CHAPTER 3Performance report

This chapter summarises the office’s performance based on the outcome and output structure set out in the Portfolio Budget Statements (PBS) and Portfolio Additional Estimates Statements (PAES) 2007–08.

In order to give a more comprehensive view of the range of outcomes of our work:

• Chapter 6 outlines some of our general work in promoting good administration
• Chapter 7 provides detailed assessments of our work with major agencies in handling complaints and carrying out inspections and other activities
• Chapter 8 provides examples of the types of remedies and systemic changes we achieved during the year
• Chapter 9 outlines common themes emerging from our work that can helpagencies to improve their administrative procedures.

Performance at a glance

The office of the Commonwealth Ombudsman has one outcome supported by two outputs:

Outcome—Administrative action by Australian Government agencies
is fair and accountable

• Output 1—Review of administrative action
• Output 2—Review of statutory compliance in specified areas.

Our original price of outputs of $19.436million was increased in Supplementary Estimates by $0.200 million for supporting complaint handling in relation to the Northern Territory Emergency Response (NTER), and reduced later by $0.082 million as part of the two per cent efficiency dividend.

During the year we received approval to budget for an operating loss of $0.500million due to delays in implementing some initiatives from previous years becauseof the tight labour market and a higher level of activity related to the NTER than had been expected.

Total expenses for the year were $20.072million, resulting in a deficit of $0.657 million. Approximately 95% of our expenses were directed towards output 1, and 5% towards output 2.

A financial overview is provided in Chapter4—Management and accountability on pages 37–8. Details of the total price of agency outputs of the Ombudsman’s office are provided in Table 4.3 of that chapter and in Note 15 of the financial statements of thisreport.

TABLE 3.1 Summary of outcome and outputs performance, 2007–08

OUTPUT 1: Review of administrative action

OUTPUT 2: Review of statutory compliance in specified areas

Purchaser–provider arrangements

The office has purchaser–provider arrangements with the ACT Government for services provided by the Ombudsman as the ACT Ombudsman, and for complaint handling in relation to ACT Policing, performed by the Australian Federal Police (AFP). Detailed information on the outcome of this work is provided in the ACT Ombudsman Annual Report which is submitted to the ACT Legislative Assembly.

The office also has a purchaser–provider arrangement with the Australian Agency for International Development (AusAID) for Indonesian Ombudsman Enhancement activities, Papua New Guinea Twinning activities and Pacific Island Ombudsman Enhancement activities. The services provided by the Ombudsman contribute to the outcomes and outputs that are the responsibility of AusAID. Performance measures are contained in the AusAID Portfolio Budget Statements in the Foreign Affairs and Trade portfolio. A qualitative description of our work is provided in Chapter 6—Promoting goodadministration.

Output 1—Review of administrative action

1.1—Number and complexity of complaints/issues received and investigated and number of inquiries andapproaches received.

Approaches and complaints received

In 2007–08, we received a total of 39,932 approaches and complaints, 20% more than in 2006–07. Of these, 19,621 were about agencies within the Ombudsman’s jurisdiction, compared to 18,003 the previous year (a 9% increase).

Approaches to the office range from simple contacts that can be resolved quickly, through to more complex cases that require the formal use of the Ombudsman’s statutory powers. The decision to investigate a matter more formally can be made for a number of reasons:

• the need to gain access to agency records by a formal statutory notice
• the complexity or seriousness of the issue under investigation
• the nature of the allegations made by a complainant
• the time taken by an agency to respond to our requests for information
• the likely effect on other people of the issues raised by the complainant.

During the year we received 20,311 other approaches that consisted largely of matters outside our jurisdiction or requests for information. This compares to 15,319 such approaches in 2006–07; 10,147 in 2005–06 and 12,013 in 2004–05. This increase may relate to the greater public profile of Ombudsmen in recent years, whether it be the Commonwealth Ombudsman, a state or territory Ombudsman, or an industry Ombudsman. It may also relate partly to improved recording procedures in the office, as we try to capture a full picture of our work during the year.

The number of complaints and approaches received electronically continues to increase. Over the past five years, the percentage of approaches received electronically has increased from 5% to 13% of the total.

