consultative Group Meetings. These meetings provide an opportunity to monitor complaint and systemic issues and their resolution. Regular attendance at the IDCs enabled our staff to better appreciate the detention environment and provide an effective complaint service to detainees. These regular visits will continue in 2007–08.

      In addition, staff visited and inspected five mainland IDCs, two immigration residential housing centres, and a motel where unaccompanied illegal foreign fisher minors are accommodated.

      Our aim was to visit and examine the detention facilities with particular emphasis on assessing the provision of detention services and whether such services were being delivered in accordance with detention standards. We examined a range of services including reception and discharge procedures, property storage and recording, complaint-handling and incident-reporting systems, food preparation and storage, access to health services, and the provision of meaningful activities. We interviewed DIAC, GSL (Australia) Pty Ltd (GSL), health services and kitchen staff. At the end of each visit we provided feedback to centre management, and to DIAC’s and GSL’s national offices on selected issues. In 2007–08 we will commence visits to people in community detention as well as unannounced visits to IDCs.

      Health remains an important complaint and oversight area. In 2006–07 we closed 93 complaints that raised one or more health issues. It is apparent from our investigations that detainees generally have appropriate access to a range of health services at IDCs following significant reforms in this area.

      For example, one complaint we received concerned a person who had been transferred from an IDC to a hospital for psychiatric treatment. The complaint made on the person’s behalf centred on potential complications arising from the treatment. We investigated the complaint and made enquiries of the treating doctors with DIAC’s assistance. We were satisfied that the treatment was carefully considered and evaluated by the treating doctors, and was administered with the person’s consent.

      More options for alternative forms of immigration detention have led to a reduction in the number of people in IDCs. However, a greater proportion of people now in the IDCs have a criminal background and have had their visas cancelled under s 501 of the Migration Act. From complaints and visits to IDCs we have become aware that this is having an adverse effect on the day-to-day experience of people in detention with incidents of assault, theft of personal items and bullying being reported.

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      Compliance

      As part of the Immigration Ombudsman function, we are implementing a comprehensive program of monitoring and inspecting DIAC’s compliance activities. By adopting a more proactive role, we aim to provide a higher level of independent oversight and earlier identification of problems. During 2006–07 we conducted a pilot study of the process used to remove people from Australia. We have commenced a full program of inspections/monitoring of DIAC administration in this area. We are also developing a wider inspection and monitoring program for DIAC compliance activity, with emphasis on DIAC’s identification and location of unlawful non-citizens and those who have breached their visa conditions.

      ‘... we are implementing a comprehensive program of monitoring and inspecting DIAC’s compliance activities.’

      During the year we undertook an investigation into the administrative actions of compliance officers in relation to the death of a South Korean national during compliance activity in Sydney in July 2004. Our investigation identified serious administrative shortcomings in many areas of the DIAC compliance action—specifically record keeping, the search warrant administrative process, the execution of warrants and the clarity around the circumstances of escorting someone to other premises rather than detaining them under the Migration Act. We note that these issues have been raised in other recent inquiries, and are being addressed in DIAC’s current reform program.

      DIAC has introduced new descriptors in its primary database system to more accurately reflect the reason for a person’s release from immigration detention when they are lawful. In March 2007 DIAC provided us with its first consolidated report relating to individuals released under the new descriptors in the year to February 2007. The report showed further examples of many of the problems identified in the 247 referred immigration detention cases. However, DIAC has generally been responsive in addressing each case. We will continue to receive consolidated reports for examination every six months. Our office will also continue to monitor DIAC’s use of these descriptors and may look into some cases in more detail if appropriate.

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      Referred immigration detention cases

      During 2006–07 we completed our investigation of 247 immigration detention cases referred to the Ombudsman by the Australian Government in 2005 and 2006.

      The investigation of these cases involved reviewing DIAC’s paper files, database records and the detention dossier for each person. In some cases, we sought responses to specific questions and conducted interviews with DIAC officers, clients, their representatives or other agencies. Extensive analysis was undertaken of DIAC’s policies and procedures, and briefings were sought on a range of issues. Each investigation was reported in a case analysis, which outlined the sequence of events, discussed areas of concern and identified areas of potential administrative deficiency. In the majority of cases we recommended that DIAC consider whether a remedy should be provided to acknowledge or redress any suspected unlawful action.

      ‘... we completed our investigation of 247 immigration detention cases referred to the Ombudsman ...’

      The issues arising from the investigation of the 247 individual cases formed the basis of six consolidated public reports and individual public reports on two of the cases. Those reports highlight areas of systemic failure in DIAC administration and compliance activity and recommended a combination of administrative, systems-based and policy changes within DIAC.

      Published reports

      The first report, released in March 2006, related to the immigration detention of Mr T (Report No 4/2006). Mr T, an Australian citizen, was detained on three separate occasions for a total of 253 days after the police referred him to DIAC. The report highlighted significant problems faced by DIAC in managing cases of people with mental illness.

      A further three reports were released in December 2006. One dealt with the detention of a person referred to as Mr G, who was an Australian resident and also suffering from a mental illness (Report No 6/2006). The second report was the consolidated report into mental health and incapacity, where a person was suffering from poor mental health or incapacity at the time of their detention (Report No 7/2006). The third consolidated report—children in detention—dealt with cases where a child was taken into immigration detention (Report No 8/2006). It highlighted significant problems regarding DIAC’s management of cases involving children.

      The remaining consolidated reports were finalised in June 2007. These reports dealt with the following issues.

      • Detention process (Report No 7/2007)—cases where DIAC’s decision to detain a person under s 189 of the Migration Act was problematic.
      • Data problems (Report No 8/2007)—where a data error contributed to a person’s detention.
      • Notification issues including cases affected by the Federal Court decision in Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR (Report No 9/2007). This report dealt with two topics. One topic was cases where a person was detained after DIAC refused their visa application or cancelled their visa, but did not notify the person correctly. The other dealt with cases where a person affected by the Srey decision was wrongly taken into detention or not released from detention in a timely manner.
      • Other legal issues (Report No 10/2007)—cases where a person was detained following the cancellation or refusal of their visa, and the decision was later set aside, or where a person was detained and then released while subject to a deportation order.

      The case study of Mr A in the report on ‘Other legal issues’ related to a permanent resident whose permanent residence status ceased following a DIAC error. He was subsequently detained for more than three years. We recommended that DIAC review the circumstances of his case and consider the actions of its staff and whether there were lapses in professional standards in relation to the way his case was managed. The report also recommended that DIAC give consideration to proposing a legislative amendment to allow variation of decisions based on legal or factual error.

      DIAC cooperated fully with the investigations into these cases. Generally DIAC has agreed with the recommendations in the consolidated reports and is undertaking a significant reform process to address many of the issues identified. The Ombudsman will continue to monitor DIAC’s progress in implementing these recommendations and DIAC’s handling of the individual cases. All the reports are available from the Ombudsman website at www.ombudsman.gov.au.

      ‘The Ombudsman will continue to monitor DIAC’s progress in implementing these recommendations ...’

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      Reporting on people held in immigration detention for two years or more

      Under the Migration Act the Ombudsman is required to review the cases of people held in immigration detention for two years or more. Section 486O of the Act provides that the Ombudsman, upon receiving a report from DIAC, is to provide the Minister with an assessment of the appropriateness of the arrangements for the person’s detention.

