Chapter 5

On this page

  1. Agencies overview
  2. Commonwealth Ombudsman
  3. Australian Customs and Border Protection Service
  4. Centrelink
  5. Child support agency
  6. Comcare
  7. Department of Education, Employment and Workplace Relations
  8. Department of Environment, Water, Heritage and the Arts and Department of Climate Change and Energy Efficiency
  9. Department of Families, Housing, Community Services and Indigenous Affairs
  10. Fair Work Ombudsman
  11. Department of Health and Ageing
  12. Medicare
  13. Freedom of information
  14. Monitoring and inspections
  15. Overseas students
  16. Defence Force Ombudsman
  17. Department of Defence
  18. Department of Veterans' Affairs
  19. Defence Housing Australia
  20. Immigration Ombudsman
  21. Immigration and Citizenship
  22. Law Enforcement Ombudsman
  23. Australian Federal Police
  24. Australian Crime Commission and Australian Commission for Law Enforcement Integrity
  25. CrimTrac, AUSTRAC and Attorney-General's Department
  26. Postal Industry Ombudsman
  27. Taxation Ombudsman
  28. Australian Taxation Office
  29. Australian Prudential Regulation Authority
  30. Australian Securities and Investments Commission
  31. The Treasury
  32. Feature: Good › better › best

Agencies overview

Most of the approaches and complaints received by the Commonwealth Ombudsman about Australian Government agencies within the Ombudsman's jurisdiction (81%) related to the following agencies:

This chapter assesses our work with these and other agencies in handling complaints and dealing with other broader issues during 2009–10. It discusses the way agencies deal with freedom of information requests and the monitoring and inspections work we undertake.

It also looks at other areas of the Ombudsman's work:

Figure 5.1 shows the number of approaches and complaints received in 2009–10 about agencies within the Ombudsman's jurisdiction. Detailed information by portfolio and agency is provided in Appendix 3— Statistics .

Figure 5.1: Approaches and complaints received about, within jurisdiction, agencies, 2009–10

Figure 5.1: Approaches and complaints received about, within jurisdiction, agencies, 2009–10

Commonwealth Ombudsman

Australian Customs and Border Protection Service

The Ombudsman received 99 complaints about The Australian Customs and Border Protection Service in 2009–10, a small increase on the 94 received in the previous year. The main themes of complaint were:

A common complaint made by those who have interacted with Customs and Border Protection at an airport is that they were not told why they were questioned or why their baggage was searched. Complainants often questioned whether an officer had the power to take the particular action.

One of the tasks of this office in responding to such complaints is to balance two competing public interests: transparency and accountability in government processes, against the protection of sensitive information about investigation and detection methods used by the agency.

Customs and Border Protection officers exercise strong coercive powers in the airport environment and their interventions can be seen as intrusive and unduly personal. Officers routinely stop and question travellers and examine goods in their possession including diaries, mobile phones, cameras and computers. Officers can copy documents found in a passenger's possession and, in some circumstances, retain items for further examination.

In examining complaints received we also looked at the information that Customs and Border Protection makes available about travellers' rights and responsibilities and how a grievance can be made or redress sought.

Lack of information about making a complaint

Mr A complained to this office about questioning and baggage examination by a Customs and Border Protection officer. He claimed that officers failed to assist him when he wished to make a complaint at the airport, and that there was inadequate information at the airport about a traveller's right to make a formal complaint.

Our investigation identified that while Customs and Border Protection has a comprehensive complaints process, it is not supported by clear guidance to officers about how to handle complaints made at airports. A brochure explaining the complaint process is available in some areas within airports, however display of the brochure is limited and officers are not required to provide it when a traveller raise a grievance.

Customs and Border Protection agreed that several aspects of the initial complaint process at airports could be improved and is in the process of developing new guidelines to resolve this issue.

We look forward to working with Customs and Border Protection on improving its complaint-handling processes and making the information on avenues of complaint more accessible to passengers.

Penalties for a ring

Customs and Border Protection determined that GST was payable on a ring found in Ms B's luggage. She had not declared the ring and Customs and Border Protection imposed taxes and penalties totalling more than $1,000. It impounded the ring when Ms B was not able to pay and issued a notice to her that if she was dissatisfied with the decision, she could ‘lodge a taxation objection with the Commissioner within the specified periods'. The letter did not identify the Commissioner, provide the Commissioner's contact details or state the relevant period. Through her own enquiries, Ms B identified that the notice was referring to the Commissioner for Taxation. However, when she lodged a statement saying she would pay the GST but not the penalty, the ATO referred the matter to Customs and Border Protection because the objection was about the penalty. It reviewed the matter and upheld the penalty.

As a result of our enquiries, Customs and Border Protection reviewed the penalty again and reduced it. We formed the view that Ms B's review rights were not adequately explained. Customs and Border Protection acknowledged that the process should be made clearer, and discussed the objection process with the ATO. It has since updated the online content of the 'Notice of Goods Impounded and/or Tax Assessed' form to include information about the ATO's contact details. It also advised that new forms would be available that include revised guidelines for making objections.

The increased volume of information (and methods of storing information) that travellers now have available to them adds to the complexity of the Customs and Border Protection officer's role. Complaints to this office have often concerned an officer's power to examine laptops, memory cards and other electronic devices containing large amounts of data, including photographs, financial records, contact details and other information that the person considers to be personal. In this context, the lawful and fair exercise of powers is increasingly important.

Copying a passenger's documents

Mr C's baggage was examined twice by Customs and Border Protection officers in a three-week period. Relying on information already available to them about Mr C, the officers stopped him so they could copy documents he was carrying. Our investigation identified that this was an invalid exercise of an officer's power. Customs and Border Protection accepted our assessment, and reinforced with its officers the circumstances that must exist to allow them to copy documents found in a traveller's possession.

Another complaint highlighted the need for consistent and correct record keeping before pursuing a debt. It also highlighted that systems need to be in place so that any issue over outstanding amounts can be resolved as soon as possible. The longer the time taken to follow up an unresolved debt, the more difficult it becomes to satisfactorily resolve the complaint.

Pursued for an overdue fine

Mr D complained to our office about action being taken by Customs and Border Protection in October 2009 to recover an $8,000 fine that was issued in 2007. Mr D contacted Customs and Border Protection to explain that the fine had been paid in full in 2007. Customs and Border Protection believed that $500 remained outstanding and Mr D had to provide evidence to verify payment. Mr D advised Customs and Border Protection that the only record he had was his cheque book balance, and to obtain further evidence he would need to pursue the matter with his bank.

Mr D's records showed a payment of $500 had been made to Customs and Border Protection's Perth office. Once it had received that information, Customs and Border Protection checked its records and acknowledged the payment had been made but had not been reconciled with its Debt Management Area. It withdrew its request for payment, apologised to Mr D and undertook to improve its processes.

During the year the Ombudsman commenced an own motion investigation into Customs and Border Protection's administration of some of its coercive powers in passenger processing. The investigation will assess Customs and Border Protection's policy and practice against legislation and principles of good administration, and in light of best practice principles set out by the Administrative Review Council. A report on the investigation is expected to be published in November 2010.

In 2009–10 the Ombudsman's office received 5,199 approaches and complaints about Centrelink compared to 7,226 in 2008–09. This is a 28% decrease over the previous year and the lowest number in 10 years. The figure also includes 49 cases relating to the Northern Territory Emergency Response (NTER).

Despite the decrease, Centrelink continues to be the agency about which the Ombudsman receives the highest number of complaints. This is not unexpected given the high volume of transactions, the breadth and complexity of the services and payments that Centrelink delivers on behalf of Australian Government agencies. Figure 5.2 shows the trend in approaches and complaints over the past five years.

Figure 5.2: Centrelink complaint trend 2004–05 to 2009–10

Figure 5.2: Centrelink complaint trend 2004–05 to 2009–10

Complaint themes

Although a number of factors are likely to have contributed to the reduction in Centrelink complaints, the absence of any stimulus or bonus payments (which generated large numbers of complaints in recent years) and the implementation of a more flexible social security compliance framework, appear to have contributed to the significantly lower figure.

Procedural fairness

Over the years, the Ombudsman's office has received complaints from customers about payments being suspended and/or debts being raised on the basis of wrong information. In many cases, Centrelink has not told these customers about the information it relied upon in deciding to suspend a payment or raise a debt, and therefore has not given them a chance to correct or provide more complete information.

An example of this can be seen in the case study, P rocedural fairness in decision making.

Procedural fairness in decision making

Centrelink suspended Mrs E's parenting payment because it had identified that Mr E was transferring large sums of money through his bank accounts. Centrelink intended to investigate why these amounts had not been declared as income. Mrs E complained to this office about the suspension of her payment without warning or an opportunity to explain their circumstances. Centrelink subsequently learned that Mr E's accounts were being used as holding accounts for funds that were being transferred internationally for aid reasons, and that Mr and Mrs E derived no benefit from these transactions. As a result, Centrelink restored Mrs E's payments with arrears. Our office formed the view that Mr and Mrs E had been denied procedural fairness.

Transfer to more suitable payment

Previous Ombudsman reports have highlighted the effectiveness of analysing complaints from individuals to identify whether the same issue affects a larger number of existing or potential customers. Our focus on identifying systemic problems has continued this year. An example of this approach can be seen in the case study, Transfer to age pension.

Transfer to age pension

We received a complaint from Ms F that Centrelink had not transferred her to the age pension (AP) when she reached age pension age in 1998. Ms F was on a lower payment until transferring to AP in 2009 and asked for a review of the start date of her AP (back to 1998). Centrelink decided that it could treat Ms F as having transferred to AP when she originally reached age pension age, and paid her arrears for the amount she had missed out on.

While investigating Ms F's complaint, we asked Centrelink about whether other customers had remained on a lesser payment despite reaching age pension age. We were advised that approximately 1,800 other customers had been identified as receiving another income support payment despite having reached age pension age and that Centrelink had subsequently invited those customers to apply for AP. We will continue monitoring this issue during 2010–11 to ensure that these customers are not disadvantaged.

Cross-agency issues

Many complaints to our office require us to make enquiries of 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.

Complaints that involve more than one agency can be particularly difficult to resolve. This challenge is evident in the case study Medicare or Centrelink FAO service?

Medicare or Centrelink FAO service?

Both Centrelink and Medicare Australia deliver services on behalf of the Family Assistance Office (FAO). Ms G complained to our office that the wording used in an FAO letter had caused her offence and confusion. Our investigation confirmed that the letter appeared to be inaccurate and confusing, and we suggested that Centrelink apologise to Ms G. Centrelink advised that the letter in question had been issued by Medicare and, as such, it would be more appropriate for that agency to apologise. We contacted Medicare to seek an apology and, following protracted discussions with both Medicare and Centrelink, eventually Medicare apologised to Ms G. It took nine months for the two agencies to agree who was responsible and take action to resolve Ms G's concerns.

In some instances the business of one agency can be affected by system errors or failures on the part of another agency, often to the detriment of the customer. An example of this can be seen in the case study, Cross-agency errors—FaHCSIA, Centrelink and ATO.

Cross-agency errors—FaHCSIA, Centrelink and ATO

During 2009–10 the Australian Taxation Office (ATO) undertook a major upgrade of its information technology systems. The upgrade affected the ATO's ability to advise Centrelink that it had received tax returns. Also during this time, the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) implemented a policy which saw customers have their Family Tax Benefit (FTB) suspended if they failed to lodge past year tax returns. The Ombudsman's office subsequently received a number of complaints from Centrelink customers whose FTB payments had been suspended because Centrelink's records indicated they had not lodged their tax returns. We encouraged these complainants to provide copies of their completed returns to Centrelink so that their payments could be manually restored pending receipt of official confirmation from the ATO.

Reports

Compensation for Detriment caused by Defective Administration

In August 2009 the Ombudsman's office released its own motion investigation report into the administration of the Compensation for Detriment caused by Defective Administration (CDDA) scheme. Under the scheme, the Ombudsman has a specific capacity to make recommendations that agencies reconsider cases where compensation has been refused.

The report focused on the handling of CDDA claims by Centrelink, the ATO and the Child Support Agency, but made recommendations relevant to all agencies handling CDDA matters. Since the publication of the report, the assessment of CDDA cases by Centrelink has improved. However, the office continues to be concerned about the lack of awareness of the scheme generally, particularly amongst non-government organisations representing people who are vulnerable to the effects of poor government administration.

Economic Security Strategy Payment

Our 2008–09 annual report reflected on the large number of complaints our office had received about the assessment of claims for the Economic Security Strategy Payment (ESSP). In November 2009 the Ombudsman's office released its report into the administration of the ESSP. The report focused on the broader lessons for policy departments for improving how they communicate about, and administer, payments to be delivered within tight time frames.

Review of circumstances leading to a fraud conviction

In May 2010 the Ombudsman's office released an investigation report into the handling of a fraud matter by Centrelink and the Commonwealth Department of Public Prosecutions. The Ombudsman's report identified that both agencies relied on incomplete and inaccurate information in deciding to pursue prosecution against the customer. We expressed the view that, but for these errors, legal action and a conviction against the customer may not have eventuated. The report made recommendations for the agencies involved to provide redress to the individual customer, and to revisit their handling of her case and other similar fraud matters.

Reviews and delays

Our 2008–09 annual report noted continuing concerns with Centrelink's internal review processes and advised that we expected to release an own motion investigation report in 2009–10. This report has been completed and should be published before the end of 2010.

Engagement

In addition to investigating individual complaints, the Ombudsman's office has an important role in improving public administration. By maintaining regular, robust liaison with Centrelink during 2009–10 our office has been able to ensure it is informed of planned changes to social security and family assistance law and policy, provide input into how these changes might be implemented and communicated to customers. For example, we provided feedback to Centrelink about the way in which the same-sex reforms were communicated to customers who might be affected by them.

We also meet regularly with Centrelink to keep abreast of progress in changes to policy or operations that have resulted from Ombudsman recommendations. One example is the Government revisiting its approach to delivering payments to customers with acute or terminal illnesses.

Looking ahead

Same-sex initiatives

From 1 July 2009 Commonwealth legislation was revised to remove discrimination against same-sex couples. While most changes provided beneficial outcomes, in some cases in the social security and family assistance arenas, these changes had the potential to reduce or cancel the entitlements payable to some couples and families.

Early in 2010 the Government announced that Centrelink staff would take a ‘compassionate approach' to raising or recovering debts resulting from these legislative changes. Centrelink acknowledged that fears of discrimination could result in same-sex relationships not being declared. The Ombudsman was able to advance procedural instructions to support more consistent outcomes and will continue to engage with Centrelink on these matters.

Acute and terminal illness

In March 2009 the Ombudsman's office released an own motion investigation report into the assessment of claims for disability support pension (DSP) from people with acute or terminal illnesses.

Following our report, the government announced that from March 2010 customers with a serious illness receiving an activity-tested payment could be granted a long-term exemption from activity testing. It also means that there are fewer reporting requirements that involve a job capacity assessment or repeated medical certificates.

Given the short time frame in which the new policy has been in place, we have not yet had an opportunity to assess the impact on customers.

Mental illness—servicing vulnerable customers

In 2009 we commenced an own motion investigation into the engagement of customers with a mental illness in the social security system. The investigation focused on the services delivered and overseen by Centrelink, the Department of Education, Employment and Workplace Relations and FaHCSIA in response to feedback from customers, carers, non-government organisations and agency staff that some customers with a mental illness have difficulty navigating the social security system.

Our investigation, Falling through the cracks , examines the effectiveness of current government policies and procedures as they affect customers suffering from a mental illness. The report should be published in second half of 2010.

Child support agency

The Child Support Agency (CSA) is an organisational unit within the Department of Human Services. In 2009–10, the Ombudsman received 2,280 approaches and complaints about the CSA, a decrease of 7.8% from the previous year. Approximately 28% of complaints were investigated.

Complaint themes

Complaint themes in 2009–10 included debt management, ‘care percentage' decisions used in child support assessments, and a backlog in income reconciliations.

Collecting child support debts

The biggest area of CSA debt recovery is the collection of child support payable by payers for transfer to payees. However, the CSA also recovers overpaid child support from payees. A payee can be overpaid when the CSA retrospectively reduces the child support assessment, or if by error the CSA paid an amount to the payee without first having received it from the payer.

CSA's debt enforcement method accounted for 14% of complaint issues, and was the largest investigated issue category. Almost as many complaints related to the CSA's failure to collect (13.5%).

Debtors complain to us about the harshness of the CSA's collection action and question the accuracy and fairness of the debts. Those relying on the CSA to collect debts and transfer money to them complain that the CSA is too lenient, or is not taking sufficient enforcement action. They may be frustrated by the CSA's unwillingness to provide detailed or regular information about its efforts. By investigating these complaints we can independently confirm the reasonableness of the CSA's actions, or alternatively, uncover and seek remedies for delay or inaction.

In 2009–10 we investigated three cases where the CSA had collected late payment penalties from a payer's tax refund despite having agreed to cancel the penalties when the person had paid off their child support debt. We were concerned that the CSA's processes allowed this to happen and seemed to prevent the debtor from exercising their objection rights. The CSA has now refunded those penalties. In another case the CSA continued to charge late payment penalties on a debt that a court had suspended. We will continue to monitor the CSA's administration of late payment penalties in 2010–11.

‘Care percentage' decisions

We identified a pattern of complaints about the CSA's administration of the rules for deciding what ‘care percentage' to use for each parent when calculating child support, including delays, confusing advice and, in some cases, a lack of understanding on the part of CSA staff of the complex rules that applied from 1 July 2008. At the same time, we noted that the rules used by Centrelink to work out a parent's level of care for Family Tax Benefit (FTB) did not seem to cause the same problems.

In the 2009–10 Budget, the Government announced that from 1 July 2010, it would align the CSA and Centrelink rules for working out care percentages (the ‘alignment of care' measure). In preparation we met with policy officers in FaHCSIA to highlight the problems we had identified in complaints. Many of those problems appear to have been addressed by the alignment of care measure; however, we will continue to monitor this area of the CSA's administration.

Income reconciliations

Last year we reported significant delays in the CSA reconciling parents' estimated incomes against the Australian Taxation Office's (ATO) assessments. This backlog arose from system problems and resourcing decisions within the CSA, not the ATO. As at 30 June 2010, the CSA reported having reconciled 249,732 estimates, with approximately 143,000 remaining. A change in child support law from 1 July 2010 will overcome the need for the CSA to manually calculate every estimate reconciliation. The CSA expects to complete the backlog of estimate reconciliations by 30 June 2011.