This has been accompanied by a slight decrease in the proportion of approaches received by telephone or in writing. Table 3.2 details approaches by method received.

TABLE 3.2 Approaches and complaints, by method received, 2003–04 to 2007–08

* Under the Complaints Act, repealed at the end of 2006, the AFP notified the Ombudsman about complaints it received for Ombudsman staff to oversee the AFP’s complaint-handling process.

Approaches and complaints by agency

Of the 19,621 approaches and complaints received within the Ombudsman’s jurisdiction, 15,332 (78%) were about Australia Post; the Australian Taxation Office (ATO); Centrelink; the Child Support Agency (CSA); the Department of Education, Employment and Workplace Relations (DEEWR) and the former Department of Employment and Workplace Relations; and the Department of Immigration and Citizenship (DIAC).

Charts comparing trends over the past five years for these agencies are included in Chapter 7—Looking at the agencies.

Approaches and complaints finalised and investigated

We finalised a total of 39,398 approaches and complaints. Of these, 19,126 were about agencies within the Ombudsman’s jurisdiction (compared to 17,934 in 2006–07). We investigated 4,700 separate complaints (25% compared to 24% in 2006–07). Of the complaints investigated, 12% required more substantial investigation, sometimes involving a high level of involvement of senior management and theuse of formal powers (categories 4 and 5 in our classification system). This comparesto 4,251 complaints investigated in 2006–07, ofwhich 11% required more substantialinvestigation.

Approaches and complaints made to the Ombudsman may include several issues. Forexample, a person may complain about a decision as well as a service delivery aspect such as timeliness. Where a complaint contains several issues, it may result in different actions by the Ombudsman’s office in relation to the separate issues. We therefore also report on complaint issues finalised by the office.

In 2007–08 we finalised 20,488 issues about agencies which were within the Ombudsman’s jurisdiction. Of the complaint issues finalised, we investigated 27% (26% in 2006–07). The remaining complaint issues were usually finalised by referring the complainant to the internal complaint processes of the agency, or deciding that investigation was not warranted.

Of the issues investigated and finalised, some agency error or deficiency was identified in 8% of complaints (compared to 4% last year). This increase partly reflects a greater emphasis in our office on providing feedback to agencies through the mechanism of a formal finding of administrative deficiency. The most commontype of deficiency noted was unreasonable delay (27% of the cases), followed by human error (18%), procedural deficiency (18%), flawed administrative process (15%) and inadequate advice, explanation or reasons (9%).

‘… some agency error or deficiencywas identified in 8% of complaints …’

Causes of complaint

As in previous years, the majority (81%) of the complaint issues finalised by the Ombudsman’s office under the Ombudsman Act 1976 related to the correctness, propriety or timeliness of a decision or action of an agency. The remainder of the complaint issues finalised related to other matters, such as the accuracy or completeness of advice given by agencies (12%), the conduct of officers in agencies (3%), or the application of a policy to the complainant’s circumstances (2%).

Complaints carried forward

The total number of complaints carried forward (past 30 June 2008) was 1,772 compared to 1,316 at 30 June 2007. A backlog will always exist as some complaints are received late in the reporting period. In addition, some complaints are complex and take longer to investigate. The increase in backlog is due principally to the increased number of complaints being received and investigated in2007–08.

1.2—Handling of inquiries, approaches andinvestigated complaints meets ServiceStandards.

Our Service Charter outlines the service that can be expected from the office, ways to provide feedback and steps that can be taken if standards are not met. We continue to be committed to providing the best service possible to the community.

We completed an internal review of the office’s service charter during the year. The review took account of relevant issues arising from the survey of Australian Government agencies and the post implementation review of our work practice changes, described further in Chapter 5—Challenges in complaint handling.

Timeliness

Our service charter indicates that we aim toinvestigate complaints as quickly as possible, acting fairly, independently, objectively and impartially.

In 2007–08, we finalised 76% of all approaches and complaints within one month of receipt. Figure 3.1 shows the time taken to finalise all approaches and complaints for the periods 2003–04 to 2007–08. It should be noted that data from earlier years is not directly comparable because of changes in work practices.