      DIAC’s report must be provided to the Ombudsman within 21 days of a person having been in detention for two years. If the person remains in detention, new reports to the Ombudsman are to be prepared at six-monthly intervals. 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 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’s website.

      Progress on the oversight function

      As at the end of June 2007, this function had been operating for two years. The priority remains focused on preparing reports for people in IDCs, families with children in detention, people who have a significant illness, people on temporary visas and people with other compelling reasons for an early report.

      We conduct face-to-face interviews with those in detention wherever possible, especially in relation to the initial report. Telephone interviews are generally conducted for the subsequent interviews as well as in situations where a person has been granted a permanent visa and is no longer in detention.

      ‘We conduct face-to-face interviews with those in detention wherever possible ...’

      Table 7.2 sets out the number of s 486N reports the Ombudsman received from DIAC in relation to long-term detainees, including the second, third, fourth and fifth reports for people who remain in detention.

      TABLE 7.2 Reports under s 486N of the Migration Act received by the Ombudsman, 2006–07

      TABLE 7.2 Reports under s 486N of the Migration Act received by the Ombudsman, 2006–07

      From the introduction of the function until the end of June 2007, the Ombudsman had provided 211 reports to the Minister, of which 199 had been tabled in Parliament. A number of the reports provided to the Minister were combined reports—for example, combined first and second reports for someone on whom we had not reported before we received their second s 486N report from DIAC.

      One third of the people covered in the reports were citizens of the People’s Republic of China, 10% were citizens of Iran, 8% were citizens of Afghanistan, and 8% were citizens of Vietnam.

      Significant mental health issues are a continuing area of concern for long-term detainees and 40% of the reports completed by the Ombudsman raised this issue.

      Analysis

      A total of 218 recommendations were made in the 211 reports sent to the Minister, with about 40% of the reports containing no recommendation. The following statistics are based on an analysis of the responses in the Minister’s statements tabled in the Parliament:

      • 48% of the Ombudsman recommendations or suggestions were agreed to by the Minister
      • 34% were not agreed to by the Minister
      • 13% of time sensitive recommendations or suggestions were delayed or postponed by the Minister
      • 3% of the recommendations were not addressed
      • 2% of the recommendations had become irrelevant due to intervening circumstances.

      On some occasions a decision providing a different outcome followed the tabling statement.

      The lack of detail in Ministerial tabling statements may mean that it will not be possible to provide a similar analysis of the s 486O report recommendations in future.

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      Freedom of Information

      In 2004–05 and 2005–06 we reported on significant delays in the processing of FOI requests by DIAC, and the strategies that were being implemented to address the situation.

      Whilst DIAC has increased the resources within the area and introduced a range of initiatives aimed at improving FOI processing, the situation has still not improved to the degree we expected. The processing of many FOI requests far exceeds the statutory timeframe. At 30 June 2007 there were 2,793 FOI requests outside the statutory timeframe, compared to 1,101 at 30 June 2006. This continues to be unsatisfactory.

      We are aware that DIAC has recently conducted an internal audit into their management of FOI requests and it is expected that the final report will identify opportunities to streamline processes or reduce the number of FOI requests received. It is also expected that a recent amendment to the Migration Act will mean that individuals no longer need to use FOI to access their international movement records. This should reduce the FOI workload.

      DIAC is continuing to provide our office with regular two-monthly reporting on progress in dealing with the backlog. We will continue to monitor the number of FOI requests outside the statutory timeframe. In the meantime, we accept complaints about FOI delays and may investigate individual complaints if we consider that a particular matter should be given priority, or that a complaint raises a special area of concern in relation to DIAC’s handling of requests.

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      Input to Departmental processes and procedures

      We were pleased to be invited by DIAC to provide comment on draft departmental documents on numerous occasions. For example, with Dr Vivienne Thom as a member of the Values and Standards Committee and the College of Immigration Board, we have commented on a wide range of proposed training modules for compliance and detention officers attending the College.

      We also commented on a range of DIAC policy and information documents, including the s 501 Handbook, detainee information material, DIAC’s Compliments and Complaints Policy, DIAC’s Stakeholder Engagement Practitioner Handbook and a discussion paper on measures to improve settlement outcomes for humanitarian entrants.

      These opportunities allowed our office to reinforce issues raised during the investigation of complaints, including the need for improved record-keeping practices, the importance of effective proof of identity procedures, and the need to provide interpreters during interviews.

      It has been pleasing to have the opportunity to contribute comments to the policy and information products under development for the introduction of DIAC’s revised Compliments and Complaints Policy. The revised policy indicates that DIAC is committed to becoming more responsive to the needs of customers and to improving customer service through responding to customer complaints and feedback.

      As an observer on DIAC’s Detention Health Advisory Group, the office was invited to comment on new overarching health policies, including the Detention Health Framework and Detention Health Standards devised by the Royal Australian College of General Practitioners. DIAC also invited us to comment on various other draft detention documents, including the request for tender exposure drafts for detention services and detention health services, and detention complaints and visits policies.

      ‘... DIAC is committed to becoming more responsive to the needs of customers and to improving customer service ...’

      Ombudsman representatives attended community stakeholder consultation sessions held by the Immigration Detention Advisory Group (IDAG) in Darwin and Melbourne. We will also attend the IDAG community stakeholder consultation sessions scheduled for later in 2007 in Adelaide, Brisbane, Perth and Sydney.

      law enforcement

      Australian Federal Police | Review of complaint handling | Own motion and special investigations | Australian Crime Commission | Australian Commission for Law Enforcement Integrity

      The Commonwealth Ombudsman deals with complaints made about the Australian Federal Police (AFP) and the Australian Crime Commission (ACC). This year there was considerable change in the legislation under which the office undertakes this role, with the repeal of the Complaints (Australian Federal Police) Act 1981 (Complaints Act) and amendments to the Australian Federal Police Act 1979 (AFP Act) and the Ombudsman Act. A complete list of the relevant legislation is contained in Table 7.3.

      During 2006–07 the Commonwealth Ombudsman became the Law Enforcement Ombudsman with the commencement of new legislation that also brought new responsibilities to the office. Despite these changes the core work of dealing with complaints from members of the public about AFP members continued, along with several special and own motion investigations.

      TABLE 7.3 Legislative basis for Commonwealth Ombudsman oversight of law enforcement activities

      TABLE 7.3 Legislative basis for Commonwealth Ombudsman oversight of law enforcement activities

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      Australian Federal Police

      The majority of the Ombudsman’s law enforcement work in 2006–07 related to complaints from members of the public about the actions of members of the AFP. This year 60% of all complaints were made about AFP members acting in their ACT community policing role. Our work in this area is described in more detail in the ACT Ombudsman Annual Report 2006–2007, available at www.ombudsman.act.gov.au.

      The remaining 40% of complaints relate to the work of the AFP in national and international operations. The most common issues raised by complainants include:

      • inappropriate behaviour
      • misuse of authority
      • failure to act
      • harassment
      • discourtesy.

      This year complaints have been dealt with under two different legislative regimes. The relevant provisions of the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 commenced on 30 December 2006, repealing the Complaints Act and replacing it with Part V of the AFP Act and amendments to the Ombudsman Act. The Complaints Act remains in force for complaints made before 30 December 2006. These legislative changes have had a significant impact on how the Ombudsman’s office works and the statistics that are provided in this report. These changes are discussed further in following sections.