The CSA's reconciliation of a parent's income can lead to an additional child support debt for the payer or an overpayment of child support for the payee. If they have not kept detailed records of their income, the person whose income has been reconciled may not be able to challenge the CSA's decision. This was a problem in one complaint where the CSA reconciled a parent's 1999 income years later, in 2010. Lengthy delays like this mean that statutory time limits for the Change of Assessment (CoA) process and court applications for leave to apply for a CoA have often expired.

These statutory time limits can also have unfair results for one parent when the other parent lodges a late tax return showing that their income was less than the CSA had used in working out child support. Two complainants to this office have been required to repay money to the CSA that they received in good faith and have no way to challenge. We have recommended that the CSA assist these complainants to prepare an application to the Department of Finance and Deregulation for these debts to be waived.

The CSA's interaction with other Commonwealth agencies

The CSA and Centrelink share information to ensure that people receiving the higher rate of FTB for a child of a previous relationship also have a current child support assessment for that child. The following case shows how a CSA error can flow on to affect a person's FTB.

The CSA and the ATO share information required to administer the child support scheme. Sometimes, the automatic exchange of information is not enough. The case study Caught in the wheels shows that it can sometimes be difficult to get the two agencies to communicate with each other.

Little mistakes with serious consequences

A particular challenge facing the CSA is to ensure that its processes do not harm the relationship between separated parents. A small slip-up can have serious repercussions, as in the case study A trail of errors.

Computer says no!

The CSA mistakenly deleted Mrs H's child support case for her daughter from its system. It told Mrs H it would take up to three months to fix this problem. Based on a computer match shortly afterwards, Centrelink advised Mrs H that she had been overpaid $9,000 in FTB. Centrelink's decision was based on records that showed no child support assessment since 2005.

Mrs H and the CSA told Centrelink about the error. Centrelink said that it would cancel the overpayment when the CSA fixed the mistake, but in the interim, it would deduct $60 per fortnight from her FTB for the overpayment. Mrs H complained to the Ombudsman but it still took almost two months for the CSA problem to be resolved and for Centrelink to cancel the overpayment and refund the deductions to Mrs H.

Caught in the wheels

The CSA asked Mr J to pay a child support debt based on an incorrect ATO assessment. Mr J told us that although the ATO had since amended its assessment, the CSA refused to update his child support unless he could prove that the assessment was incorrect because of an ATO mistake.

We recommended that the CSA provide Mr J with a letter to the ATO explaining the information the CSA needed and why. The CSA did this, but the ATO refused to give Mr J a letter to take back to the CSA. Only at our request did the CSA contact the ATO to get the information it needed and amend Mr J's child support assessment, cancelling the incorrect debt.

A trail of error

Ms K was a child support payee with a fear of domestic violence from her former partner, Mr L. The CSA discovered that Mr L had underestimated his income for his child support assessment and asked him to pay arrears. Ms K was afraid that Mr L would force her to give back anything that the CSA collected for her. She spoke to a Centrelink social worker about her situation, then instructed the CSA to cancel her child support assessment and Mr L's arrears.

The CSA paid Ms K $600 that it had intended to refund to Mr L. Ms K contacted the CSA to find out whether she should return it. The CSA told Ms K that she could keep it: Mr L might not know she had received the money and he would probably think the CSA had kept it. Ms K complained to the Ombudsman about this advice, as she was not sure what to do. She suspected that Mr L knew the CSA had paid the money to her and was afraid of what might happen if she attempted to conceal this from him. Our investigation of Ms K's complaint achieved the following:

Reports

Own motion investigations and submissions about the CSA

This year we published a report, Australian Federal Police and the Child Support Agency, Department of Human Services: Caught between two agencies: the case of Mrs X (report 14|2009) . The Ombudsman also made a written submission to an independent review of the CSA's administration by Mr David Richmond AO, Delivering Quality Outcomes.

In 2009 we commenced an own motion investigation into the CSA processes and practices involved in accessing a parent's ‘capacity to pay'. Another own motion investigation commenced in 2009 relates to ‘write only' procedures, which limit service to customers who display difficult and challenging behaviour. Both investigation reports are due for release in the second half of 2010.

Improved timeliness for CSA objections

We have previously reported our concern about the CSA's failure to finalise its internal reviews, known as objections, within the 60-day period set by law. In 2009–10, results significantly improved and compliance is now nearly 100%.

Better Departure Prohibition Order procedures

The CSA can stop a person who owes arrears of child support from leaving Australia by making a Departure Prohibition Order (DPO). In June 2009, the Ombudsman released a report Child Support Agency: Administration of Departure Prohibition Orders (Report No 8/2009) with eight recommendations, which the CSA has implemented. The CSA now has better DPO procedures and its letters contain a comprehensive list of appeal rights and options to challenge a DPO.

Comcare

Comcare regulates workers' compensation and work health and safety. The majority of complaints received by our office about Comcare concern its management of claims from injured workers. During 2009–10 our office received 72 complaints about Comcare, down from 95 the previous financial year, representing a 24% decrease.

Comcare will often need to consider a range of medical information when making decisions regarding eligibility for compensation. This can prolong the time taken to make a decision, which is a source of frustration for complainants. During 2009–10 the office was able to assist complainants by ensuring any unnecessary delays were addressed and facilitating better explanations of decision processes.

The investigation of two complaints about Comcare highlighted a gap in its ability to fully compensate claimants who had suffered a financial loss due to administrative error. In both cases the complainants had originally missed out on their proper entitlement due to an error in calculation. The mistakes were undetected in one case for 13 years, and 10 years in the other. Upon discovering the error, Comcare paid the amount originally owed, but determined that under its legislation it could not pay interest on that money.

Although the office accepted that the payment of interest in these cases was problematic under Comcare's legislation, the Ombudsman issued a report (report 4|2010) recommending that Comcare give further consideration to the issue of compensation for the two complainants. The Ombudsman also recommended that Comcare consider how it could address similar claims in the future.

In response, Comcare found a way to fully compensate one of the complainants and has indicated that it hopes to at least partially compensate the other. Comcare has also given the office an undertaking to develop and seek approval for a scheme to deal with future claims for compensation caused by its defective administration. It is hoped that such a scheme will enable the complainant who has only been partially compensated to receive their full entitlement.

It is pleasing to note that after the report was issued, Comcare undertook its own review to ascertain if there were other similar cases. While the review has not identified any further underpayments, Comcare's proactive response to the report is a good example of how an agency can use feedback from individual complaints as an opportunity to improve customer service more generally.

Department of Education, Employment and Workplace Relations

In 2009–10 the Ombudsman's office received 479 approaches and complaints about the Department of Education, Employment and Workplace Relations (DEEWR). This is a 16% decrease from the 571 approaches and complaints we received in 2008–09. Figure 5.3 shows complaint trends over the past five years. The number of approaches and complaints received about DEEWR during 2009–10 was the lowest in the past four years, and sees a return to the level of complaints received prior to the implementation of the Welfare to Work social security reforms.

Figure 5.3: Complaints received for the period 2004–05 to 2009–10

Figure 5.3: Complaints received for the period 2004–05 to 2009–10

Complaint themes

As part of our ongoing work in looking at complaint trends and themes, we engaged with DEEWR to discuss issues about individuals as well as broader groups of customers, and to make recommendations for how policies and procedures might be improved.

Some of the issues that our efforts focused on in 2009–10 were about the:

Apprenticeships

During 2009–10 the Ombudsman's office investigated several complaints about the handling of claims made under the Australian Apprenticeship Incentives Program administered by DEEWR. Two main issues emerged from these complaints: quality of advice given by the Australian Apprenticeships Centre about claimants' eligibility; and consistency in decision making.

Consistency in decision making

The case study Australian Apprenticeship Support Services is an example of an investigation which considered the adequacy of DEEWR's guidance to staff to ensure consistency of decision making.

Australian Apprenticeship Support Services

Ms M took on an apprentice and expected to receive an incentive payment. When she found out that she did not qualify for the payment because of a change made to the guidelines while the apprentice was working for her, Ms M complained to this office. Our investigation found that DEEWR's decision to refuse Ms M's claim was not unreasonable. However, no consideration had been given to whether Ms Ms claim could be granted under the ‘exceptional circumstances' provision of the payment guidelines.

Discussion with DEEWR revealed that it did not have any examples or guidance regarding what might be considered exceptional circumstances. We queried DEEWR about the lack of information for claimants to decide whether or not to seek payment under exceptional circumstances. A lack of guidance also gives decision makers broad discretionary powers. DEEWR advised that it does not consider specific examples would be appropriate, but explained that staff considering claims of exceptional circumstances need to discuss these to ensure consistency of outcomes. Our office is currently considering whether to pursue this issue further.

Compensation for advice or actions of contracted providers

During 2009–10 our office received a number of complaints from people who believed they had been financially disadvantaged as a result of advice given or actions taken (or not taken) by providers contracted to deliver services on behalf of DEEWR. If the complainant had dealt directly with DEEWR on these matters, it would have been open to them to lodge a claim for compensation under the Compensation for Detriment caused by Defective Administration (CDDA) scheme. However, they had no such avenue of redress when dealing with contracted providers.

Our office provided DEEWR with an issues paper on this topic in June 2010, suggesting that it consider implementing some CDDA-type means of compensating victims of defective administration under existing contracts and incorporating this process into new contracts.

In response DEEWR acknowledged that the suggestion raised in the issues paper was worthy of further consideration, however, the matter raised broader issues that should be canvassed at a whole-of-government level. DEEWR further noted that consideration might be given to revisiting the issue after the Senate Legal and Constitutional Affairs Committee issues their report on government compensation payments.

Policy supporting sensible decisions—Trades Recognition Australia and the Trans-Tasman Mutual Recognition Agreement

In 2009 the Ombudsman's office received a complaint about the interaction between two schemes for assessing skills for living and working in Australia. Our investigation, outlined in the case study TRA and the TTMRA, highlighted the incongruence of a licence that had been granted to a person on the basis of an international mutual recognition scheme not being considered suitable evidence to assess their job skills for permanent residency. This resulted in DEEWR agreeing to revisit its approach to these matters.

TRA and the TTMRA

Mr N was a New Zealand citizen living in Australia who was issued a licence to work as an electrician under the Trans-Tasman Mutual Recognition Agreement (TTMRA). Mr N decided to apply for permanent residency, and was required to undergo a skills assessment conducted by Trades Recognition Australia (TRA). Despite the fact that he was already living and working as a licensed electrician in Australia, TRA rejected Mr N's application on the basis that he had not sufficiently demonstrated his qualifications.

Our investigation revealed that under the Uniform Assessment Criteria (UAC) used by TRA to assess applications, a licence issued under the TTMRA was not considered suitable evidence of a qualification. We highlighted the lack of logic in this approach and, as a result, TRA has given an undertaking that it will revisit its treatment of licences issued under the TTMRA in the course of its review of the UAC.

Updates

Trades Recognition Australia

In our 2008–09 annual report we noted that we had received a large number of complaints from applicants wishing to obtain trade recognition for migration purposes. Applicants were unclear why their applications had been unsuccessful. In 2009–10 the number of complaints reduced significantly, though it is not yet clear whether this reduction is the result of improved decision making, recording and advice by TRA, or other factors, such as a recent change in TRA's assessment process. We also note that there is a cost to applicants in seeking a review.

The office will continue to monitor the adequacy of feedback that TRA provides to applicants prior to decision review.

Job seeker transfers

It is pleasing to note that the number of complaints regarding job seeker transfers has reduced significantly during 2009–10. While there could be a range of reasons for this reduction, it is worth noting that DEEWR implemented its new ‘Job Services Australia' (JSA) model of employment services from 1 July 2009. The JSA model replaced the previous Job Network and is promoted by DEEWR as giving job seekers and providers increased flexibility to access appropriate support and services.

Despite the reduction in complaints on this issue, it continues to be a significant source of complaints for our office and we will continue to monitor it in the coming year.

Cross-agency issues

Child care payments—Centrelink and DEEWR responsibility

In previous annual reports we have discussed the complexities of investigating complaints that involve more than one agency. In 2009–10 we received a number of complaints about the Child Care Management System (CCMS), which is used by the Government to exchange information with child care providers about customer usage and entitlements. While Centrelink delivers the payments to assist families with the cost of child care, DEEWR has responsibility for managing the CCMS and relationships with child care providers. This has led to customers experiencing confusion and difficulty in understanding which agency is responsible for resolving errors in the assessment of child care entitlements. The following case study, Centrelink or DEEWR CCMS? illustrates just such an example.

Looking forward

In March 2010 DEEWR implemented a new model of delivering employment services to people with a disability, called Disability Employment Services. This model replaces a number of different ways that these services were previously delivered, and combines them into two distinct streams of support.

Given the short time frame in which the new model has been in place, we have not yet had an opportunity to fully assess how the new model is working for jobseekers. We will monitor this area for complaints during 2010–11.

Centrelink or DEEWR CCMS?

Ms O complained that she had not received her quarterly child care tax rebate (CCTR) payment despite contacting Centrelink more than 15 times. She advised that, at the request of Centrelink, her child care provider had resubmitted its attendance data three times and still no payment had been forthcoming.

We contacted Centrelink and DEEWR and were advised that, in order for the problem to be rectified, Ms O's child care provider would have to retract all previous attendance data and resubmit the data. This information had not previously been provided to Ms O because she had been dealing with Centrelink and not with DEEWR, who oversees the CCMS.

We contacted Centrelink and DEEWR to draw their attention to the problems faced by families when trying to understand why their CCTR had not been paid, and recommended that a suitable complaint process be implemented. DEEWR and Centrelink subsequently advised that there was a process in place through Centrelink with escalation points to the CCMS. The agencies advised that, following our investigation, they had met to review the complaint process and explore further improvements.

Department of Environment, Water, Heritage and the Arts and Department of Climate Change and Energy Efficiency

During 2009–10, we received 341 complaints about the Department of Environment, Water, Heritage and the Arts (DEWHA), and 153 complaints about the Department of Climate Change and Energy Efficiency (DCCEE).

In contrast, in 2008–09 we received only 46 complaints about DEWHA and six complaints about the Department of Climate Change. In 2009–10 we formally investigated 64 complaints about DEWHA and 69 complaints about DCCEE.

Most complaints received during 2009–10 concerned the Australian Government's energy efficiency and renewable energy programs, particularly the solar panel rebate under the Solar Homes and Communities Plan, the solar hot water rebate under the Energy Efficient Homes Package, the Home Insulation Program, and the Green Loans program.

On 8 March 2010, DEWHA's energy efficiency and renewable energy functions were transferred to the Department of Climate Change, which became the Department of Climate Change and Energy Efficiency.

Complaint handling

Many of the complaints we received raised concerns about DEWHA's failure to respond adequately to enquiries and complaints lodged directly with that department. In light of this, in September 2009 we commenced an own motion investigation into DEWHA's complaint-handling policies and processes.

In its response to this investigation, DEWHA acknowledged that enquiries and complaints to the department had increased in parallel with the expansion in its energy efficiency programs, and that its complaint-handling arrangements were no longer adequate given its changed circumstances. It advised that it was in the process of revising its complaint-handling policies and procedures, with reference to the Ombudsman's Better practice guide to complaint handling.

In early 2010, staff from the Ombudsman's office and DEWHA met via teleconference to discuss the department's enquiries and complaints processes, particularly in relation to the Green Loans program.

After the transfer of DEWHA's energy efficiency programs to DCCEE in March 2010, we decided to finalise our investigation without publishing a report, given that DEWHA was already in the process of bringing its complaints policies and procedures into line with our Better practice guide to complaint handling . We will continue to work with DEWHA as it goes through this process.

We also worked closely with DCCEE as it established new complaint-handling processes after responsibility for the energy efficiency program was transferred to it. Once again, we will continue to work with the department as it implements a centralised complaint-handling system that reflects our better practice guide.

Delay in processing

Mr P applied for a solar panel rebate in early 2009. The claim form indicated that processing would take six weeks. Five months later Mr P complained to our office that his application had not been finalised, and that DEWHA had not explained the delay, despite him making several phone calls to the department and writing to the Minister. The department explained to us that the delay was caused in part by Mr P's application having been incomplete. The department had sought the missing information from the installer, who had taken two months to provide it. However, the department acknowledged that it had not responded appropriately to Mr P's complaints. It had not explained to him that his application was incomplete, nor that it had sought the information from the installer.

No complaint process

Ms Q applied for a solar hot water rebate in May 2009. Several weeks later she contacted DEWHA to confirm that it had received her application. She was told that that information was not available, and to call back in four weeks. Four weeks later, Ms Qcalled the department and was told that the department still could not confirm that it had received her application because of delays in processing applications. Ms Q complained to our office that when she then asked to speak to a supervisor to lodge a complaint, she was told that there was no process available to do so. Subsequently Ms Q's application was approved, but there was a delay by the department in depositing the funds into her bank account. Ms Q then lodged an online complaint with the department, and made further phone calls, but the department did not respond to her complaint. The recorded reason was: ‘Due to the tone of her calls I have not attempted to respond or provide further explanation to her complaints (misinformation, poor service, incompetence etc.)'.

Solar panel rebates

On 8 June 2009, the Minister for the Environment announced that the Australian Government would only accept completed applications for the popular $8,000 solar panel rebate that were sent to DEWHA before midnight on 9 June 2009.

We subsequently received many complaints about DEWHA's rejection of applications because they were received late or were incomplete. We carefully considered the reasonableness of the department's criteria for determining whether an application had been sent before the 9 June 2009 cut-off, the reasonableness of its criteria for deciding whether an application was substantially complete or not, and how the department applied these criteria in particular cases.

In many cases, we were able to satisfy the complainants that the department's criteria were reasonable, and had been properly applied in their cases. In other cases, the department agreed to reconsider the applications as a result of our investigation.

We also received complaints about solar panel applications having been lost. The department confirmed that more than 1,000 applications may have been lost. Most of these were claimed to have been sent in bulk by installers before the 9 June cut-off. It was unlikely that an investigation by this office would be able to determine whether any particular applications had in fact been lost, and whether the loss had occurred in transit or after they had been received by the department.

In light of this, we again focused on the reasonableness of the criteria used to determine whether to accept resubmitted applications. DEWHA and DCCEE proactively engaged with us in designing the process for considering resubmitted applications. We ensured that the criteria were clearly communicated to the installers who had complained to our office, as well as to their individual customers.

