CHAPTER 7 | Looking at the agencies

The majority of approaches and complaints received about Australian Government agencies within the Ombudsman’s jurisdiction (78%) concerned the six agencies listed below. This chapter provides detailed assessments of our work with these agencies in handling complaints and dealing with other broader issues during 2007–08.

• Centrelink—7,573 approaches and complaints
• Child Support Agency—2,208 approaches and complaints
• Australia Post—2,083 approaches and complaints
• Department of Immigration and Citizenship—1,528 approaches and complaints
• Australian Taxation Office—1,219 approaches and complaints
• Department of Education, Employment and Workplace Relations—721 approaches and complaints.

During the year we received 665 approaches and complaints about the Office of the Workplace Ombudsman. Many of these approaches were from people seeking contact details for the Office of the Workplace Ombudsman, or confusing our role with that of the Workplace Ombudsman.

This chapter also looks at other specialised areas of our work:

• dealing with complaints by current and former members of the Australian Defence Force, handled by the Ombudsman discharging the role of Defence Force Ombudsman
• dealing with complaints about the Australian Federal Police, including under the role of Law Enforcement Ombudsman
• the broader Postal Industry Ombudsman role
• dealing with Indigenous issues, and in particular approaches and complaints raised in the context of the Northern Territory Emergency Response
• the handling by agencies of freedom of information requests.

The chapter concludes with a section ‘Monitoring and inspections’ which summarises the work undertaken for Output2—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.

It should be noted that the figures provided for numbers of approaches and complaints about agencies that are within jurisdiction include a small number of which the subject matter is out of jurisdiction for the Ombudsman. In addition, for those agencies that were abolished as a result of the Administrative Arrangement Orders issued on 3December 2007, and about which we received a small number of approaches and complaints in 2007–08, we have counted these approaches and complaints against the agency which received the function that was the subject of the complaint. For example, education-related complaints recorded against the former Department of Education, Science and Training prior to 3December 2007 have been counted against the Department of Education, Employment and Workplace Relations.

This approach has not been possible for agencies about which we received a larger number of complaints. Nor has it been possible to adjust for the transfer of functions between agencies.

Figure 7.1 shows the number of approachesand complaints received in 2007–08 about agencies within the Ombudsman’s jurisdiction. Detailed information by portfolio and agency is provided in Appendix 3–Statistics.

FIGURE 7.1 Approaches and complaints received about within jurisdiction agencies, 2007–08

Australian Taxation Office menu: Complaints overview | Complaint assisted transfer project | Reviewing tax administration | Future directions

The Commonwealth Ombudsman’s office has over thirty years experience in investigating complaints about the Australian Taxation Office (ATO). In 1995 the Ombudsman was given the title of Taxation Ombudsman following a recommendation of the Joint Committee of Public Accounts. This change gave a special focus to the office’s handling of tax complaints in recognition of the unequal position of taxpayers and the ATO.

In our report Taxation Ombudsman Activities 2007, available on our website, we looked back at thirty years of taxation complaint handling. A strong message which arose from this perspective is that complaints often emerge from the unanticipated impacts of major legislative reforms and the associated administrative changes within an agency. Examples from a taxation perspective include the introduction of self-assessment, the superannuation guarantee system and the new tax system.

This historical perspective also illustrates the ways in which the ATO has improved its interaction with the community—for example, by the introduction of the Taxpayers’ Charter in 1997, the annual publication of the Compliance Program, and the Listening to the Community program. Complaint handling within the ATO has also improved markedly over this time. The Ombudsman’s office worked with the ATO in implementing best practice for complaint handling. The ATO’s management of complaints is a good model and one from which other agencies can learn.

‘The Ombudsman’s office worked with the ATO in implementing best practice for complaint handling.’

The Taxation Ombudsman is assisted by a Senior Assistant Ombudsman and a specialist tax team. Previously tax complaints were handled by generalist complaint investigation teams in our state offices with assistance from the specialist tax team in Canberra. In 2007–08 we reviewed this approach. As a result, all tax complaints are now handled by the specialist tax team. This is assisting us to build a better understanding of the underlying causes of complaints about tax administration.

While the number of complaints received about the ATO has declined slightly over the last year, the complexity of the cases we investigate has increased. Our practice is to encourage complainants to first seek to resolve their complaints directly with the ATO. Therefore the matters that we investigate can feature entrenched views ordifficult issues which were not able to beresolved directly between the taxpayer and the ATO.

Centralised complaint handling enables us tohave a more integrated approach to identification of potential and emerging systemic issues. The specialist tax team draws on this information in identifying taxadministration issues to review andinvestigate.

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Complaints Overview

In 2007–08 we received 1,219 approaches and complaints about the ATO, slightly lower than the 1,261 received in 2006–07. This continued the downward trend in complaints about the ATO of recent years, as shown in Figure 7.2. We attribute this continuing decrease to the effectiveness of the ATO’s improved handling of taxpayer complaints and efforts to improve taxpayer dealings.

During the year we finalised 1,182 approaches and complaints, of which 130(11%) were investigated.

The complaints we received covered a range of ATO activities and products. Common topics included lodgement and processing of tax forms (18% of complaints), debt collection (12%), superannuation (10%), taxpayer information (4%), imposition of penalties (3%) and audit activities (3%).

Complaints generally occur when people have been required to pay tax or are waiting to receive a refund or other money owed to them. The sources of complaint often appear to be taxpayer misunderstanding of ATO processes, concerns about delays by the ATO or problems with ATO communication.

The ATO often provides a better explanation, or expedites an action, as an outcome of our investigation. Even where our investigation does not change the substantive outcome, an independent review of the ATO’s approach can be valuable. For example, we receive complaints about the ATO not pursuing a former spouse for failing to lodge tax returns. The returns are needed to help assess child support obligations accurately. We cannot provide personal information about the ATO’s efforts to pursue third parties, but through our investigations we may be able to assure complainants that the ATO is taking appropriate action.

Overall, the declining number of complaints and the outcomes of our investigations indicate that the ATO’s administration of the tax system is fundamentally sound.

FIGURE 7.2 Australian Taxation Office approach and complaint trends, 2003–04 to 2007–08

Lodgement and processing

Lodgement and processing continued to be the most common source of complaints, with 60% of such complaints about income tax returns. The complaints mainly related to delays in receiving a refund, ATO retention of tax credits to offset tax debts, confusion about the basis for assessment and ATO action to enforce lodgement. The case study Whose spouse? shows how we were able to assure a complainant that the ATO had made a correct decision in his case, while the case study Processing error resolved shows how we were able to clarify the circumstances of a debt that had been raised correctly.

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Debt collection

The number of complaints about debt collection activities increased slightly from 2006–07. The most frequent issues were payment arrangements, waiver of debt and bankruptcy or other legal action taken by the ATO. Often people who come to us about debt collection issues are concerned that they are unable to pay, or that charges for late payment and penalties are unreasonable. If they have not paid outstanding tax debts, we encourage them to do so if they are able, or to contact the ATO about payment arrangements, to avoid further accumulation of charges for late payment. The ATO approach is to treat favourably taxpayers who demonstrate engagement with the tax system and a willingness to try to meet their obligations.

One debt collection issue raised in complaints was the re-raising and collection of debts which had previously been written off as uneconomic to pursue. While the total number of complaints is not large, it raises important tax administration issues. Complaints about written-off debts showed a lack of taxpayer awareness of the scope for a debt to be re-raised, and indicated some very old debts being re-raised. We have commenced an own motion investigation into this issue, to be finalised in 2008–09.

Another debt issue raised in some complaints was the collection of tax debts by private debt collection agencies. We are monitoring this issue to see if further investigation is required.

The most common outcome from investigations of debt collection complaintswas to provide a better explanation and an objective view that the case had not been handled inappropriately. In some cases though, our investigations yielded more substantive outcomes for complainants, asthe case study Debt relief provided illustrates.

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Superannuation

In 2007–08 we received 123 complaints about superannuation, a decrease from the 153 received in 2006–07. This decrease may reflect changes to the Superannuation Guarantee (Administration) Act 1992 (Cth) (the SG Act) in April 2007.

The legislative changes addressed the problem that some taxpayers were unhappy with the amount of information the ATO would provide about its efforts to recover unpaid superannuation money from employers. Changes to the SG Act widened the information the ATO could provide taxpayers about steps it had taken to investigate complaints and its actions to recover unpaid superannuation. This additional information is likely to have assisted in ATO complaint management and reduced the number of people who approach the Ombudsman’s office.

Superannuation is a complex area for taxpayers to understand. Complaints often demonstrate that people have difficulty in understanding different obligations or the reasons for ATO actions. Our investigations can result in a better explanation. In other cases we may be able to pursue further remedies such as remission of charges, as illustrated in the case study Debt notification.

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Complaint assisted transfer project

When a person complains to the Ombudsman’s office, we usually suggest to them that they take up their concerns with the ATO in the first instance, if they have not already done so. This gives the ATO an opportunity to address the issues and can provide taxpayers with a direct outcome without the delays of having another partyinvolved.

In early 2007 we trialled and then adopted a practice of directly assisting the transfer of tax complaints to the ATO. This process was introduced because of the low proportion of complainants who raised their concerns with the ATO after contacting our office. During 2007–08 we assisted in transferring 293 complaints to the ATO—25% of total ATO complaints received.

We consider this is a valuable service to assist people pursue their complaints through the most appropriate mechanism. We will review this process in 2008–09 toidentify and implement any revisions necessary to ensure this service operateseffectively.

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Reviewing tax administration

The tax environment is complex and involves a broad range of individual taxpayers and businesses. There will always be a need for effective review and complaint-handling mechanisms to assist people who considerthey have been wronged by the ATO, and to monitor the impact of tax administration on taxpayers.

The ATO has done much to establish and enhance fair and responsive remedial mechanisms that can remedy mistakes or systemic issues that occur. In addition to statutory objection and appeal rights regarding assessment and related decisions, the ATO’s own complaint-handling mechanism operates to improve administration and service to taxpayers. The ATO works effectively with the Taxation Ombudsman and is receptive to issues raised and recommendations made.

Through our external project work, including own motion investigations and less formal approaches, we review the health of specific areas of tax administration and consider where improvements may be warranted.

‘…we review the health of specific areas of tax administration …’

With the change to centralised complaint handling we revisited our program of project work, and focused on three projects.

• We continued examining the ATO’s administration of the superannuation guarantee. This project started in 2006–07 as a result of a number of complaints to the Ombudsman’s office. Changes to superannuation legislation regarding information disclosure, discussed above, have addressed a common cause of complaint. We therefore kept a watching brief on the implementation of the new legislation and will finalise the investigation early in 2008–09.
• We commenced a new investigation intothe re-raising of tax debts, as notedabove.
• As discussed in the section on Centrelink in this chapter, we commenced a new cross-agency investigation into the administration of the Compensation for Detriment caused by Defective Administration (CDDA) scheme, involving the ATO, Centrelink and the Child SupportAgency.

New projects to be undertaken in the coming year include:

• an own motion investigation into the ATO’s use of unannounced access powers
• an own motion investigation into the complaint-handling practices and procedures of state Tax Agents’ Boards
• a follow-up review of ATO actions arising from our own motion investigation into garnishee action (Australian Taxation Office: Administration of garnishee action (Report No 1/2007)).

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Future directions

In 2008–09 we will continue the work of thelast few years with a renewed focus onour program of external projects reviewing aspects of tax administration. Weare also planning to expand our liaison with relevant groups.

Constructive engagement with the ATO and other external oversight bodies is an essential requirement for us to be most effective in resolving taxpayer complaints and supporting improved tax administration. Our relationship with the ATO continues to be cooperative, with regular liaison and effective protocols for complaint resolution. The Senior Assistant Ombudsman, Taxation, sat on the ATO Integrity Advisory Committee and the Indigenous Tax Advisory Forum.

As part of our process of ensuring our complaint-handling systems complement each other, we will begin working with the ATO on aligning our classifications of complaints. This will enable better identification and analysis of any systemic issues that may arise.

We will continue to work with the Inspector-General of Taxation and the Australian National Audit Office as other complementary external oversight bodies to improve tax administration. We aim to minimise overlap by focusing on the perspectives that are unique to the Taxation Ombudsman, such as our understanding of the impact that tax administration can have on individuals.

Centrelink menu: Welfare to Work | Commonwealth Seniors Health Card | Equine influenza assistance | Systems problems | Reviews and appeals | Nominees | Cross-agency issues | Own motion and systemic investigations

In 2007–08 the Ombudsman’s office received 7,573 approaches and complaints about Centrelink, compared to 6,987 in 2006–07. This was the highest number of approaches received about any agency. This outcome was not unexpected given the volume, complexity and diversity of Centrelink’s workload. The number of approaches and complaints about Centrelinkwas the highest since 2004–05, asFigure 7.3 shows.

During 2007–08 we investigated 22% of the 7,382 approaches and complaints finalised. The most common themes identified in these investigations were claims for payment, debts, and suspension or cancellation of payment.

FIGURE 7.3 Centrelink approach and complaint trends, 2003–04 to 2007–08

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Welfare to Work

The Ombudsman Annual Report 2006–2007 discussed the impact of the introduction of the Welfare to Work reforms in July 2006. In particular, the report highlighted a number of key areas of concern regarding Centrelink’s application of penalties under the revised system, including:

• non-payment periods
• suspension of payments without a decision
• timeliness of decision making
• denial of appeal and review rights.