      Implementation of the Law Enforcement Ombudsman function

      The Law Enforcement Ombudsman is a new role vested in the Commonwealth Ombudsman as part of a broader reform of the system for handling complaints made about the AFP. The intention of the reform is to highlight the special role of the Ombudsman in dealing with complaints against the AFP, while creating a more flexible and responsive complaint-handling process that better meets the needs of all stakeholders.

      ‘The Law Enforcement Ombudsman is a new role vested in the Commonwealth Ombudsman ...’

      The Ombudsman, Prof. John McMillan, and the AFP Commissioner, Mr Mick Keelty, signing a legislative instrument on categories.The reforms include the removal of the system for joint handling of complaints by the AFP and the Ombudsman, which was the central feature of the Complaints Act. Under the new model the AFP has primary responsibility for dealing with all complaints. Minor matters are allocated to local area management to resolve and serious matters are dealt with by the AFP’s Professional Standards team.

      The Ombudsman has an enhanced investigatory and inspection role, and is no longer involved in the resolution of all complaints. The Ombudsman continues to be notified by the AFP of all serious misconduct matters: these are defined as ‘Category 3’ matters in s 40RP of the AFP Act. The Ombudsman may also investigate any complaint against the AFP, including the AFP’s handling of any case, under the Ombudsman Act.

      For the purposes of complaints management under the AFP Act, conduct is divided into four categories, of which the highest is conduct giving rise to a corruption issue (s 40RK). The three other categories are minor management or customer service matters, minor misconduct and serious misconduct. The principles for determining the kind of conduct that falls within these three categories were agreed on by the AFP Commissioner and the Ombudsman and set out in a legislative instrument made under s 40RM of the AFP Act (see Australian Federal Police Categories of Conduct Determination 2006, Legislative Instrument F2006L04145 at www.comlaw.gov.au). Allegations of corruption against AFP officers are now referred both by the Ombudsman and the AFP to the Law Enforcement Integrity Commissioner. The role of the Integrity Commissioner is discussed later in this section.

      As Law Enforcement Ombudsman, the Commonwealth Ombudsman has a new responsibility to review the administration of the AFP’s handling of complaints, through inspection of AFP records. An aspect of this responsibility is to comment on the adequacy and comprehensiveness of the AFP’s dealing with conduct and practices issues as well as its handling of inquiries ordered by the Minister. The results of these reviews must be provided to Parliament on an annual basis, pursuant to s 40XD of the AFP Act.

      Work is continuing on developing an administratively efficient process for the examination of the AFP’s investigations into serious issues of conduct and practice. The AFP elected not to enter into an arrangement under s 8D of the Ombudsman Act for jointly dealing with such issues, and the absence of such an arrangement means that effective examination of these issues must be by separate Ombudsman investigation.

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      Review of complaint handling

      In 2007 we commenced reviewing the administration of the AFP’s handling of complaints. We inspected AFP records of finalised complaints made under Part V of the AFP Act during May and June 2007. A report on the adequacy and comprehensiveness of the AFP complaint system will be tabled in Parliament.

      FIGURE 7.7 Australian Federal Police approach and complaint trends, 2002–03 to 2006–07

      FIGURE 7.7 Australian Federal Police approach and complaint trends, 2002–03 to 2006–07

      Complaints received

      The change in the complaint-handling system means that the statistics in this report are not comparable with those of previous years. In 2006–07 we received a total of 694 approaches and complaints about the actions of AFP members (801 in 2005–06).

      We received 517 complaints under the Complaints Act. This is a sharp increase of 47% compared to complaints received during the same six-month period in 2005 (351). Complaints relating to ACT Policing accounted for 61% of this increase and complaints relating to areas of Commonwealth responsibility represented the remaining 39%. The reason for the increase is not readily ascertainable.

      We also received 172 complaints under the Ombudsman Act after 30 December 2006.

      As noted above, under the new complaint-handling arrangements, the AFP is required to notify the Ombudsman of serious misconduct issues. The AFP notified the Ombudsman of 125 Category 3 complaints in the first half of 2007.

      Complaints finalised

      We finalised 745 complaints and 886 complaint issues in 2006–07. Complaints can contain a number of issues, each requiring separate investigation and possibly resulting in different outcomes. The following statistics cover AFP community policing, including in the ACT, as well as AFP national and international policing.

      Complaints made under the Complaints Act

      We finalised 591 complaints containing 729 complaint issues under the Complaints Act.

      Of the 729 issues finalised, a large number (275 or 38%, compared to 48% in 2005–06) related to minor discourtesy or service delivery failures and were referred to the AFP’s workplace-resolution process. This process allows members of the public to provide feedback about their interaction with police; provides AFP members with the opportunity to acknowledge and learn from minor mistakes; and facilitates a more timely and flexible response to complaint issues than does formal investigation.

      Of the 275 issues referred for workplace resolution, 191 issues (69%) were successfully conciliated with the complainant. The AFP forwarded reports to the Ombudsman for consideration in relation to the remaining 84 issues (31%) where the complainant was not satisfied with the AFP’s attempts to conciliate the matter.

      ‘... a large number ... related to minor discourtesy or service delivery failures ...’

      We decided not to investigate 349 issues after receiving the complaints directly or after considering the AFP’s initial evaluation of the complaint. The lower proportion of complaints subjected to workplace resolution reflects the increased proportion of complaints that we considered did not warrant further action in light of the AFP’s initial evaluation. The Ombudsman made additional enquiries of the AFP on 43 issues and later decided that further action was not required.

      Sixty-two complaint issues were investigated by the AFP and reviewed by the Ombudsman’s office (compared to 87 in 2005–06). Of these issues, 16 were substantiated, 9 were incapable of determination and 37 were unsubstantiated.

      Our review of AFP investigation reports suggests that there was a comprehensive investigation and analysis in most cases, with reasonable and appropriate recommendations for remedial action. On a few occasions an investigation report was returned to the AFP for further action—such as a quality assurance review of the report, further clarification of a particular issue, or consideration of a broader issue. We also worked with the AFP to ensure that, where appropriate, the investigation outcome considered systemic issues and included a response from the AFP directly to the complainant.

      Complaints made under the Ombudsman Act

      We finalised 154 approaches containing 157 issues under the Ombudsman Act, with 145 issues being in the Ombudsman’s jurisdiction. Under the new legislative arrangements, we have adopted the policy that we take with other Australian Government agencies—that a complainant should contact the relevant agency about a complaint before asking the Ombudsman to conduct an investigation. As a result, we referred the complainant to the AFP or another oversight or advice body in relation to 120 issues (76%) and decided that the remaining 37 issues (24%) did not warrant investigation. Some investigations commenced during the period are yet to be completed.

      Time taken to finalise complaints

      Overall, 81% of complaints about the AFP under both legislative regimes were finalised within six months of receipt (compared to 88% in 2005–06). The remaining 19% of complaints (144) took more than six months to finalise (compared to 12% in 2005–06).

      Concerned about the delay in finalising many AFP complaints, we analysed the cases to identify the causes. The analysis revealed that the Ombudsman’s office finalised complaints made under the Ombudsman Act in an average of 23 days. Complaints jointly managed with the AFP under the Complaints Act took an average of 150 days to finalise, comprising 107 days for the AFP to prepare a report to the Ombudsman, and 43 days for the Ombudsman’s office to consider that report.