Group application

Fifty permanent residents of a caravan park formed a group to apply for solar panel rebates through a single installer. The installer claimed to have submitted all 50 applications prior to the 9 June 2009 deadline. DEWHA accepted 43 applications, but rejected seven for lateness and/or incompleteness. Upon review, one application was accepted but the rejection of the other six was upheld. However, after investigation by our office, the department (now DCCEE) conducted a second review and granted approval for the remaining six applications.

Two out of three

Mr R complained that an installer had submitted three applications for the solar panel rebate for himself and two other members of his family. The other two applications had been approved, but his had been rejected as incomplete. Our investigation confirmed that, in Mr R's case, the installer had neglected to include the part of the application in which the installer certified that the proposed system would comply with the relevant standards and legislative requirements, meet the rebate guidelines, and was appropriate for Mr R's location. We considered that it was not unreasonable for DCCEE to have assessed the application as materially incomplete.

Lost applications

Mr S has a business installing solar panels, and complained that he had sent in more than 3,000 solar panel rebate applications before the 9 June 2009 cut-off, but DEWHA had no record of receiving 618 of these. Mr S had met with the department in October 2009, and had followed up but had not received clear advice about the missing applications.

Mr S also complained that the department had paid the rebate to three of his customers whose applications had been lost, after they had submitted duplicate applications together with statutory declarations stating that their original applications were posted by 9 June 2009. However, DEWHA had not adopted this for other missing applications.

In response to our inquiries, DEWHA advised that it had approved Mr S's three customers' applications in error. It again met with Mr S and advised him that it was still finalising its policy on lost applications. Mr S also contacted us after the meeting and expressed concerns about the department's request that he provide copies of the original applications. He explained that very few of his customers had kept copies.

We discussed the situation with DEWHA and also DCCEE (after responsibility for the program was transferred to it in March 2010). We emphasised the need for a timely resolution to the problem, given the large number of people who were affected.

Ultimately, in May 2010 DCCEE wrote to all applicants whose applications were missing, inviting them to resubmit their applications, together with supporting evidence to show that they had applied before the 9 June 2009 cut-off. Where applicants had not kept a copy of their original application, they were offered the opportunity to submit a duplicate application together with a statutory declaration to that effect.

In our view, this policy for dealing with lost applications seemed reasonable.

Home Insulation Program

We received more than 60 complaints concerning DEWHA/DCCEE's administration of the Australian Home Insulation program. Most of these complaints were from householders who were concerned about delays in rebate applications being approved, or from installers about approved rebates being paid.

Some householders were concerned about the quality and safety of the insulation that had been installed in their homes, and whether the department was taking steps to regulate installers and check the quality and safety of the insulation materials used.

Householders also complained about fraudulent claims for the rebate in relation to their properties. In some cases, the possibility of a fraudulent claim came to the householder's attention when their rebate application was rejected because a rebate had already been paid for their property. In other cases, the householder received a letter from the department confirming that a rebate had been paid to an installer for their property, when the householder had not in fact made an application. In these cases, we advised the complainant to draw the department's attention to the issue so that it could take compliance action.

Green Loans program

We received 126 complaints about the Green Loans program from Green Loans assessors concerned about difficulties in obtaining assessment bookings, or about delays in the processing of invoices and difficulties in communicating with the departments generally.

Green Loans assessors

We received complaints from Green Loans home sustainability assessors about the DCCEE's delayed payment of their invoices. In some cases, the complainants had contacted the department numerous times to enquire about the status of their payments. Although they had used the dedicated email address and phone number advertised by the department, they had not received any response. DCCEE advised our office that the same team processing the payments was also required to deal with complaints and enquiries. As payment processing was considered a priority, the department was not able to respond to complaints or enquiries in a timely manner. At our suggestion, DCCEE improved the information it provided to assessors about payment time frames by posting regular payment processing updates on its website, and amending its auto-reply email message to inform complainants to expect delays and to advise which invoices the department was currently processing.

Systemic issues

Many of the complaints to our office echoed media concerns about the energy efficiency programs. The Australian Government has responded to some issues by making changes to administration, or by commissioning an inquiry into the relevant aspect of the program.

We declined to investigate complaints where the departments were already taking steps to remedy problems, and where our investigation would have duplicated another inquiry. However, even in these cases we liaised regularly with the departments to ensure that they were aware of the full range of issues and concerns that complainants were raising with us, and to ensure that steps were being taken to address the problems. We also regularly sought improvements to their complaint-handling processes and the way in which information was provided to the public.

Department of Families, Housing, Community Services and Indigenous Affairs

Indigenous programs in the Northern Territory

The office has been funded until 2011–12 to provide independent oversight of the Northern Territory Emergency Response (NTER) and the Closing the Gap NT initiatives.

Apart from oversighting the NTER and the Closing the Gap NT initiatives, the Indigenous Unit of the Commonwealth Ombudsman also monitors all Australian Government programs that have an impact on Indigenous Australians in the Northern Territory (NT).

Complaints received from Indigenous Australians in the NT primarily relate to the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), the Department of Education, Employment and Workplace Relations (DEEWR) and Centrelink. This is to be expected as they are large and complex government agencies responsible for programs that have an impact on people's everyday lives. The Ombudsman also works with other agencies as the need arises.

Complaint themes

The Ombudsman's office dealt with 322 complaints relating to the NTER or Indigenous programs in the NT. Almost all of these complaints were received during outreach to 39 communities and town camps.

In considering these statistics the following should be noted:

The issue which attracts the highest number of complaints is housing. Problems arise from complex leasing arrangements, the Strategic Indigenous Housing and Infrastructure Program (SIHIP), the devolution of housing repair and maintenance services to local shires, as well as the delivery of municipal and essential services to communities. Such complaints are recorded against FaHCSIA; however, they often also concern the NT Department of Housing, Local Government and Regional Services (DHLGRS), for example:

The case studies on the following page highlight the diversity of concerns.

Other major issues of complaint relate to Income Management, the School Nutrition Program, Job Services Australia providers and land council decisions. Businesses and individuals also complain about the BasicsCard scheme.

House maintenance

Ms T complained about the condition of her house, saying that the stove did not work and that no repairs or maintenance had been undertaken in her community for some time. This was an issue for many people in the community.

Our investigation revealed some confusion about who was responsible for the repairs. While FaHCSIA was the landlord, responsibility for tenancy management and repairs had been devolved to the NT DHLGRS. DHLGRS had provided funding to the local shire for repairs and maintenance, but the shire was not clear on whether stoves were included in those things they were required to maintain.

As a result of this complaint and our investigation, the shire arranged for Ms T's stove to be replaced, along with 19 others in her community.

Community access to playgrounds

Residents of a remote community complained that there was no play equipment for the children outside of school hours as the school gates were locked at the end of the school day. We were told that new play equipment had been ordered for two other communities in the area, but not for this community. While we were in the community we saw metal grids placed in the area where the community said they would like a playground located.

When we investigated, we were advised that the Shire Council had not ordered play equipment for this community because there was play equipment at the school. Following our investigation, the Shire Council ordered new play equipment and the agency will fund the erection of shade cloth over the play area.

BasicsCard usability

Mr U owned a roadhouse and had applied to Centrelink to be approved as a BasicsCard merchant for fuel, power and groceries. Centrelink had approved Mr U to be a BasicsCard merchant for fuel and power, but not for groceries because the policy, which was developed by FaHCSIA, did not allow roadhouses to sell groceries through BasicsCards. Mr U had requested a review of the decision, but did not receive a response.

Following an Ombudsman investigation of this complaint, Centrelink reviewed its decision and decided to approve Mr U's roadhouse for the full range of BasicsCard purchases, including groceries. We recommended that Centrelink review its decision letters to merchants so that it explained the merchant's review rights. Centrelink accepted our recommendation and amended its template letters. The complaint investigation also prompted a review of the roadhouse policy.

Complaint themes and cross-agency issues

It is evident that most agencies have not established accessible complaint mechanisms of their own in remote communities. Consequently, many issues that could be resolved by agencies do not come to their attention until we raise the complaint with them.

The need for improved communication was the subject of a public report that we released in late 2009 arising from complaints about asbestos management in remote communities.

A recurring theme throughout complaints is a concern about poor communication or a lack of information provided to Indigenous people about government programs affecting them. This is particularly acute where program decisions are made but not adequately conveyed or explained. Passive delivery of information, and information which is inappropriately targeted, misleading, unclear, untimely, inaccessible or simply non-existent lies at the heart of a significant number of complaints investigated by the Ombudsman, either as a primary issue or related factor.

This often involves a failure to engage, or interpreters not being available (which is the subject of a separate public report under consideration by this office).

This issue is seemingly at odds with the observation made by a number of community organisations that Aboriginal communities feel they have been ‘over-consulted'. Perhaps it is the same few prominent community leaders who have been consulted many times on issues of lower importance, and on broader more important issues, consultation with communities has not been well targeted. An ongoing issue reported to this office is the failure of clear follow-through or reporting back on consultations.

Poor communication is often compounded by the increasing trend towards service delivery involving two and often three tiers of government. While multijurisdictional service delivery can present complex problems for agencies, there is an increased risk of people being passed from one level of government to another without their concerns or needs being addressed.

The Ombudsman's role is particularly complex in this area because so many programs for Indigenous Australians are cross-agency or multijurisdictional. Additional issues arise because of the way Council of Australian Governments (COAG) agreements define or describe Australian Government responsibility for outcomes.

Programs and services may also be delivered through memorandums of understanding (MOU) and service level agreements between the Australian and NT Governments or through more direct funding to states and territories. We generally assert Commonwealth jurisdiction on the basis that the Commonwealth, primarily via FaHCSIA, is accountable for the delivery of outcomes under these high-level agreements.

Reports

The Commonwealth Ombudsman is currently drafting a report about agency access to Indigenous language interpreters.

We are also finalising a report under s 15 of the Ombudsman Act that arose from an investigation into a specific complaint concerning the administration of Performance Funding Agreements for service providers based in remote Indigenous communities. Another report we are currently finalising relates to the review rights of income-managed people in the NT.

Engagement

In addition to complaint investigations, the Ombudsman's office conducts regular formal liaison meetings with the key agencies involved in Closing the Gap NT programs. The aim is to gain early feedback about various government programs and to provide an opportunity for agencies to adjust and refine their programs and processes before more people are adversely affected.

This strategy has the potential to address a problem before it affects more clients and attracts wider attention and criticism. The Ombudsman is in a strong position to contribute to the improved delivery of government programs and if these cooperative objectives are understood, improved outcomes should follow.

The Ombudsman's office deals predominantly with FaHCSIA, Centrelink and DEEWR and attends regular liaison meetings in Darwin and Canberra. During 2009–10, we attended agency liaison meetings with other agencies that run programs for Indigenous people and remote communities in the NT, including:

During the year, we also met regularly with:

Outreach

The Commonwealth Ombudsman is the primary avenue of independent oversight of many Australian Government Indigenous programs. As a result, visits to Indigenous communities in the NT form a very important component of our outreach program.

An MOU with the NT Ombudsman signed in December 2009 facilitates a single interface for people who wish to complain about cross-jurisdictional issues in the NT.

The frequency of outreach visits and the time taken to investigate complaints can be significantly lengthened due to agency response times. We recognise the challenges that a large government agency such as FaHCSIA has in responding to our questions, which will often relate to a complex and multijurisdictional environment. We are currently refining our approach to complaints that involve cross-agency issues in consultation with FaHCSIA and relevant NT Government agencies.

Community organisations

We continue to examine how we can best engage with community agencies and organisations in the NT. These organisations are an important source of information about issues of concern and they also have the capacity to refer their clients to our services.

In 2009–10 we continued to share promotional and educational activities with other organisations. For example, together with the NT Ombudsman we made a presentation to the Batchelor Institute.

Other activities included information presentations about Ombudsman services to community board meetings and other community organisations such as the Central Australian Youth Link-Up Service (facilitating internet access at Papunya).

Looking ahead

Many complaints arise from the experience of one individual who is lost in the enormity of government programs. People need to know where to get information about government programs that affect them.

After more than three years of the NTER and Closing the Gap NT, communication challenges in remote NT remain a significant issue, and are the underlying cause of many complaints.

These challenges are shared by the office in its own communication with Aboriginal people and communities in the NT and nationally. The office is committed to improving its engagement to make its own services more widely accessible.

A project officer was engaged to develop an Indigenous communication and engagement

strategy in 2010. A key part of this project is formal evidence based research in order to shed light on how we can communicate better. We want to find out what messages Indigenous people respond to and why. We want to target our messages better and use the most appropriate tools. This research will be completed in the second half of 2010. It will assist the office to:

In other policy areas, decision-making tools can get in the way of good decisions at the expense of policy outcomes. The case study Helping Children with Autism Scheme illustrates this issue.

Helping Children with Autism Scheme

Ms V was granted assistance under the Helping Children with Autism (HCWA) scheme, which aims to support early intervention for under-school-age autistic children. Ms V complained to us that FaHCSIA had refused her claim for the Outer Regional and Remote Payment (ORRP), which provides additional assistance for HCWA recipients, because her address was not considered ‘outer regional and remote' (under the Accessibility Remoteness Index of Australia (ARIA+) tool used to assess ORRP claims). Ms V complained that she would not be able to use the HCWA funding she had been granted because she could not afford to travel to access these services.

We advised FaHCSIA of our view that while a grantee may live near a ‘service centre' as classified by ARIA+, it does not necessarily follow that there is a FaHCSIA approved provider in the vicinity of that service centre. We suggested that FaHCSIA consider using an alternative method of assessment. In response, FaHCSIA agreed to implement a special consideration for assessing ORRP applications. Under the changes, Ms V was granted the ORRP for her family. In addition, as a result of this enquiry other internal review processes were implemented to assist families seeking assistance.

Fair Work Ombudsman

The Office of the Fair Work Ombudsman (Fair Work Ombudsman) was established on 1 July 2009 to promote harmonious, productive and cooperative workplace relations, and to monitor, enquire into, investigate, and enforce compliance with relevant Commonwealth workplace laws. Its predecessor, the Office of the Workplace Ombudsman, had similar functions, although the Fair Work Ombudsman has a greater educational role.

In 2009–10 we received 57 complaints about the Fair Work Ombudsman, compared to 65 complaints about its predecessor the year before. The main issue centred on the conduct of investigations.

During 2009–10 we undertook an own motion investigation ( Fair Work Ombudsman: Exercise of coercive information-gathering powers , report no. 09|2010) focusing on the policies and guidelines used by the Fair Work Ombudsman when exercising its powers during investigations. We used the principles contained in the Administrative Review Council's (ARC) The Coercive Information-Gathering Powers of Government Agencies (report no. 4, May 2008) as a guide.

Overall, we found that the Fair Work Ombudsman is acting consistently with the principles contained in the ARC report. We were impressed with the quality of the procedures in place to manage the coercive information-gathering powers used by its inspectors. The own motion report included some recommendations for further procedural improvement, which were positively received by the Fair Work Ombudsman.

Department of Health and Ageing

The Ombudsman finalised 151 approaches and complaints about the Department of Health and Ageing (DoHA) in 2009–10, of which 57 were investigated.

The main themes arising from complaints were:

Complaint themes

The most common type of complaints received about DoHA concerned its Aged Care Complaints Investigation Scheme (CIS) and its decisions on recommendations made by the Aged Care Commissioner (ACCr).

In September 2009, the Ombudsman made a submission (based on complaints received) to DoHA's Review of the Aged Care Complaints Investigation Scheme conducted by Associate Professor Merrilyn Walton.

Respecting the dignity of care recipients

The complainant's father and another resident had raised some concerns during a general meeting of the care facility. They felt that the manager was rude to them in response. The complainant said that the following day the manager had spoken to each of them separately in their rooms and they felt that this was bullying in response to the incident at the meeting. The manager said she spoke ‘sternly' to the residents but had not treated them with disrespect.

The CIS decided that there had been a breach of the requirement to respect the dignity of care recipients, but that this had been rectified and no further action was required. Both the facility and a resident's family appealed to the ACC. The facility argued that there had been no breach of the requirements and the resident's family argued that there should be further action taken. The ACC decided that there was insufficient objective evidence of the conversations to establish that a breach had occurred.

In this case the complaint process met regulatory needs, but placed the parties in an adversarial position. The process did not address the perceptions of the parties, which were likely to continue to affect their ongoing relationship. Addressing these matters is important to the way residents feel in a care facility that is essentially their home.

Our concerns about the complaints investigation scheme include:

In particular, the current complaints scheme has not provided the type of resolution mechanism required in circumstances where there will be an ongoing relationship between a care facility and care recipient.

The case Explaining decisions how a complaint can remain unresolved due to inadequate explanation to the complainant of the reasons for a decision.

Explaining decisions

Mr W's care facility decided that it could no longer care for him due to his increasing needs and that he would be better placed elsewhere. The User Rights Principles (the Principles) provide for certain processes to be followed where a residence either asks or requires a care recipient to leave in these circumstances. In this case the care facility said it did not follow the process under the Principles because Mr V left the facility voluntarily.

On Mr W's behalf, the complainant complained to the CIS and to the ACC that Mr W had not left voluntarily, but rather was told he would have to leave.

The CIS weighed up what both parties said had occurred in a meeting between the facility and the complainant and decided that it couldn't reach a positive conclusion about whether Mr W had been asked or required to leave. This was because the facility's officers may have understood the complainant's reactions (including crying) as expressing sadness at the situation, but not as disagreement with the proposal that Mr W be relocated. The ACC did not agree and referred to a contemporaneous file note made by the care facility after the meeting, which referred to still having to convince the complainant.

The Secretary's delegate decided not to accept the ACC's recommendation, referring to what each party had originally said to the CIS and deciding that it couldn't be positively satisfied whether Mr W was asked or required to leave. Despite its prominent place in the reasoning of the ACC, the delegate made no reference to the file note. Because the complaint was about how a particular conversation was perceived at the time, the contemporaneous file note was a significant relevant consideration which needed to be addressed in the reasoning for the decision.

In response to our enquiries, DoHA advised that it has reviewed the CIS's letters and conducted a training program focused on the provision of clear and logical statements of reasons. However, while it acknowledged that the reasons afforded the complainant in this case could have been clearer, DoHA did not provide a statement addressing the file note to the complainant in this case. This omission left the complainant to wonder whether or how the file note was taken into account, and reduced the likelihood that the decision would be acceptable to the complainant.

