Chapter 3 | Performance report

Introduction

This chapter summarises the office's performance based on the outcomes and outputs structure set out in the Portfolio Budget Statements and Portfolio Additional Estimates Statements 2008–09. It is complemented by the following chapters to give a more comprehensive overview of the range of outcomes of our work:

• chapter 5 outlines the way in which we engage with stakeholders such as the community, agencies and other national and international partners in promoting good administration
• chapter 6 provides detailed assessments of our work with a number of agencies in handling complaints and carrying out inspections and other activities
• chapter 7 provides examples of the types of remedies we achieved for individuals and common themes emerging from our work where we have helped agencies improve their administrative procedures.

The Portfolio Budget Statements for 2008–09 defined one outcome for the office, supported by two outputs. These did not change during the year.

The outcome was administrative action by Australian Government agencies is fair and accountable. The supporting outputs were:

1. review of administrative action
2. review of statutory compliance in specified areas.

A financial overview for the office is provided in Chapter 4—Management and accountability. Further financial information is in Appendix 6—Agency resource statement and resources for outcomes and Appendix 7—Financial statements.

Performance at a glance

TABLE 3.1Summary of outcome and outputs performance, 2008–09

TABLE 3.1Summary of outcome and outputs performance, 2008–09

Funding from other sources

The office receives significant funding from other sources for two functions. These were described previously as purchaser–provider arrangements.

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

The office also receives funds from the Australian Agency for International Development (AusAID) to support the work of Ombudsmen and similar services in Indonesia, Papua New Guinea and the Pacific Islands more generally. The services provided by the Ombudsman contribute to the outcomes and outputs that are the responsibility of AusAID. Performance measures are contained in the AusAID Portfolio Budget Statements in the Foreign Affairs and Trade portfolio. A qualitative description of our work is provided in Chapter 5—Engagement.

Output 1—Review of administrative action

Our 2008–09 targets for this key performance indicator were:

• efficiently close all approaches and complaints in the face of growing complaint numbers
• improvement in the achievement of ourclient service standards for all incoming approaches to the office and management of all complaints.

Target: Efficiently close all approaches and complaints in the face of growing complaint numbers

Approaches and complaints received

In 2008–09 we received 45,719 approaches and complaints, 14% more than in 2007–08. Of these, 19,412 were about agencies within the Ombudsman's jurisdiction, compared to 19,621 the previous year (a 1% decrease). There was a 30% increase in the number of complaints about matters outside jurisdiction and requests for information. Figure 3.1 shows the trend in approaches and complaints over the last five years.

FIGURE 3.1Approach and complaint trends, 2004–05 to 2008–09

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

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

The number of complaints and approaches received electronically increased slightly. Over the past five years, the percentage of approaches received electronically has increased from 5% to 14% of the total, as Table 3.2 shows.

TABLE 3.2Approaches and complaints, by method received, 2004–05 to 2008–09

* Under previous legislation for dealing with complaints about the AFP, repealed at the end of 2006, the AFP notified the Ombudsman about complaints it received for Ombudsman staff to oversee the AFP's complaint–handling process.

Of the 19,412 approaches and complaints received within the Ombudsman's jurisdiction 15,368 (79%) were about six agencies—Australia Post; the Australian Taxation Office (ATO); Centrelink; the Child Support Agency (CSA); the Department of Education, Employment and Workplace Relations (DEEWR); and the Department of Immigration and Citizenship (DIAC).

Approaches and complaints finalised and investigated

We finalised 46,079 approaches and complaints. Of these approaches and complaints 19,719 were about agencies within the Ombudsman's jurisdiction (compared to 19,131 in 2007–08). We investigated 5,233 separate complaints compared to 4,700 in 2007–08 (27% of complaints finalised compared to 25% in 2007–08). Part of this increase was due to a change in the way we record investigations of complaints about the ATO. Of the complaints investigated, 12% required more substantial investigation, sometimes involving a high level of involvement by senior management and the use of formal powers (categories 4 and 5 in our five-category classification system). This figure is not directly comparable to previous years as we modified the definition of these categories during the year.

Some agency error or deficiency was identified in 10% of complaints investigated, compared to 8% last year. The significant increase from last year (368 cases to 533 cases) generally reflects revised internal procedures and training aimed at ensuring that we record all cases of administrative deficiency that we identify. In the past some agency errors have not been recorded as this can delay finalising a case, but this in turn denies agencies valuable feedback.