The Ombudsman released an own motion report Application of penalties under Welfare to Work (Report No 16/2007) in December 2007. The report encouraged Centrelink, the then Department of Employment and Workplace Relations and the Department of Human Services (DHS) to work collaboratively to address the issues identified. Centrelink has updated its processes in response to this report.

‘Centrelink has updated its processes in response to this report.’

A significant change brought about by the Welfare to Work reforms was tightened qualification criteria for certain payments, including disability support pension (DSP) and parenting payment, leading to a number of complaints to the office.

Disability support pension

Previously, DSP was payable to a customer with a permanent condition that prevented them from working more than 30 hours per week. However, from 1July 2006 a customer must have a permanent condition that prevents them from working more than 15 hours per week to qualify. A customer who does not qualify can now access newstart allowance (NSA) as a person with apartial capacity to work, and receive a pensioner concession card and other supplementary payments, and have modified activity requirements.

As occurs with most legislative reform, the DSP changes resulted in many customers complaining to the Ombudsman about the impact on them. In most instances our office did not identify any basis on which to criticise Centrelink’s actions, which stemmed from the changed legislation.

We also received complaints from people experiencing acute physical or mental illness, who had arguably ‘fallen through the cracks’ of the social security law. These customers, although obviously unwell, did not satisfy the strict DSP qualification criteria and, as such, their only option was to claim an activity-tested payment, such as NSA or parenting payment. Although there is some capacity for customers to be granted a temporary exemption from activity testing, there is still often a requirement to engage with Centrelink for reporting purposes. This is something that can be difficult, or arguably unreasonable, for a customer who is suffering acute illness or undergoing intensive treatment.

We will continue to monitor such complaints, and will consider whether a general investigation of this issue is warranted in2008–09.

Parenting payment

Customers who were in receipt of parenting payment prior to 1July 2006 are able to retain that payment until their youngest child turns 16, but, since 1July 2007, must fulfil participation requirements once their youngest child turns seven. This is a significant change for parents who were previously able to continue receiving payment until their youngest child turned 16 without any obligation to seek paid employment.

Customers who began to receive parenting payment since 1July 2006 have participation requirements once their youngest child is six years old, and no longer qualify for parenting payment once their youngest child turns six or eight (depending on the customer’s relationship status).

The participation requirements imposed on parenting payment customers (and NSA customers with children aged 16 or younger) are generally less onerous than those for NSA customers. Nevertheless, the revised expectations have been a continuing source of complaints to the Ombudsman. The most common complaints included that:

• the policy failed to provide for adequate consideration of a customer’s personal circumstances, such as the special needs of their children or irregular patterns ofwork
• Centrelink failed to properly advise customers of the impact of the Welfare to Work changes.

The case study Lost in transition illustrates how Centrelink’s failure to advise a person properly caused difficulties.

The parenting payment changes represented a significant change in policy. As such, it is likely these types of complaints will continue to represent a considerable proportion of the approaches made to the Ombudsman aboutCentrelink. We will continue to monitor these matters to identify areas for feedback to Centrelink andthe policy departments.

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Commonwealth Seniors Health Card

The Commonwealth Seniors Health Card (CSHC) is available to Australian residents of age pension age who meet income test requirements and do not receive a social security or veterans’ pension. The CSHC can be used to obtain concessions on a number of products and services including health services, pharmaceutical products and travel.

In June and July 2007 the Ombudsman’s office received a number of complaints frompeople whose CSHC had been cancelled. In each instance Centrelink had apparently told them this occurred because Centrelink did not have a record of their residential address.

We contacted Centrelink and were advised that a data integrity check in late-June 2007 had identified 1,892 CSHC holders for whom no residential address was recorded. Centrelink advised that, in the absence of aresidential address, it could not be satisfiedthe cardholder met the residency criteria and therefore it was appropriate to cancel their card.

We suggested to Centrelink that the absence of a residential address did not necessarily demonstrate a cardholder was not an Australian resident. We considered that it would have been more appropriate for Centrelink to invite cardholders to provide their residential address. If they did not respond, Centrelink could then cancel the customer’s card.

Centrelink advised us the cancellations had arisen as a result of an upgrade to its system, which required customers to have both a postal and residential address recorded. Previously the system only had space for one address so, even though Centrelink would have established the cardholder’s residency status at the time of grant, where a customer had different postal and residential addresses only the postal address would be recorded. Notwithstanding the customer’s previous demonstration of their residency status, Centrelink considered its action to cancel the CSHCs was required by the social security law.

We subsequently wrote to Centrelink requesting that it give further consideration to this topic. Specifically, we sought Centrelink’s comments with regard to our view that:

• the social security law did not authorise or require the cancellation of CSHCs in the situation described
• it was unreasonable to cancel an entitlement based only on a change to the Centrelink system
• it was open to Centrelink to seek updated information from cardholders prior to making a cancellation decision.

After further consideration, Centrelink accepted our view that it should have provided cardholders with the opportunity to provide their residential address information before cancellation. Centrelink also undertook to restore any remaining CSHCs that had been cancelled as a result of the data integrity check and to seek updated address information from each cardholder.

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Equine influenza assistance

In September 2007 the former Australian Government announced a financial assistance package for individuals and businesses affected by the equine influenza outbreak and associated movement restrictions. This package included:

• Equine Workers’ Hardship Wage Supplement—a fortnightly income support payment available to people working in a horse-dependent occupation who had lost their main source of income as a result of the outbreak and associated movement restrictions
• Equine Influenza Business Assistance Grant—lump sum payment available to businesses working in the equine industry which had experienced a loss of business income as a result of the outbreak and associated movement restrictions
• Commercial Horse Assistance Package—a per-day per-horse allowance available to people who look after horses on a commercial basis, who were in work at the time of the outbreak but were unable to undertake that work subsequently.

Centrelink administered the Wage Supplement and Business Assistance Grant on behalf of the Departments of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) and of Agriculture, Fisheries and Forestry (DAFF), while state-based racing bodies distributed the Commercial Horse Assistance package.

We received a number of complaints about Centrelink’s decisions on claims for the Business Assistance Grant. Many of these complaints focused on Centrelink’s determination that a business did not meet the eligibility criteria stipulated by DAFF because it was not part of an ‘equine industry’.

In total we received 71 such complaints, of which we investigated 55. In addition to the individual investigations, we also conducted a broad examination of the payment guidelines and the way they were implemented. This investigation revealed that, while aspects of the implementation and administration of the package could have been improved, the urgency and impact of the outbreak meant that some inadequacies or oversights were probably explicable.

At the end of the reporting period we were still in discussion with Centrelink and DAFF on a number of aspects, and we will continue to monitor this issue.

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Systems problems

The Ombudsman’s office generally finds Centrelink to be very responsive in answering, and acting on, enquiries about complaints. However, during 2007–08 we became aware of a number of instances where Centrelink was unable to address complaint issues in a timely manner because of ‘systems problems’.

In these cases Centrelink advised that it was aware of the error complained of (for example, incorrect debt, incorrect payment rate or the incorrect refusal of an advance payment) but it was unable to rectify the error in a timely manner because of problems with Centrelink’s information technology system. In these instances Centrelink advised that the customer would have to wait until the systems error was resolved before the problem with the customer’s debt, payment or claim could be rectified.

In one example, due to a systems error Centrelink mistakenly raised a debt against a person, and sent an automatically-generated letter to her to set up a repayment plan, despite knowing it was an error. In another case Centrelink took twelve weeks to process a person’s claims for family tax benefit and carer payment because of systems problems. The case study No action illustrates another type of problem which arose during the year.

These cases highlighted a difficulty in Centrelink identifying a practical manual remedy to fix a known problem. Although we appreciate such ‘work arounds’ often require additional time and resources, in our view agencies should take all available action to minimise unnecessary financial difficulty or inconvenience to their customers. We would like to see an increase in early identification and resolution of these problems in the future without the need for ministerial intervention as in the case study No action.

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Reviews and appeals

Internal review

In previous annual reports we have noted ongoing concerns about Centrelink’s internal review processes. These issues continue to be the subject of a number of complaints to the Ombudsman.

Last year’s report discussed Centrelink’s practice of requiring customers to undergo a review by the original decision maker before their matter is considered by an Authorised Review Officer (ARO). We commented that the Australian National Audit Office had released a report on Centrelink reviews, which recommended that customers be made aware they have a legal right to have a decision reviewed by an ARO without first having a review by the original decision maker. Centrelink agreed to this recommendation. It was our hope that this would result in a greater proportion of matters being referred directly to an ARO, and would improve the timeliness and consistency of review decisions.

In 2007–08 this issue continued to be a source of complaints:

• Centrelink continues to send customer reviews to the original decision maker in some cases when a customer has indicated that they want it referred direct to an ARO
• customers are being advised they need to request an ARO review if they are dissatisfied with the outcome of the review conducted by the original decision maker—Centrelink does not automatically proceed to ARO review
• Centrelink review forms advise that, even if a customer asks to go directly to ARO review, their matter may be examined by the original decision maker first.

We are continuing to monitor this issue and giving consideration to further action that may be required.

Implementation of external review decisions

This year we received a number of complaints from Centrelink customers about delays in having decisions from the SSAT and the Administrative Appeals Tribunal implemented. In some cases customers waited for more than 60 days for such a decision to be given effect.

The case studies Unsure and Unusual show how some delays were caused by Centrelink being uncertain about how to implement a decision.

In some instances Centrelink advised that delays were a result of the need to assess whether it would appeal the tribunal’s decision. We wrote to Centrelink, noting such considerations would not seem to impact on Centrelink’s ability to implement a decision in the meantime, unless it had sought a stay order. We suggested Centrelink revisit its current processes to ensure that tribunal decisions are implemented in a more timely manner.

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Nominees

Under the social security law a customer can authorise another person or people to represent them in their dealings with Centrelink. Depending on the specific authority given to the representative, known as a ‘nominee’, they can make enquiries, receive correspondence, receive payments, or a combination thereof. In certain situations a nominee arrangement can be put in place for a customer without their express permission. This generally occurs at the direction of a court or tribunal, when the customer is not capable of managing their own affairs.

Centrelink’s administration of nominee arrangements has been an issue of interest to the Ombudsman’s office over the past few years. During 2007–08 we became aware of at least two matters where Centrelink did not appear to have reviewed a nominee arrangement following a change in the circumstances of the customer or the nominee, as the case studies No review, no correspondence and Gone interstate show.

In early 2008 we met with Centrelink to highlight the need to monitor and update nominee arrangements. By doing so, Centrelink will ensure it fulfils its obligation to make certain that nominees continue tobe able to act in the best interests of thecustomer.

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Cross-agency issues

Many complaints made to our office require us to make enquiries with more than one agency. This is particularly the case where one agency is responsible for delivering a product or service, while another has responsibility for the relevant policy or law.

In 2007–08 we became aware of a possible problem with the interaction between the Superannuation Industry (Supervision) Regulations 1994 (SIS Regulations) and the social security law.

The SIS Regulations provide guidance to superannuation funds about a number of issues, including when it is appropriate to allow a member to obtain an early release of superannuation funds. One of the grounds for seeking an early release is ‘severe financial hardship’, which can be demonstrated by (among other things) providing evidence that the person has beenin receipt of Commonwealth income support payments for a continuous period of26 weeks.

As an agency responsible for administering Commonwealth income support payments, Centrelink is often requested to provide a statement that a customer has been in receipt of such payments for a continuous period of 26 weeks. Confusion arises, however, where a customer has been subject to a period of non-payment during the preceding 26-week period.

The problem is that, under the current social security law, a person can remain qualified for income support but, in some instances, will be unable to be paid income support due to a participation failure. In turn, Centrelink is unable to provide that customer with the statement required because they have not been in continuous receipt of payment.

In our view the regulations do not appear to have been drafted in contemplation that a person can be qualified for, but not in receipt of, income support payments. These people are arguably in greater need of access to other funds because their only form of income has been withheld.

In May 2008 the Ombudsman wrote to the Treasurer to suggest changes be made to the SIS Regulations to address this inconsistency. The Ombudsman also highlighted the issue with the Chairman ofthe Australian Prudential Regulation Authority and the Chief Executive Officer ofCentrelink.

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Own motion and systemic investigations

During 2007–08 we completed a number of own motion investigations into agencies dealing with social security and its administration.

In October 2007 the Ombudsman released an own motion report Marriage-like relationships—policy guidelines for assessment under social security law (Report No 14/2007). This report was well received by the agencies involved and by other interested organisations. The agencies have taken action to implement the Ombudsman’s recommendations.

The Ombudsman issued an own motion report in December 2007 into the administration of non-payment periods under the Welfare to Work reforms. The report, Application of penalties under Welfare to Work (Report No 16/2007), identified a number of legal and procedural problems with Centrelink’s handling of these non-payment periods. It also provided comments on the underlying policy administered by DEEWR. In response, Centrelink, DEEWR and DHS agreed to work collaboratively to resolve the problems we identified.

‘This report was well received by the agencies involved and by other interested organisations.’