Associate Professor Walton's report on the Review of the Aged Care Complaints Investigation Scheme was publicly released on 12 April 2010. Since then, DoHA has advised that it will work with the aged care sector, consumers and others to develop and implement a range of quality improvements to the CIS. In particular, these will include:

We will monitor the effectiveness of the proposed improvements through complaints made to this office.

Communication and publicly available information

The case study of Mr V is also an example of a failure to understand what information a member of the public would expect to be addressed in government correspondence.

In 2009–10 we conducted a number of investigations that showed room for improvement in communications with members of the public by some areas of DoHA, including the Therapeutic Goods Administration (TGA) and material available to users through the TGA website.

In two complaints about the regulation of therapeutic goods that the complainants believed had caused serious side effects to their family members, we found that DoHA, through the TGA and its committees, had conducted substantial regulatory work. However, DoHA's responses to the complainants' enquiries did not do justice to this work and left the complainants believing that insufficient work was being done.

Regulation of naltrexone implants

In 2009 we received a number of complaints about the regulation of the manufacture and supply of naltrexone implants (used in the treatment of drug addiction). The product is not approved for marketing or supply in Australia but, under an exemption in the Therapeutic Goods Act 1989 , may be manufactured by a medical practitioner for the treatment of a life threatening illness in their own patients.

The complainants questioned the intensity of compliance activity conducted by the TGA to ensure the requirements for the exemption were met. We found that the TGA had recently focused on this area to ensure compliance with the requirements for the exemption. However, we also found that the TGA's guidelines published on its website did not accurately reflect its legal compliance powers, and that responses to people who had complained to the TGA about the use of the implants had referred them to an internet page on which these incorrect guidelines could be found. The TGA corrected its guidelines as a result of our investigation.

Access to DoHA services in remote communities

The Ombudsman's Indigenous Unit has observed aged care arrangements and received complaints about aged care services during its outreach to communities and town camps. The underlying theme in aged care complaints received by the Indigenous Unit is the inaccessibility or unavailability of aged care services. Residential aged care is viewed favourably by complainants in remote communities. However, we receive regular feedback that the focus on care and treatment in larger centres has meant that older people may be forced to leave their communities to be cared for or miss out on care because they find it too difficult to leave their communities. Elderly Indigenous people often choose to remain in their community with minimal or no services, rather than be away from family, social networks and spiritual supports in their country.

Complainants have raised concerns with the Ombudsman about the complexity of the process for applying for aged care funding and its associated costs. They have advised the office that these difficulties dissuade organisations from providing aged care services in remote areas.

Communication is another common theme in aged care complaints received by the Indigenous Unit. It is the Ombudsman's experience that in some communities there is uncertainty as to whom residents should approach about aged care needs: the shire, the health clinic or the Australian Government representatives stationed in the community. It is often difficult for complainants to navigate the aged care bureaucracy to determine their entitlements. This challenge is exacerbated for complainants who do not speak English, or who speak English as a second, third, fourth, or even fifth language, as is often the case in the NT.

As the Office of Evaluation and Audit has identified, there are currently no Indigenous aged care quality standards. The Indigenous Flexible Aged Care Program operates outside of the Aged Care Act 1997 , and does not have to comply with the mainstream aged care quality standards. There is also currently no requirement to provide a complaint and redress mechanism under the flexible aged care program. Although the Ombudsman does have jurisdiction to take complaints relating to Indigenous aged care arrangements, it is our view there should be mechanisms for redress within government agencies, and clients and their families should be made aware of these.

Medicare

In 2009–10 the Commonwealth Ombudsman received 171 approaches and complaints about Medicare Australia (Medicare), up marginally from 161 received for the 2008–09 year.

Approaches and complaints received by the Ombudsman about Medicare are diverse and range from entitlement enquiries and complaints about service delivery to incorrect advice and policy matters.

Complaints alleging incorrect advice are particularly difficult to resolve as Medicare does not have a system for recording the details of verbal advice given to customers, as illustrated in the case study Recording verbal advice .

Recording verbal advice

Ms X's doctor had lodged the necessary Medicare forms for a person to be placed on its dental plan permitting access to benefits for certain dental treatment. The form did not ask whether the treatment was to take place within a hospital.

Ms X advised the Ombudsman's office that she called Medicare's dental health plan phone number to confirm that the GP care plan items had been claimed and paid before starting dental treatment, as this is a Medicare requirement. Ms X said that she was informed that approval had been given. Ms X later contacted Medicare to see if her anaesthetic fee and hospital bed expenses would be claimable. Ms X said that she was told they would not, but all other treatment costs would be met. Ms X then went ahead with the treatment.

Subsequently, her surgeon recommended that Ms X contact Medicare and cross-check the Medicare item numbers that had been used. She again called Medicare's general public enquiries phone number and was informed that all listed item numbers could be claimed. However, when she attended the Medicare office and presented her receipts, Ms X was informed that, because the treatment had taken place in a hospital, it was not claimable.

Ms X rang Medicare's general public enquiries phone number again and was told that the item was claimable. Ms X then requested to be transferred to a supervisor. The supervisor noticed that Ms X was also claiming for an anaesthetic on the same date and asked whether the procedure had occurred in a hospital, to which Ms X replied 'yes'. She was then advised that, as the treatment had occurred in a hospital, a benefit was not payable.

Ms X complained that she was not told at the outset that the treatment could not be claimed if carried out in a hospital. However, because Medicare does not have a system for recording verbal advice given to customers, there are no records of exactly what Ms X was told and any advice given can only be inferred from all of the circumstances.

The Ombudsman has raised this issue with Medicare, and Medicare advised that it is examining various options for recording verbal advice.

Electronic funds transfer

Another complaint highlighted the risks for customers of government services moving towards electronic funds transfer systems, as seen in Incorrect BSB .

Incorrect BSB

The complainant had accidently given Medicare an incorrect BSB number for the payment of her benefit. Medicare used the number as provided and paid the benefit into an unknown person's account. Medicare contacted the Reserve Bank of Australia (RBA), which advised that the payment could not be retrieved. The RBA provided information to us about its processes and capacity to retrieve payments in these circumstances. Under the Bulk Electronic Clearing System rules, the RBA will contact the destination financial institution, which will then use its best endeavours to contact its customer about the matter.

If the customer consents, the destination financial institution will withdraw the amount and repay it to the RBA. Otherwise, the requesting agency will need to take separate steps to identify the recipient and use any applicable laws to recover the money. There is no industry time limit on the RBA making a request to a destination financial institution. In this case, Medicare had paid the amount at the direction of the complainant and there was no legal obligation on it to take further action to recover the payment on behalf of the complainant. In concluding our investigation, we suggested to Medicare that it ensure customers are apprised of the importance of accuracy in providing their account numbers.

Compensation for Detriment caused by Defective Administration

Early in the financial year we observed delays in the processing of requests made by customers under the Compensation for Detriment caused by Defective Administration (CDDA) scheme under Finance Circular 2009/09.

As a result of enquiries made by the Ombudsman about the length of time taken to process claims, Medicare revised its processes by:

Freedom of information

This was the last full year for which this office was responsible for investigating actions taken by Commonwealth agencies under the Freedom of Information Act 1982 (FOI Act).

The Australian Information Commissioner Act 2010 commences from 1 November 2010. That Act creates offices of the Australian Information Commissioner and the Freedom of Information Commissioner who, together with the existing Privacy Commissioner, will be responsible for information access and related matters in the Commonwealth.

In 2009–10 we received 137 complaints about FOI requests. During the year we finalised 159 complaints about FOI, addressing 161 issues. Of these, 120 were about access to personal documents and 41 about access to general documents. As with previous years, the majority of complaints were about delay, the imposition and remission of fees and charges, and decisions that were not well explained.

Our experience is that complaints to the Ombudsman about delay can often be avoided if agencies better inform applicants about the progress of their request, and the reasons for the delay. The Ombudsman continues to encourage agencies to improve the level of contact with FOI applicants to decrease the need for our involvement. In cases where the Ombudsman finds there has been a delay, the usual remedy is to speed up the processing of the request and provide an apology to the applicant. In some cases we have suggested that the agency provide additional resources to manage their processing of FOI requests, and appropriate staff training in the requirements under the FOI Act.

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 their obligations under this provision. Some agencies did not assist an FOI applicant where an FOI request was invalid, or where the agency suggested that the request be dealt with informally outside the FOI Act.

Monitoring and inspections

The Ombudsman is required under law to inspect the records of law enforcement and other enforcement agencies in relation to the use of covert powers. We do this to determine compliance with legislative requirements governing the use of those powers, which include:

In addition, we have the function, recommended by the Senate Rural and Regional Affairs and Transport Legislation Committee in 2006 and agreed by the Department of Agriculture, Fisheries and Forestry (DAFF), to review investigations carried out by the Biosecurity Services Group within DAFF.

We were involved in inspection and oversight of 16 different agencies, at both Commonwealth and state level, under the requirements of four different Commonwealth Acts.

Definitions

Telecommunications interceptions are the recording of telephone conversations or other transmissions passing over a telecommunications network. Interceptions occur under warrant for the purposes of obtaining information relevant to an investigation.

Stored communications typically refer to emails and text messages, but may include images or video, which are electronically stored by a telecommunications carrier or internet service provider. For instance, an SMS message is stored by a carrier and sent when the intended recipient is able to take the message. Stored communications access occurs under warrant for the purposes of obtaining information relevant to an investigation.

Surveillance devices are typically listening devices, cameras and tracking devices that are used to gather information for criminal investigations and for the safe recovery of children. The use of these devices usually requires a warrant.

A controlled operation is a covert operation carried out by law enforcement officers under the Crimes Act 1914 (Cth) for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious offence. An authority to conduct a controlled operation permits, within limits, a law enforcement officer to engage in conduct that might otherwise constitute an offence.

Telecommunications interceptions

Under Chapter 2 of the Telecommunications (Interception and Access) Act 1979 (TIA Act), the Ombudsman is required to inspect the records of the AFP, the ACC and ACLEI twice a year. We do this to ascertain the extent of compliance with requirements to destroy restricted records, keep documents connected with the issue of warrants and keep records of interceptions. Our office has provided oversight of the regime since 1988.

Our office may report any contraventions of the TIA Act that come to our notice in the course of the inspections.

In September 2009 we presented reports to the Attorney-General on inspections of the AFP and ACC undertaken in 2008–09 (ACLEI did not conduct any interceptions in that year).

We conducted two inspections each of AFP and ACC records in 2009–10 relating to warrants that were issued between April and September 2009, and October and December 2009 (ALCEI did not conduct any interceptions during this period).

The AFP was generally found to be compliant with the requirements of the TIA Act. Three recommendations were made, two of which related to the keeping of ‘use and communication logs' and the other to the description of offences on warrants.

The ACC was found to be compliant with the requirements of the TIA Act. No recommendations were made.

In general, the level of compliance with the requirements of the TIA Act is very high. The telecommunications regime has been in operation for a considerable period and there is a good understanding by agencies of the legislative requirements. The process is highly automated with appropriate safeguards.

Stored communications

Under Chapter 3 of the TIA Act, the Ombudsman is required to inspect the records of enforcement agencies that relate to the access of stored communications. Our role is to ascertain the extent of compliance with the relevant provisions of the TIA Act. During 2009–10 we carried out 17 inspections of stored communications records maintained by 15 agencies.

Those agencies were the AFP, ACC, ASIC, New South Wales Crime Commission, NSW Police, Queensland Police, Crime and Misconduct Commission, South Australia Police, Tasmania Police, Victoria Police, Office of Police Integrity, Western Australia Police, Corruption and Crime Commission (CCC) and Australian Customs and Border Protection Service. In the case of Customs there were three inspections in different regional offices.

The stored communications access scheme is designed to permit access to communications that have been stored by a carrier, rather than permitting enforcement agencies to monitor communications over a period of time, which would be akin to interception. This is particularly evident in the short period that a warrant remains in force, being five days from issue or until first executed.

The legislative controls and restrictions governing access to stored communications are generally set at a lower level than those relating to telecommunications interception. This, together with tighter time frames for accessing stored communications, places a significant obligation on agencies to closely manage stored communications access if they are to be compliant with the TIA Act.

Problems were again identified with respect to access of stored communications and compliance with the TIA Act. There also continues to be disagreement about the requirements that legislation places on both agencies and carriers. These difficulties have been compounded by a lack of record keeping demonstrating when warrants are executed. We have raised our concerns with the Attorney-General.

Surveillance devices

Under the Surveillance Devices Act 2004 (Cth) (SD Act), the Ombudsman is required to inspect the records of Commonwealth, state and territory law enforcement agencies that utilise powers under the SD Act.

During 2009–10, two inspections each of the AFP and the ACC and one inspection of the CCC were conducted. The inspections examined records relating to surveillance devices warrants, tracking device authorisations and emergency authorisations that had expired or were revoked between 1 January 2009 and 30 June 2009 and 1 July 2009 and 31 December 2009. We provided a report to the Attorney-General in March 2010, which was tabled in the Parliament in June 2010. The report contained the results of inspections finalised during January to December 2009.

Overall there was a high level of compliance by each of the agencies inspected. However, we have raised concerns with the ACC and AFP in relation to their preference to obtain new warrants to authorise ongoing surveillance activities rather than utilising extension provisions within the SD Act. While the practice of obtaining a new warrant is not unlawful, it has the potential to obscure the duration that a target has been under surveillance and the subsequent impact on the target's privacy. This is a relevant consideration for issuing officers. We have continued to draw attention to this issue with agencies and the Parliament.

Controlled operations

Part IAB of the Crimes Act 1914 (Crimes Act) prescribes the process of applying for, granting, and ending an authority to conduct a controlled operation. Where a controlled operation is authorised, law enforcement officers and certain other persons are generally exempt from criminal liability arising in the course of such an operation, and are indemnified from civil liability.

The Ombudsman has the function of inspecting and overseeing the requirements of Part IAB of the Crimes Act. The Ombudsman must also produce a report on the results of inspections (published in November 2009), and brief the Parliamentary Joint Committee on the ACC. During the year we conducted four inspections of controlled operations records that ended between 1 February 2009 to 31 July 2009 and 1 August 2009 to 31 January 2010—two each at the AFP and the ACC. We concluded that both agencies were generally compliant with the legislative requirements.

In conducting the inspections, we are always mindful of the sensitivities involved in controlled operations and the amount of information we need to access in order to perform our function. We must have access to sufficient information to allow our office to give reasonable assurance that operations are conducted within the bounds of an authority. At the same time we must be cognisant of security implications. We emphasise to agencies that the decision about what is sufficient information is a matter for us to determine taking into consideration the need to balance these factors.

Prior to 19 February 2010, the Crimes Act permitted controlled operations to be conducted for a maximum of six months on the condition that they were externally reviewed by the Administrative Appeals Tribunal after three months.

On 19 February 2010 the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 came into effect and a large number of changes were made to Part IAB of the Crimes Act.

Of particular note was the extension of the period of a controlled operation from a maximum of six to 24 months, subject again to external scrutiny requirements. Explanatory memorandum for the new legislation makes it clear that any one operation has a distinct limit to its operation. We are discussing these changes with the ACC, including how they affect the approval and conduct of operations.

Review of investigations—Biosecurity Services Group

During 2009–10, we undertook an own motion investigation into the activities of the Compliance Branch, Biosecurity Services Group, in DAFF. The own motion investigation was conducted at the Sydney office of the Compliance Branch.

The Compliance Branch undertakes investigations of possible breaches of legislation administered by DAFF (for example, the Quarantine Act 1908 ), and provides briefs of evidence to the Commonwealth Director of Public Prosecutions to consider criminal prosecution in certain cases.

Our understanding of this function flows from a recommendation contained in the Senate Rural and Regional Affairs and Transport Legislation Committee's report on the administration by DAFF of the 2004 outbreak of citrus canker. In its June 2006 report, the Committee criticised DAFF for its response to the citrus canker outbreak and the failure of an earlier investigation to prevent or mitigate the outbreak.

As a result, the Committee recommended that the Commonwealth Ombudsman review investigations carried out by the then Australian Quarantine and Inspection Service (now the Biosecurity Services Group).

As part of the own motion investigation, we looked at the Sydney office's timeliness in commencing investigations, the training and qualification of investigators, its compliance with legislative requirements in using enforcement powers and adherence with policies issued by DAFF. We are currently completing the report on the results of this investigation.

It is expected that we will continue the own motion investigation of the Compliance Branch in 2010–11, visiting regional offices in Melbourne, Adelaide, Sydney, Perth and Brisbane. DAFF provides funding to the Ombudsman to carry out this function.

Providing greater assurance

As we advised in our previous annual report, the introduction of the stored communications access regime increased the number of inspections we conducted and reports we provided by 60% in 2008–09. This prompted a rethink of the way we approach inspections to allow us to provide greater assurance to the Attorney-General and the Parliament that agencies are properly using their covert and coercive powers.

In 2009–10, we made significant changes to our work practices, focusing on a more robust and risk–based approach to our auditing. The changes include:

We will continue to implement these enhancements in 2010–11.

As a result of these changes, our reports will provide a more balanced view of an agency's performance against legislative requirements. The reports will not simply raise issues of non-compliance, but include an assessment of agencies' internal safeguards and performance against legislative requirements.

The effectiveness of these changes is already evident. Our inspections are focused on those areas where problems are likely to arise, yet they are conducted in shorter time frames with fewer resources.

We aim to provide more targeted advice to agencies to assist their legislative compliance and, at the same time, a greater level of assurance to the Parliament on agency performance.

Assisting agencies

In February 2008, the ACC implemented an ‘excellence in compliance' strategy to improve its legislative compliance. As part of this, the ACC worked with us, was open about problems and listened to our advice. In our most recent report on surveillance devices and in our two most recent reports on telecommunication interceptions, the ACC was found to be compliant with all requirements of the Acts and no recommendations were made by our office.

Such results are, in part, about accepting oversight and inspection as a necessary and integral part of a regime where extraordinary powers are granted by the Parliament. When agencies accept that and work with us, oversight and inspection can provide both assurance and improved compliance.

Tasmania Police, Queensland Police and the Crime and Misconduct Commission have stood out as agencies keen to seek our advice on compliance issues and maintain communication with our office. In preparing to use certain powers for the first time, ACLEI has also sought our assistance and we are keen to work with the Commission to ensure high levels of legislative compliance.