      There was a delay in some instances between the AFP receiving a complaint and notifying it to the Ombudsman. There were also delays from when the Ombudsman notified a complaint to the AFP and the AFP advised us how they intended to deal with it. The AFP informed us that these delays resulted from a backlog in the evaluation of new complaints, which had subsequently been resolved. Weekly meetings were held between the AFP and the Ombudsman’s office to discuss these and other issues.

      In the next financial year we will work with the AFP to resolve the remaining 169 complaints made under the Complaints Act and to reduce our own consideration times.

      ‘Weekly meetings were held between the AFP and the Ombudsman’s office ...’

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      Own motion and special investigations

      ACT Policing Watchhouse operations

      In February 2007, at the request of the AFP, we conducted a joint review with the AFP of City Watchhouse operations in the ACT. The report, which was published in June 2007 (Report No 6/2007), is described more fully in the ACT Ombudsman Annual Report 2006–2007. The review recommended many changes in Watchhouse procedures, as well as a more far-reaching consideration of the way in which the Watchhouse is operated and staffed.

      Among the matters covered by the report were:

      • the policies and procedures applicable to Watchhouse operations
      • physical conditions for staff and detainees
      • surveillance systems
      • training of AFP members working in the Watchhouse
      • management and control of detainees, including the use of force
      • care of persons with special needs
      • oversight, supervision and management of Watchhouse staff
      • complaint management.

      The AFP accepted all the recommendations, with one being a matter for consideration by the ACT Government. The steering committee oversighting the review will meet by December 2007 to report on progress in implementing the review recommendations. The report is available on our website at www.ombudsman.gov.au.

      Review of management of property and exhibits

      In last year’s annual report we noted that we were considering conducting an investigation into the AFP’s management of property and exhibits. Some of the issues that were to be taken up in this investigation related to the AFP’s management of property while a person was in ACT police custody. These have now been addressed in the report on ACT Policing Watchouse operations. As a result, we decided not to pursue a separate investigation on property and exhibit handling at this time.

      Security vetting

      We conducted an own motion investigation into AFP security vetting procedures during 2006–07. In the investigation we examined issues such as whether natural justice was properly observed in security vetting decisions, whether security vetting policies were applied consistently to international security vetting applications, and whether there was excessive delay in the vetting process.

      The investigation revealed that since 2006 the AFP had improved its security vetting practices and had addressed the main problems raised in complaints to the Ombudsman. The process for conducting a review and observing natural justice had been amended to comply with good administrative practice, and the policy for conducting international enquiries had been clarified and structured to enable it to be applied more efficiently and consistently. The AFP had also introduced deadlines for processing security vetting applications to reduce delays, and increased the training requirements for AFP security vetting staff.

      Special investigations

      Ombudsman staff are progressing two special investigations under the Complaints Act. One investigation is examining whether a ‘directed’ interview conducted between AFP Professional Standards officers and an AFP member (as a result of a conduct issue) was biased due to an alleged ‘perceived or actual conflict of interest’ held by one of the AFP Professional Standards officers involved in conducting the interview. The second investigation revolved around the interview technique used by some AFP Professional Standards officers when investigating conduct issues. This special investigation has been completed and a report provided to the AFP for comment.

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      Australian Crime Commission

      Complaints about the ACC are managed under the Ombudsman Act. While the ACC is not required to notify complaints to the Ombudsman’s office, the ACC notifies us about significant matters, allowing us to consider whether further investigation by Ombudsman staff is warranted.

      In 2006–07 we received nine approaches about the ACC (the same as in 2005–06). We finalised eight approaches, three of which were complaints within the Ombudsman’s jurisdiction. Some of the other approaches were from people seeking to report criminal activity in the community. We gave these people the contact details for the ACC.

      One complaint was referred to the ACC for its consideration. An independent officer (arranged through the ACC) investigated this complaint, which related to an allegation that ACC officers executing a search warrant in Melbourne had stolen $20,000 in cash from the premises being searched. A full investigation of this matter was conducted by the ACC and we reviewed the final investigation report. The investigation included examination of videotapes recorded during the execution of the search warrant. The investigation uncovered no evidence to suggest that any ACC or AFP officers involved in the search warrant execution had removed any item from the premises without authority or without an official seizure receipt.

      Another complaint centred on matters relating to security protection being provided to a witness. After some investigation of this matter we decided not to take any further action as the ACC had already provided an appropriate remedy to the complainant.

      The other complaint within jurisdiction centred on matters that had allegedly occurred many years ago and had been before the courts some years ago. We decided not to investigate this matter as an investigation so long after the event would have been problematic and was unlikely to achieve the remedy sought by the complainant.

      Australian Commission for Law Enforcement Integrity

      An important change in 2006–07 was the creation of the new position of Law Enforcement Integrity Commissioner, assisted by the Australian Commission for Law Enforcement Integrity (ACLEI). The Law Enforcement Integrity Commissioner Act 2006 commenced on 30 December 2006. The core function of the Integrity Commissioner is to investigate and report on corruption in the ACC and the AFP.

      The Ombudsman can refer allegations of corruption against law enforcement officers to the Integrity Commissioner. In 2007 the Ombudsman referred two allegations of corruption to the Integrity Commissioner. One related to the AFP and the other to the ACC.

      Discussions were held in 2007 between the Ombudsman’s office and ACLEI to clarify arrangements between both offices for cooperation and referral of complaints and allegations. It is expected that there will be a close working relationship between the Ombudsman’s office and ACLEI.

      postal industry

      Postal Industry menu: Commonwealth jurisdiction | Australia Post complaints

      The Postal Industry Ombudsman (PIO) started operating on 6 October 2006. The PIO is a new role for the Commonwealth Ombudsman, and is the office’s first function that routinely investigates complaints about private sector organisations.

      The PIO scheme is a voluntary scheme which postal operators or courier companies can choose to join. Australia Post is automatically a member. At the start date, five businesses had joined the scheme, and two more joined shortly after. At 30 June 2007, the members of the PIO scheme were:

      • Australia Post
      • Cheque-Mates Pty Ltd
      • D & D Mailing Services
      • Dependable Couriers & Taxi Trucks Sydney Pty Ltd
      • Federal Express (Australia) Pty Ltd
      • The Mailing House
      • Mailroom Express Pty Ltd
      • Universal Express Australia Pty Ltd.

      The scheme was officially launched in July 2006 in Sydney by the Minister for Communications, Information Technology and the Arts, Senator the Hon. Helen Coonan. Speakers at the launch were Senator Coonan, the Managing Director of Australia Post, Mr Graeme John AO, and the Commonwealth and Postal Industry Ombudsman, Prof. John McMillan.

      Mr Graeme John, Senator Coonan and Prof. McMillan at the launch of the PIO Scheme.

      In 2006–07 our office worked on raising the profile of our new function in the broader community. We focused particularly on providing information about the PIO to those who, in turn, give advice to members of the community. We began a program of writing to all federal, state and territory parliamentarians during 2006–07, and talked to organisations that help consumers—for example, the state and territory bureaus of consumer affairs.

      From 6 October 2006 to 30 June 2007, the PIO received 1,018 approaches and complaints. The number of approaches and complaints to our office, and investigations undertaken by the PIO, are shown in Table 7.4.