In 2007–08, 25% of investigated complaints were finalised in one month and 69% were finalised in three months. This compares with 32% and 71% respectively in 2006–07. The decrease in timeliness is largely due to the increased number of investigations (up 11%, from 4,251 in 2006–07 to 4,700 in 2007–08) and the increased number of more complex investigations (up 23%, from 472 to 581). Table 3.3 shows some of the variation in the time it takes to finalise investigated complaints about different agencies.

Figure 3.1 Time taken to finalise all approaches and complaints, 2003–04 to 2007–08

TABLE 3.3 Time taken to finalise investigated complaints for selected agencies, 2007–08 (2006–07)

Remedies

Our service charter advises that, if appropriate, and where possible, we will recommend changes to fix a problem.

When an investigation establishes that an error has occurred (regardless of whether it is considered an administrative deficiency), the investigation officer will consider whether there is appropriate action the agency could take to remedy the problem. This could be a remedy for the complainant, and, if the problem appears to be broader, other remedial action (for example, a change to agency policy or procedures).

The most common remedy for complainants was the provision of a better explanation by an agency of its decision or action (28% of cases where a remedy was identified). Other major types of remedy were an explanation of the circumstances by the Ombudsman’s office (23%), agency action being expedited (11%), a financial remedy (11%), agency decision changed or reconsidered (10%), and an apology being offered by an agency (8%).

A remedy was recommended in 75% of the complaints investigated (compared to 67% in 2006-07, 54% in 2005–06 and around 68% in the previous two years). A breakdown of remedies is provided in Appendix 3—Statistics.

‘A remedy was recommended in 75% of the complaints investigated …’

Decisions not to investigate

Our service charter indicates that, if we do not investigate a complaint, we will explain why, and advise the complainant of any other avenues to pursue their complaint.

The legislation administered by the Ombudsman gives the office a range of discretionary powers not to investigate complaints in particular circumstances. The most common reason for not investigating a complaint is that the person has not raised the matter with the agency involved. There are advantages for both the complainant and the agency if an issue is first raised at the source of the problem and an attempt made to resolve it before external intervention.

Many agencies have appropriate procedures in place to respond to dissatisfied clients. The Ombudsman is more likely to accept a complaint without the matter first being handled by the agency if:

• the relationship between the person and the agency is particularly difficult
• the person is unable effectively to manage their own complaint, whether because of agency recalcitrance or the person’s inability to articulate their problem
• it is doubtful that the complaint will be handled adequately by the agency, whether because of the nature of the complaint or the effectiveness of the agency complaint mechanism.

This year we advised the complainant to take the matter up with the relevant agency in the first instance in 57% of the matters within the Ombudsman’s jurisdiction (60% in 2006–07). While a large number of approaches and complaints are outside the Ombudsman’s jurisdiction, or are not investigated, we endeavour to provide a high level of service to these people and refer them to more appropriate avenues to resolve their concerns wherever possible.

1.3—Assessment of feedback received from the public

When a complainant is dissatisfied with our conclusions and decision about a complaint, they may ask for the matter to be reconsidered, and if they are still not satisfied, for a review of their complaint. A Deputy Ombudsman will consider the information provided and decide whether or not we will review the handling of the complaint. The Deputy Ombudsman chairs the office’s internal review panel and allocates the request for review to a designated review officer who is a more senior officer with no prior involvement in the complaint. The review officer will look at whether the processes our staff followed were fair and adequate, and whether the conclusions they reached were reasonable and properly explained to the complainant. Only in exceptional circumstances will more than one review be undertaken.

In 2007–08 we received 234 requests for internal review, 14% more than in 2006–07 (205). We did not agree to conduct a review in 15 cases for reasons such as the matter was out of jurisdiction, the matter had been reviewed already, the complainant did not provide any information that gave grounds for a review, or the complainant had not taken up our previous advice to raise the matter with the relevant agency in the first instance.

We finalised 210 reviews during the year, with some carried over from 2006–07 (Table 3.4). Of the finalised reviews, the original outcome was affirmed in 151 reviews (72%). This is a little lower than in recent years (80% in 2006–07, 85% in 2005–06, 80% in 2004–05). The office decided to conduct additional investigation after 45 reviews (33 in 2006–07) and to change its decision on the original complaint in eight reviews (four in 2006–07). Six reviews were withdrawn by the complainant.