Contributing to policy and legislative change

In monitoring compliance with the various Acts, the Ombudsman is able to observe accountability mechanisms and assess those that work well and those that do not. Armed with this knowledge, we made submissions to the Senate Committee on Legal and Constitutional Affairs in 2009–10 in relation to the:

The Ombudsman's oversight role gives us a unique perspective on the use of special powers. We have developed a deep understanding of the working arrangements and administrative processes that enforcement agencies employ.

We understand the limitations and problems that legislation can create, often inadvertently. Yet we are able to distinguish between limitations imposed for purposes of accountability and those that manifest as unintended consequences. We continue to seek opportunities to engage with law enforcement agencies and the Attorney-General's Department to add value in this area.

Overseas students

Subject to amendments to the Education Services for Overseas Students (ESOS) legislation, the Commonwealth Ombudsman will have a new role in relation to international students in 2011.

The Ombudsman will have jurisdiction to investigate complaints from international students intending to study or currently enrolled with private education providers where there is not already a statutorily independent complaint body available to them. The office will also assist private education providers to develop and improve their own internal complaint-handling processes in line with best practice.

A Bill containing those amendments was referred to the Senate Education, Employment and Workplace Relations Legislation Committee on 25 June 2010. The Committee is due to report in late 2010.

Defence Force Ombudsman

Each year the Commonwealth and Defence Force Ombudsman (DFO) receives, on average, between 550 and 750 approaches and complaints about Defence-related matters. This year we received 578 complaints, a decrease of 5% from last year's figure of 609.

Among Defence-related agencies are the Department of Defence, each arm of the Australian Defence Force (ADF), Department of Veterans' Affairs (DVA) and Defence Housing Australia.

We can investigate approaches as either the Commonwealth Ombudsman or the DFO depending on the circumstances of the complaint. Complaints that arise as a result of a person serving or having served in the ADF are usually investigated under the DFO role. These employment-related matters can include complaints about termination, promotion, postings, pay and entitlements.

The Commonwealth Ombudsman usually investigates complaints from members of the public about Defence-related agencies and the ADF. Complaints of this nature can include issues such as weapons firing ranges, military aircraft noise, contracting matters and service delivery.

Table 5.1: Defence-related approaches and complaints received, 2005–06 to 2009–10

  1st report 2nd report Total
Received from DIAC 165 8 173
Review sent from Ombudsman 84 5 89
Closed without review*    83

Department of Defence

We received 176 approaches and complaints about the Department of Defence and the ADF. Significant issues arising from these complaints included:

Our office received 20 complaints about delays in the ROG process, a matter that is currently the subject of a joint review by our office and the Department of Defence. Since we reported on this issue in last year's annual report, the problem of delay appears to have become more pronounced.

The ROG process involves a defence force member's Commanding Officer (CO) as the first avenue of complaint. The CO normally has 90 days in which to investigate the complaint and, if the member's concerns cannot be resolved at that point, the member has the statutory right to refer their complaint to the chief of their service.

Once a complaint is referred to the service chief no formal time frame for action applies, although a 180-day benchmark has been agreed.

Complaints to our office have highlighted delays in some cases of 12 months to two years before the service chief makes a determination on the complaint. Our view is that this time frame is excessive and we are working with Defence to develop a range of recommendations aimed at improving the underlying risk assessment methodology and review process attached to the ROG system.

Unreasonable delay

Lieutenant Colonel (LTCOL) Y lodged a Redress of Grievance (ROG) with his administrative CO in August 2008. At the time he complained to our office in November 2009, LTCOL Y's ROG had been dealt with by his CO and forwarded to the service chief for review. LTCOL Y complained that his complaint had not yet been allocated to a case officer to prepare a brief for the service chief. That is, some 14 months after initially lodging his complaint, it had still not been allocated for further action.

We approached Defence about this delay and were advised that it would refer the complaint to a case officer to consider the matter. By this time we had also commenced our joint review of the ROG process with Defence, and our advice to LTCOL Y was that in addition to assisting to have his case actioned, we were following up on the systemic issues related to such delays.

Another significant issue investigated by our office concerns the reluctance of the services to provide reasons to unsuccessful candidates seeking re-enlistment to the ADF. Our office received seven complaints about this subject, and while this may not be a large number, it raised a concern about a key principle of good administrative decision making.

When a person who has previously served in the ADF leaves (for whatever reason) and then seeks to re-enter the ADF at a later date, the relevant prior defence service Career Management Agency (CMA) is consulted as part of the re-enlistment process.

Defence Force Recruiting (DFR) asks the CMA for comment on the suitability of the candidate. The CMA refers to the candidate's previous service history and, where this is acceptable, the person is usually recommended and the re-enlistment process can continue.

Complaints to our office indicate that where an application for re-enlistment has been turned down by the CMA, reasons are not provided by the CMA to DFR so that the candidate can be advised. Some complainants were told that they should have known why they were discharged previously and that this would be the reason they are not suitable for re-enlistment.

Our view is that this approach is a poor substitute for a set of adequate reasons supporting an adverse administrative decision. It is problematic for the candidate and for Defence. The candidate has a right to know the reasons relating to the decision so that, if they wish, they can an appeal the decision.

In some cases we have investigated it was clear that Defence had a valid basis to not recommend a candidate and, had it provided those reasons, it is unlikely that a complaint would have arisen.

We are currently involved in discussions with Defence about this issue and expect to be able to positively influence the way in which reasons are given to re-enlistment candidates in the future.

Failure to provide adequate reasons for a decision

Mr AA had previously served in the Army and applied to re-enlist in the ADF, this time with the Royal Australian Air Force (RAAF). His application was accepted and a request for a service suitability check was forwarded to the RAAF CMA. The CMA sought advice from the Army about Mr AA's prior service. Mr AA had previously been discharged for involvement with prohibited substances, but this wasn't included in the advice given to DFR. It simply referred to Mr AA being assessed as an unsuitable risk for employment with the RAAF.

Mr AA complained to our office and we investigated the failure to provide adequate reasons to Mr AA. In our view, given the reasons for Mr AA's discharge, it was reasonably open to the RAAF to reject his application for re-enlistment. However the RAAF should have taken steps to ensure a more complete basis for their decision was given to the candidate.

An Ombudsman staff member met with HMAS Coonawarra Crew

An Ombudsman staff member met with HMAS Coonawarra Crew

Record keeping is another fundamental aspect of good administration. Failure to accurately record events contemporaneously or to ensure records are properly kept can affect a person's eligibility for benefits or entitlements.

We saw evidence of problems associated with record keeping through complaints we received. These problems ranged from the incorrect assignment of a discharge category for an ADF member through to the removal of documents from a person's service record. The explanation for these failures is often associated with a lack of training or attention to detail.

Poor record keeping puts entitlements at risk

Ms BB was approved to play civilian sport while serving in the ADF. Approval to play in civilian competitions means that a service member who is injured while playing sport will receive medical treatment and, where appropriate, compensation or rehabilitation as a Defence member.

Ms BB asked that the letters approving her participation in civilian sporting competitions be kept on her personal file, held by the unit clerical staff. Some months later, Ms BB had reason to inspect her file. When she did so, she noted that none of the documents approving her participation in sport were on the file. No explanation was available for the missing documents.

The documents approving participation in civilian sport are important. If Ms BB was injured playing sport, there would be no question that medical treatment would be provided by the ADF. If, in later years, she developed a disability from a sporting injury, then the documents would support any claim she made for compensation or disability made to Department of Veterans' Affairs.

Department of Veterans' Affairs

The Department of Veterans' Affairs (DVA) administers a wide range of services and benefits to almost half a million Australians. During 2009–10 we received 167 approaches and complaints about DVA.

Complaints about DVA are often complex. Depending on the nature, time and place of a person's service with the ADF, eligibility for benefits, rehabilitation or compensation under one or more of three pieces of legislation may be possible. An important role of our office can be to offer a better explanation for a decision or action.

In addition to complexity of provisions, it is common for complainants to have mental and physical health conditions that need to be considered in responding to complaints appropriately. Because of this, it sometimes takes time to develop an accurate understanding of the complaint issues and the interaction the claimant has had with the department prior to a complaint reaching our office. In such cases we have found DVA ready to assist by providing information to clarify its involvement with the person and discussing any follow-up issues. DVA has also provided training to our staff and briefings on emerging issues when requested.

Notwithstanding this complexity, we have observed that DVA regularly advises claimants of their available review rights and invites veterans to consider resubmitting a previously refused claim under the same or alternative legislation if they feel their condition has worsened over time. DVA has also established a client liaison unit that deals with particularly complex cases and allows claimants to have regular contact with a dedicated case officer. From our perspective, this shows that DVA recognises the life-long relationship it has with most of its client base.

With some DVA complaints, the only remedy that is available is to provide a better explanation for the agency's decision.

Where something has gone wrong—for example, a systems failure, we have noticed an increased willingness by DVA to apologise.

The complex nature of service

Ms CC served in the ADF, suffered an injury, was discharged and receives Incapacity Payments under the Military Rehabilitation and Compensation Act 2004 (MRCA). She complained to our office that these payments had reduced after 45 weeks of receipt. She also complained that the distinction between warlike and non-warlike service was unfair and discriminatory.

We wrote to Ms CC and explained that the reduction in her incapacity payment was not unreasonable given the operation of the MRCA. We also explained, in some detail, the reasonableness of the distinction between warlike and non-warlike service in the ADF and the differing degree of entitlement that can result from the nature of a person's service.

Without providing a tangible remedy, our independent view was able to allay the Ms CC's concerns that DVA was not acting in a fair manner.

Defence Housing Australia

Defence Housing Australia (DHA) provides housing and relocation services to ADF members. DHA also maintains properties and manages leases with members of the public who lease their houses to DHA. When an ADF member relocates on posting, DHA calculates and arranges for the payment of associated allowances and benefits.

During 2009–10 we received 31 approaches about DHA. This was eight fewer than the previous year and represents a decrease of about 19% in the number of complaints.

While a small number of complaints were received, many of the matters considered by our office related to the adequacy of policy concerning ADF removals and allowances payable to ADF personnel. DHA is responsible for delivering a service on behalf of Defence using policy created by Defence. Therefore such cases tend to be about Defence policy. Possible systemic issues relating to the adequacy of entitlement policy and accessibility of this information have been considered as part of our own motion investigation into factors affecting conditions of service decisions in the ADF.

In the future, DHA will be responsible only for housing matters and the management of leases with DHA. The functions associated with an ADF member's removal on posting and payment of allowances will be handled by TOLL Transitions.

We have met with Defence staff responsible for the implementation of the TOLL Transitions contract and the transition of these functions to ensure that processes to provide a smooth transfer of responsibilities are implemented and that adequate complaint-handling mechanisms exist.

Formal reports and submissions

Two major investigations were commenced during the 2009–10 financial year. The first was a joint review with the Department of Defence into delays associated with ROGs once they are elevated to the relevant service chief.

Our second investigation was an own motion investigation into decisions on conditions of service in the ADF. The results of these investigations will be reported in the 2010–11 annual report.

At the invitation of Mr D J Campbell, Senior Counsel assisting the HMAS Success Commission of Inquiry, we provided a submission on matters of administration of the ADF that affect the system of military justice. Our submission discussed the complexity of Defence administration and the delay in finalising redresses of grievance.

Stakeholder liaison

Our office meets regularly with representatives from Defence and DHA. As part of our work with DHA we will be meeting more frequently to assist where we can with the establishment of the department's new complaint-handling area. Given TOLL's new role in relation to ADF removals and payment of allowances, we also plan to meet with that agency to ensure complaints are being adequately managed.

During the year staff from our office met with representatives from the Returned and Services League (RSL) of Australia, travelled to a large number of military establishments and spoke with commanders, administrators and general service members about the role and function of the DFO. We also delivered presentations to service training courses, most notably to the RAAF. We plan to conduct similar outreach in the forthcoming financial year.

Immigration Ombudsman

Immigration and Citizenship

In 2009–10 we continued our program of inspections of immigration detention facilities, own motion investigations into systemic issues, monitoring of compliance and removal actions, and ongoing engagement with the Department of Immigration and Citizenship (DIAC) through regular meetings and consultation on proposed initiatives. This preventive approach has been helpful in reducing the volume of complaints received about systemic issues. It has helped DIAC to quickly implement processes to address underlying problems.

In addition to the statutory review of two-year detention cases which commenced in 2005, the Ombudsman regularly reviews all cases where a person has been held in detention for six months or more. Our work continues to expand with our oversight role for immigration activities on Christmas Island, which remains the central point for processing irregular maritime arrivals.

Complaints themes

In 2009–10 we received 1,600 approaches and complaints about DIAC, a 10% increase from the previous year. Figure 5.4 shows the number of approaches and complaints received in the past six years.

In 2009–10 the following areas of DIAC's administration were a particular focus of complaint:

Figure 5.4: Department of Immigration and Citizenship approach and complaint trends, 2004–05 to 2009–10

Figure 5.4: Department of Immigration and Citizenship approach and complaint trends, 2004–05 to 2009–10

Complaint handling

Monitoring of DIAC's internal complaint-handling processes

Throughout 2009–10 we have been actively monitoring the quality of DIAC's internal complaint handling, which is conducted by its Global Feedback Unit (GFU). This supports our decision to encourage complainants to try to resolve their problem with the agency before the Ombudsman becomes involved.

An important monitoring activity for the Ombudsman has been to meet and liaise with the GFU staff to discuss their processes for taking, resolving and completing the complaints it receives. We also discussed our role with them and our better practice guidelines for complaint handling. We monitor the unit's complaint-monitoring practices and reporting by reviewing GFU complaint records.

Our monitoring activities noted that generally the GFU's complaint handling was satisfactory and had properly dealt with the issues raised by complainants. In the small number of cases where we found the complaint handling incomplete, the underlying themes related to complaints about delays in security clearances. When the complexity of a case required it to be referred to the processing area, GFU had experienced difficulties in getting a timely response. These problems have been raised with DIAC on a case-by-case basis.

On 29 June 2009 DIAC appointed Serco to manage all of its detention centres. The changeover of management was implemented in stages throughout the remainder of 2009.

In November 2009, DIAC re-established a centralised Complaints Handling Unit (CHU) to address all detention service-related complaints and to monitor the quality and timeliness of responses provided to our office. The new process required Serco to register all complaints, requests and feedback with the GFU, which helped DIAC to proactively monitor trends and identify systemic issues that needed to be addressed. This has resulted in a stronger focus on DIAC's management of the services provided by Serco and its compliance with the terms of the contract.

Detainees are encouraged to raise issues with Serco in the first instance. Our office is focusing on addressing the systemic issues raised through complaints and inspections of detention centres.

General Skilled Migration program

During the 2009–10 financial year, we received a large number of complaints about the introduction of changes to the General Skilled Migration (GSM) program. Changes to the GSM introduced processing priorities for skilled visa applicants, a reduction in the number of occupations on the Skilled Occupations List (which determines the occupations that are eligible for general skilled migration), removal of the Migration Occupations in Demand List and ceased the processing of unfinalised applications received before 1 September 2007.

We have continued to work with DIAC to resolve complaints received from skilled migration applicants who believe that DIAC has dealt with their applications in an untimely or unfair manner as a result of the changes. DIAC undertook to keep us informed about the changes that were announced to the GSM program in order to assist the affected applicants. We liaised with DIAC to develop useful information for complainants that clearly explained the changes and how their current applications were affected.

Security clearance delays

We received a number of complaints from visa applicants who were concerned about the time taken to finalise their visa applications. The following case provides a good illustration of the type of unnecessary delay some complainants have experienced.

Security clearance issues

Ms DD, a British citizen, complained about DIAC's delay in finalising an application for permanent residency for herself and her partner, Mr EE, who was included in the application as her dependent spouse. DIAC claimed it had no control over the delay because it was caused by a security check of Mr EE's background, which was being conducted by an external agency.

Our investigation revealed that DIAC had failed to provide mandatory information about Mr EE's family, travel and residential history to the external agency. Several requests for the missing information had been made by the external agency before DIAC provided the documentation required to complete the security check.

Shortly after Ms DD complained to the Ombudsman, the visa was granted. This office recommended that DIAC consider apologising to Ms DD and Mr EE.

Our investigations found that in a majority of cases, delays were due to the high number of visa applications requiring security clearance checks that were being carried out by external agencies. Coupled with these high volumes of applications, the unforeseen closure of some overseas processing locations caused delays. These delays were not always within DIAC's direct control.

DIAC has worked with external agencies to tackle delays caused by problems in the referral process, which have resulted in the development of a dedicated system to manage and monitor the referrals and clearances.

DIAC has actively sought to identify and resolve outstanding paper-based referrals and record them in the system so that progress can be properly monitored. Ongoing support and training of onshore and offshore staff has also been implemented. We have noted a decrease in the number of complaints due to delays in processing security clearances.

Throughout 2009–10, DIAC has provided our staff with demonstrations and briefings of the new referral system and how it deals with arrears. This has greatly assisted the Ombudsman investigation officers in their work.

International student visa processing

During 2009–10, there was extensive media coverage about the exploitation of international students and the quality of education they were being provided. DIAC briefed the Ombudsman's office about the preventive measures it was taking to address this issue. These involved working with the Department of Education, Employment and Workplace Relations to identify non-genuine education providers and migration agents, more rigorous checking of documentation and information provided with applications, and developing awareness campaigns for students in the countries affected most by the alleged exploitation. The increased rigour in assessing applications led to an increased number of refused applications and more complaints from migration agents and students alike.

Some complaints stemmed from the reforms to the GSM program, particularly changes to the skills needed in the Australian labour market. Changes to the skills sought meant the studies being undertaken by some students aspiring to gain permanent residency became redundant.

There was also a period of several months during which a review of the skills sets Australia needed was conducted. Students, migration agents and educational institutions raised concerns about the impact this had on their capacity to make informed decisions.

Our office noted some processing issues related to students, particularly concerning misunderstandings about the verification of course completion dates provided by educational institutions. The case study Student visa issues illustrates one such issue.

Student visa issues

Ms FF applied for a permanent visa with a condition that the application must be made within six months of completing an appropriate Australian course of study. The ‘completion date' used to calculate this period (as defined within DIAC guidelines) is the date that students are notified of their results. Despite making the application within the required time frame, the application was refused.

Our investigation established that the refusal was based on Ms FF's last day of attendance at the course rather than the date she was notified of the course results.