      TABLE 7.4 Approaches and complaints received, and investigations, by the PIO, 2006–07

      TABLE 7.4 Approaches and complaints received, and investigations, by the PIO, 2006–07

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      Commonwealth jurisdiction

      The PIO can only investigate complaints about postal services, and where the action complained of occurred on or after 6 October 2006. Other complaints about Australia Post can be investigated by the Commonwealth Ombudsman. This includes complaints about non-postal issues—for example, Australia Post’s banking or billpay services.

      In 2006–07 the Commonwealth Ombudsman received 802 approaches about Australia Post, in addition to the approaches received by the PIO referred to above. The 802 approaches comprised approaches about Australia Post made before 6 October 2006, and approaches about non-postal issues made after that date.

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      Australia Post COMPLAINTS

      Australia Post deals with a high volume of transactions—on average, it handles some 21 million items every working day and delivers mail to approximately 10.3 million delivery points.

      We received significantly more approaches and complaints about Australia Post in 2006–07 compared to previous years, with a total of 1,819 approaches and complaints compared to 1,327 in 2005–06. One reason may be the start of the PIO, with increased publicity about our office’s role in handling Australia Post complaints. Another reason may be changes in the use of the postal system. Although overall mail volumes remain steady, the proportion of parcel transactions has increased in recent years. This seems to be driven by an increase in consumers purchasing by email or over the internet, from suppliers both in Australia and overseas. It is possible that postal customers are more likely to notice, and complain about, a service failure by Australia Post in relation to parcels than in relation to letters such as bank statements.

      As well as complaints about items lost or damaged in the mail, other complaint themes included the express post service (for example complaints about service failure and the limited nature of the ‘guarantee’), registered post (including complaints about signatures for items being accepted from people who were not entitled to them), and the method of mail delivery (ranging from complaints about mail being left in the rain, to a complaint alleging the fumes from the postie’s bike polluted the caller’s house).

      The number of approaches and complaints to our office about Australia Post (received by both the PIO and the Commonwealth Ombudsman) is shown in Figure 7.8.

      FIGURE 7.8 Australia Post approach and complaint trends, 2002–03 to 2006–07*

      FIGURE 7.8 Australia Post approach and complaint trends, 2002–03 to 2006–07*

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      Recurring problems

      As consumers become more likely to complain, it is increasingly important that Australia Post gives a high quality initial response to customer problems. Postal customers are encouraged to contact an Australia Post Customer Contact Centre (CCC) if they have an enquiry or a complaint. The CCCs handled on average 75,000 calls per week nationally during 2006–07.

      During the year we noticed that some ongoing complaints are not always handled well by the CCCs. Although staff of the CCCs are generally able to handle and resolve one-off issues, recurring or ongoing problems are not always identified and managed in an appropriate manner.

      We found that postal customers experience a high degree of frustration if problems continue after a complaint to a CCC. A particularly troubling area is when a customer is having problems with delivery and is concerned about mail not being delivered. The customer may not know what mail they should have received and cannot tell if there was a delivery failure. It can be difficult for Australia Post to regain the trust of an addressee after ongoing delivery problems.

      ‘We found that postal customers experience a high degree of frustration if problems continue ...’

      Over the year our office was able to assist Australia Post to identify and focus on recurring problems experienced by individuals, and to put in place longer-term solutions to solve the core cause, as shown in the case studies On the boundary and Unwanted redirection.

      CASESTUDY | on the boundary

      Ms M complained to us about mail regularly arriving 8 to 10 days after it was sent. She had approached Australia Post two years earlier, and the problem was fixed for about 12 months, but had recurred.

      We established that the problem occurred because Ms M lived on the boundary of two delivery areas, and her address appeared twice in the address database. Mail sorted to the incorrect delivery area was then resent to the correct delivery area, resulting in the delay.

      As a result of the complaint to our office, Australia Post put in place new processes for dealing with mail to this address, eliminating the double handling and the consequent delay. Australia Post was also able to give Ms M information on how to read the markings on her mail to see where the mail had been, and gave both Ms M and any affected neighbours a direct number to call to deal with future problems.

      CASESTUDY | unwanted redirection

      Mr N approached our office on behalf of his business, complaining that for the last month the bulk of the mail addressed to his business had been returned to sender for various reasons such as ‘left address’ or ‘delivery refused’. Mr N said this was causing cash flow difficulties for his business. He had contacted Australia Post more than 25 times, but the problem continued.

      It transpired that a redirection in place for a previous business in the premises had been wrongly applied to Mr N’s business mail. As a result of our investigation, the relevant operations manager contacted Mr N and obtained a list of all company and personal names that received mail at that address. This was given to the delivery officer, and an alert placed in the relevant redirections folder. Australia Post also put in place a short-term automatic diversion for all mail at that address until the new processes were fully operational.

      Dilution of responsibility

      Australia Post is a large organisation, with approximately 35,000 staff. Many of the complaints to our office involve actions by different parts of Australia Post. In order to find out why a problem occurred, and whether changes can be made to prevent it happening again, it is often necessary for several different operational areas of Australia Post to be involved.

      Although a customer’s initial contact is with a CCC, the resolution of the problem and notifying the customer of the outcome will often become the responsibility of the local delivery centre. If another area of Australia Post is also involved—for example, the sending post office—it can become difficult for a customer to keep track of the progress of their complaint.

      We assisted complainants negotiate their way through Australia Post to someone who was able to help them and resolve their problem. As much of Australia Post’s work is done locally, our office has found that face-to-face contact with local representatives is invaluable in improving postal services, as the case study Indirect delivery demonstrates.

      CASESTUDY | indirect delivery

      Mr O complained about a problem with his mail going via another delivery centre before being redirected to the correct delivery area. He believed this was because his area had an incorrect postcode. He approached his local post office and delivery centre about the problem in 2003 and 2004.

      Mr O initially complained to us in May 2006. As a result of our investigation, Australia Post changed the local procedures to ensure that mail was correctly transferred for direct local delivery. Mr O returned to our office in July concerned that the amount of mail he was receiving had decreased significantly. He had not been able to contact anyone who was able to say what was going on.

      Our office was able to help Mr O and the local delivery manager make contact. The delivery manager explained the new delivery network changes to Mr O, and how the changes should solve his concerns.

      other agencies

      Australian Customs Service | Australian Film Commission | Australian Securities and Investments Commission | Department of Families, Community Services and Indigenous Affairs | Department of Foreign Affairs and Trade | Insolvency and Trustee Service Australia | Telstra Corporation

      Each year we receive approaches and complaints about more than 100 Australian Government departments and agencies. There are a number of agencies about which we generally receive 50 to 200 approaches and complaints each year. These agencies are shown in Table 7.5.

      TABLE 7.5 Agencies about which a modest number of approaches and complaints are received, by number received, 2002–03 to 2006–07

      TABLE 7.5 Agencies about which a modest number of approaches and complaints are received, by number received, 2002–03 to 2006–07

      While we may receive only a small number of complaints about some agencies, they can sometimes highlight important issues in public administration. This section gives an example of the range of complaints with which we dealt. It also outlines some complaints which raised broader issues of public administration.

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      Australian Customs Service

      In 2006–07 we received 123 approaches and complaints about the Australian Customs Service, compared to 121 in 2005–06. As with last year, the primary source of complaints about Customs were issues associated with passenger processing. Complaints tended to relate to baggage inspections, routine questioning by Customs officers, the imposition of duty and/or the seizure of prohibited goods.