Of the 210 reviews finalised, 90% related to decisions or actions of an officer in the course of complaint investigations. The main reasons expressed by complainants for seeking a review were that they believed the decision we made was wrong or that we failed to address or misunderstood the issues.

Other feedback from complainants to this office is an effective way to identify where changes may need to be made. We are refining our processes to record, consider and report on such feedback office-wide.

TABLE 3.4 Internal review of Ombudsman action, requests and decisions, 2007–08

1.4—Response to advice, submissions, services, findings and recommendations by government agencies and other organisations, and agency satisfaction with the quality of services/acceptance of findings and recommendations

The Ombudsman released public reports on 14 own motion and major investigations this year. The reports are listed in Chapter6— Promoting good administration, and details of some reports are in Chapter7—Looking at the agencies. The reports contained a total of 70 recommendations ormajor issues to be addressed. Of these, 56 were accepted in full or in principle, andthree in part.

While most recommendations in all reports were accepted, the overall level of acceptance by agencies was lower than usual. Some of the recommendations that were not accepted had proposed that an agency change its procedures or policies. Reasons for not accepting the recommendation included that other action had been or would be taken by the agency to address the problem; that the recommendation raised a matter of policy that was either still under consideration or required a government response; or that the agency disagreed with the recommendation as the preferred way of addressing the problem. Some other recommendations that were not accepted applied to several agencies and would have required agreement among agencies on the proposed change.

The majority of the recommendations that were accepted achieved a commitment from agencies to make substantial changes to improve public administration, as detailed further in Chapter 7.

Several own motion, systemic and major investigations will be completed in 2008–09. These include investigations into:

• the administration of the Compensation for Detriment caused by Defective Administration (CDDA) scheme by Centrelink, the ATO and the CSA
• the way agencies use interpreters to communicate with clients, focusing on DIAC, Centrelink, the AFP and DEEWR
• the ATO’s use of unannounced access powers
• the exercise of responsibilities by ACT Policing under the Intoxicated People (Care and Protection) Act 1994 (ACT)
• issues surrounding the carding process used by Australia Post to notify an addressee that a postal item can be collected at a designated post office orfacility.

1.5—Number of submissions to government

During the year we made three submissions to Parliamentary Committees:

• the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity inquiry into law enforcement integrity models
• the Joint Standing Committee on Foreign Affairs, Defence and Trade inquiry into RAAF F–111 deseal/reseal workers and theirfamilies
• the House Standing Committee on Family, Community, Housing and Youth inquiry into better support for carers.

We also appeared before the Senate Standing Committee on Foreign Affairs, Defence and Trade in relation to its review of reforms to the military justicesystem.

In addition, we made submissions to:

• the independent Citizenship Test Review Committee appointed by the Minister for Immigration and Citizenship to examine the operation and effectiveness of the citizenship test
• the external reference group reviewing the statutory self-regulation of the migration advice profession
• the Department of Defence for the review of the Defence Inquiries Regulations 1985
• Treasury in relation to the Exposure Draft Tax Agent Services Bill, Related Regulations and Explanatory Material; and the discussion paper on a review of discretions in income tax laws.

1.6—Timely completion of reports on detainees, and Government acceptance of recommendations on detainees

In June 2005 the Australian Parliament amended the Migration Act 1958 (Cth) to confer on the Ombudsman the role of reviewing the cases of people who had been in immigration detention for two years or more. During 2007–08 we received 158 reports from DIAC and provided 225 reports to the Minister. The Minister tabled responses on 237 reports during the year.

Given the limited information provided in some ministerial statements tabled during the year, it is not possible to report accurately on the proportion of recommendations accepted.

As described in the section on Immigration in Chapter 7—Looking at the agencies, in early 2008 the Minister for Immigration and Citizenship consulted with the Ombudsman on a review of the cases of people who had been in immigration detention for two years or more. The office was also represented on the task force which coordinated the assessments of the people involved. The review led to 31 people being granted or considered for visas, 24 people to be removed from Australia, and 17 people remaining in detention pending resolution of their immigration status through other proceedings.