In June 2008 the Ombudsman released an own motion report into the administration of job capacity assessments (JCAs) for social security purposes (Implementation of job capacity assessments for the purposes of Welfare to Work Initiatives, Report No 5/2008). This report primarily dealt with matters administered by DHS, but was also relevant to Centrelink, DEEWR and FaHCSIA.

Under the Welfare to Work program, people with illness, disability and/or barriers to work are required to undergo a comprehensive work capacity assessment. These assessments inform Centrelink for income support decisions and identify the most appropriate employment-related assistance for a person. The report focused on issues identified since the implementation of JCAsand their impact on the volume of complaints we receive. The four agencies involved have undertaken to continue liaising with each other to address some of the issues highlighted in the report, which will require additional work.

During the year we commenced an investigation into the administration of the Compensation for Detriment caused by Defective Administration (CDDA) scheme. This investigation is examining the way in which claims are handled by Centrelink, theAustralian Taxation Office and the ChildSupport Agency, with a particular focus on decision-making procedures and the treatment of evidence. We expect to issue a report on this investigation in late-2008.

Child Support Agency menu: Implementing the new child support formula | Complaint themes

In 2007–08 we received 2,208 approaches and complaints about the Child Support Agency (CSA), an increase of 23% from the 1,790 approaches and complaints received in 2006–07. This is the largest number of approaches and complaints about the CSA that we have received in any year since 2002–03 when we received 2,515 approaches and complaints. The increase reflects the general increase in complaints to the office across the board, the CSA’s preparatory work with its customers for the significant changes to the Child Support Scheme formula, discussed below, and an increased number of complaints claiming the CSA failed to collect child support. Figure 7.4 shows the trend in approaches and complaints about the CSA over the pastfive years.

The CSA makes administrative assessments of child support payable by separated parents for their children. The person entitled to receive child support under the assessment, the payee, can make their own arrangements to collect child support from the payer, or register the assessment with the CSA for collection. Once a case is registered, the CSA is responsible for collecting the child support from the payer and transferring it to the payee.

FIGURE 7.4 Child Support Agency approach and complaint trends, 2003–04 to 2007–08

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Implementing the new child support formula

The CSA assessment applies a legislative formula to the circumstances of the payer, the payee and the children. The formula had remained largely unchanged since 1989. A new formula came into effect from 1July2008, following the previous government’s acceptance of the majority of recommendations contained in the 2005 report of the Ministerial Taskforce on Child Support. Other major changes were made to the Scheme in 2006 and 2007.

The new formula is described by the CSA as ‘a more balanced way of calculating child support, with each parent’s income being treated more equally, care being recognised as a contribution towards the cost of children and treating children from first and subsequent relationships in a similar way’.

The CSA’s arrangements for introducing the new formula appear to have been thorough. It provided its customers with detailed written information about how the changes will affect them, well in advance of the start date. The CSA issued new assessment notices to all its customers in a staggered fashion, to help manage the volume of enquiries. Customers were invited to contact the CSA if any of the information used to calculate child support was wrong.

The CSA publicised the changes through press, radio and internet advertising and information distributed via the media. It conducted a number of outreach activities, with community information sessions in metropolitan and regional areas, so that customers could speak to the CSA about their new assessment or other child support issues. The CSA also provided training for community groups in each capital city. Wewill closely monitor any complaints about the new formula.

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Complaint themes

Five main themes that emerged from theCSA complaints we investigated in 2007–08 were:

• the CSA’s failure to collect child support owed to the payee
• delays in the CSA’s decision making
• the CSA’s use of its power to make an order preventing a child support debtor from leaving Australia (a Departure Prohibition Order (DPO))
• problems in the CSA’s relationships with other Australian Government agencies in administering the Child Support Scheme
• the CSA’s response to allegations of customer fraud.

These themes are discussed below.

Failure to collect child support

In 2007–08 we received a substantial number of complaints from payees about the CSA’s failure to collect child support debts. This was the most common CSA issue we investigated, present in 18% of all investigated CSA complaints. The extent of the problem is demonstrated by the growing child support debt registered with the CSA for collection, which exceeded $1 billion for the first time in June 2008. The growth in outstanding payments for international customers is a contributing factor.

The Minister for Human Services recently announced a new compliance strategy for the CSA, aimed in part at improving the CSA’s collection rate. We will monitor whether the new strategy leads to a reduction in complaints to this office, as well as a reduction in gross child support debt.

‘We will monitor whether the new strategy leads to a reduction in complaints …’

Delays in decision making

We generally suggest that a person use the CSA’s internal complaints service for a simple complaint about the CSA not yet having made a decision. However, some matters warrant investigation by this office, such as those where the delay seems excessive, where the person has already tried unsuccessfully to resolve the matter with the CSA, or where the delay has had unfair consequences for the complainant.

A customer may ask the CSA to reconsider a decision by lodging a written objection. The CSA has a statutory period of 60 days to make an objection decision, during which time the other parent in the case must be given an opportunity to respond to the objection. We found that the CSA had failed to meet this legislated timeframe in many of our investigated complaints.

We sought information from the CSA about the extent of the objection delays. In March 2008 the CSA advised us that since the beginning of the financial year, it had made an objection decision within 60 days in only 77% of cases. The timeliness figures varied dramatically across each of the CSA’s state offices, ranging from 52% to 91% of objections being finalised within 60 days.

Following our investigation, the CSA has made inroads into reducing the backlog of objections. We are monitoring its performance in this area.

Another area of delay was in reconciling estimates of taxable income. The CSA initially calculates child support on a parent’s past taxable income. If the parent’s income has reduced by at least 15%, they can ask the CSA to base their future child support on an estimate of their current income. At the end of the estimate period, the CSA must compare the parent’s actual income with their estimated income. If the estimate was too low, the CSA must reassess child support, and a penalty can apply. The CSA’s duty to reconcile a parent’s estimate is an important protection for the other parent, who may have received too little child support for the period (if the payer lodged the estimate) or paid too much (if the payee lodged the estimate).

The CSA can reconcile an estimate as soon as the Australian Taxation Office (ATO) assesses the parent’s income tax returns for the period covered by the estimate. Unlike an objection, there is no legislated period within which the CSA must complete its reconciliation.

Changes to the child support legislation that came into effect on 1July 1999 made the task of reconciling an estimate much more complex. The CSA has not managed to deal with all the cases. As at 31March 2008, there were more than 200,000 estimates to be reconciled. We understand the CSA has set up estimate reconciliation teams to deal with this backlog.

A number of complaints we received during the year concerned cases where the CSA had reconciled a payer’s estimate many years after they lodged their tax returns, creating substantial debts, as the case study Legal but fair? shows.

The difficulty with such complaints is that, in most cases, the debt is correct. The complainant, however, is usually shocked to discover that they owe child support for a past period, and unhappy to be asked to pay the amount after such a long time. The CSA cannot offer to reduce the debt, because the money is legally owed and due to the payee for the support of the children.

We are monitoring the CSA’s progress in dealing with the backlog of reconciliations.

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Departure Prohibition Orders

Under the Child Support (Registration and Collection) Act 1988 (Cth), the CSA can make a DPO preventing a child support debtor leaving Australia. This is a discretionary power that may only be exercised in a case where the CSA is satisfied that:

• the person has unpaid child support which they have not made satisfactory arrangements to discharge
• the person has persistently and without reasonable grounds failed to pay their child support.

If these conditions are met, the CSA can make a DPO if it believes on reasonable grounds that it is desirable to prevent the person leaving Australia until they make a satisfactory arrangement to wholly discharge their child support debt.

DPOs appear to be an effective tool for collecting child support. However, a question arises as to whether they have been applied reasonably in all cases.

The CSA made 482 DPOs in 2005–06, collecting $6.7 million. In 2006–07 it made474 DPOs, collecting $5.9 million. By2010 the CSA intends issuing a further 4,500 DPOs.

We have received and investigated a number of complaints from people who have been unable to travel overseas on a short holiday or business trip because the CSA has issued a DPO. We are concerned that in some cases, the CSA may be making a DPO to encourage the person to make a suitable payment arrangement, without considering fully the circumstances of the case.

A person cannot use the CSA’s objection process to seek a review of a DPO. Nor can they appeal to the Social Security Appeals Tribunal. They have a right to initiate judicial review of the DPO decision in the Federal Court or Federal Magistrates Court, or they can complain to the Ombudsman’s office.

The child support legislation about DPOs is closely modelled on provisions in the income tax legislation and the courts have decided a number of challenges to DPOs made by the ATO. In those cases, the courts have stressed the basic democratic right of citizens in a free society to travel as they please. The courts have held that an ATO DPO is appropriate only if the person’s planned departure from Australia would jeopardise the ATO’s chances of collecting the taxation debt, even though this test is not expressly mentioned in the relevant taxlegislation.

We consider it arguable that the same reasoning should apply to CSA DPOs. The CSA has advised us that it does not agree with our view. It noted that the one case in which the court had reviewed the CSA’s decision to issue a DPO did not apply the test of whether the person’s planned departure from Australia would jeopardise the CSA’s chances of collecting the debt.

In 2008–09 we will further explore the CSA’s policy for making DPOs through an own motion investigation that will review a sample of the CSA’s DPO decisions. The CSA has indicated that it is keen to assist us with this investigation and, importantly, to resolve the different views about the appropriate test that it should apply.

We also noted some problems with the administration of DPOs in the complaints we investigated in 2007–08. The CSA must send notice of the DPO to the debtor and notify the Australian Federal Police (AFP), which records the details on a database that the Australian Customs Service (ACS) checks before it allows a person to leave Australia. The DPO remains in force until the CSA revokes it. However, the database alert is recorded for a fixed period. The AFP and the CSA have liaison arrangements to review and renew expiring alerts.

Several complaints revealed problems with these cross-agency administrative arrangements. In one case, the ACS prevented a person leaving Australia because they had a similar name to a CSA customer for whom a DPO had been made. When we contacted the CSA it advised us that it had informed the ACS this person was not the child support debtor. However, there was a delay of several days before the problem was resolved. It is not clear how the misidentification and subsequent delay arose. Two further complaints alleged that the child support debtor was able to leave the country despite the existence of a DPO. The case study Inconsistent advice illustrates such a situation.

Other cross-agency issues

The CSA works with the ATO and Centrelink in administering the Child Support Scheme. The CSA relies on the ATO for information about a parent’s income for a previous financial year. The CSA can require the ATO to pay a debtor’s tax refund to the CSA, in payment of that person’s child support debt.

The CSA exchanges information with Centrelink about a person’s eligibility for Family Tax Benefit (FTB), the maintenance income test, and to arrange collection of child support from a payer’s pension or benefit. In most cases the exchange of data occurs automatically and the information is correct. The case study Lost arrears illustrates that there can be serious repercussions if that information exchange is not accurate and timely and there is delay in agency actions.

Customer fraud

A growing number of complaints raise concerns about the way in which the CSA responds to allegations that one of its customers has provided false or misleading information. This is an offence under the child support legislation.

Our investigation of three complaints received this year revealed shortcomings in the way the CSA documents, assesses and follows up on reported customer fraud. We are concerned the CSA does not have adequate systems in place for dealing withthese reports. We consider this is a systemic problem in the CSA’s administration, as investigation and prosecution of fraud has an important deterrent effect and is vital for ensuring the integrity of the Child Support Scheme.

The CSA advised us that it was developing new arrangements for the investigation and prosecution of customer fraud. We intend providing a detailed report of our investigations to the CSA along with recommendations for the CSA to consider inearly 2008–09.

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

The Ombudsman investigates complaints about a range of defence agencies, including the Department of Defence, the Australian Defence Force (ADF) (Royal Australian Navy, Australian Army, Royal Australian Air Force), the Department of Veterans’ Affairs (DVA) and Defence Housing Australia (DHA).

We investigate these approaches as either the Commonwealth Ombudsman or the Defence Force Ombudsman (DFO). The DFO investigates complaints that arise out of a person’s service in the ADF, covering employment-related matters such as pay andentitlements, terminations or promotions. As Commonwealth Ombudsman, we investigate other administrative actions of these agencies.

In 2007–08 we received 562 defence-related approaches and complaints, compared to 670 in 2006–07. This represents a 16% decrease in complaints.

Table 7.1 Defence-related approaches and complaints received, 2004–05 to 2007–08

Department of Defence

We received 135 approaches and complaints about the Department of Defence, compared to 106 in 2006–07. As noted in previous annual reports, considering the size of the department, we receive relatively few complaints. Of the complaints we investigated, the three main sources of complaint were contracting matters, the issue of honours and awards, and problems with recruitment into the ADF.

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HMAS Westralia investigation

In March 2007 allegations were made in the press and Parliament that Defence was warned in February 1998 that HMAS Westralia was in grave danger from the faulty fuel lines that caused the fire on 5May 1998. The Minister for Defence wrote to the Ombudsman requesting that we consider an own motion investigation into the matter.

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. At the heart of the allegations was the appearance of an unsigned minute dated 6February 1998 from Defence’s Inspector-General Division (IGD) investigators. The minute reported allegations from Baileys Diesel Services about corruption and misconduct in Royal Australian Navy contracting and maintenance, including the use of non-genuine and sub-standard spare parts (the 6February 1998 document). The minute cited HMAS Westralia as a ship that had recently suffered problems as a result of the use of such parts. Allegations also emerged that Baileys had raised safety concerns in1997.