Ms FF gave DIAC her certificate, which had the correct date. However, the decision maker did not use that information and sought confirmation from the educational institution of the ‘completion date' instead of the date Ms FF was first notified of her results. This error was compounded because the request asked the educational institution to choose between two dates (neither of which was relevant) and did not indicate how the information would be used by the decision maker.

Ms FF queried the visa refusal notice, however, DIAC reiterated its decision. DIAC advised her that it had relied on the completion date confirmed by the educational institution and that she should pursue her claims through the Migration Review Tribunal (MRT).

Our investigation asked DIAC to consider whether the information it sought from the educational institution would ensure the correct date had been provided. As a result DIAC vacated the decision without the need to have it reviewed by the MRT.

Monitoring and inspecting DIAC's detention, compliance and removal activities

Since the annual report of 2008–09 was published, the number of people detained by DIAC has significantly increased. On 25 June 2010 there were 4,077 people in some form of detention, both onshore and offshore, including immigration detention centres, residential housing, transit accommodation and community detention.

Immigration detention inspections program

Our program of inspection visits to Immigration Detention Centres (IDCs) and other places of immigration detention aims to monitor the conditions and services provided to detainees, and assess whether those services comply with the immigration values and obligations of DIAC and the contracted service provider.

The issues we have focused on in our inspections reflect complaints received and matters raised by detainees as part of the regular client consultative meetings conducted by the service provider and DIAC in the IDCs.

During the year we conducted inspections at all IDCs, including Brisbane Immigration Transit Accommodation, Maribyrnong IDC, Melbourne Immigration Transit Accommodation, Perth IDC, Perth Immigration Residential Housing, Port Augusta Immigration Residential Housing, Sydney Immigration Residential Housing, Villawood IDC and specified alternative places of detention.

We provided DIAC with feedback on a range of issues, including:

Detention—irregular maritime arrivals

People entering Australia at Christmas Island or another place excluded from Australian territory for migration purposes are designated as irregular maritime arrivals (IMAs). An IMA may not lodge a valid protection visa application unless the Immigration Minister personally decides to permit the application.

The number of IMAs being detained on Christmas Island has significantly increased over the 2009–10 period. When Ombudsman staff visited the island in October 2008 there were only 31 people in detention. By September 2009, this number had reached 700.

When Ombudsman staff visited the Christmas Island IDC in late February 2010, there were 1,700 people detained in the centre, growing to 2,441 people detained on Christmas Island as at 25 June 2010.

Since early in 2010 a minimal number of IMAs has been transferred from the Christmas Island detention facilities to onshore IDCs and immigration residential housing. For instance, unaccompanied IMAs identified as minors (under the age of 18) have been accommodated in the Port Augusta Immigration Residential Housing. This is in keeping with the Australian Government's policy position that minors should not be detained in the more restrictive setting of an IDC.

A non-statutory refugee status assessment (RSA) has been operating since 2008 to progress the claims of IMAs. Features of the RSA process include free migration agent assistance for asylum seekers who appear to engage Australia's international protection obligations, independent review of unfavourable RSA assessments, better procedural guidance, and oversight by the Ombudsman. The Ombudsman continues to conduct an oversight role of the RSA process under the own motion powers of the Ombudsman Act.

During 2009–10 Ombudsman office staff made visits to Christmas Island and inspected detention conditions, dealt with complaints from detainees, oversighted the RSA process and interviewed detainees who have been detained for more than six months. On these visits our staff also reviewed the entire immigration processing experience from arrival on the island to the point of a visa being granted to a person or a person's removal from Australia.

Managing arrivals, and consequent health, law enforcement and immigration processes on Christmas Island involves multiple Australian Government agencies, contracted service providers, non-government organisations and legal representatives.

Ombudsman staff monitored the processes followed by government agencies and service providers, liaised with the many stakeholders and met with detainees and their legal representatives. They were also in close contact with members of the Christmas Island community and those involved in providing services and support to people detained at the IDC, in alternative detention and in community detention.

We received a broad range of complaints from people detained on Christmas Island. The issues investigated in these complaints included:

We have noted improvements in key areas. These include:

Compliance and removals

Monitoring of DIAC's compliance functions demonstrated an improvement in its compliance field operations and training. The main purpose of this ongoing monitoring is to assess the effectiveness of DIAC's policies and procedures governing the location, identification and detention of unlawful non-citizens.

Some concerns remained, however, which included:

Field observations by Ombudsman staff indicated that DIAC officers were detaining people as a last resort, in keeping with the Minister for Immigration and Citizenship's statement relating to ‘detention values'.

We also observed some of the DIAC training sessions for its field operations staff who plan and conduct compliance activities.

Reporting on people held in immigration detention

Two-year review reports

Under the Migration Act 1958 (Migration Act) , the Ombudsman is required to review the cases of people held in immigration detention for two years or more. Section 486N of the Migration Act requires DIAC to provide a report to the Ombudsman 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 Immigration Minister with an assessment of the appropriateness of the person's detention arrangements under s 486O of the Migration Act.

The number of s 486N cases has continued to decline. In announcing the immigration detention values in July 2008, the Minister identified three groups as being subject to mandatory detention:

Where a case has not fallen clearly into any of these groups, the Ombudsman has requested that the Minister review whether continuing detention is consistent with the immigration detention values.

Recurring issues in our preparation of s 486O reports have been the:

Table 5.2 shows that DIAC provided 45 reports under s 486N during 2009–10, just over half the number provided in 2008–09. The table also shows the number of s 486O reports the Ombudsman provided to the Minister. The Minister tabled 42 reports in the Parliament.

The case study on the following page, Two year review—identity investigation , shows some of the facets of our work in this area.

Six-month review reports

DIAC and the Ombudsman agreed that DIAC would provide a report to the Ombudsman every six months while a person is detained. The Ombudsman would then report back to the Secretary of DIAC on the appropriateness of the person's detention arrangements.

The Ombudsman provides a consolidated report to the Minister. The six-month review process runs parallel to the statutory process, where upon the Ombudsman reports to the Minister on detentions of more than two years. In practical terms the new non-statutory review regime provides faster feedback from the Ombudsman to DIAC and more frequent external scrutiny of individual detention cases.

DIAC provided the first report to the Ombudsman in April 2009. Reports have covered people detained for periods from six months to 18 months, and the Ombudsman has provided a report on a number of cases to the Secretary of DIAC.

Table 5.2: Reports under s 486N and s 486O of the Migration Act, 2009–10

Report on person
  1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th Total
s 486N reports received from DIAC 15 10 8 6 0 0 0 1 2 2 1 45
s 486O reports sent to the Minister 16 8 7 3 2 0 1 1 3 2 0 43

* The first report is after a person has been in detention for two years, and subsequent reports are made every six months. Some reports may be combined.

Two-year review—identity investigation

Mr GG arrived in Australia as a stowaway with no identity documents and was detained in November 2007. He told us that he was born in Sudan, but was taken to Kenya at the age of seven for safety reasons. He said that he received minimal schooling, was a domestic servant with a family for many years and as an adult transited through a number of African countries before coming to Australia. He claimed to be a citizen of Sudan.

The history of DIAC's investigation of Mr GG's nationality raised some concerns with this office. Initially DIAC was inclined to accept Mr GG's nationality as Sudanese. However, another area within DIAC stated that there was conflicting information about Mr GG's nationality and proceeded to investigate numerous alternative nationalities. We were concerned that DIAC was relying on speculative information and Mr GG's childhood recollections.

There appeared to be an expectation that a person in Mr GG's situation should have a clear memory of childhood details that were never of critical importance to him. Despite DIAC's attempts to establish Mr GG's identity and nationality, after more than two years the issue of identity was not resolved as at the end of June 2010, and Mr GG remains in detention. In May 2010 the Minister noted our concerns and requested that DIAC prepare a formal response addressing the issues that we raised.

Table 5.3: Immigration and detention-related own motion reports, under the Ombudsman Act 1976 , 2009-10

  1st report 2nd report Total
Received from DIAC 165 8 173
Review sent from Ombudsman 84 5 89
Closed without review*    83

* Our office does not complete a report if the person is removed or released before being interviewed by Ombudsman staff.

Issues arising in our preparation of six-monthly reports

Six-monthly review—health information

Mr HH is a citizen of the People's Republic of China (PRC) who was detained at Villawood IDC in November 2008 after over-staying his Bridging Visa. Mr HH told the Ombudsman's office that he was tortured and gaoled for his Falun Gong practice in the PRC.

In June 2009 DIAC advised that Mr HH's mental health appeared to be deteriorating, and following an incident of self harm in February 2009, Mr HH was referred to the Service for Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS). DIAC requested information from DIAC Detention Health Services on three occasions. After a delay of six weeks, DIAC received Mr HH's diagnosis of Post-traumatic Stress Disorder. The Ombudsman noted that the delayed provision of medical advice to those responsible for assessing the impact of continued detention on the management of people who are showing signs of mental distress was not consistent with DIAC's Detention Health Framework.

DIAC confirmed that internal provision of health information had been identified as a problem and correcting protocols were put in place in July 2009. Following the Ombudsman's assessment, procedures were implemented to ensure a smooth flow of information while still protecting the privacy of detainees' health records.

Own motion investigations

In July 2009, the Ombudsman released Department of Immigration and Citizenship: Invalid visa applications (Report No 10/2009). This investigation focused on DIAC's management of invalid visa applications and considered the problems that can occur when invalid visa applications are poorly managed. The investigation looked at the timeliness and adequacy of advice given to visa applicants about their invalid visa applications.

The report found that overall, DIAC's management of applications was in accordance with current policy and legislation. However, key areas in need of attention related to:

DIAC has been taking steps to address these issues, preparing six-monthly reports on its progress for the Ombudsman.

Law Enforcement Ombudsman

Law Enforcement

The Commonwealth Ombudsman is also the Law Enforcement Ombudsman and has a comprehensive role in oversight of Australian Government law enforcement agencies. The Ombudsman deals with complaints made about the Australian Federal Police (AFP), Australian Crime Commission (ACC), Attorney-General's Department (AGD), Australian Transaction Reports and Analysis Centre (AUSTRAC) and CrimTrac. We also review the AFP's complaint-handling arrangements.

The Ombudsman 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 M onitoring and inspections section of this report.

Australian Federal Police

Complaints about the AFP are dealt with by the AFP under the Australian Federal Police Act 1979 (AFP Act) and may also be investigated by the Ombudsman under the Ombudsman Act. The Ombudsman is notified by the AFP of complaints received that are categorised as serious conduct issues (category 3 under the AFP Act).

Complaints made by members of the public about the actions of members of the AFP remained an important part of our work in the reporting period. In addition, the Ombudsman's oversight of the AFP complaint-handling system through reviews conducted under Part V of the AFP Act was a focus of our efforts in 2009–10. We also completed one own motion investigation and commenced another; both are discussed later in this report.

At the start of 2009–10 two cases remained outstanding and were handled by the AFP and oversighted by the Ombudsman under the Complaints (Australian Federal Police) Act 1981 (Complaints Act). That Act was repealed in December 2006. Both cases have been completed.

Review of complaint handling

The Ombudsman has a responsibility to review the administration of the AFP's handling of complaints through inspection of AFP records. This includes records of the handling of complaints about ACT Policing. The Ombudsman reports to the Commonwealth Parliament annually, commenting on the adequacy and comprehensiveness of the AFP's handling of conduct and practice issues, and inquiries ordered by the Australian Government Minister.

The office conducted inspections to review the AFP's administration of complaint handling and provided three reports to the AFP Commissioner as follows:

The results of these reviews will be reported to the Parliament in the latter part of 2010.

The most recent report to the Parliament, which covered review activities conducted during 2008–09, was tabled in December 2009.

This report shows that the AFP has been striving toward consistent quality of complaint resolution. The technology used for complaint management remains an issue, as does timeliness for complaint resolution.

The AFP has noted that improving the standard of adjudications of (the more serious) category 3 complaints has caused delay in finalising some matters. It has sought to address this by establishing an AFP Professional Standards Adjudication Panel. This will be a panel of seven Senior Executive Service band 1 officers that will assist the Manager Professional Standards by adjudicating category 3 complaints.

The report noted that the AFP had made progress in improving its complaint-management practices and procedures, particularly in outcome letters. There remains further room for improvement in the consistency of communication (particularly when matters are delayed), and keeping the complainant abreast of the progress of their complaint.

The AFP has generally responded positively to the reviews conducted by the Ombudsman's office. The AFP is now addressing the constraints concerning its data collection and reporting capabilities. The Ombudsman has suggested that when this has been accomplished, the AFP will need to focus on analysing the data collected. It should aim to use the analysis to improve its administration of complaints and provide insight into organisational issues.

Complaint themes

During 2009–10 we received 389 approaches and complaints related to the work of the AFP at the local (ACT community policing), national and international level. Of these, 188 were immediately advised to contact the AFP in the first instance. The office further examined 122 of the complaints. Collectively, the most common issues concerned:

In 44% (169) of the approaches, the complaints were about AFP members acting in their ACT community policing role. Our work in this area is described in more detail in the ACT Ombudsman annual report, available at http://www.ombudsman.act.gov.au.

Of complaints alleging inappropriate action, 30% were about excessive delay in either the investigation of the complaint or the adjudication. While the introduction of the Adjudication Panel should assist with those complaints delayed at the adjudication phase, complaints to us have also been about delays at other stages of the investigation.

Lengthy delays occurred In some of the more minor cases, as the following case study shows.

Excessive delay and inadequate explanation

Mr JJ lodged a complaint with the AFP in early 2007, in which he sought an explanation about why AFP officers had stopped and questioned him on three separate occasions over a three hour period for the same alleged incident. The AFP sent him a reply two years later that did not address his concerns.

Mr JJ then complained to us about the incompleteness of the explanation and the length of time that it took for the AFP to reply. Our investigation revealed that no action was taken to investigate the complaint, despite repeated requests from the Professional Standards area. When another investigator was assigned to look into the matter, he did not question the officer who was the subject of the complaint (and who was a higher-ranking officer than the investigator).

We recommended that the AFP apologise to Mr JJ for the delay in finalising his complaint, which it did. We were also able to provide Mr JJ with a more detailed explanation of the events in question, and to confirm that he was not adversely recorded on any AFP database. Mr JJ was greatly reassured and he expressed his gratitude. We were critical of the delay in this case. The AFP advised that improved protocols for managing complaints against senior officers had been put in place in response to recommendations from an earlier Ombudsman's report.

Complaints finalised

Under the Ombudsman Act, we finalised 331 complaints about the AFP. In 188 cases we referred the complainant to the AFP on the basis that a complainant should contact the relevant agency before asking the Ombudsman to conduct an investigation. We completed 53 investigations and referred 13 cases to other agencies, courts or tribunals, or the Minister. Some investigations that were commenced during the period are yet to be completed.

Own motion investigations

An own motion investigation was conducted following a complaint against a senior officer in the AFP. It was alleged that the officer misused his position in the AFP to send three AFP officers to intervene on a relative's behalf in a property dispute.

This investigation did not find any evidence to support the allegation. It did identify specific deficiencies with the AFP's investigation of the original complaint, more general deficiencies in the policy and procedure for dealing with complaints against senior AFP officers, and a problematic ACT Policing practice of attending when property is removed or locks changed in disputes about property rights.

As a result of this investigation the AFP introduced improved protocols for the investigation of complaints against its senior officers.

In March 2010, the Ombudsman commenced an own motion investigation to determine if the AFP's payments to witnesses, particularly large payments, is a widespread practice, and if so, whether the governance in place is suitably robust. The investigation is ongoing.

Who hit me?

Mr KK was in a car accident that was attended by ACT Policing. He was injured in the accident and unable to obtain the other party's name and address at the scene. Mr KK contacted ACT Policing by telephone and in person to ask for the other party's contact details so that he could make an insurance claim. According to Mr KK, ACT Policing advised that it was unable to give him that information for privacy reasons. This was incorrect advice. We advised Mr KK that for a small fee he could apply for a copy of the accident report, which would contain the name and address of each party in the accident.

Search warrant process

Mr LL complained about the actions and alleged harassment by the AFP in relation to members of the Tamil community.

The police conducted a terrorism-related operation that resulted in charges being laid against three individuals. The complaint particularly related to the execution of search warrants and access to interpreters. The search warrants were executed on several residences and places of business for members of the Tamil community who were not charged with any offences, but were contacted (or had search warrants executed on their premises) by the AFP in its evidence gathering.

We investigated the complaint from Mr LL, concentrating on the way the AFP interacted with members of the Tamil community. Our investigation found that the process followed by the AFP during the execution of the search warrants was not unreasonable.

Australian Crime Commission

Complaints about the ACC are managed under the Ombudsman Act. The ACC also notifies the Ombudsman's office about other significant matters, allowing us to consider whether further investigation is warranted. In 2009–10, we received seven complaints about the ACC, all of which we declined to investigate.

The Ombudsman conducted an own motion investigation into the ACC's collection, storage and dissemination of information. The investigation was prompted by a request from the ACC's Chief Executive, following a leak to the media in September 2008 of an ACC document detailing conversations at a ministerial dinner.

The investigation established that the ACC performs its intelligence gathering role in accordance with its legislation and that it does not appear to hold improper or unauthorised records. The creation of the document in question was entirely inappropriate, but seems to have been an anomaly.

However, the Ombudsman found that the ACC needed to improve the way it handled sensitive information. Central to the issue were conflicting policies, guidelines and other documents (such as all staff emails from senior management).

The Ombudsman noted that staff appeared to be confused about whether the organisation endorsed a ‘need-to-share' or a ‘need-to-know' policy. The Ombudsman also found that conflicting and out-of-date internal information policies, multiple databases with varying degrees of security and low staff morale increased the risk of confidential ACC intelligence falling into the wrong hands.

The Ombudsman acknowledged the ACC's efforts to build a culture of integrity and improve information handling, and made recommendations to assist this process. The report recommended that the ACC should:

The ACC accepted the recommendations and advised that the report set out a constructive way to address the identified issues.

The Ombudsman's report, Australian Crime Commission—Review of collection, storage and dissemination of information , report 15|2009, is available at http://www.ombudsman.gov.au.

Australian Commission for Law Enforcement Integrity

The Ombudsman can refer allegations of corruption against law enforcement officers to the Integrity Commissioner of ACLEI. The Ombudsman can also investigate complaints about ACLEI. In 2009–10, we received two complaints about ACLEI. We investigated one and declined to investigate the other.