1.7— Number of outreach activities

The outreach program continues to have two components—to raise public awareness of our role; and to contribute to the development of the role of Ombudsmen in the Asia-Pacific region.

Raising public awareness

We conducted 171 outreach activities during the year, covering all states and territories, an increase of 47% over the previous year. Indigenous people and communities affected by the Northern Territory Emergency Response were a key focus of the outreach activities. We also continued to contact community information ‘gatekeepers’, to inform them of our role and to listen to their concerns and observations about government service delivery.

Following the general election, we provided information on the role of the Ombudsman to all new and continuing federal members and senators.

Role of Ombudsmen in the Asia-Pacific region

We continued our involvement in strengthening mutual support among Ombudsmen in our region. Key areas for our international program involvement were Indonesia, Papua New Guinea, and other countries in the South Pacific, including those which do not currently have an Ombudsman or similar complaint-handling arrangement. The Australian Agency for International Development provided funding for these activities. Further details about our international program are in Chapter6—Promoting good administration.

Output 2—Review of statutory compliance in specified areas

2.1—Timely completion of the inspecting/reporting schedule

2.2—Government and agency acceptance of and satisfaction with the quality and relevance of inspection findings and recommendations

2.3—Number of inspections completed bycategory

The Ombudsman is required to inspect the records of the AFP, the Australian Crime Commission (ACC), the Australian Commission for Law Enforcement Integrity (ACLEI) and other agencies in certaincircumstances, in accordance with three Acts as noted below. It is our practice tomake a report to each agency on the outcome of each inspection in addition to the statutory reporting requirements to the Minister or to Parliament.

After each inspection we forward a draft report to the agency for comment and those comments are considered in producing a finalreport. This procedure allows agencies to be heard before we make any findings or recommendations and, as a result, agencies are more likely to accept our position. We do not ask agencies to formally acknowledge any objections once they have received the final inspection report. We understand that all of the Ombudsman’s recommendations in reports finalised in 2007–08 were accepted by the agencies.

Telecommunications records

Under the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act), the Ombudsman is required to inspect the records of the AFP, the ACC and ACLEI to ensure telecommunications interception activities are in accordance with the provisions of the TIA Act. The Ombudsman is also required to inspect the records of these agencies and other agencies that access stored communications, to ensure their activities are in accordance with the Act. In 2007–08, we carried out four inspections each of the AFP and the ACC, and one each of the New South Wales (NSW) Crime Commission, the NSW Police and the South Australia Police.

The TIA Act requires the Ombudsman to report to the Attorney-General in writing before 30September each year on the results of the inspection of each agency during the preceding financial year. In accordance with this obligation, reports to the Minister were provided for the AFP and the ACC (the only agencies inspected in 2006–07) within the nominated timeframe.

Surveillance devices

Under the Surveillance Devices Act 2004 (Cth) (SD Act), the Ombudsman is required to inspect the records of the AFP, the ACC and ACLEI, and those state law enforcement agencies that have utilised powers within the SD Act, to ensure use of surveillance devices is in accordance with the Act. We carried out two inspections each of the records of the AFP and the ACC, and one of the NSW Police.

The SD Act also requires the Ombudsman to report to the Attorney-General bi-annually on the results of the inspection of each agency. Reports were provided to the Attorney-General in August 2007 and February 2008 in accordance with our statutory obligation.

Controlled operations

Under Part 1AB of the Crimes Act 1914 (Cth) (Crimes Act), the Ombudsman is required to inspect the records of the AFP, the ACC and ACLEI to ensure compliance with Part 1AB. In 2007–08 we inspected the controlled operations records of the AFP on two occasions and the ACC once.

Part 1AB of the Crimes Act also requires the Ombudsman to report to the President of the Senate and the Speaker of the House of Representatives on the inspections carried out in the previous financial year and to brief the Parliamentary Joint Committee on the Australian Crime Commission. An annual report for 2006–07 was presented to Parliament in February 2008 and the briefing occurred in April 2008.

Further details on our inspections activity iscontained in Chapter 7—Looking at theagencies.