      The case study Damaged souvenir shows how we were able to help resolve a complainant’s concerns in relation to baggage inspection.

      CASESTUDY | damaged souvenir

      When Mr P arrived home from a trip to Asia, he noticed that a wooden souvenir he brought back had been damaged. Mr P was concerned that the damage may have occurred during a routine baggage inspection by a Customs officer at Melbourne Airport. Following an investigation of Mr P’s complaint, Customs was able to provide our office with CCTV footage of the actual inspection. The footage showed that the item had not been mishandled or damaged by the Customs officer. To further alleviate Mr P’s concerns, our office was able to facilitate a private viewing of the footage for Mr P at Customs House.

      Our office also continued to receive complaints about passenger duty free concessions. Some complainants argued that the current concessions have not been adequately publicised since their implementation in 2005. Other complainants suggested that the current by-laws relating to the concessions are inflexible, in that they do not allow for the partial disposal of amounts that exceed the duty free limits.

      In most instances, our office was able to provide these complainants with a better explanation of how the concessions are now applied, and to confirm whether Customs had applied the by-laws correctly in respect of their particular goods. We will continue to monitor how Customs publicises the concessions and responds to these types of complaints.

      During the year, our office also engaged in a number of visits to Customs’ sites, including Passenger Processing and Container Examination facilities. Through an improved understanding of how Customs manages its operations, our office will be better equipped to deal with complaints about Customs and its associated processes.

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      Australian Film Commission

      There are a number of agencies about which we usually receive very few, if any, complaints. However, the complaints we receive can sometimes illustrate broader issues of public administration. One such matter arose involving the Australian Film Commission (AFC).

      In May 2007 the Ombudsman released a report Australian Film Commission: Investigation into the assessment of film funding applications (Report No 2/2007). After dealing with a complaint from a person that he had not been given an adequate explanation as to why his application for film funding was rejected, we identified some broader procedural and policy issues which appeared to warrant further examination. The report of the investigation recommended the AFC review its policy and procedures for the assessment of funding applications. The recommendations proposed that the AFC should:

      • adopt and publish a definitive set of weighted criteria for the assessment of applications for each funding program
      • ensure that the assessment process has regard to all the criteria, funding recommendations are ranked according to the criteria, and proper documentation is maintained
      • provide a statement of reasons to unsuccessful applicants upon request
      • develop and disseminate comprehensive guidelines on conflict of interest for all those involved in the assessment process.

      While the subject matter of this report (film funding) was agency-specific, similar principles are applicable across all areas where applications are subject to a competitive assessment process. The Ombudsman’s report drew attention to earlier reports of the Administrative Review Council and the ANAO that dealt with the administration of grants and funding applications. The number of complaints in such grant funding areas can be low, yet single complaints can identify important issues that need careful attention. This is important in meeting the community expectation that the management of competitive grant processes by Australian Government agencies will be accountable, transparent and grounded in objective and rational decision making processes.

      ‘... single complaints can identify important issues that need careful attention.’

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      Australian Securities and Investments Commission

      The Australian Securities and Investments Commission (ASIC) has responsibilities in the areas of company registration and regulation of the corporate sector. We received 192 approaches and complaints about ASIC in 2006–07, compared to 188 in 2005–06.

      Registry function complaints

      The most common theme of these complaints continued to be about late fees imposed on companies. Many of these complaints were dealt with by explaining to the complainant the way in which the late fee system works. Where a deadline for filing a document or paying a fee is missed, a late fee is applied automatically by operation of the relevant legislation. The company concerned can apply for the fee to be waived.

      Usually ASIC will only waive the fee where the circumstances that led to it being imposed were beyond the control of the company, its officers or agents. We have accepted that it is reasonable for ASIC to apply this policy.

      We considered a number of complaints that ASIC had not sent electronic company statements in advance of a company’s annual review date, causing the company to fail to pay its annual review fee on time. In the complaints that we investigated, we did not find grounds to be critical of ASIC.

      We also received some complaints about registration of company names. The relevant regulations are specific as to what company names may or may not be registered. Complaints are sometimes made to us when a person is dissatisfied with ASIC’s decision to register a company with a particular name. An example is shown in the case study Same name.

      CASESTUDY | same name

      A company complained to us that ASIC had registered a competitor with a name that was almost identical to theirs. The company believed the competitor would operate in the same geographical area and the similarity of name would confuse customers and damage the company’s business.

      ASIC had explained to the company that a name was available to a new company except in circumstances specified in the legislation, and none of those circumstances applied in this instance. However, ASIC had suggested that the company could seek legal advice about other ways to protect its trading reputation.

      We considered that ASIC’s view of the legislation was reasonable, and reiterated to the company the suggestion that it could seek legal advice about its options.

      Corporate watchdog complaints

      We continue to receive complaints that ASIC has declined to investigate allegations made to it of breaches of the corporations legislation, or has refused to advise people what regulatory action it intends to take.

      ASIC takes the view that complaints made to it are a source of information about corporate wrongdoing, which it analyses as part of its functions. ASIC considers that the legislation does not impose a responsibility on it to pursue any particular complaint, however well-founded. ASIC has advised us that it seeks to direct its resources to those matters that best meet its regulatory priorities.

      Often, a person complaining to ASIC about the actions of a corporation or liquidator will have a right of action in the courts. Although people may have difficulty in affording court proceedings, this is only one matter to be considered by ASIC in deciding whether to pursue a matter on behalf of an individual.

      During 2006–07 we investigated a number of the complaints made to us about ASIC declining to take regulatory action, particularly where ASIC had not given reasons for its decision to the complainant. In doing so, our aim was to consider whether the processes that had led to ASIC’s decision were sound, and whether there had been adequate communication with the complainant.

      The case study Decision examined illustrates one case where there was a tension between ASIC providing an explanation while maintaining confidentiality.

      CASESTUDY | decision examined

      Ms Q complained to ASIC about a company. She considered that her complaint clearly showed that the company had breached corporations legislation, but ASIC declined to take action against it and Ms Q could not understand why.

      ASIC gave us further information about why it had not taken action against the company. Although we considered that its explanation was not unreasonable, ASIC advised us of its view that this explanation could not be given to Ms Q for reasons of confidentiality.

      We told Ms Q that our investigation had not identified any grounds for considering ASIC’s decision to be unreasonable. However, we suggested to ASIC that it might in the future consider ways in which it could balance its need to maintain confidentiality in accordance with legislative requirements, with the need to explain its decisions to complainants in the interests of good administration.

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      Department of Families, Community Services and Indigenous Affairs

      Generally we receive few approaches and complaints about the Department of Families, Community Services and Indigenous Affairs (FaCSIA). One complaint we received in 2006–07 illustrates again the difficulties that can arise when a number of agencies are involved in providing services to an individual, as shown in the case study Complaint unresolved.

      CASESTUDY | complaint unresolved

      Our office received a complaint from Mr R, a jobseeker, who was dissatisfied with the way in which the Complaints Resolution and Referral Service (CRRS) was dealing with his complaint about his Disability Employment Network (DEN) provider. The CRRS is an independent organisation funded by FaCSIA to help resolve complaints about services funded under the Disability Services Act 1986. Mr R advised he had attempted to complain about this to the DEWR Customer Service Line, which referred him back to the CRRS.