CrimTrac

In 2009–10, we received two complaints about CrimTrac. We declined to investigate the complaints, both of which related to the Australian National Child Offender Register.

AUSTRAC

In 2009–10, we received five complaints about AUSTRAC. We declined to investigate four complaints and were still assessing the other at the end of the reporting period.

Attorney-General's Department

In 2009–10, we received 36 complaints about the Attorney-General's Department.

We investigated six and declined to investigate 30. The complaints we investigated alleged failure to act, and provision of deficient advice. We made no adverse findings against the agency.

Postal Industry Ombudsman

Postal Industry

The Postal Industry Ombudsman (PIO) role was established in October 2006 as an industry ombudsman function for the postal and courier industry. Australia Post is automatically subject to the PIO's jurisdiction, and other private postal operators (PPOs) can register with the PIO. At 30 June 2010 the following PPOs were registered with the PIO:

Complaint themes

The PIO received 2,421 approaches and complaints in 2009–10, a 19.5% increase on the 2,026 approaches received in 2008–09. Some of this increase can be attributed to the growing public awareness of the PIO. Table 5.4 shows the number of approaches received, and complaint investigations commenced and completed, during the year.

The PIO can only investigate activities relating to the provision of a postal or similar service. The PIO cannot consider complaints about other aspects of a postal provider's operations, such as employment matters or environmental issues. The Commonwealth Ombudsman retains jurisdiction over those administrative actions of Australia Post that do not fall within the jurisdiction of the PIO.

A complaint about Australia Post may be transferred from the Commonwealth to PIO jurisdiction, or vice versa. Further detailed reporting, including the number of times complaints were transferred from the PIO jurisdiction to the Commonwealth jurisdiction, is provided in Appendix 4.

Table 5.4: Approaches to, and investigations by, the PIO in 2009–10

  Approaches received Investigations commenced Investigations completed
Australia Post 2,410 503 439
Private Postal Operators 11 2 1
Total 2,421 505 440
Australia Post complaints overview

In 2009–10, we received 2,626 approaches and complaints about Australia Post across PIO and Commonwealth jurisdictions. This is an 18.3% increase on the 2,219 received in 2008–09. Figure 5.4 shows the number of complaints received about Australia Post during the past six years, and the division between the Commonwealth and PIO jurisdictions. While the overall number of complaints to our office is small when compared to the volume of mail delivered daily by Australia Post, there is a significant upward trend, with overall complaint numbers doubling over the six-year period.

Figure 5.5: Australia Post complaint trends, 2004–05 to 2009–10

Figure 5.5: Australia Post complaint trends, 2004–05 to 2009–10

The three main issues for complaints about Australia Post were: recurrent problems in the method of mail delivery (23.6%); the customer contact centre's quality of service (17.8%); and one-off problems with registered post (10.0%). Some of the major investigations and themes we have worked on this year are discussed in the rest of this section.

Passports lost in the mail

In June 2010 we published a report on an own motion investigation into the loss of passports in the mail. The investigation was prompted by an increase in the number of complaints we received about this problem. Although the number of complaints received by our office may seem relatively modest when compared to the large number of passports sent by mail, the consequences for those whose passport goes missing can be significant.

The most frequent causes of complaint are that passports are lost, and that the amount of compensation offered by Australia Post is inadequate. We examined Australia Post's processes and practices relating to lost passports and compensation arrangements.

We also sought information from the Department of Foreign Affairs and Trade (DFAT). DFAT sends out many passports through the post and is the agency responsible for issuing passports and dealing with reports of their loss.

Our investigation concluded that there are measures that Australia Post and DFAT could put in place to capture better data about lost passports. This would enable better analysis of patterns of loss and expose any possible systematic stealing of passports.

We recommended that Australia Post redraft its terms and conditions and other information it provides to the public about sending passports through the post, and about the compensation payable if a passport is lost.

Generally speaking, we did not consider it unreasonable for Australia Post to exclude payment of compensation for consequential loss (such as loss of income related to time off work to deal with a lost passport). However, customers should be made aware of the difficulties that may arise in the event of a lost passport.

Both DFAT and Australia Post accepted our recommendations and advised us that they are taking steps to implement changes and improvements. We appreciate the detailed responses both agencies provided, and their assistance in explaining some of the issues involved in handling reports of lost passports.

Compensation

During the year we undertook an own motion investigation into the level of compensation paid by Australia Post for loss or damage of postal items. We regularly receive complaints about compensation available for uninsured ordinary post and registered items.

In February 2010 we released our investigation report Australia Post: Determining levels of compensation for loss or damage of postal items (report No. 1|2010).

Our investigation found that the maximum level of $50 payable for items sent by ordinary post had not changed since 1987 and its real value had halved since that time. The basic compensation level of $100 for registered post items had not changed since 1996 and its real value had decreased to $70.

We disagreed with Australia Post's view that compensation provided for ordinary items should be set as a proportion (half) of that for registered items. In our view, the link between the ordinary letter service and the registered service is unwarranted.

Australia Post has a monopoly over the ordinary letter service whereas the service for registered items is open to competition.

We recommended that Australia Post formally review its compensation level for ordinary post items, and in particular consider the rationale for the original and current $50 level, and whether that rationale is valid when viewed independently of compensation levels payable for other services.

The Australian Competition and Consumer Commission (ACCC) has a statutory role in monitoring price increases for Australia Post's letters service. We recommended that when Australia Post advises the ACCC about proposed increases to the basic postal rate, it include information on the compensation levels for the service.

Australia Post did not accept our views and recommendations. Its 2010 price notification submission to the ACCC did not include information about compensation levels.

‘Safe drop' program

In September 2008 Australia Post instituted its Safe Drop delivery policy nationwide. This was a significant change in delivery practice. Under this program, non-signature items that do not fit in an addressee's letterbox can be left in a safe place on the property, rather than being taken back to the post office and carded for collection, as was the previous practice. Items can only be left if they are out of view of the street, safe from weather and pets, and undamaged. Items requiring a signature upon delivery cannot be left.

During the year we monitored safe drop complaints and in March 2010 we released the report Australia Post: ‘Safe Drop' program—a review of the first year (report No. 3|2010).

Our review did not find any systemic problems or widespread concerns with the Safe Drop program. However, we recommended that Australia Post give further consideration to ways that may improve the program. Issues related to:

Australia Post confirmed that conditions under which safe-drop delivery may be made are set out in its procedures and advised that management within delivery areas continue to ensure the procedures are followed. It also confirmed that its policy requires a notification card is to be left at all times when a parcel is delivered by the safe-drop method.

However, Australia Post considered that developing a procedure for people who wish to opt out of the program would be cost prohibitive. Instead, it has made available ‘Do not safe drop' labels that an addressee can request a sender attach to a parcel at the time of lodgement.

Customer contact centres

In our last annual report we noted that Australia Post was in the process of implementing national complaint-handling guidelines. It was also rationalising its existing structure of six customer contact centres into two centres (in Melbourne and Brisbane), which became operational in early 2010.

These changes to systems will affect Australia Post's complaint handling. We are continuing to monitor arrangements and hope the new structure will demonstrate improvements in Australia Post's complaint handling.

We acknowledge the commitment of Australia Post's customer service officers and note that the recurring themes in complaints tend to involve limitations in complaint-management systems, and issues with training and policy guidance.

Private Postal Operators

In May 2009 we asked all registered Private Postal Operators (PPOs) to complete a questionnaire about their complaint-handling processes. The questionnaire was designed to help us understand how PPOs manage complaints and describe the information they give their clients about the PIO. Six of the eight registered PPOs responded.

The PPOs considered they had a high level of customer satisfaction and believed this was why the number of complaints coming to our office is low. We found that while PPOs may refer their customers to us, they do not necessarily do so as a matter of course.

We concluded that the role of the Ombudsman as an avenue of complaint has not been well promoted by PPOs. To address this we asked them to include information on the Ombudsman and a link to our website on their websites, and to refer dissatisfied complainants to us. Several PPOs agreed to do so.

We have continued to liaise with other postal industry stakeholders, particularly the Post Office Agents Association Limited.

Case studies

The following case studies indicate the diverse nature of the complaints regarding Australia Post that have been handled by the Ombudsman during the year.

Street delivery

Australia Post told Ms MM she could receive a street delivery service if she put a letter box on the boundary of her property. However, Ms MM's property is accessed via a council easement and private road. The council would not let her put a letter box on its land, and Australia Post would not drive down a private road. Australia Post did not act on Ms MM's complaints, and continued to charge her the full price for a post office box as it had been doing for several years. Our investigation confirmed that street delivery could not be made to Ms MM, and therefore she was eligible for a discounted rate for her post office box. Australia Post agreed with our view and refunded $500 to Ms MM.

Registered Post and compensation

Mr NN sent a registered post item containing retail vouchers valued at more than $1,200. The addressee did not receive the item, and Australia Post had not obtained a signature to verify delivery. Australia Post refused Mr NN's request for compensation because the delivery contractor advised it had a standing authority from the addressee to leave parcels at the address.

Upon investigation, the delivery contractor was unable to provide a written confirmation of authority to leave parcels without a signature. As a result Australia Post offered Mr NN discretionary compensation of $1,200 plus the postage costs.

‘Lost' item

A horse saddle sent interstate by registered post went missing in transit. The sender, Miss OO, complained to Australia Post and provided photos to help the search. Australia Post said it could not locate the saddle and offered Miss OO $100 compensation in accordance with its terms and conditions. Miss OO was concerned that Australia Post had not conducted a thorough search for the saddle.

We asked Australia Post to clarify what searches it had conducted. After our contact Australia Post located the saddle at a Mail Redistribution Centre (MRC) and returned it to Miss OO. Australia Post discovered the saddle had arrived in the MRC shortly after Miss OO sent it, but its details had not been entered on the MRC database and so it had not been found through a database search.

We concluded that if the MRC had catalogued the item on the database in a timely fashion, and if Australia Post had circulated the photos of the saddle to relevant MRCs, Australia Post may have located the saddle earlier.

Secure delivery

For many years a caravan park and Australia Post had an informal arrangement whereby residents' incoming and outgoing mail would be delivered and collected by the postal delivery officer from a locked box on the property. Ms PP, a park resident, complained that the park manager had access to the collection box and was using that access to interfere with residents' mail.

When we investigated, Australia Post agreed with our view that it had an obligation to provide a greater level of security if it was going to collect mail from the box. Rather than cancel the collection service altogether, which it was entitled to do, Australia Post liaised with the initially reluctant park manager to get written agreement for the locks to be changed. As a result, only Australia Post staff could access the box. Park residents were able to continue a long-standing and convenient mail collection arrangement with greater security.

Retail products

Ms QQ purchased a Visa card valued at $100 from a post office. When she tried to use the card 24 hours later, she found it had no available credit. She contacted Visa and was told that Australia Post had not ‘activated' the card. She then contacted Australia Post and was told it could not compensate her for the cost of the card. Following our investigation Australia Post reconsidered its decision and advised that it would activate the card.

Ms RR's daughter purchased a Visa card from a post office. When Ms RR received it, she found the card had expired prior to purchase. Ms RR's daughter requested a refund. The post office staff acknowledged she had purchased the card, but refused a refund as she did not have the original receipt. Ms RR complained to Australia Post and made several follow-up calls but received no response.

When we investigated, Australia Post was able to verify that Ms RR's Visa card number matched Australia Post's transaction record and confirmed that the Visa card had already expired at the time of purchase. Australia Post refunded the value of the card to Ms RR and issued a letter of apology. Australia Post's product manager also implemented a pop-up system to check gift card expiry dates prior to sale.

Taxation Ombudsman

The Commonwealth Ombudsman investigates complaints about the Australian Taxation Office (ATO) as well as the newly-established Tax Practitioners' Board (TPB). In 1995 the Ombudsman was given the title of Taxation Ombudsman following a recommendation by the Joint Committee of Public Accounts. It recognised the unequal position of the ATO and taxpayers, and aimed to give greater focus to the investigation of complaints about the ATO.

The TPB was established on 1 March 2010, taking over responsibility for the regulation of tax agents and BAS (Business Activity Statement) agents from the previous state-based Tax Agents' Boards. With one centralised board now dealing with tax agent regulation, we look forward to a productive relationship with the TPB and to this end we are liaising with the TPB regarding the establishment of its complaint-handling and review processes.

Australian Taxation Office

Complaint themes

In 2009–10 we received 1,810 approaches and complaints about the ATO, an increase of 27.3% from 1,422 received in 2008–09. This was a continuing trend from the previous year and amounts to a 48.6% increase in the two years to 2009–10. It is the highest number of complaints about the ATO in five years. The current level is similar to the highs reached in 2003–04, when complaints about the period of mass-marketed tax schemes were tapering off.

The increase in complaints to the Taxation Ombudsman in 2009–10 is in contrast to an overall reduction in the complaints to the Ombudsman's office of 18%. This may be a reflection of the impact of the economic climate on many taxpayers, particularly in relation to complaints about superannuation and debt collection.

Figure 5.6: ATO complaint trends, 2004–05 to 2009–10

Figure 5.6: ATO complaint trends, 2004–05 to 2009–10

Delays in receipt of refunds, amended assessments and other interactions with the ATO have generated the most complaints from taxpayers and tax professionals. The ATO's Change Program for income tax release was a new source of a significant number of complaints. The most frequent and significant complaint issues are discussed below.

During the year we finalised 1,762 approaches and complaints, of which 316 (17.9%) were investigated. This is a similar number of complaints investigated to the previous year, but a lower percentage (last year 23% of complaints were investigated). One reason for the slightly lower than expected investigation rate is that, in 2009–10, we introduced streamlined information exchange procedures with the ATO. These procedures involve the ATO providing this office with limited information about its interactions with the taxpayer complaining to us. In some cases, this information has enabled us to resolve the complaint without progressing to a full investigation. This procedure was particularly effective when resolving complaints about delays in receiving refunds.

We transferred 22.5% of the complaints we received directly to ATO Complaints under our assisted transfer process. Transfers occur when the taxpayer has not already complained to the ATO, and they agree to us referring their complaint directly to the ATO's complaint-handling system. This is an increase from the 14% complaint transfer rate in 2008–09, but more in line with the 2007–08 transfer rate, which was 25%. We believe that the assisted transfer process is a valuable service to assist people to pursue their complaints through the most appropriate mechanism.

In 2009–10 we achieved one or more remedies in 56% of the cases we investigated. The most common remedies were better explanations (36% of all remedies), apologies (13%), and actions being expedited (13%).

Most frequent complaints

The complaints we received covered a broad range of ATO activities and products. The most frequent complaints related to the lodgement and processing of forms (31%), debt collection (13.3%) and superannuation (12.7%). While these have been the most frequent complaint topics in previous years, there has been some growth in the percentage of complaints about superannuation.

The Change Program

The ATO's Change Program for income tax release in January 2010 was a new source of complaints and accounted for about 12% of the complaint issues recorded in 2009–10. Most of these complaints concerned delays in lodgement and processing. The Ombudsman provided a submission to the Inspector-General of Taxation's (IGT) Review into the ATO Change Program.

The office recorded 195 approaches and complaints about the implementation of the income tax release of the ATO's Change Program to the end of June 2010. Most of these issues were about delay in receiving expected refunds. Other main areas of complaint included:

These complaints showed that the Change Program had caused considerable inconvenience to taxpayers and, in some cases, caused consequences with other agencies, such as Centrelink and the Child Support Agency (CSA). Many complainants expressed frustration about the inconsistent information available about the Change Program.

In our submission to the IGT we recommended that the ATO's response to problems with its systems should:

Lodgement and processing

Almost a third of the complaints we received during the year were about lodgement and processing issues. These most commonly related to income tax assessments and refunds. Many of the complaints related to delays in receiving a refund or confusion about the tax assessment.

Debt complaint issues

Complaints about collection of debts continued as a major complaint category in 2009–10, accounting for more than 13% of all approaches to this office. The most frequent sources of complaint were payment arrangements, debt waiver or write-offs, actions of debt collection agencies, offsetting of refunds or credits against debts, and garnishee action.

Unresolved issues with TFN compromise from Change Program roll out and subsequent consequences with Centrelink

Mrs SS complained to us about a delay her husband, a Centrelink pension recipient, had experienced waiting for a new TFN. Mr SS was advised of a possible compromise of his original TFN as a result of suspected fraud. Consequently Mr SS was assessed as having a level of taxable income that caused Centrelink to raise a debt against Mrs SS's Family Tax Benefit (FTB) payments. ATO records showed Mr SS had not lodged an income tax return in either 2008 or 2009 when the incorrect returns were lodged.

Mr SS applied to the ATO for a new TFN after the ATO advised him of the suspected TFN compromise. Mr SS rang the ATO on three occasions over three months to enquire when his new TFN would be issued. The ATO advised him that due to the Change Program systems upgrade there would be a delay in processing his new TFN. No firm time frame for issuing his new TFN was given.

After his last unsuccessful enquiry with the ATO, Mr SS complained to the Ombudsman about the ongoing delay in the ATO issuing his new TFN.

The ATO subsequently issued a new TFN to Mr SS and wrote to him to explain and apologise for the delay he had experienced. Our further enquiries revealed that Centrelink advised Mrs SS that it was waiting to receive the updated tax data from the ATO so that it could correct her FTB debt. The Ombudsman asked the ATO and Centrelink to expedite this process.

Debt released after reconsideration by ATO

Mr TT complained that he had incurred a $23,000 tax liability after relying on oral advice he had received from the ATO about the transfer of his UK pension into an Australian superannuation fund. Based on this advice, he transferred the funds believing he would not incur any tax liability on the transfer.

After experiencing difficulties in obtaining information from the ATO about the liability, he was advised to lodge a claim for compensation and did so. The ATO refused the claim on two premises. First that Mr TT could not provide evidence that he had received incorrect advice, and second that he had not suffered financial detriment but had rather gained from the transfer.

Mr TT complained to our office. Despite finding problems with the ATO decision, our office considered it was not in a position to further the matter towards an acceptable remedy. Mr TT was subsequently granted a review by this office, which prompted further investigation. Upon review, we found that the ATO decision had:

After considering the issues raised by this office, the ATO agreed to waive Mr TT's debt.

Superannuation complaint issues

In 2009–10 nearly 13% of complaint issues recorded related to superannuation, including complaints about superannuation co-contribution payments and unpaid superannuation guarantee payments.