The most common type of deficiency noted was unreasonable delay (27% of the cases), followed by procedural deficiency (18%), flawed administrative process (16%), human error (13%) and inadequate advice, explanation or reasons (12%).

Causes of complaint

The majority (79%) of the complaint issues finalised were about the correctness, propriety or timeliness of agencies' decisions or actions. The remainder of the complaint issues involved other matters, such as the accuracy or completeness of advice given by agencies (12%), the application of policy or legislation to the complainant's circumstances (6%), or the conduct of officers in agencies (4%).

Complaints carried forward

The number of complaints carried forward (past 30 June 2009) was 1,484 compared to 1,772 at 30 June 2008. A backlog will always exist as some complaints are received late in the reporting period, and some complaints are complex and take longer to investigate. Nevertheless, it was pleasing to see the lower number open at the end of the year, given the increased number of complaints investigated in 2008–09.

Analysis of achievement

Overall we received 14% more approaches and complaints in 2008–09 than in the previous year. There was a slight decrease in the number of approaches and complaints about agencies within jurisdiction, offset by a substantial increase in the number of requests for information and complaints that were outside jurisdiction. The 11% increase in the number of complaints investigated partly reflects a change to the way we recorded investigation of complaints about the ATO. Nevertheless there was a real increase in the number of complaints investigated and a reduction in the number of cases open at the end of the year. Overall we met this target.

Target: Improvement in the achievement of our client service standards for all incoming approaches to the office and management of all complaints

Our service charter outlines the service that can be expected from the office, ways to provide feedback and steps that can be taken if standards are not met. As discussed in more detail later in this chapter, we periodically undertake major surveys of clients to help gauge our effectiveness and identify areas for improvement.

The most recent client survey was undertaken at the end of 2007–08. Two thousand people who had made a complaint about an agency that is in jurisdiction were surveyed. The analysis of the results informs the following discussion.

Timeliness

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

In 2008–09, we finalised 74% of all approaches and complaints within one month of receipt and 89% within three months. Figure 3.2 shows the time taken to finalise all approaches and complaints for the periods 2004–05 to 2008–09.

In 2008–09, 23% of investigated complaints were finalised in one month and 63% were finalised in three months. This compares with 25% and 69% respectively in 2007–08. Table 3.3 shows some of the variation in the time it takes to finalise investigated complaints about different agencies.

FIGURE 3.2Time taken to finalise all approaches and complaints, 2004–05 to 2008–09

Note: data from 2004–05 is not directly comparable because of changes in work practices.

TABLE 3.3Time to finalise investigated complaints for selected agencies, 2008–09 (2007–08)

Note: changes were made to the way we count investigated complaints for the ATO, so the ATO figures are not directly comparable with previous years.

It was disappointing to see a reduction in timeliness for closing all approaches and complaints, and for all investigated complaints. This was partly due to the increase in the number of complaints investigated, and to the increase in the overall number of approaches and complaints dealt with during the year.

The client survey indicated that 58% of those whose complaint we investigated felt it took less time than they had expected, or about the right time, to deal with their complaint, and another 8% had no view. For those people whose complaint we did not investigate, 67% thought it took less time than they had expected, or about the right time, and 20% had no view or thought it was not applicable.

We are reviewing the way we deal with incoming approaches, in part to identify ways to improve our timeliness.

Remedies

Our service charter advises that we will recommend changes to fix any problems where appropriate.

We recommended one or more remedies in 74% of the complaints investigated (compared to 75% in 2007–08, 67% in 2006–07, 54% in 2005–06 and around 68% in the previous two years). A breakdown of remedies is provided in Appendix 3—Statistics.

The most common remedy for complainants was an explanation of the circumstances by the Ombudsman's office (30%), the provision of a better explanation by an agency of its decision or action (19%), agency action being expedited (14%), a financial remedy (11%), agency decision changed or reconsidered (9%), and an apology being offered by an agency (7%).

Chapter 7—Helping people, improving government provides some examples of the types of remedies achieved for individuals, and systemic remedies, during the year.

Decisions not to investigate

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

The Ombudsman Act gives the office a range of discretionary powers to not investigate matters in particular circumstances. The most common reason for not investigating a complaint is that the person has not raised the complaint with the agency involved. There are advantages for both the complainant and the agency if an issue is first raised at the source of the problem and an attempt made to resolve it before external intervention. In 2008–09 we advised the complainant to take the matter up with the relevant agency in the first instance in 58% of the matters within the Ombudsman's jurisdiction (57% in 2007–08).