After an extensive investigation involving the examination of several thousand Defence documents, formal interviews with key witnesses, and consideration of statements from other witnesses, the Ombudsman released a report, Department of Defence: allegations concerning the HMAS Westralia fire (Report No 3/2008), in April 2008.

The report concluded that the press reports of February 2007 stating Defence was warned about the safety risk to HMAS Westralia and failed to act were wrong. The report also found:

• Baileys may have had concerns, in and/or around August 1997, about the use of non-genuine spare parts in the HMAS Westralia. However, our office was satisfied that Defence was not aware of any such concerns.
• Baileys did raise a number of allegations and concerns about Defence contracting and maintenance practices between August1997 and 6February 1998. However, none of Baileys’ allegations or concerns could reasonably be interpreted as any kind of warning of the circumstances that contributed to the HMAS Westralia fire.
• The balance of evidence suggested that Baileys’ concerns at a 6February 1998 meeting with IGD investigators were about corruption, not safety, and this is how they were received and understood by IGD investigators. It was difficult to characterise Baileys’ 6February 1998 meeting with IGD as a ‘warning of the circumstances’ that contributed to the HMAS Westralia fire and Defence could not reasonably be said to have failed to act on any such warning.
• Defence’s investigation into the February 2007 allegations that it had forewarning of the safety risk to HMAS Westralia was timely and thorough, and its conclusions were reasonable and had a sound evidentiary basis.
• Defence could have maintained better records and a clear audit trail of action it took in dealing with an anonymous allegation it received on the issue in 2000.

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Australian Defence Force

We received 245 approaches and complaints from serving and former members about the actions and decisions of the Royal Australian Navy, Australian Army and the Royal Australian Air Force (compared to 252 in 2006–07).

The ADF is a large and complex organisation. It can be difficult for a person who has a problem to find the right area to get the problem fixed, or even to get an explanation of what has happened. During the year we helped serving members and their families make contact with the part of the ADF which could provide assistance, as the case study Too much leave shows.

As in previous years, a common cause of complaint was the length of time taken to make decisions. As the case studies Leave not paid out and No lump sum show, our involvement was able to expedite the necessary action or decision.

Outreach activities to ADF members

Our office makes regular presentations to ADF members to promote awareness of our role and to ensure that members are aware of their right to complain to the Ombudsman’s office. We have appreciated Defence’s continued invitations to various ADF leadership and administrative training courses. At these courses we give our views on best practice administrative procedures and provide information on how our role interacts with internal ADF complaint-handling mechanisms. In 2007–08 we presented at seven courses. We also gave two presentations to the service groups with responsibility for personnel decisions. During the year articles on the Defence Force Ombudsman appeared in all three service papers.

Implementation of review recommendations

Our office has appeared before the Senate Foreign Affairs, Defence and Trade Committee on a number of occasions in relation to the committee’s inquiry into reforms to the Australian military justice system. This inquiry followed an earlier committee inquiry into the effectiveness of the system. In addition, in 2004 we conducted a joint review into the Redress of Grievance (ROG) system with Defence (Review of Australian Defence Force Redress of Grievance System 2004 (Report No 1/2005)).

Defence has managed the implementation ofrecommendations from both these reviews together. We are satisfied that Defence has demonstrated a commitment toimplementing the accepted recommendations as quickly as practicable. The implementation of the committee inquiry recommendations will be the subject of an independent review in 2008–09.

We have also been pleased to see improvements in the way ROG applications are processed, leading to a marked reduction in the number of complaints made to our office about delays. Further improvements should flow from amendments to the legislation that governs the ROG process, which took effect on 3May 2008.

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Department of Veterans’ Affairs

The Department of Veterans’ Affairs provides a wide range of services to nearly 450,000 Australians. The single biggest group of DVA’s clients are World War II veterans and their families, followed by a substantial number of Vietnam veterans. The demographic of DVA’s clients will change over the next twenty years, reflecting the ADF’s recent engagement in international operations.

During 2007–08 we received 139 approaches and complaints about DVA, compared to 256 in 2006–07. This represents a 46% decrease. Two-thirds of the decrease was due to the decline in complaints in relation to the F–111 deseal/reseal process (see Deseal/reseal ex-gratia lump sum payment scheme below).

We have been pleased that DVA is generally responding to our investigation enquiries in a more timely manner than has previously been the case. DVA is demonstrating an increasing willingness to be frank and open and to admit mistakes or errors when they have occurred. In many instances DVA takes the initiative to offer an apology or other appropriate remedy to a complainant in their response to our office. We have also observed DVA staff going to considerable lengths to deliver a comprehensive personalised service to individuals.

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DVA complaint-handling review

During the past year we have met with the Veterans’ Services team in DVA on several occasions to discuss DVA’s review of its internal complaint-handling mechanism. Weunderstand DVA intends to develop a centralised complaint-handling area, supported by a complaint management system to record and track all complaints received by DVA.

We strongly support the development of a centralised complaint-handling system. Currently, in the absence of such a system, our office is unable to refer complainants back to DVA to attempt to resolve their complaint with DVA in the first instance. As a result, we investigate a large proportion of the complaints made about DVA. We hope that the development of a robust, centralised complaint-handling system will allow us to refer more complainants back to DVA. This should facilitate the resolution of many complaints at agency level, with only a smaller number requiring the involvement of the Ombudsman’s office.

Compensation claims processing times

A common cause of complaints in military compensation matters is delay. Our office met regularly with DVA’s Military Rehabilitation and Compensation Group to monitor the progress of various initiatives aimed at improving claims processing times and reducing the backlog of older cases.

We have been pleased to see a reduction in the number of older cases and declining processing times for new cases. DVA’s Single Access Mechanism is continuing to obtain service records from Defence within days or a few weeks on average, rather than the many months previously taken.

DVA has also advised they are expanding other successful initiatives to additional DVA offices, to increase the benefits for veterans in other states and territories. This includes the Screening Team, which ensures claims are assessed under the correct legislation, and a multiple needs approach, which deals holistically with the needs of clients who have multiple needs and claims. We are continuing to monitor processing times and the progress of initiatives in this area.

We continue to investigate complaints from veterans whose claims have not been processed in a timely manner, as the case study No pay shows.

Deseal/reseal ex-gratia lump sum payment scheme

In last year’s annual report we reported on complaints to our office about the F–111 deseal/reseal ex gratia payment scheme. Our office received a further five complaints about DVA decisions on deseal/reseal claims in 2007–08.

The majority of deseal/reseal claims were decided by DVA in 2006–07, with only a small number of new claims made in the last financial year. As a result, DVA has reduced the staffing available to assess claims. This has delayed our investigation of the new complaints we have received.

The Joint Standing Committee on ForeignAffairs, Defence and Trade commenced an inquiry into RAAF F–111 deseal/reseal workers and their families inMay2008. Theoffice made a submissionto this inquiry, and the Acting Ombudsman appeared before the committee early in 2008–09.

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Defence Housing Australia

Defence Housing Australia is contracted by Defence to provide housing and relocation services for members of the ADF and their families. DHA sources land, undertakes land development, constructs houses and raises funds in the private capital market through a sale and leaseback program. It also provides property maintenance and manages leases with property owners. DHA is contracted to process allowances and entitlements for ADF personnel who are moving to a new posting location as part of the relocation process. The housing and relocation policies and entitlements are determined by Defence and administered byDHA.

Over the last 12 months we received 28 approaches and complaints about DHA (compared to 36 in 2006–07). Of the few complaints we received, the biggest area of complaint was about the nature or quality of the accommodation that DHA offered to members and their families.

We receive very few complaints about DHA considering the size of its client base and the sensitivity of the issues around family housing and relocation. We attribute this to the effective internal complaint-handling process DHA has in place, which addresses issues as they arise.

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Education, Employment and Workplace Relations menu: Complaint management | Notification of decisions | Recordkeeping | Use of interpreters

Under the Administrative Arrangements Orders issued on 3December 2007, the then Department of Employment and Workplace Relations (DEWR) was abolished, and a new Department of Education, Employment and Workplace Relations (DEEWR) was established. DEEWR took on many of the functions of DEWR. It also gained responsibility for child care programs from the former Department of Families, Community Services and Indigenous Affairs and education-related matters from the former Department of Education, Science and Training (DEST). Responsibility for the disability support pension program, which had rested with DEWR, moved to the new Department of Families, Housing, Community Services and Indigenous Affairs.

We received 721 approaches and complaints about DEWR (407), DEEWR (288) and the education-related components of DEST (26) in 2007–08, compared to 567 in 2006–07 for DEWR. Figure 7.5 shows the trend in approaches and complaints about DEWR/DEEWR over the past five years.

The approaches and complaints we received during 2007–08 mainly related to DEEWR’s responsibilities for the Welfare to Work program, and the majority of complaints involved the actions of the Job Network. There was also a slight increase in the number of complaints about Trades Recognition Australia (TRA), a program administered by DEEWR. TRA provides occupational skills assessment services for people intending to migrate to Australia and domestic skills assessments for Australian residents.

Part of the reason for the increase in complaints about TRA was the decision to close Pathway D—a skills assessment based solely on the person’s work experience—from 4September 2007, before announcing the change publicly. Close liaison between DEEWR and our office meant we were able to manage the consequent increase in complaints relatively smoothly.

FIGURE 7.5 Department of Education, Employment and Workplace Relations approach and complaint trends, 2003–04 to 2007–08

Across the spectrum of DEEWR we identified the following key areas of concernin complaints we investigated:

• complaint management
• adequacy of notification advices
• recordkeeping practices.

These issues arose across different DEEWR programs and are discussed further below. Another issue which has general application, but is particularly relevant to the TRA program, concerns the use of interpreters, also discussed below.

We acknowledge that DEEWR has made significant progress in addressing these issues. In June 2008 DEEWR released revised guidelines Employment and RelatedServices: Guide to managing client feedback (the Guide), which replaced its Complaints Management Guidelines. The Guide was developed for DEEWR staff involved in complaint handling. We note that the Guide has revised and expanded the level of procedural detail for all the issues outlined below.

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Complaint management

The majority of complaints we investigate relate to the actions of Job Network Members (JNMs). In line with better practice principles, most complaints are first investigated by DEEWR as the responsible agency. Our investigations found inconsistencies in the quality of DEEWR investigations. Some contained all the elements of a good investigation. Others were less satisfactory in terms of the records kept, the notification of the outcome to the complainant, and a tendency to rely on the JNM’s performance overall rather than in the particular case in question.

We observed that, where the relationship between a job seeker and their JNM became strained due to aggression, different JNMs managed the issue inconsistently.

The Ombudsman’s 2006–07 annual report noted an instance where a job seeker’s relationship with the JNM had deteriorated to such an extent that the person wished to transfer to another provider. Under irretrievable breakdown procedures, a job seeker can be transferred if the relationship has deteriorated to the point that it has become unproductive. In this case, even though the JNM had taken legal action against the job seeker in relation to an incident of violence, the provider refused toinstitute irretrievable breakdown transferprocedures. Instead the JNM continued to attempt to assist the job seekerto no avail. Our intervention resultedin DEEWR ensuring that if the job seeker has to reconnect with the Job Network in the future, he will not be sent back to that provider.

‘The majority of complaints we investigate relate to the actions of Job Network Members …’

Conversely, we recently investigated a case involving a job seeker registered with a different JNM where there was a breakdownin the relationship. In this case, the JNM had the job seeker suspended from Job Network services for 12months without following all the relevant procedures,such as formal notification that the behaviour was unacceptable and the possible consequences if the behaviour continued. These procedures are intended toaddress the aggressive behaviour in the first instance.

These examples illustrate inconsistencies in how JNMs manage aggressive job seekers. The outcome for some aggressive job seekers might not be very different given that such behaviour can be related to mental illness which is often left untreated. Even then, it is important to provide every opportunity for the job seeker to modify their behaviour, given the limited services available for the mentally ill and concerns that some people with mental illness remain undiagnosed, or unwilling to accept a diagnosis. It also appears to be more difficult for an aggrieved job seeker-initiated transfer to succeed than it is for a JNM to have a job seeker transferred, or have the job seeker’s access to Job Network services suspended.

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Notification of decisions

A number of complaints we investigated raised concerns about the adequacy of decision notices DEEWR sends to its clients. The letters we examined did not provide a statement of reasons that would allow the client to understand the basis for the decision. Although this occurred in a number of DEEWR programs, we identified it as a more significant issue for TRA, particularly in view of the costs to applicants for assessment or review.

When TRA notifies an applicant of an unfavourable decision, the person often relies on the information provided to decide if it is worth paying a further $300 for an internal review of the decision. In most complaints we investigated, the TRA notices did not provide sufficient reasons to enable the applicant to know what additional information they could usefully provide as part of an appeal. The case study Troubling assessment illustrates one such case.

After discussing this matter with the agency, TRA has undertaken to review the content of their decision letters. TRA also reviewed its assessment procedures, including the pre-application information available for applicants and the standard wording that is included in notification advices.

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Recordkeeping

In the course of investigating complaints about JNMs, our office normally obtains copies of DEEWR’s complaint management system records. A trend we have observed is the inadequate level of detail recorded about DEEWR’s investigations of job seeker complaints. In the better DEEWR investigations, the records indicate substantial time was spent discussing the areas of concern with the complainant, as well as the Job Network Member. Those records also provided a brief summary of the topics that had been discussed with the complainant.