      We approached FaCSIA about this complaint, understanding that it was responsible for contracting the CRRS to provide a complaints service about disability employment services. We were advised that a memorandum of understanding existed between DEWR and FaCSIA, stating that DEWR would handle escalated complaints about DEN providers. Although FaCSIA did not raise this complaint with DEWR, a FaCSIA contact officer agreed to act as a liaison point between this office and the CRRS in relation to the complaint.

      In the course of our investigation we identified that the CRRS policy and procedure document of November 2003 stated that complaints about the CRRS should be directed to the CRRS in the first instance and can then be escalated by the CRRS to the then Department of Family and Community Services. In this instance, however, Mr R’s complaint was clearly not escalated to FaCSIA.

      At the conclusion of our investigation we formed the view that the CRRS’s process for handling complaints was flawed, and that it had not handled Mr R’s complaint properly.

      DEWR and FaCSIA are renegotiating the memorandum of understanding, and seeking to strengthen the provisions on escalation of complaints to ensure greater transparency of the CRRS complaint resolution process.

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      Department of Foreign Affairs and Trade

      During 2006–07 the office received 155 approaches and complaints about the Department of Foreign Affairs and Trade (DFAT), compared to 140 in 2005–06.

      The majority of complaints related to passport processing, including the cost associated with replacing lost or stolen passports, passport fees in general, the renewal requirements for passports, and delays associated with processing passport applications. Many complaints did not proceed to investigation stage because complainants had not attempted to resolve their problem with DFAT in the first instance. The case study Expired and lost shows how we were able to help one person, and assist DFAT to provide better information to future passport applicants.

      CASESTUDY | expired and lost

      Mr S’s passport had expired more than two years before he decided to apply for a new passport. He was not able to find the expired passport, and ticked ‘previous passport lost/destroyed’ on the application form. The Australia Post employee who took Mr S’s application form told him that he would have to pay a lost passport replacement fee of over $60, in addition to the $197 fee for the issue of a new passport.

      Mr S considered this unfair because his old passport had expired, there was nothing on the passport application form requiring him to produce the old passport, and nothing on any of the passport documentation or guidelines advising a passport holder they need to retain an expired passport. He approached DFAT’s Passport Office, which told him that the ‘lost or stolen’ fee was a policy intended to deter people from losing their passports.

      As a result of our investigation DFAT decided to refund the ‘lost or stolen’ fee to Mr S because his previous passport had expired. In addition, DFAT advised it would provide additional information about the need to retain expired passports on its passport website, and would review the content of passport brochures.

      We also received complaints about identification requirements for passports. This was a key source of complaints during 2005–06, primarily due to the introduction of new legislation that resulted in more stringent proof of identity requirements for passport applicants. As a result of one case we investigated, DFAT undertook to update information on its website in relation to the requirements for proof of place of birth.

      A few complaints related to passport applications for children under the age of 18 where the child’s natural parents were separated. In some cases, parents complained that the other parent had refused permission for a passport to be issued to their child. For example, one father contacted our office regarding DFAT’s refusal to issue a passport for his 14-year-old daughter, of whom he had full custody, because the child’s mother had objected to her daughter being given a passport. We clarified some matters with DFAT, following which the father decided to appeal DFAT’s decision to not grant a passport to his daughter to the Administrative Appeals Tribunal. He also considered seeking an order from the Family Court that would allow his daughter to travel overseas.

      In other cases, parents complained that a passport had been issued to their child without their consultation and consent, and as a result the child had been able to travel overseas, sometimes without their knowledge. Some of the cases involved sensitive personal issues such as domestic violence and cultural differences between the parents.

      Other complaints covered a wide range of issues, including the actions of DFAT embassy and consular staff located in overseas offices. No trends of note were detected amongst this group of complaints. We received a few complaints about the quality of advice given by embassy and consular staff in relation to eligibility for visas required for travel to Australia, and the lack of assistance provided to Australian citizens who were seeking to return home from overseas urgently after an unforeseen event such as the outbreak of war or civil unrest. For example, a few complaints were about the evacuation of Australians following the outbreak of war in Lebanon in July 2006. Most of these complaints did not proceed to investigation stage because evacuation occurred relatively quickly and complainants no longer wished to pursue the matter.

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      Insolvency and Trustee Service Australia

      We receive complaints about the administration of personal insolvency law by the Insolvency and Trustee Service Australia (ITSA). In 2006–07 we received 60 approaches and complaints about ITSA, compared to 76 in 2005–06.

      Usually we ask people with a complaint about the handling of a bankruptcy, including by the Official Trustee, to complain first to the Bankruptcy Regulation branch of ITSA. If the person is not satisfied with the way their complaint is handled, we may investigate it.

      We receive complaints from both bankrupts and creditors. Many complaints can be resolved by an explanation of the legal framework in which bankruptcy operates. For example, fees are charged to bankrupt estates in accordance with legislation, and while a bankrupt or creditor might be dissatisfied with the amount of fees charged, our role will usually be limited to considering whether the legislation has been followed.

      The case study No notice shows the interaction between complying with legislative requirements and delivering good service.

      CASESTUDY | no notice

      A trustee in bankruptcy lodged an objection under bankruptcy legislation to Mr U being discharged from bankruptcy (in other words, to the bankruptcy being finalised).

      Under the legislation Mr U had 60 days to apply for this objection to be reviewed, after receiving notice of the objection. Failure to seek a review means that the bankruptcy continues. However Mr U claimed that he never received notice of the objection. ITSA advised Mr U that, as his request was out of time, it could not consider his request as valid under the legislation.

      We asked ITSA to consider Mr U’s argument that he did not receive the notice. ITSA acknowledged that it should have made enquiries about this, and on doing so found that Mr U had not received the notice or been advised of his rights. ITSA then exercised its discretion to review the objection, with a favourable outcome for Mr U.

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      Telstra Corporation

      Following the government’s decision to fully privatise Telstra, the Ombudsman no longer deals with complaints about Telstra.

      The loss of jurisdiction was triggered by a declaration by the Minister for Communications, Information Technology and the Arts on 24 November 2006 that the Australian Government no longer held a majority of shares in Telstra. Any complaints made about Telstra on or after that date are not within the Ombudsman’s jurisdiction.

      In the 2006–07 reporting year we received 228 approaches and complaints about Telstra during the period it was in the Ombudsman’s jurisdiction. We closed 229 approaches and complaints, of which we investigated less than 3%. The matters investigated generally related to workers’ compensation and Telstra’s response to requests made under the Freedom of Information Act.

      Most complainants were referred to the Telecommunications Industry Ombudsman (TIO), who continues to handle disputes over billing, contracts, faults and customer service.

      People who wish to complain about Telstra’s response to a ‘000’ emergency number call may contact the Community and National Interests Section of the Australian Communications and Media Authority.

      freedom of information

      The purpose of the Freedom of Information Act 1982 (FOI Act) is to extend, as far as possible, the 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 empowers the Ombudsman to investigate complaints about actions of Australian Government agencies under the FOI Act (s 57). The Act 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.

      In 2006–07 we finalised 303 complaint issues (259 in 2005–06) about the way 46 Australian Government agencies handled requests under the FOI Act. The majority of complaint issues were about Centrelink (33%) and DIAC (12%).