The client survey showed that, where we advised a person to take up the matter with the agency first, 88% of people did so. The main reasons people did not take up the complaint were that they did not have confidence that the agency would be helpful, they resolved the problem another way, or it was too difficult. More than 60% of those advised to take up the matter with the agency would have been happy for our office to pass the complaint details to the agency involved. We currently follow this process with ATO complaints, and we are considering whether we should pursue this with other agencies.

While a large number of approaches and complaints are outside the Ombudsman's jurisdiction, or are not investigated, we endeavour to provide a high level of service to these people and refer them to more appropriate avenues to resolve their concerns wherever possible.

Analysis of achievement

Overall there was no improvement or deterioration in the achievement of our client service standards for all incoming approaches to the office and management of all complaints. The client survey indicated a range of issues that we need to address, as discussed at Key performace indicator: Public Satisfaction with the quality of our services. We did not meet this target.

Target: Produce an estimated six submissions, 12 own motion investigations, and two better practice guides

During the year we made 13 submissions to Parliamentary inquiries as follows:

• the Auditor–General Act 1997—Joint Committee of Public Accounts and Audit
• community stores in remote Aboriginal and Torres Strait Islander communities—House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs
• compliance audits on Medicare benefits—Senate Community Affairs Legislation Committee
• the economic and security challenges facing Papua New Guinea and the island states of the southwest Pacific—Senate Foreign Affairs, Defence and Trade References Committee
• the effects of the ongoing efficiency dividend on smaller public sector agencies—Joint Committee of Public Accounts and Audit
• the Family Assistance and Other Legislation Amendment (2008 Budget and Other Measures) Bill 2009—Senate Community Affairs Committee
• immigration detention in Australia—Joint Standing Committee on Migration
• Independent Reviewer of Terrorism Laws Bill 2008 (No 2)—Senate Standing Committee on Legal and Constitutional Affairs
• the national registration and accreditation scheme for doctors and other health workers—Senate Community Affairs Legislation Committee
• the operation of the Law Enforcement Commissioner Integrity Act 2006—Joint Committee on the Australian Commission for Law Enforcement Integrity
• the Social Security Legislation Amendment (Employment Services Reform) Bill 2008—Senate Standing Committee on Education, Employment and Workplace Relations
• the Tax Agent Services Bill 2008—Senate Standing Committee on Economics
• whistleblowing protections within the Australian Government public sector—House of Representatives Standing Committee on Legal and Constitutional Affairs.

We also appeared before the following Parliamentary committees:

• Joint Committee of Public Accounts and Audit for its inquiry into the effects of the ongoing efficiency dividend on smaller public sector agencies
• Joint Standing Committee on Foreign Affairs, Defence and Trade for its inquiry into RAAF F–111 deseal/reseal workers and their families
• House of Representatives Standing Committee on Legal and Constitutional Affairs for its inquiry into whistleblowing protections within the Australian Government public sector
• Joint Standing Committee on Migration for its inquiry into immigration detention
• Joint Parliamentary Committee on the Australian Commission for Law Enforcement Integrity for its inquiry into law enforcement integrity models.

In addition we made submissions to the:

• Australian Law Reform Commission inquiry Review of the Royal Commissions Act 1902
• Department of Families, Housing, Community Services and Indigenous Affairs for the review of pensions
• discussion paper on a Proposed Building and Construction Division of Fair Work Australia
• independent review Mental Health Care in the ADF and Transition to Discharge
• independent review of the Australian Defence Force Cadets scheme
• independent review of the Northern Territory Emergency Response.

The Ombudsman released public reports on 18 own motion and major investigations in 2008–09. The reports related to a number of agencies, including the AFP, the Australian Crime Commission (ACC), Australia Post, the ATO, Centrelink, the CSA and DIAC. Chapter 7—Helping people, improving government provides a list of the reports and outlines some of the different types of recommendations made in the reports. Further details on individual reports are also contained in the relevant sections of Chapter 6—Looking at the agencies.

In 2008–09 we produced one better practice guide—the Better Practice Guide to Complaint Handling. This guide defines the essential principles for effective complaint handling. It can be used by agencies when developing a complaint–handling system or when evaluating or monitoring an existing system.

We produced seven fact sheets to assist agencies:

• Ombudsman investigations (Fact Sheet 1)
• Administrative deficiency (Fact Sheet 2)
• Providing remedies (Fact Sheet 3)
• Use of interpreters (Fact Sheet 4)
• Ten principles for good administration (Fact Sheet 5)
• Complaint handling: outsourcing (Fact Sheet 6)
• Complaint handling: multiple agencies (Fact Sheet 7).