By contrast, other records only contained the basic details of the contact, such as the date and time a phone call was made to the customer, without any information about what was discussed. In those cases, it was often recorded that the complainant was happy with the outcome of the complaint. However, based on the complainant’s immediate contact with this office about DEEWR, it was evident they were not happy. We note these issues have been covered in depth in revised procedures in the Guide.

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Use of Interpreters

A complaint we investigated raised concerns about the appropriate use of interpreters by TRA. TRA had rejected a person’s application to have their skills as a hairdresser recognised on the basis of their work experience in that profession. The application was rejected because TRA was unable to verify if the person had performed other duties as well as hairdressing during the period of employment claimed to establish that they qualified as a hairdresser.

Our investigation revealed that TRA had contacted the person’s employer by phone to clarify the nature of their employment. The employer was not able to speak English confidently and asked for an interpreter. As a suitable interpreter was not available at the time, the employer’s request was refused and the enquiry continued without the use of an interpreter.

After we approached TRA, they undertook a review, using an interpreter. Although this did not provide a different outcome for the applicant, there would have been more confidence in the initial assessment had an interpreter been used when one was specifically requested.

We recognise that the use of interpreters might involve additional expense and complexity and we discussed the issues with TRA. TRA has now reviewed its use of interpreter services. It has promulgated new guidelines for using interpreters to ensure a consistent and defensible approach is taken in deciding whether or not interpreter services should be used. TRA is in the process of incorporating the guidelines into relevant training and other guidance material.

As noted in the section on Immigration in this chapter, we have commenced a cross-agency investigation into the way agencies use interpreters to communicate effectively with clients. The investigation includes the use of interpreters by DEEWR.

Immigration menu: Complaint handling | Own motion investigations | Monitoring and inspection of DIAC's detention, compliance and removal activities | Reporting on people held in immigration detention for two years or more | Input into Departmental processes and procedures | Systemic issues

Complaints to the Commonwealth Ombudsman about immigration administration have always been a prominent part of the office’s work. There was a substantial broadening in the activities of the office from 2005, when the Ombudsman was given statutory responsibility to review the circumstances of people held in immigration detention for two years or more. In 2005 and 2006 the Ombudsman was asked to investigate 247 cases where people had been held in immigration detention and released when it was found they were not unlawful. In light of the problems in immigration administration, the Ombudsman was also given the title Immigration Ombudsman and additional funding to enable the office to be more proactive in identifying and addressing problems in the immigration area.

The Ombudsman’s office now takes a comprehensive, integrated approach to thereview of immigration administration through:

• investigating complaints
• assessing the appropriateness of the arrangements for a person’s detention when they have been in detention for two years or more
• inspecting detention centres and immigration compliance and removal activities
• undertaking a broad range of own motion investigations
• examining systemic immigration issues
• maintaining frequent dialogue with the Department of Immigration and Citizenship (DIAC) on a range of issues
• engaging in various DIAC client forums.

‘The Ombudsman’s office now takes acomprehensive, integrated approachto the review of immigrationadministration …’

This integrated approach is proving successful in the early identification and resolution of problem areas in immigration administration.

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Complaint handling

Changes to DIAC’s internal complaint-handling processes

For some years the Ombudsman’s office hasinvestigated a higher proportion of complaints about DIAC than for other agencies, as there was concern about theefficacy of DIAC’s internal complaint-handling processes.

As part of its reform program, DIAC undertook a range of measures to improve its complaint-handling capacity. The department introduced a new compliments and complaints policy in July 2007. Other significant steps included an improved service charter and the use of the Global Feedback Unit (GFU). The GFU is the key point of contact for customer service complaints and aims to resolve most complaints at the first point of contact. In late 2007–08 we commenced a closer examination of DIAC’s complaint-handling processes with a view to determining whether we could refer more immigration complaints to DIAC in the first instance.

An example of DIAC’s proactive response to a complaint is shown in the case study Misled. This shows how good complaint handling can resolve issues that may affect a number of people.

Complaints overview

In 2007–08 we received 1,528 approaches and complaints about DIAC, an 11% increaseover the 1,379 received in 2006–07. Figure 7.6 shows the number of approaches and complaints received from 2003–04 to 2007–08.

FIGURE 7.6 Department of Immigration and Citizenship approach and complaint trends, 2003–04 to 2007–08

Complaints to our office point to areas requiring improvement in DIAC. These include:

• the resolution of more complex matters
• processes and consistency in assessing visa applications
• reducing delays and keeping people informed of the status of their cases
• processing requests made under the Freedom of Information Act 1982 (FOI Act) within the statutory 30-day timeframe.

Each year we receive numerous complaints about delay in finalising visa applications. In many cases the complaint would not have arisen if DIAC had kept the applicant informed of progress. Delays occur for many reasons. The case study Testing illustrates how logistical issues had the potential to cause further delay for a visa applicant.

We investigated several complaints about visa cancellation decisions made under s501 of the Migration Act 1958 (Cth) (Migration Act) (character grounds). We consider DIAC has improved the consistency, quality and procedural fairness of its decision-making processes, following the release of the Ombudsman’s 2006 report Department of Immigration and Multicultural Affairs: Administration of s501 of the Migration Act 1958 as it applies to long-term residents (Report No 1/2006).

One of the recommendations of that report was that the department review the specific cases considered, and all other cases where the visa of a long-term permanent resident had been cancelled under s501 and the person was still in immigration detention or awaiting removal from Australia.

DIAC completed the review in 2007–08. It has advised that, of the 91 cases subject to review, all but one did not meet the highest level of procedural fairness. In 37 cases there was a legal basis to set the decision aside, including on account of some court decisions subsequent to the publication of the report. In 54 cases, the issues were not serious enough to provide a legal basis to set aside the cancellation decision, and the circumstances of each person were considered further. The range of individual outcomes has varied for the 91 cases, from people having visas re-instated or granted, some with warnings, to re-assessment under the character provisions and visas being re-cancelled.

DIAC is also examining the policy under-pinning the s501 visa cancellation powers, in line with a recommendation in that report.

In June 2007 the Ombudsman published a number of reports arising from the investigation of the 247 referred immigration detention cases. One of the reports, Department of Immigration and Citizenship—Report into referred immigration cases: Other legal issues (Report No 10/2007) recommended DIAC conduct a review of unexecuted deportation orders where the person concerned is no longer in prison. DIAC agreed with this recommendation. The case study Deportation order illustrates how DIAC dealt with one such person after we investigated a complaint from him.

As described further in the section on own motion investigations, in many cases DIAC has failed to meet the 30-day statutory timeframe for processing FOI requests. Thecase study Decision without a decisionshows how a failure to meet this timeframe can exacerbate other problems fora visa applicant.

We continue to receive a number of complaints about immigration detention. One source of complaints from detainees has been an alleged lack of response from the police to reports of assaults and other acts of violence occurring in immigration detention centres (IDCs), particularly Villawood IDC.

While the Australian Federal Police (AFP) and the NSW Police both have discretion under their legislation to respond to and investigate allegations of assault in the IDC, neither has an obligation to do so. As a result, there is a lack of clarity about who is responsible for policing IDCs and it appears not all complaints have been investigated fully. Our office is working with the NSW Ombudsman’s office to highlight the need for a resolution of this issue and to press for the finalisation of a memorandum of understanding between DIAC, the NSW Police and the AFP.

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Own motion investigations

In 2007–08 the Ombudsman published three own motion investigation reports about DIAC.

In December 2007 the Ombudsman released an investigation report Department of Immigration and Citizenship: Notification of reasons for decisions and review rights for unsuccessful visa applications (Report No 15/2007). The Ombudsman found that DIAC’s notification of adverse decisions was not well coordinated or consistent, with many notification letters falling short of best practice standards.

The report recommended DIAC introduce quality assurance measures and consistent letter templates, use plain English in letters, improve the description of review rights and adopt minimum standards for explaining the reasons for decisions. DIAC accepted the recommendations.

In April 2008 the Ombudsman published a report Department of Immigration and Citizenship: Administration of detention debt waiver and write-off (Report No 2/2008). Under the Migration Act a non-citizen who is detained is liable to pay the Australian Government the costs of their detention. TheOmbudsman found there was scope for improvement in DIAC’s timeliness and prioritisation in processing cases, the consistency and reasonableness of decisions on debt waiver and write-off, andin recordkeeping and communication with clients.

The report recommended DIAC should provide clear and consistent information about a person’s options and regular updates on the amount of their debt while in detention. DIAC accepted the recommendations.

The third report, released in June 2008, was Department of Immigration and Citizenship: Timeliness of decision making under the Freedom of Information Act 1982 (Report No 6/2008). The office had been monitoring DIAC’s FOI administration since 2005 and identified a growing problem in DIAC not meeting the statutory timeframes for processing FOI requests.

The report recommended DIAC conduct a wide-ranging review of its FOI and information disclosure processes, having regard to the specific recommendations in the report. DIAC accepted the recommendations. DIAC has made significant improvements in FOI processing and the provision of information to its clients. It reduced its backlog of FOI cases substantially by the end of 2007–08.

We are conducting own motion investigations into DIAC’s Safeguards System and into DIAC’s and other agencies’ use of interpreters.

The Safeguards System is used to prompt DIAC decision makers to make specific checks on a visa application or consider certain information that may be relevant to the visa application (for example, about fraud trends in the applicant’s country of residence). The investigation is examining whether the system is being used appropriately and whether there are checksand balances in place to ensure transparency and accountability. The report of this investigation will be released early in2008–09.

The office also commenced an investigation into the way agencies use interpreters to communicate with clients, focusing on DIAC, Centrelink, the AFP and DEEWR. This investigation follows a number of complaints regarding lack of access to an interpreter or instances where communication problems led to poor administrative decision making. The investigation is examining agency policies and training on the use of interpreters, use of bilingual staff, and arrangements for handling complaints about the use of interpreters. We will report on the investigation in 2008–09.

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Monitoring and inspection of DIAC’sdetention, compliance and removalactivities

During 2007–08 we implemented a full program of monitoring and inspection of immigration detention and DIAC’s compliance and removal activities. This has enabled us to monitor key systemic issues and provide feedback to DIAC.

Detention

Our program of inspection visits to IDCs and other places of immigration detention aims to monitor the conditions within detention centres and the services provided to detainees, and to assess whether those services comply with agreed Immigration Detention Standards. We undertake visits on an ‘unannounced’ basis, advising staff of DIAC and Global Solutions Limited (GSL—the main detention service provider) of the visits approximately 30 minutes in advance.

During the year we conducted inspections at all IDCs. We provided DIAC with feedback on a range of issues, including:

• documentation and review of decisions to transfer people to the management unit and the adequacy of services provided to people in the unit
• conditions in observation rooms in Stage1 of Villawood IDC
• management of the mess in Stage 2 of Villawood IDC
• administration of the Purchasing Allowance Scheme
• access to activities while in detention
• administration of property records
• the quality of incident reports and adequacy of action taken to respond to allegations of assault.

The visits enable us to focus on specific issues which arise in complaints. For example, loss of personal property following a transfer between IDCs or within an IDC is a common cause of complaint from people in detention. The lack of accurate and accessible records often means resolution of such complaints takes a long time, and in some cases the matter cannot be resolved. An example of the problem is shown in the case study Gone missing.

Ombudsman staff inspected property records at Villawood IDC in a February 2008 visit. We advised DIAC that the records were difficult to verify given there was no consolidated record for an individual. We noted that in the cases examined, the property record had not been updated on the most recent transfer. We suggested DIAC consider auditing individual property records, particularly for people who have been in detention for some time and have not been relocated, as they may have acquired or disposed of a considerable quantity of property over that period.

Compliance and removals

The emphasis of our compliance monitoring has been on DIAC’s location and identification of unlawful non-citizens and those who have breached their visa conditions. Our removals inspection work has focused on DIAC’s use and accuracy of information when deciding to remove unlawful non-citizens from Australia.

During the year Ombudsman staff conducted extensive file reviews and onsite inspections at DIAC’s state offices. This allowed us to identify issues and monitor the practical application of policy. Our staff also visited a number of Australian international airports to observe DIAC officers liaising with incoming passengers and interviewing passengers suspected of breaching their visa conditions.

‘… Ombudsman staff conducted extensive file reviews and onsite inspections …’

Through this monitoring we examine whether decision makers adhere to legislative requirements as well as to DIACpolicy and procedures, and make recommendations on improvements. We also comment on any gaps in policy guidance.

It is evident from the compliance and removals monitoring that these areas of immigration administration have improved significantly, particularly in areas such as the recording of decisions, instructions to staff, the level of review and quality assurance, and training.

However, we identified some areas requiring further attention, such as:

• ensuring nationally consistent practices in the compliance area
• better compliance with policy and procedural instructions in removals and search warrant practices
• development of policies and procedures on the use of search warrants during compliance activity
• changes to the policy surrounding consent visits to businesses and residences
• policy gaps in compliance-related practices surrounding joint operations with other agencies.

DIAC has amended and developed policies and training modules in response to some of this feedback.

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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. Section486N of the Act requires DIAC to provide the Ombudsman with a report within 21 days of a person having been in detention for two years. If the person remains in detention DIAC must provide new reports to the Ombudsman at six-monthly intervals.