      Most complaint issues related to delays in processing FOI requests (26%) and to the correctness of the primary decision (27%). In most cases, delay in processing FOI requests is resolved by encouraging agencies to expedite a decision in cases already outside the statutory timeframe. Often the delays are not extensive—though there was a delay of nearly 12 months in responding to a request in one case investigated during the year, and (as noted earlier in this chapter) there have been extensive FOI delays and backlog in DIAC.

      Complaints to the Ombudsman about delay can often be avoided if agencies better inform applicants of the progress of their application and the causes for the delay. The Ombudsman continues to encourage agencies to improve the level of contact with applicants to decrease the need for our intervention.

      The FOI (Fees and Charges) Regulations set a scale of charges, which are significantly below the real cost to agencies of handling FOI requests. Depending on the nature of an FOI request, the estimated charge can still be high. This occurred in one case investigated during the year, when a request of a relatively straightforward nature attracted a charge that seemed very high. The explanation was that a large number of third parties needed to be consulted in relation to the release of the information, and the Regulations permitted that time to be included as a charge.

      A decision to impose a charge can be challenged on internal review or before the Administrative Appeals Tribunal. The FOI Act also gives a discretion 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, journalists or social security recipients. An agency must consider hardship and the public interest in considering requests for waiver.

      Complaints to the office sometimes focus on that issue, arguing that an agency should have waived a charge—for example, where the person believes that the document could have been obtained by a parliamentary committee, or it relates to a current issue of public controversy and 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, reviewable discretion on agencies to impose or waive a charge. The office will generally not recommend waiver if an agency has followed a proper process, considered the relevant factors and made a decision within a reasonable range.

      The FOI complaints handled during the year underscore the important role that efficient administration of the FOI Act plays in meeting open government objectives.

      Many of these issues were raised in the own motion report Scrutinising Government: Administration of the Freedom of Information Act 1982 in Australian Government agencies (Report No 2/2006). A proposal in that report was that a statutory office of FOI Commissioner (possibly located within the office of the Commonwealth Ombudsman) could play a constructive role in addressing complaints about the operation of the FOI Act and promoting its effective operation. An FOI Commissioner could provide valuable assistance both to agencies and to the public. The proposal for an FOI Commissioner has also been supported by other bodies and commentators, who see the FOI Act as a cornerstone of Australian democracy.

      monitoring and inspections activities

      Monitoring and inspections activities menu: Expansion of Ombudsman’s monitoring and inspection role | Telecommunications interceptions | Surveillance devices | Controlled operations | Regional inspections

      Expansion of Ombudsman’s monitoring and inspection role

      The Ombudsman’s responsibility for inspecting the records of law enforcement and other enforcement agencies, and reporting on those inspections, expanded significantly in 2006 with changes to the Telecommunications (Interception and Access) Act 1979 (TIA Act). The amendment introduced a scheme by which enforcement agencies can obtain access to stored communications. An example of a stored communication is a text message or email electronically stored, usually temporarily, on a telecommunications carrier or internet service provider’s system.

      The potential workload in identifying and inspecting the agencies that access stored communications is considerable. This office is not presently aware of any agency other than the AFP and the ACC having used the new provisions. As awareness grows of the potential benefits the provisions provide to other enforcement agencies, that situation may change.

      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 on a service belonging to a person who is not suspected of committing a serious offence, but who may communicate with the suspected offender via that service.

      The statutory creation of ACLEI in 2006 expanded the inspection role of the Ombudsman further. ACLEI is authorised to exercise the same powers as the AFP and ACC to undertake telecommunications interception and access to stored communications under the TIA Act, to use surveillance devices under the Surveillance Devices Act 2004 (Surveillance Devices Act) and to carry out controlled (covert) operations under Part 1AB of the Crimes Act 1914 (Crimes Act).

      The use of those powers by ACLEI will be subject to regular inspection and monitoring by the Ombudsman’s office. To date, ACLEI has not made use of these provisions, and consequently we did not conduct any inspection. ACLEI has indicated that this will not remain the case, although the number of times the provisions are utilised is expected to be low in comparison with the AFP and ACC.

      The office’s monitoring and inspection role now includes:

      • telecommunications intercepts by the AFP, ACC and ACLEI
      • access to stored communications by the AFP, ACC, ACLEI and other enforcement agencies (such as the ATO and Australian Customs Service)
      • use of surveillance devices by the AFP, ACC, ACLEI and by state and territory law enforcement agencies under Commonwealth legislation
      • controlled (covert) operations undertaken by the AFP, ACC and ACLEI.

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      Telecommunications interceptions

      Under the TIA Act, the Ombudsman is required to inspect the records of the AFP, ACC and ACLEI twice a year to ensure the records are in compliance with the requirements of the Act. The Ombudsman is also expected to follow up any concerns about compliance or other aspects of record keeping disclosed by the inspection. A report on an inspection is then presented to the agency. An annual report is presented to the Minister on the results of inspections carried out each financial year. We presented a report on the results of inspections undertaken in 2005–06 to the Attorney-General in September 2006.

      Two inspections of AFP and ACC records were carried out in 2006–07. The reports, which were provided to the agencies after each inspection, concluded that there was general compliance with the detailed record-keeping requirements of the TIA Act. A number of recommendations were made after each inspection to improve record keeping. The recommendations were generally accepted by both the AFP and the ACC, which have since implemented a range of measures to improve record keeping.

      The record-keeping requirements in relation to the practical effects of the new stored communications provisions are not yet fully defined. Discussions are ongoing with the AFP, the ACC, the Attorney-General’s Department and telecommunications carriers to settle the processes required to ensure the integrity of the stored communications regime.

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      Surveillance devices

      The Surveillance Devices Act came into operation in December 2004. In 2005 we commenced a program of two inspections each year of AFP and ACC records. This inspection regime continued in 2006–07.

      During 2006–07 we also inspected the records of two state law enforcement agencies, the South Australia Police and the New South Wales Police, under the Surveillance Devices Act. These were the only state police forces that used powers under the Act. As the number of records held by state police forces is far less than that of the AFP and the ACC, less frequent inspections will be conducted. It is expected that inspections of records relating to the Surveillance Devices Act held by state police will take place once every year.

      A report on the results from the first bi-annual AFP and ACC inspections was provided to the Attorney-General in February 2007. Overall there was a satisfactory level of compliance by each agency. However, some compliance issues were identified, including a requirement for more detailed and consistent records on the use and communication of information obtained from a surveillance device. We have noted improvements in the record keeping and procedures of the AFP and the ACC in subsequent inspections.

      ‘Overall there was a satisfactory level of compliance by each agency.’

      The results of inspections that were finalised earlier this year, including the inspections of the state police, have been passed to respective agencies and a report is due to be provided to the Attorney-General in August 2007.

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      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 engaging in conduct that would constitute an offence unless authorised by a controlled operations certificate.

      The Ombudsman has an oversight role in ensuring that controlled operations are approved and records maintained in accordance with Part 1AB of the Crimes Act and that, in relation to these activities, information supplied by agencies in quarterly reports to the Minister and Ombudsman is 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 each at the AFP and the ACC. The inspections concluded 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 a briefing to the Parliamentary Joint Committee on the ACC. An annual report for 2005–06 was presented to Parliament in December 2006.

      Regional inspections

      The Ombudsman also undertook an inspection of records relating to telecommunications interceptions, surveillance devices and controlled operations at the AFP’s Perth regional office in November 2006. The Perth office was found to be generally compliant with the record-keeping requirements of the relevant Acts.