Analysis of achievement

During the year we made 13 submissions to Parliamentary inquiries and six other submissions to major reviews, and released 18 reports on own motion and major investigations, one better practice guide and seven fact sheets for agencies. We exceeded this target.

Target: Agencies generally accept findings and recommendations

Our experience in preparing own motion investigation reports, and finalising individual complaint investigations, is that agencies generally accept the recommendations made. Of the 92 recommendations made in published reports during 2008–09, 74% were accepted in full and 8% in part. The remainder were not accepted or there was no formal response from the agency, often because of other work occurring in the agency, or because the recommendation required either joint action with another agency or a response from government. We now request updates from agencies on the implementation of recommendations on a regular basis, and are looking at how we might present this information publicly. The individual agency sections in Chapter 6—Looking at the agencies show many areas of public administration where our feedback and recommendations have resulted in improvements.

Analysis of achievement

We met this target.

Target: Government generally accepts recommendations on detainees

Under the Migration Act 1958 the Ombudsman has a statutory role of reviewing the cases of people who have been in immigration detention for two years or more. During 2008–09 we received 84 reports from DIAC and provided 120 reports to the Minister for Immigration and Citizenship. The Minister tabled responses on 116 reports during the year.

Forty of the reports tabled in Parliament made recommendations or suggestions. The majority of these related to consideration of alternative detention arrangements, or community detention arrangements, while a person's immigration status was finalised. In most cases the Minister and his department responded positively to the Ombudsman's reports, either when the reports were tabled in Parliament or through subsequent action. In some other cases the recommendations were overtaken by changes in the person's immigration status or detention arrangements.

Analysis of achievement

We met this target.

Target: High level of satisfaction with service received

The main method by which we gauge the level of public satisfaction with the quality of our services is through periodic surveys of people who have made a complaint to the office. Late in 2007–08 we commissioned an independent market research company to undertake such a survey, and we analysed the results in detail in early 2008–09. The survey aimed to obtain information on three key aspects—access, demographics and quality of service. We surveyed 2,000 people who had made a complaint about an Australian Government or ACT Government agency.

Overall the level of satisfaction with the Ombudsman's office increased from 58% in our last survey (conducted in 2004) to 60%. For people whose complaint we investigated, overall satisfaction fell from 64% to 57%. There was a high correlation between overall satisfaction with the office and satisfaction with the result of the office's investigation. The level of satisfaction for people whose complaint we did not investigate increased from 54% to 62%.

The majority of the people surveyed considered we kept them well informed about our handling of their complaint, and rated the courtesy of our staff highly. The majority considered we dealt with their complaint in about the right time, or less time than they expected. They also considered we understood the critical issues in their complaint. While our staff were perceived as being clear in communication, and professional and ethical, around one–fifth of respondents considered our staff were not independent or impartial.

Partly as a result of the survey, we are implementing a range of strategies to improve our services further. They include:

• incorporating more communication training in our core training modules
• creating scripts to be used by our public contact officers
• reviewing our template letters
• redesigning our internet sites
• reviewing how we manage approaches to the office.

We have also introduced a comprehensive quality assurance audit program to complement the oversight line managers give to the handling of complaints. A team of experienced, senior investigation officers from across the office, led by a Deputy Ombudsman, audits a sample of complaints closed each month. This panel provides feedback to the managers of the staff who handled the complaints. The panel also produces a report identifying areas for improvement in complaint handling, as well as best practice examples they have seen. This is part of a more comprehensive quality process that includes normal supervision, capacity for requiring more senior sign–off as part of our complaint management system, peer or supervisor checking of all correspondence, our system of case reviews and our complaint and feedback processes (including complainant surveys).

We also have a formal review process for complainants who may be dissatisfied with our conclusions and decision about a complaint. We expect the complainant to provide reasons for seeking a review, as this assists the office to fully understand the issues being raised by the complainant.

In 2008–09 we received 251 requests for internal review, 7% more than in 2007–08 (234). We declined to conduct a review in 19 cases for reasons such as the matter was out of jurisdiction, the matter had been reviewed already, the complainant did not provide any information that gave grounds for a review, or the complainant had not taken up our previous advice to raise the matter with the relevant agency in the first instance.

We finalised 246 reviews during the year, with some carried over from 2007–08 (Table 3.4). Of the finalised reviews, the original outcome was affirmed in 173 reviews (70%). This was about the same as in 2007–08 (72%). The office decided to investigate or investigate further after 65 reviews (45 in 2007–08) and to change its decision on the original complaint in five reviews (eight in 2007–08). Three reviews were withdrawn by the complainant.