The Ombudsman provides the Minister withan assessment of the appropriateness of the person’s detention arrangements under s486O.

We have observed a number of themes through the two-year detention review function, including:

• an increase in mental health issues as time in detention increases
• concerns that some mentally ill detainees may not have the capacity to conduct their own affairs and make rational decisions regarding their immigration future
• the boredom associated with detention, including for those in community detention, which has a negative impact on their quality of life
• inadequate facilities for people requiring suicide and self-harm observations
• the changing nature of detention, with greater use of residential housing and community detention arrangements enabling people to be released from IDCs.

Table 7.2 shows the number of s486N reports the Ombudsman received from DIAC in 2007–08 (158). This is a significant reduction from the 222 reports received in 2006–07. The table also shows the number of s486O reports the Ombudsman provided to the Minister. The Minister tabled 237 reports in Parliament.

TABLE 7.2 Reports under s486N and s486O of the Migration Act, 2007–08

In March 2008 the Minister for Immigration and Citizenship announced a major review of the cases of people who had been detained for more than two years. The review involved 72 people.

The Ombudsman met with the Minister to discuss the review. A task force, which included representation from DIAC and the Ombudsman’s office, was set up to coordinate the assessments of detainees. The task force provided the Minister with background information including each person’s immigration history, health status and family and community links in Australia.

‘The Ombudsman met with the Minister to discuss the review.’

The Minister announced the review outcome in May 2008. Thirty-one people were granted visas or considered for visa grants subject to the completion of public interest criteria checks. The Minister decided to move some of the people awaiting their checks to lower security detention arrangements such as community detention. The Minister also decided 24 people would be removed from Australia and 17 people, who were subject to ongoing proceedings, were to remain in detention pending resolution of their immigration status.

The Ombudsman was pleased that key areas within DIAC were directly involved in the assessments of the individual cases. The more focused attention on these long-term detention cases is encouraging. It should reduce the time people spend in immigration detention and avoid, where possible, long-term detention.

The case studies Sole carer, Stateless and Deterioration show some of the facets of our work in this area.

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Input into departmental processes andprocedures

DIAC regularly invites the Ombudsman’s office to comment on draft departmental policy. We have provided comments in areas such as s501 visa cancellation policy and procedures, policy relating to the use of force in compliance and removals activity, guidelines on non-warrant compliance activity, removals policy and GSL’s processing procedures relating to detention staff and visitors.

The office continues to be an observer on DIAC’s Detention Health Advisory Group, which provides a forum to comment on detention health issues and policies. DrVivienne Thom, a Deputy Ombudsman, isa member of DIAC’s Values and StandardsCommittee.

Ombudsman representatives attend DIAC consultative forums including:

• Community Consultative Group meetings—detention-specific consultation sessions held in Adelaide, Brisbane, Darwin, Melbourne, Perth and Sydney with community representatives
• as observers at various detainee liaison meetings at Maribyrnong IDC, Perth IDC and Villawood IDC
• Client Reference Group meetings held in each capital city, where a broad range of issues relating to immigration administration is discussed.

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Systemic issues

We have worked with DIAC to address many of the systemic issues identified through our complaint investigations, inspections and monitoring work, and assessment of long-term detention cases. We are also working more closely with DIAC to follow up on the implementation of recommendations stemming from Ombudsman investigations into systemic matters.

Two systemic issues we are pursuing aremedical entitlements for particular visaholders and issues surrounding securitybonds.

The rules governing which DIAC clients can access Medicare benefits are complex as they involve interactions between the Migration Act, the Health Insurance Act 1973 (Cth), treaties with other nations covering reciprocal health care and tax issues such as the Medicare Levy Exemption Certificate. We have received a number of complaints illustrating confusion about the rules and difficulties in providing proof of immigration status that is acceptable to Medicare Australia staff. We are discussing these issues with DIAC and Medicare Australia.

Section269 of the Migration Act gives authorised officers a broad discretionary power to request a security bond where additional assurance is required that a visa holder will comply with the conditions of their visa. Complaints to the office raise concerns about delays in DIAC refunding security bonds and failing to keep clients informed during the processing of the refund. There is also wide discretion in setting the amount of a security bond. We are examining this issue to ensure the processes in place are open and transparent and DIAC is dealing with clients in a fair and reasonable manner.

Indigenous isues menu: Reaching Indigenous people | Issues arising from the NTER | Outlook

In the last two annual reports we reported on our efforts to provide a better service to Aboriginal and Torres Strait Islander people, communities and organisations. A working group in the office developed strategies to refine our consultation processes, undertake own motion investigations in areas of specific concern to Indigenous people and communities, and develop partnerships with existing contact networks in Indigenous communities. We started implementing these strategies in 2007.

Following the announcement by the former Australian Government of the Northern Territory Emergency Response (NTER), we decided we could deal more effectively with Indigenous issues by establishing a dedicated Indigenous Unit to provide assistance to all staff in the office in dealing with complaints from Indigenous people and communities. We also increased our outreach activity and complaint-handling capacity substantially.

The Indigenous Unit was established in August 2007 and at the end of 2007–08 had a staff of seven. The unit has three key roles:

• handling all complaints related to the NTER measures, with a particular focus on the 73 prescribed communities and town camps
• providing feedback to agencies on systemic issues that are identified from complaints and working with agencies to improve public administration
• providing complaint-handling training for agencies, focused specifically on issues arising from NTER-affected areas—this helps agencies and service providers to put in place appropriate mechanisms to deal with complaints.

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Reaching Indigenous people

Indigenous people have been a key target group in our outreach program since 2004. The Indigenous Unit has proved particularly successful in reaching Indigenous audiences. The office has received a substantial increase in the number of complaints, related to both NTER and non-NTER matters, from Indigenous people, communities and organisations.

The unit serves as a first point of contact forIndigenous complainants who do not feel entirely comfortable using a non-Indigenous-specific service, and investigates complaints related to the NTER. It also provides advice to other teams in the office on the best way to approach complaints from Indigenous people. Some of the measures taken to assist Indigenous complainants include the following.

• We expanded our presence in the NT by establishing an office in Alice Springs, and making our Darwin office part of the Indigenous Unit. The Alice Springs office has been staffed by an Indigenous officer who speaks several of the local languages and is aware of the broader issues affecting the local communities. This greatly assisted outreach in Alice Springs and surrounding areas.
• Repeated outreach visits to prescribed communities and town camps have been particularly important to instil trust. The primary objective of the visits is to increase Indigenous awareness of, and access to, the Ombudsman’s services. During these visits, staff speak with community members to provide information and take complaints. The unit has also met with Australian Government officers working in these communities to discuss the role of the office and to offer assistance in dealing with complaints.
• We established a 1-800 number to provide ready access to our office and to reduce the financial burden associated with costly telephone calls.
• Appropriate outreach material has been designed, which includes printed materials with Indigenous designs and original Indigenous artwork. We distributed flyers, posters and information sheets targeted specifically at informing Indigenous people of the role of our office. Our outreach materials include Ombudsman pens, calico bags and football-shaped stress balls to appeal to younger people (and their parents).

Working with Indigenous complainants has required the unit to develop new work practices and models to ensure that we respond in culturally appropriate ways. Many Indigenous complainants living in the prescribed areas have limited access to mail services, telephones, the internet and fax machines. Our experience has shown that face-to-face interaction is the most effective method of communication.

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Issues arising from the NTER

Income management

A major feature of the NTER measures is income management of Centrelink payments to eligible customers living in the prescribed communities. Half of all Centrelink income support payments and family tax benefits are subject to income management, while the remainder is paid to the individual in the usual manner. This measure was introduced as a means of ensuring that half of Centrelink payments are put towards basic essentials such as food, rent, utilities, clothing and footwear, and to curb the amount spent on alcohol and gambling.

The amount of income managed is 50% of a person’s gross entitlement less any compulsory deductions. Compulsory deductions include child support payments, debts to the Commonwealth such as Centrelink overpayment debts, and recovery of advances of lump sums.

In order to access the quarantined funds, a person must, in conjunction with Centrelink, determine their priority needs (for example food, clothing, shelter and the school nutrition program) and which stores or third party organisations will receive the quarantined payment. The money is transferred to the store through direct funds transfer from Centrelink, or is issued in the form of store value cards for the larger stores such as Coles, Woolworths and K-Mart.

While our office has heard positive feedback from many people on income management, this measure continues to be the area about which we receive most complaints. Issues that have been raised in complaints to the office include:

• communication with clients about how income management works
• issues associated with store cards, suchas security, theft/barter, misuse, proof of identity, and ease of access to customer service centres for the elderly and disabled
• the ability of nominees to access income-managed funds on behalf of elderly or disabled relatives
• the availability of material and information in specific Indigenous languages
• the time taken for income-managed funds to be transferred from Centrelink to service providers.

Cross-agency issues

The NTER measures involve the simultaneous implementation of numerous policy initiatives by many Australian and NT government departments and agencies. The complex multi-agency, multi-jurisdictional measures present a particular challenge for our office in investigating complaints about the NTER. Lines of responsibility and accountability for a particular policy and/or service delivery can, at times, be blurred and span several agencies. This requires us to identify which facet of a problem belongs to which agency. Often this involves identifying which aspects of a problem arise from the policy settings and which from the implementation of that policy—the responsibilities for each may lie with differentagencies.

Another challenge for the office is that while agencies like Centrelink understand the role of the Ombudsman and have longstanding and effective relationships with us, many of the agency officers involved in the NTER are less familiar with our role. This has caused delays in responses to our enquiries. While this problem has not been insurmountable, ithas required our staff to take on an educational role before they are able to obtain the information required to resolve acomplaint.

Community Development Employment Projects (CDEP) changes

Prior to the Government’s announcement on 10December 2007 of a moratorium on the removal of the CDEP program, we received numerous complaints about the changes to CDEP. Many of the complaints were from prescribed communities that had relied on CDEP participants for delivery of essential municipal services and tourism ventures such as art centres.

We have also received complaints about the implementation of employment preparation programs and the ‘work for the dole’ schemes. Complaints identified the lack of structured programs in some communities and the unclear supervision arrangements of the work for the dole participants. For example, we received a complaint from a community where the work for the dole program was the refurbishment of a house in the community that would be used as a women’s centre from which the school nutrition program would be run. Three community based organisations were each funded for different facets of the program. Work had to be suspended due to confusion as to who had responsibility for which particular aspect of the refurbishment. Through our involvement, the organisations resolved their differences and work on the centre is now near completion.

Cultural awareness

We have received complaints alleging a lack of cultural sensitivity by Australian Government agency staff working in the NTER. Whenever a situation involves cultural interaction, issues of cultural awareness will arise. While most agency officers working in the NTER have received cultural awareness training, there have been instances where officers have used individual practices without considering whether or not these may breach privacy and confidentiality principles, or unnecessarily transgress cultural sensitivities.

The case study Public address shows the type of issues that can arise.

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Outlook

We will continue our program of visits and outreach activities in 2008–09. We are also working on having all our relevant information produced in the most widely used Indigenous languages.

With the establishment of the Indigenous Unit bedded down and complaint work progressing, we plan to shift more attention to addressing systemic issues.

Law enforcement menu: Australian Federal Police | Australian Crime Commission | Australian Commission for Law Enforcement Integrity

The Commonwealth Ombudsman has a comprehensive role in oversight of Australian Government law enforcement agencies. The Ombudsman deals with complaints made against the Australian Federal Police (AFP) and the Australian Crime Commission (ACC), and reviews the complaint-handling arrangements of the AFP. This section describes the Ombudsman’s office’s work in relation to complaint handling. The Ombudsman also has statutory responsibility to inspect the records of law enforcement agencies and other agencies to ensure compliance with legislative requirements applying to selected law enforcement and regulatory activities. This work is described in the later section Monitoring and inspections.

A complete list of the relevant legislation is contained in Table 7.3.

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

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Australian Federal Police

Most of the Ombudsman’s law enforcement work in 2007–08 related to dealing with complaints made by members of the public about the actions of members of the AFP.

Before 30December 2006 complaints about the AFP were handled by the AFP and oversighted by the Ombudsman under the Complaints (Australian Federal Police) Act 1981 (Cth) (Complaints Act). There are still a number of unresolved cases in this category.

Complaints about the AFP made since 30December 2006 are dealt with by the AFP under the Australian Federal Police Act 1979 (Cth) (AFP Act) and may also be investigated by the Ombudsman under the Ombudsman Act 1976 (Cth). The Ombudsman does not oversight the handling of every complaint, but is notifiedby the AFP of complaints it receiveswhich are categorised as serious conduct issues (category 3 issues). The Ombudsman also periodically reviews the AFP’s complaint handling. Hence the Ombudsman now investigates AFP actions on the same basis as the actions of other agencies are investigated.

Review of complaint handling

As the Law Enforcement Ombudsman, the Ombudsman has a responsibility under s40XA of the AFP Act to review the administration of the AFP’s handling of complaints, through inspection of AFP records. The Ombudsman reports to the Australian Parliament on reviews conducted during the year, commenting 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 relevant minister.

The office completed the first review of the AFP’s administration of complaint handling under Part V of the AFP Act in October 2007 and the second review in June 2008. The Ombudsman will report to Parliament on the outcome of these reviews in early 2008–09.

Complaints received

The AFP notified us of nine complaints made before 30December 2006 for oversight by the Ombudsman. These complaints were dealt with under Complaints Act procedures.