TABLE 3.4Internal review of Ombudsman office decisions, 2008–09

Of the 246 reviews finalised, 88% related to decisions or actions of the investigation officer. The main reasons expressed by complainants for seeking a review were that they believed the decision we made was wrong or that we failed to address or misunderstood the complaint issue.

Late in 2008–09 we introduced a new approach to dealing with requests for reviews. The aim of the changes is to provide greater consistency and timeliness in undertaking reviews.

Under this new approach, a centralised team considers first whether a review should be undertaken, and then conducts the review if required. In some cases, discussion with the person seeking a review may indicate that the person needs a clearer explanation of information we have already provided, or has misunderstood our role, and further investigation is not necessary.

One important factor we take into account in deciding whether we should investigate further is whether there is any reasonable prospect of getting a better outcome for a person. This helps ensure that the office's resources are directed to the areas of highest priority. If, as a result of a review, investigation or further investigation is required, the review team allocates the complaint to a senior staff member who decides who should undertake the investigation or further investigation.

Analysis of achievement

The survey results and the continuing high number of approaches to the office indicate there is a good degree of public satisfaction with the office. We are taking a number of measures to further improve our services. We met this target.

Output 2—Review of statutory compliance in specified areas

Our 2008–09 targets for this key performance indicator were:

• all inspections and reports completed according to the statutory inspection schedule
• Government and agencies accept the quality and relevance of findings and recommendations.

Detailed reporting on our inspections activity is contained in Chapter 6—Looking at the agencies.

Target: All inspections and reports completed according to the statutory inspection schedule

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

Although there was a substantial increase in the inspections workload during 2008–09, all inspections and reports were completed according to the statutory inspection schedule. During 2008–09 we carried out 30 inspections, compared to 19 in 2007–08. We inspected the records of 15 different agencies, compared to five in 2007–08. The increase was predominantly due to increased access by agencies to stored communications.

Telecommunications records

Under the Telecommunications (Interception and Access) Act 1979 (TIA Act), the Ombudsman is required to inspect the records of the AFP, the ACC and ACLEI to ensure telecommunications interception activities are in accordance with the provisions of the TIA Act. In 2008–09 we carried out two inspections each of the AFP and the ACC.

The Ombudsman is also required to inspect the records of these agencies and other agencies that access stored communications (for example, emails), to ensure their activities are in accordance with the Act. In 2008–09 we carried out two inspections each of the AFP and the Australian Customs and Border Protection Service, and one inspection each of the ACC, the Australian Securities and Investments Commission, and 11 state and territory police forces and integrity organisations.

The TIA Act requires the Ombudsman to report to the Attorney–General in writing before 30 September each year on the results of the inspection of each agency during the preceding financial year. In accordance with this obligation, reports to the Minister were provided for the AFP, the ACC, the New South Wales (NSW) Crime Commission, the NSW Police and the South Australia Police (the agencies inspected in 2007–08) within the nominated timeframe.

Surveillance devices

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

The SD Act also requires the Ombudsman to report to the Attorney–General bi–annually on the results of the inspection of each agency. Reports were provided to the Attorney–General in August 2008 and March 2009 in accordance with our statutory obligation.

Controlled operations

Under the Crimes Act 1914 (Crimes Act), the Ombudsman is required to inspect the records of the AFP, the ACC and ACLEI to ensure compliance with Part 1AB of the Act. In 2008–09 we inspected the controlled operations records of the AFP and the ACC twice each. (A controlled operation is 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.)

Part 1AB of the Crimes Act also requires the Ombudsman to report to the President of the Senate and the Speaker of the House of Representatives on the inspections carried out in the previous financial year. An annual report for 2007–08 was presented to Parliament in September 2008.

Analysis of achievement

Despite a substantial increase in workload we met this target.

Target: Government and agencies accept the quality and relevance of findings and recommendations

After each inspection we forward a draft report to the agency for comment, and those comments are considered in producing a final report. This procedure allows agencies to be heard before we make any findings or recommendations. We do not formally ask agencies to advise if they accept the findings and recommendations. However, we understand that all of the Ombudsman's recommendations in reports finalised in 2008–09 were accepted by the agencies.

As discussed further in the section on inspections and monitoring in Chapter 6—Looking at the agencies, those agencies that are regularly inspected by this office now show a high level of compliance with legislative provisions. The improvements they have made show that compliance audits are a valuable exercise in accountability.

Analysis of achievement

We met this target.