During 2007–08 we received a total of 353 approaches and complaints, raising 394 separate issues, about the AFP. The complaints related to the work of the AFP innational and international operations, as well as the AFP’s community policing function in the ACT.

The most common issues raised included:

• inadequate advice and service
• inappropriate behaviour and harassment
• failure to act and inadequate investigation
• serious misconduct, including use offorce.

Nearly half (48%) of the issues raised in complaints were about AFP members actingin their ACT community policing role. Our work in this area is described in more detail in the ACT Ombudsman Annual Report2007–2008, available at www.ombudsman.act.gov.au.

Complaints finalised under the ComplaintsAct

We completed the oversight of 126 cases under the Complaints Act, containing 193 complaint issues. This included the nine Complaints Act cases received for oversight during the year.

Of the 193 issues oversighted, 69 had been referred to the AFP’s workplace resolution or conciliation process. This process allows members of the public to provide feedback about their interaction with police; provides AFP members with the opportunity to clarify misunderstandings; and facilitates a more timely and flexible response to complaint issues than does formal investigation.

Conciliation was successful in 32 of these cases, and two were withdrawn. The AFP forwarded reports to the Ombudsman for consideration in relation to the remaining 35 issues where the complainant was not satisfied with the AFP’s attempts to conciliate the matter. We questioned the appropriateness of conciliation in some cases where we considered there were issues that warranted investigation—for example where excessive use of force or misuse of authority was alleged—but generally accepted the outcomes reached bythe AFP.

We decided that investigation was not warranted for 19 issues after considering the AFP’s initial evaluation of the complaint.

Eighty-five complaint issues, including 15 issues where the Ombudsman requested investigation or further investigation, were investigated by the AFP and reviewed by the Ombudsman’s office. Of these issues, the Ombudsman accepted the AFP’s findings in the majority of cases. However, there were a number of matters where we did not accept the AFP’s findings. The AFP’s approach to one matter which dealt with allegations of inappropriate behaviour by an AFP officer was of particular concern, as described in the case study Inappropriate relationship. This case emphasised the importance of the AFP judging the behaviour of its members by appropriate community standards.

A similar issue about appropriate standards arose in a complaint finalised just after the end of 2007–08, as shown in the case study False statements.

Of the other issues finalised during 2007–08, the AFP agreed with the office’s recommendations for eight issues investigated, and disagreed on another eight issues investigated. We also completed one joint investigation during the year and the findings were agreed by the AFP and the Ombudsman.

The AFP has now provided investigation reports for all outstanding cases under the Complaints Act not involving criminal prosecution. These are being considered by the Ombudsman in accordance with Complaints Act procedures.

Complaints finalised under the OmbudsmanAct

We finalised 330 approaches and complaints containing 363 issues under the Ombudsman Act. Of these, we advised the complainant to take up the matter with the AFP in the first instance in 203 cases, covering 236 issues. This is the policy that we take with other agencies covered under the Ombudsman Act—that in general a complainant should take up their concerns with the relevant agency before we will investigate. We referredcomplainants to other agencies and oversight bodies for a small number of complaints and treated some as information enquiries. We investigated 18 issues, including six relatingto FOI requests. In two cases this resulted in a better outcome for the complainant and more appropriate administrative action from the AFP.

The median time for finalising all complaints about the AFP under the Ombudsman Act was two days, reflecting the large number ofapproaches able to be dealt with expeditiously by phone. Overall, 87% of all AFP complaints under the Ombudsman Act were finalised within three months of receipt and 94% were finalised within six months.

Own motion investigations

A joint AFP/Ombudsman review of ACT Policing’s Watchhouse operations was released in June 2007. The report is available on our website at www.ombudsman.gov.au.

The AFP accepted all the recommendations in the report, with one being a matter for consideration by the ACT Government. In November 2007 the joint review team commenced a survey of the extent to which the recommendations had been implemented. The team completed its survey in June 2008 and was preparing a submission for presentation to the Steering Committee set up under the original review arrangements. It is expected that the follow-up of the recommendations will be completed in the first half of 2008–09.

We have been undertaking an own motion investigation to review the exercise of responsibilities by ACT Policing under the Intoxicated People (Care and Protection) Act1994 (ACT). This followed an investigation we conducted into the matter in 2001. The report of the investigation is to be released in early 2008–09.

Special investigations

Ombudsman staff finalised two special investigations under the Complaints Act. One of the special investigations examined whether AFP members had reasonable grounds to arrest a person whom they believed had committed an offence. The investigation found the AFP members had reasonable grounds to believe that proceeding by way of summons against the person would not ensure the person’s appearance before a court in relation to the alleged offence. We therefore considered the person’s arrest was in accordance with the grounds for arrest without warrant as set out in the Crimes Act 1914 (Cth).

The second special investigation concerned the interview techniques used by some AFP Professional Standards officers when investigating conduct issues. The AFP and the Ombudsman’s office conducted this investigation jointly and agreed on the recommendations. The recommendations included that certain officers be reminded of their obligations when conducting interviews, and that the distinction between administrative and disciplinary investigations be clarified and explained to AFP members. The AFP Commissioner advised the Ombudsman in January 2008 that all the recommendations had been implemented and had been notified to the Minister for Home Affairs.

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Australian Crime Commission

Complaints about the ACC are managed under the Ombudsman Act. The ACC is not required to notify the Ombudsman’s office of complaints it receives directly. However, the ACC notifies the office about significant matters, allowing us to consider whether further investigation by Ombudsman staff iswarranted.

In 2007–08, we received four approaches and complaints about the ACC, compared tonine in 2006–07. We finalised five approaches and complaints and one remained open at the end of the reportingperiod.

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Australian Commission for Law EnforcementIntegrity

The Ombudsman can refer allegations of corruption against law enforcement officers to the Integrity Commissioner. In 2007–08 the office referred three such allegations to the Commissioner.

Postal industry menu: PIO complaints overview | Australia Post complaints overview

The Commonwealth Ombudsman took on the role of Postal Industry Ombudsman (PIO) in 2006, and 2007–08 marked the first full year of PIO operation.

Before the establishment of the PIO, the Commonwealth Ombudsman investigated complaints about Australia Post. The addition of the PIO role extended the Ombudsman’s jurisdiction to matters relating to the provision of postal or similar services by private postal operators (PPOs) who voluntarily join the scheme. At 30June 2008 the members of the scheme were:

• Australia Post (mandatory member)
• 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
• Australian Air Express Pty Ltd.

Most complaints received by the PIO are about Australia Post, which has its corporateheadquarters in Melbourne. Thesignificance of Australia Post in the work of the PIO was recognised in July 2007, when the Ombudsman’s Postal Industry specialist team transferred from Canberra toMelbourne.

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PIO complaints OVERVIEW

In 2007–08 the PIO received 1,900 approaches and complaints. Table 7.4 shows the number of approaches and complaints received, and investigations commenced and completed.

The PIO can only investigate complaints relating to the provision of postal or similarservices. Complaints about AustraliaPost that do not relate to mail—forexample, banking or money transfer services, or non-mail-related sales—are handled under the Commonwealth Ombudsman jurisdiction.

The PIO can decide to deal with a complaint as Commonwealth Ombudsman if this is considered more appropriate. Because we receive complaints for both PIO and Commonwealth Ombudsman jurisdictions through a central point of contact, there is usually no need for a formal decision to be made about changing jurisdiction. Complaints are assigned to the most appropriate jurisdiction.

In 2007–08 one complaint addressed specifically to the PIO was dealt with insteadunder the Commonwealth Ombudsman jurisdiction. The complaint related to Australia Post’s performance of anagreement to deliver unaddressed publicity material, which we consider is not a ‘postal or similar service’. We notified the complainant formally how the complaint wasbeing handled.

TABLE 7.4 Approaches and complaints received, and investigations, by the PIO, 2007–08

The PIO commenced two own motion investigations in 2007–08, both of which are ongoing. There were no occasions onwhich the PIO made a requirement of a person to provide information or documents under s 9 of the Ombudsman Act1976.

We receive only a small number of approaches and complaints about private postal operators. This may reflect the competitive commercial environment of the courier and bulk mail industries, which provides impetus for the rapid resolution of customer complaints on a commercial basis. We will look further at this issue in 2008–09, to identify whether there are other reasons for the low number of complaints received.

Activities

During 2007–08 our office worked on raising awareness of the PIO in and beyond the postal industry. Ombudsman staff met with representatives of Australia’s major courier companies, and an existing campaign of contacting all state, territory and federal parliamentarians was completed. The Ombudsman gave a presentation to the annual Post Office Agents Association Limited conference in March 2008 about thework of the PIO.

‘…our office worked on raising awareness of the PIO …’

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Australia Post complaints OVERVIEW

During the year the office received a totalof 2,083 approaches and complaints about Australia Post, of which 1,896 were PIO complaints and 187 (9%) were non-PIO complaints. Figure 7.7 shows the trend in approaches and complaints about Australia Post received over the period 2003–04 to 2007–08, covering both PIO jurisdiction (from 2006–07) and Commonwealth Ombudsman jurisdiction.

FIGURE 7.7 Australia Post approach and complaint trends, 2003-04 to 2007-08

Mail delivery

In December 2007 the Ombudsman published a report under s19V of the Ombudsman Act into Australia Post’s investigation of a complaint about a street mail delivery contractor—Australia Post: investigation of a complaint about a postal delivery officer (Report No 17/2007). The report identified some weaknesses in Australia Post’s investigation of the complaint that, amongst other things, hadled to an unwarranted breach of the complainant’s privacy.

The report made two recommendations—that Australia Post should:

• review its complaint-handling systems with a view to providing clearer guidelineson assessment and management of complaints, and establishing a centralised complaint-management system accessible to all complaint-handling officers
• ensure that guidelines are available to staff on maintaining the confidentiality of complainants.

Australia Post accepted these recommendations and advised that its national skilling manager would be asked toidentify any relevant lessons from the complaint and how these might be appliedto the work of its Customer ContactCentres.

One important way in which we can add value is to look beyond individual complaintsand identify broader systemic issues that need to be addressed. An example of how we did this for a whole community is described in the case study Life on the border.

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Damage caused to inbound international postal items

In April 2008 the Ombudsman released a report on the responsibility of border agencies when postal items are damaged at inbound international mail processing facilities in Australia. The report, Damage caused to inbound international postal items: the roles of Australia Post, Australian Customs Service, and Australian Quarantine and Inspection Service (Report No 4/2008), looked at the responsibilities of the three agencies involved in the processing of inbound international mail.

Although we receive only a small number of complaints about this issue, a recurring theme was uncertainty about which agency was responsible for dealing with complaints about damage to inbound postal items. With the volume of international mail increasing each year, and a growing number of complaints about international mail, we identified this as an area which would become steadily more important over time.

The report highlighted areas in which the agencies could work collaboratively to facilitate complaint handling, and also identified some process improvements thatmay help reduce the incidence of damage. The agencies responded positively to the recommendations.

Delays in processing inbound international mail

For some time we have received complaints about delays in clearing inbound international mail through border screening processes, particularly at peak periods such as Christmas. Analysis of these complaints indicated that the most significant single cause of delay arose in the screening of items by the Australian Quarantine and Inspection Service (AQIS).

Our investigation showed that the issue was primarily one of capacity in AQIS’ screening processes. AQIS has addressed the issue by obtaining extra funding and recruiting staff to ease capacity constraints. Backlogs of mail awaiting screening are now at manageable levels. We will continue to monitor developments in this area.

Polling method

Each year we receive complaints from residents who wish to have a mail delivery service extended to their street or town. Australia Post uses a polling method to ascertain whether there is sufficient community support to warrant extending thecurrent mail delivery route.

Complainants have questioned the method used for the polling process. We are conducting an own motion investigation intothis issue, and are reviewing the methodology adopted by Australia Post.

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Use of notification cards

When a parcel cannot be delivered, AustraliaPost leaves a card to notify the mailaddressee that the item can be collected at a designated post office or facility. During 2007–08 we received an increased number of complaints relating to articles which were, or should have been, ‘carded’. Complaints were made that items were missing after being left at the mail address instead of being carded, that items were carded with no attempt at delivery, or someone other than the addressee had collected a carded item.

We are conducting an own motion investigation into issues surrounding the carding process, and expect to report on thisin 2008–09.

Customer Contact Centres

The handling of matters by Customer Contact Centres (CCCs) continued to be a source of complaints in 2007–08. Complainants raised concerns about the responsiveness of Australia Post’s complaint-handling staff, the quality of information provided, and the provision of follow-up information. These issues featured in approximately 6% of complaints received and 11% of those investigated.

CCCs are run on a state basis and in practice there is no national standard for complaint handling. Staff turnover can also be an issue for CCCs, sometimes resulting in inconsistent information being provided to callers on the same matter. Another cause of frustration was when CCC staff committed to calling the complainant with an update and failed to do so.

In 2007–08 Ombudsman staff met with CCC representatives from each state to discuss issues of mutual concern. We are confident that our good working relationship with Australia Post CCCs means that feedback from our complaint-handling experience is taken into consideration by CCC managers in their efforts to improve the service they provide to the public.

Redirection service

Issues relating to the redirection or holding of mail form a significant proportion of complaints received, comprising 7% of complaints received and 12% of investigated complaints in 2007–08. This proportion is similar to that recorded last year. Issues ranged from redirection orders not being activated, to redirections repeatedly failing. In most cases the complainants had attempted to have Australia Post resolve the problems, without success.

A failure in the redirection service can disadvantage members of the public who rely on it to forward bills, official notices and personal items. Often, a failure of the service will leave a customer uncertain about whether mail has been returned to sender oreven lost.

In the coming year we will consider furtherwhether the complaints we receive indicate systemic problems with the redirection service.

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‘To the door’ delivery

From time to time we receive complaints about Australia Post declining requests from residents to have their mail delivered ‘to the door’. These requests usually are for a change in delivery to individual residences in retirement villages or other enclosed estate properties, rather than to a bank of mail boxes at the entrance to, or placed around, the development.

One particular complaint highlighted an ambiguity in the guidelines applied by Australia Post for eligibility for delivery to individual units in private roads. Our office was able to work with Australia Post to clarify its criteria, as shown in the case study Where the streets have no name.

Lost items

Complaints about items being lost in the post are a recurring theme in the Ombudsman’s work. Australia Post handles some 5.5 billion items per year, delivering to almost 10.5million delivery points around Australia. We recognise that it is unrealistic to expect no losses, given the volume involved. Nevertheless, loss of postal items can be a source of distress to senders and addressees, particularly when they have entrusted items to the postal service that may be of no great monetary value, but have sentimental or other significance.

Where information is available about the last known location of a lost item, we expect Australia Post to carry out a reasonable search of that location, and any likely onward destination, to establish whether the item can be found. This can sometimes be successful, as the case study Seek and ye shall find shows.

For mail items sent in the ordinary post, there may be insufficient information available about the likely whereabouts of an item to justify a search. There may come a time when customers have to accept that an item cannot be found, and their entitlement will be to such compensation as is provided for in Australia Post’s terms and conditions.

To minimise the possibility of loss, customers should ensure that items sent through the mail are correctly addressed. Where an item is of value, they should ask about the availability of insurance, and the advisability of using a service such as registered post, if they are concerned about the possibility of the item going missing.

Freedom of information menu: Complaints trends | Delay | Assisting a person make a request | Access to personnel records | Educating staff | FOI reform

The Commonwealth Ombudsman took on the role of Postal Industry Ombudsman (PIO) in 2006, and 2007–08 marked the first full year of PIO operation.

The purpose of the Freedom of Information Act 1982 (FOI Act) is to extend, as far as possible, the legal right of individuals to obtain access to documents held by Australian Government agencies. In addition, the Act enables individuals to seek amendment of records that contain inaccurate personal information.

The FOI Act expressly empowers the Ombudsman to investigate complaints about the actions of Australian Government agencies under the FOI Act (s57). The Act also requires agencies to inform applicants of their right to complain to the Ombudsman about FOI matters (s26).

The Ombudsman’s role under the FOI Act reflects the more general role of the office in promoting transparency and accountability in government administration.

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Complaint trends

In 2007–08 we received 206 approaches andcomplaints about FOI requests, with 165about access to personal documents, and 41 about access to general documents. The majority of complaints were about Centrelink (23%) and DIAC (21%). During the year we finalised 221 complaints aboutFOI.

The main issue raised by complainants continues to be delay in processing requests, which comprises about 34% of all complaints. Another 31% of complaints relate to the correctness of an agency’s primary decision.

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Delay

The FOI Act has strict timeframes for responding to requests for information. TheAct also provides for an extension of time in certain circumstances, such as where third party consultation is required, with notification to the applicant of the extension. We have noticed in some cases that agencies do not formally invoke the provisions in the Act for extending the timeframe, and simply breach the statutorytimeframes.

We acknowledge that agencies sometimes have difficulty in managing requests, for reasons that include limited resources, the complexity of a request or because a request involves making a decision on many individual documents, some of which may require consultation with third parties. While statutory timeframes should be adhered to, the frustration experienced by applicants with delay can be lessened by keeping them informed. Agencies should contact applicants when delays are expected. In many cases an applicant will be satisfied with an update and will wait without contacting our office.

In June 2008 the Ombudsman released a report Department of Immigration and Citizenship: timeliness of decision making under the Freedom of Information Act 1982 (Report No 6/2008). The investigation considered the systemic delays in FOI processing experienced by the department. Further details are provided in the section on Immigration in this chapter.

The issues discussed in the report have broader relevance to all Australian Government agencies. In particular, the reportnoted:

• FOI can impose complex demands on an agency and require a high level response
• FOI is a core business activity that will only be undertaken adequately if it receives appropriate managerial attention and resourcing
• commitment to high quality FOI administration requires cultural as well asmanagerial devotion.

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Assisting a person make a request

Section 15(3) of the FOI Act provides that an agency must take reasonable steps to assist a person to make a valid request. In some complaints we investigated, agencies did not meet this obligation. For example, agencies did not assist an applicant when an FOI request was invalid, or the agency suggested that a request be handled informally. While handling a request for documents on an informal basis can be helpful and efficient, the FOI Act provides applicants with enforceable rights, such as the right to internal review. The Act also obliges an agency to meet timeframes and provide reasons for decisions.

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Access to personnel records

Section15A of the Act allows an agency to establish procedures for providing current or former employees with access to their personnel records. An employee wishing to obtain access to personnel records must use these established procedures in the first instance, rather than the other provisions of the FOI Act.

A number of cases have demonstrated that the application of s15A can be helpful when used correctly, and problematic when a person has expectations that cannot be met by the definition of ‘personnel records’. For example, a person attempted to use s15A to access personnel records, but the agency said that s15A did not apply as the agency did not have established procedures for giving access under s15A. Nevertheless, the agency agreed to provide the documents informally and outside the FOI Act. The person was dissatisfied with the outcome of the informal disclosure of documents as the agency did not provide the sorts of documents the person believed should be contained on their personnel records. As the decision had not been made under the FOI Act, the person had no formal right of review. The person then made a formal request under s15 of the FOI Act.

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Educating staff

All agency officers who make decisions under the FOI Act should be educated properly about the agency’s obligations under the Act. It is apparent that in some agencies, staff in line areas without appropriate training make FOI decisions on documents and advise FOI or legal staff who coordinate the final response. While resourcing may make it difficult for every agency to have dedicated FOI staff, it is important that all staff dealing with FOI requests are aware of the requirements of the Act. Ongoing training may be helpful in achieving this.

It is important that staff are properly trained in the FOI timeframes. There are few options open to an applicant to combat delay, other than to complain to the Ombudsman or treat the delay as a deemed refusal.

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FOI reform

The Australian Government has signalled its interest in reforming FOI, and the Ombudsman’s office has been involved in discussions surrounding this issue. The office’s years of experience in dealing with matters arising under the FOI Act suggest there is a need for a body to take on a leadership role in relation to the Act. In the early days of FOI, the Attorney-General’s Department took on this role, but there is now a groundswell of support for an independent FOI Commissioner to perform the role. The Ombudsman has suggested to government that another option is to make the FOI Commissioner function a statutory role discharged by the Ombudsman.

‘It is important that staff are properly trained in the FOI timeframes.’

Some of the Commissioner’s functions could include advising government on FOI policy and administrative issues; investigating and resolving complaints about FOI; conducting other investigations and enquiries into FOI-related issues; and providing information, advice and assistance in respect of FOI requests.

The Ombudsman’s 2006 own motion reportScrutinising Government: administration of the Freedom of Information Act 1982 in Australian Government agencies (Report No 2/2006) covers many of the relevant issues. The Ombudsman also addressed these issues in a paper ‘Designing an effective FOI oversight body—Ombudsman or independent Commissioner?’ to the 5th International Conference of Information Commissioners in November 2007. The paper is available on our website (www.ombudsman.gov.au).

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

Expansion of Ombudsman’s monitoring andinspection role

The Ombudsman’s responsibility for inspecting the records of law enforcement and other enforcement agencies, and reporting on those inspections, continued to expand in 2007–08. Our role currently includesinspecting records related to:

• telecommunications intercepts by the AFP, the ACC and ACLEI
• access to stored communications by Commonwealth law enforcement agencies (AFP, ACC, ACLEI), other enforcement agencies (such as the Australian Customs Service) and state agencies including state law enforcement agencies
• use of surveillance devices by the AFP, the ACC and ACLEI, and by state and territory law enforcement agencies under Commonwealth legislation
• controlled (covert) operations undertaken bythe AFP, the ACC and ACLEI.

There was an increase in activity across all these regimes, with a commensurate increase in the number of records requiring inspection. During 2007–08 we carried out a total of 19 inspections.

Of particular note, changes made to the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act) in 2006, which permitted access to stored communications, required inspection of state law enforcement agencies for the first time. Indications at this stage are that the number of agencies utilising these provisions, and therefore the number of records to be inspected, will continue togrow.

‘There was an increase in … the numberof records requiring inspection.’

We also provided comments to the Attorney-General’s Department on the development and review of a bill proposed by the previous government to amend the Crimes Act 1914 (Cth) (the Crimes Act) in relation to controlled operations and the introduction of delayed notification search warrants.

Across all regimes, it was pleasing to note the attention given by agencies to improving compliance with the statutory requirements. The agencies continue to develop practices and procedures to assist their investigators in meeting their obligations. In addition, the agency teams that coordinate and manage the relevant recordkeeping have been proactive and willing to work with this office in their efforts to achieve and maintain a high level of compliance.

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Telecommunications interceptions

Under the TIA Act, the Ombudsman is required to inspect the records of the AFP, the ACC and ACLEI twice a year to ensure their records comply with the requirements of the Act. We provide a report on each inspection to the agency involved, and present an annual report to the Minister on the results of inspections carried out each financial year. We presented reports on the results of inspections of the AFP and the ACC undertaken in 2006–07 to the Attorney-General in September 2007.

We carried out two inspections each of AFP and ACC records in 2007–08. ACLEI did not have any relevant activity requiring inspection of records. The reports, which were provided to the agencies after each inspection, concluded that there was general compliancewith the detailed recordkeeping requirements of the TIA Act, although we made a number of recommendations after each inspection to improve recordkeeping. The recommendations were generally accepted by both the AFP and the ACC. They have since implemented a range of measures and initiatives to improve recordkeeping.

We also noted an increased utilisation of warrants under s46A of the TIA Act. These warrants are generally referred to as ‘named person warrants’ and permit interception of more than one telecommunications line if it can be reasonably shown that each line belongs to, or is used by, the person named in the warrant. The increase in these warrants appears to be a direct response by law enforcement agencies to the growing sophistication of criminals in this area andtheir attempts to avoid telephone interceptions by using multiple lines, many of which are not registered in their own name.

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Stored communications

Under Chapter 3 of the TIA Act, the Ombudsman is required to inspect the records of enforcement agencies in relation to their accessing of stored communications, to ensure the records comply with the relevant provisions of the Act. During the year we carried out seven inspections, two each of the AFP and ACC, and one each of the New South Wales Crime Commission, the New South Wales Police and the South Australia Police.

Given the relatively recent introduction of access to stored communications, it was not surprising that we generally found the agencies to be in the process of developing and ‘bedding-down’ procedures to ensure compliance and good administrative practice. It was also clear, particularly in inspections that occurred late in 2007–08, that much progress has been made.

Generally speaking, there was a satisfactory level of compliance by each agency, although discussions are ongoing with the AFP, the ACC and state law enforcement agencies to settle the integrity of their processes when obtaining stored communications from telecommunications carriers.

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Surveillance devices

The Surveillance Devices Act 2004 (Cth) (SD Act) came into operation in December 2004. In 2005 we commenced a program of two inspections each year of AFP and ACC records to coincide with the Ombudsman’s bi-annual requirement to report to the Attorney-General. We conducted two inspections each of the AFP and the ACC during 2007–08. ACLEI did not have any relevant activity requiring inspection of records. As the New South Wales Police had also utilised provisions within the SD Act, we inspected their records.

We provided reports to the Attorney-General in August 2007 and February 2008 for tabling in Parliament. These reports contained the results of inspections finalised during the preceding six-month period (January to June and July to December, respectively).

Overall, we assessed the agencies as being generally compliant with the Act. The areas where improvement could be made varied, but generally related to reporting and recordkeeping requirements. Perhaps the most consistent issue to arise from the inspections is the timeliness and accuracy of the reports that agencies are required to provide to the Attorney-General under s49 of the SD Act after each warrant or authorisation has ceased to be in force.

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Controlled operations

A controlled operation can be described broadly as a covert operation 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. The operation may 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, that records are maintained in accordance with Part1AB of the Crimes Act, and that information supplied by agencies about controlled operations in reports to the Minister and Ombudsman is adequate.

During the year we conducted three inspections of controlled operations records—two at the AFP and one at the ACC. The inspections concluded that both agencies are generally compliant with the legislative requirements and provide comprehensive information in their formal reports. We provided reports on the inspections to both agencies, and a briefing to the Parliamentary Joint Committee on the ACC as required under the Australian Crime Commission Act 2002 (Cth). An annual report for 2006–07 was presented to Parliament in February 2008.

Of note, the number of controlled operations records requiring our inspection in 2007–08 more than doubled from 2006–07 (from 27 to 64 records). It is pleasing that this increase has been accompanied by improved recordkeeping and compliance.