Superannuation guarantee complaints commonly came from employees concerned about delays, a lack of information, or uncertainty about the ATO's progress towards collecting unpaid superannuation. We previously noted a reduction in the number of these complaints investigated from 2007–08 to 2008–09 (52 to 32). This decrease is attributed to improved processes, funding and changes to secrecy restrictions. In 2009–10 the number remained steady with 35 received. This still accounts for more than half of all investigated complaints relating to superannuation. It remains a substantial area of complaint. The ATO can continue to improve its timeliness and communication, as identified in our informal review in 2008–09.

Lessons learned from automated decision making

Mrs UU complained about the ATO's review decision that she was not eligible to receive the superannuation co-contribution for 2007–08 because her income was too high. The ATO had determined that her income for superannuation co-contribution purposes was more than $100,000, much higher than the $58,980 income cut-off. Her taxable income for the year was nil. Mrs UU argued that the ATO had incorrectly included an increase in the value of trading stock of more than $100,000 during the year.

In response to our investigation, the ATO maintained that its calculation of Mrs UU's income was correct. We continued our investigation and suggested that the ATO had used the wrong test for dealing with trading stock increases, effectively double-counting these in her income assessment. The ATO then advised that there was a problem with the business rules for calculating income in this type of case that it had been working to resolve for many months.

Despite an estimated 16,000 taxpayers being affected by this issue and another business rule problem, the ATO's complaint staff had not been told about the problem. As a result of our investigation, the ATO acknowledged shortcomings in its internal risk/issue escalation processes and engagement with its complaint staff and took action to improve it. We also recommended that the ATO review its processes for advising taxpayers where it makes review decisions that are later found to be incorrect. In addition to being paid the correct amount, it is important that taxpayers have written confirmation about the correct basis on which their contribution was determined.

Unreasonable delay in release of superannuation funds

Ms VV had requested urgent early payment of her superannuation funds on the grounds of medical and financial hardship. Upon receipt of her application the ATO advised Ms VV that payment would be made within three to four weeks. When no payment was received in the period indicated by the ATO, Ms VV complained to the Ombudsman.

Our investigation revealed that all direct superannuation payments to taxpayers from Superannuation Holding Accounts were unable to be processed due to technical difficulties arising from the Change Program deployment. However, the ATO did not make this known to affected taxpayers for some time after the problems first arose, and no manual workaround was implemented as an interim fix.

We found that there were flawed administrative procedures involved in the processing of these superannuation payments to taxpayers. The ATO agreed with our finding, and undertook to address the problems by:

Reviewing tax administration

In addition to resolving individual complaints, we use information from complaints to identify potential systemic problems in tax administration. Through our project work, including own motion investigations and less formal reviews, we review the effectiveness of specific areas of tax administration and consider areas for improvement.

The Ombudsman's office meets regularly with the ATO to canvas ways to improve administration and prevent or respond more effectively to complaint issues. We also liaise regularly with the Inspector-General of Taxation and provide information or submissions to IGT reviews.

ATO's use of access without notice powers

In February 2010 we released an own motion report on the ATO's use of ‘access without notice' powers. These wide-ranging powers allow the ATO to enter a business or private premises, without the owner's permission, to examine and copy documents relevant to an investigation. The report was based on:

We concluded that it was right and proper that the ATO used its access without notice powers only in exceptional circumstances, defined by a genuine belief that documents might be destroyed if notice was given, a well-founded concern that fraud or evasion is occurring, or inappropriate secrecy by the taxpayer. However, we suggested (and the ATO agreed) that the ATO's commitment to public accountability would be strengthened by:

Resolving tax file number compromise

During the year we identified concerns with the ATO's response when TFNs have been compromised or TFN records are incorrectly linked. TFN integrity and ATO data and systems quality are areas of high importance to the tax system.

In our view the action taken by the ATO in several cases involving TFN compromise was unreasonable. Our investigations suggest a systemic failure by the ATO to properly recognise and respond to the issues faced by taxpayers who, through no fault of their own, have their TFNs compromised or are incorrectly linked, by the ATO, to another person's TFN.

In the cases we investigated, the taxpayers with compromised TFNs had not been able to resolve their problems with the ATO, despite having made a number of attempts to do so. Responses to these investigations suggest that there is a need for the ATO to improve its systems and processes for resolving more complex TFN compromise cases.

Ongoing problems from ATO failure to recognise TFN compromise

Since at least 2002 until an Ombudsman investigation in 2009, ATO systems allowed two taxpayers to share the same TFN. Mr WW complained to us because he had been unable to resolve his problem with the ATO in which he and another taxpayer with a similar name were sharing the same TFN. The other person was not required to lodge income tax returns, but had reported the TFN for his pension and bank interest income.

As a result, the ATO had attributed the other taxpayer's income to Mr WW under its income- matching program. When Mr WW had contacted the ATO about the incorrectly matched income, the ATO had only acted to put the TFN on a list of numbers not suitable for matching. The situation recurred when the non-matching list was updated. Mr WW complained to the Ombudsman that the ATO had not dealt with the underlying problem. Mr WW said the ATO had advised that it would probably keep happening and he was upset about the prospect of having to have his record corrected on an ongoing basis.

When we investigated, the ATO advised that because of the age of the TFN, it was uncertain whose TFN the number had been originally, or how it had come to be shared. However, TFN compromise procedures should have been commenced to resolve the situation when problems had arisen. This had not occurred because the ATO had only treated the situation as an incorrect match and had not recognised the case as a compromised TFN.

In response, the ATO accepted our view and advised that it had updated its procedures to improve identification of compromised TFNs and escalate these to a senior technical officer.

Other submissions

The Ombudsman made submissions to government reviews of elements of tax administration relating directly to our role as an independent complaint-handling agency for taxation matters, including:

We indicated that we broadly supported the measures proposed to enable the ATO and ASIC to prevent and respond to those who deliberately seek to evade their tax responsibilities through phoenix activities.

We noted the need to ensure that appropriate review mechanisms are included to enable the ATO to apply discretion in cases of disputed liability to avoid penalties being unfairly or arbitrarily imposed. In addition, our submission reinforced the need to ensure that decision-making processes are robust and transparent, based on clear criteria and appropriately documented.

Outreach

As Taxation Ombudsman we seek to promote ourselves as a place where people can complain about their problems with the ATO and have them investigated. We have replaced the annual Taxation Ombudsman Activities Report with a bi-annual e-bulletin. It is hoped that this will provide a more accessible and up-to-date form of communication with complainants, peak bodies, tax agents and other interested parties. We attended the Tax Institute Conference and sponsored a session on self-managed superfunds, a source of common complaint.

We also have agreement with the ATO to provide Taxation Ombudsman brochures at ATO shopfronts.

APRA, ASIC and Treasury

Australian Prudential Regulation Authority

The Australian Prudential Regulation Authority (APRA) is the prudential regulator of the Australian financial services industry. It oversees banks, credit unions, building societies and most members of the superannuation industry.

In our 2008–09 annual report we noted an increase in complaints about APRA relating to the processing of applications for early release of superannuation benefits, particularly on mortgage relief grounds, which may have been related to an overall increase in applications of that type to the agency. Common complaint themes in that year were processing delays and unclear and/or piecemeal requests for information from applicants.

In September 2009 we commenced an own motion investigation into the processing of early release of benefit applications. Following consideration of APRA's formal response to our request for information, we advised APRA in June 2010 that we were no longer investigating the matter and that neither a report nor recommendations would be issued. We recognised action taken by APRA to address potential processing delays in periods when high numbers of applications are received as a reason to discontinue the investigation.

Complaint themes

In 2009–10 we finalised 174 enquiries about APRA, of which 61 were investigated. As in previous years, the majority of complaints concerned the processing of applications for early release of superannuation benefits.

Common complaint themes related to:

Case studies

The circumstances in which APRA can approve early release of superannuation benefits are set out in regulations made under the Superannuation Industry (Supervision) Act 1993 . APRA is of the view that it must have evidence which relates directly to the prescribed circumstances before approval can be given and is not inclined towards inference.

The Ombudsman's office resolved a number of complaints by helping people understand the details of APRA's requirements. However, in many cases, the very circumstances that gave rise to the person seeking early access to their superannuation benefits also limited their capacity to meet prescriptive requirements.

Attention to criteria

Mr XX suffered from a serious medical condition for which he took medication. Unfortunately the medication had a detrimental effect on his teeth. He sought early release of his superannuation benefits to obtain dental treatment. APRA requested that Mr XX provide certification from a dental specialist, but Mr XX did not see a dental specialist because the problem was caused by the underlying medical condition for which he saw a different specialist. Meanwhile Mr XX borrowed money from his parents to proceed with the urgent dental treatment.

Following contact from our office, APRA re-assessed Mr XX's application, and required him to provide evidence from a registered medical or dental practitioner that the treatment was required to accommodate needs arising out of the other medical condition. These conditions were able to be met and the requested amount was released.

Clarity of information requested

Ms YY had ticked a box on APRA's application form indicating that the application was made on the basis of alleviation of an acute or chronic mental condition, yet her supporting documentation was from a reconstructive surgeon. APRA asked Ms YY to obtain supporting information from a medical specialist and a general practitioner, but did not explain that if she wished to pursue release on that ground, the medical specialist from whom she needed certification would need to be a psychiatrist. It was not until after Ms YY had re-submitted her application with the additional evidence that she was informed that this was the wrong medical specialist.

Improved flexibility

Mr ZZ contacted the Ombudsman after seeking early release of his superannuation benefits to assist with medical expenses relating to an operation and treatment for cancer. He had provided medical evidence of his condition, but was advised that the doctor also had to certify that it was ‘a life threatening illness' and one for which treatment was unavailable in the public health system. The doctor maintained that his previous letters should have been sufficient.

On investigation we were advised by APRA that Mr ZZ's application had been declined on two occasions because his doctor's letters did not contain the precise wording APRA required. APRA offered to send a letter to the doctor advising of the required wording. We explained that the complainant advised that the doctor had previously said that his letter should be sufficient.

APRA agreed that the matter was too complex for the complainant to explain to the doctor exactly what was required. APRA then telephoned the doctor and was able to obtain the information necessary to approve the application.

Australian Securities and Investments Commission

The Ombudsman finalised 163 approaches and complaints about the Australian Securities and Investments Commission (ASIC) in 2009–10. While this is an increase on last year, we now see fewer complaints about penalty fees than in previous years. This may be due to the improvements made by ASIC reported in our 2008–09 annual report.

Complaints were made to ASIC about a wide range of programs. This year, however, one common complaint theme related to decisions made by ASIC not to investigate or take action on complaints made to it. In most cases this office found that these complaints could be resolved by:

Publication of addresses

We received two complaints about ASIC's policy of publishing (in its online gazette) the addresses of persons to whom money may be owed as a result of a compulsory acquisition of their shares. ASIC advised that it prints the addresses to avoid confusion between people with similar names and to assist in ensuring that the correct people receive their entitlements.

Maintaining that they had personal safety grounds for not wishing their residential addresses to be made publicly available, complainants had approached ASIC asking that the addresses be removed, but to no avail.

We referred one complainant to the Privacy Commissioner, who advised that it was not unlawful for ASIC to include the address, even though the Corporations Act 2001 (Cth) only required that the individual's name be published. We then put the view to ASIC that, as the individuals had come forward to ASIC to ask that their details be removed, the gazette had performed its function and there was no purpose to be served by retaining the details in the online register.

On this occasion ASIC advised that it could not remove the details for technical reasons and that it could not control the working of other search engines through which the person's details, having once been published, could be obtained. We pointed out that the decision about the format of the publication had been made by ASIC and that, as publication of people's residential addresses could expose them to risk, ASIC needed to develop a mechanism to remove these details upon request as do other agencies like the Australian Electoral Commission.

After further consideration, ASIC advised that it had established that it could suppress the electronic publication of the complainant's address and had put this into effect.

Appointment of registered agents

Mr AB complained that a company acting as a registered agent with ASIC had set up a company and named Mr AB as director without his consent. The company had subsequently borrowed money and gone into liquidation. We investigated the process by which a person or company can become a registered agent with ASIC and how an agent could register a company without the person named as director being made aware of that fact.

ASIC informed us that, in deciding to register an agent, it relies upon the full and correct completion of a form which requires that the applicant attest that they will adhere to the Corporations Act 2001 , including not knowingly lodging documents that are false or misleading. The form does not require disclosure of any matters relevant to suitability. However, ASIC undertakes an examination of the Register of Disqualified Persons and will not register a deregistered company as a registered agent. There are no particular qualifications required of agents and no other suitability assessments are made. ASIC further advised that, upon lodgement of its form for notifying the appointment of an agent, ASIC sends out two notices: one to the company confirming the appointment of the agent and one to the agent confirming the nomination by the company.

However, the notices are only generated where the form notifying of the appointment of an agent is lodged in paper form and not where it is lodged by electronic means. In the latter case, a standardised email noting receipt is sent to the registered agent who lodged the document. Therefore no confirmation was sent to Mr AB; instead an email was sent only to the person purporting to be his agent.

We raised concerns about the process for registration of agents and confirmation of their appointment with ASIC. In response, while noting that complaints about registered agents were few, ASIC agreed to consider improvements to its registration form and also agreed to review its confirmation notice process with a view to extending notification to company office holders where a registered agent is appointed using the online service.

The Treasury

The Treasury's primary role is to provide advice to government. The Ombudsman receives a small number of complaints about The Treasury, which tend to be about their management of enquiries from the public. Complaints include failing to respond to correspondence within a reasonable time frame or to keep records of public enquiries.

Feature: Good› better › best

Good better best—changes in public integrity was the central theme of the Commonwealth Ombudsman's 2009 national conference held in Canberra on 23 and 24 September. It brought together policy makers, legal practitioners, community representatives and expert guest speakers, to discuss the challenges to complaint handling in our changing world.

The conference opened with dinner, at which the Hon. John Clarke QC gave a keynote address. Mr Clarke provided a critical assessment of administrative accountability, transparency and cross-agency operations with reference to his experience as head of the Australian Government's inquiry into the counter-terrorism investigation into Dr Mohamed Haneef.

More than 200 conference delegates then participated in an intensive day of workshops, forums and plenary sessions. A recurring theme of the conference was how to safeguard best practice in governance and public administration.

Papers from the conference are available on our website at http://www.ombudsman.gov.au/pages/about-us/events/good-better-best/.

Photo credit: Steve KeoghThe Hon. John Clarke QC addressed the 2009 Commonwealth Ombudaman national conference

Photo credit: Steve KeoghThe Hon. John Clarke QC addressed the 2009 Commonwealth Ombudaman national conference

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      Commonwealth Ombudsman - Annual Report 2009-2010 - Chapter 5

      Chapter 5

      On this page

      1. Agencies overview
      2. Commonwealth Ombudsman
      3. Australian Customs and Border Protection Service
      4. Centrelink
      5. Child support agency
      6. Comcare
      7. Department of Education, Employment and Workplace Relations
      8. Department of Environment, Water, Heritage and the Arts and Department of Climate Change and Energy Efficiency
      9. Department of Families, Housing, Community Services and Indigenous Affairs
      10. Fair Work Ombudsman
      11. Department of Health and Ageing
      12. Medicare
      13. Freedom of information
      14. Monitoring and inspections
      15. Overseas students
      16. Defence Force Ombudsman
      17. Department of Defence
      18. Department of Veterans' Affairs
      19. Defence Housing Australia
      20. Immigration Ombudsman
      21. Immigration and Citizenship
      22. Law Enforcement Ombudsman
      23. Australian Federal Police
      24. Australian Crime Commission and Australian Commission for Law Enforcement Integrity
      25. CrimTrac, AUSTRAC and Attorney-General's Department
      26. Postal Industry Ombudsman
      27. Taxation Ombudsman
      28. Australian Taxation Office
      29. Australian Prudential Regulation Authority
      30. Australian Securities and Investments Commission
      31. The Treasury
      32. Feature: Good › better › best

      Agencies overview

      Most of the approaches and complaints received by the Commonwealth Ombudsman about Australian Government agencies within the Ombudsman's jurisdiction (81%) related to the following agencies:

      • Centrelink—5,199 approaches and complaints
      • Child Support Agency—2,280 approaches and complaints
      • Australian Taxation Office—1,810 approaches and complaints
      • Australia Post—2,626 approaches and complaints
      • Department of Immigration and Citizenship —1,600 approaches and complaints
      • Australian Federal Police—219 approaches and complaints
      • Department of Education, Employment and Workplace Relations—479 approaches and complaints
      • Defence agencies—578 approaches and complaints.

      This chapter assesses our work with these and other agencies in handling complaints and dealing with other broader issues during 2009–10. It discusses the way agencies deal with freedom of information requests and the monitoring and inspections work we undertake.

      It also looks at other areas of the Ombudsman's work:

      • as Defence Force Ombudsman, dealing with complaints by current and former members of the Australian Defence Force
      • dealing with complaints about the Australian Federal Police, including under the role of Law Enforcement Ombudsman
      • as Immigration Ombudsman, including dealing with complaints from people in detention
      • the broader Postal Industry Ombudsman role
      • complaints about taxation as the Taxation Ombudsman
      • with overseas students.

      Figure 5.1 shows the number of approaches and complaints received in 2009–10 about agencies within the Ombudsman's jurisdiction. Detailed information by portfolio and agency is provided in Appendix 3— Statistics .

      Figure 5.1: Approaches and complaints received about, within jurisdiction, agencies, 2009–10

      Figure 5.1: Approaches and complaints received about, within jurisdiction, agencies, 2009–10

      Commonwealth Ombudsman

      Australian Customs and Border Protection Service

      The Ombudsman received 99 complaints about The Australian Customs and Border Protection Service in 2009–10, a small increase on the 94 received in the previous year. The main themes of complaint were:

      • the processing of passengers at Australian international airports
      • actions relating to the import or export of goods.

      A common complaint made by those who have interacted with Customs and Border Protection at an airport is that they were not told why they were questioned or why their baggage was searched. Complainants often questioned whether an officer had the power to take the particular action.

      One of the tasks of this office in responding to such complaints is to balance two competing public interests: transparency and accountability in government processes, against the protection of sensitive information about investigation and detection methods used by the agency.

      Customs and Border Protection officers exercise strong coercive powers in the airport environment and their interventions can be seen as intrusive and unduly personal. Officers routinely stop and question travellers and examine goods in their possession including diaries, mobile phones, cameras and computers. Officers can copy documents found in a passenger's possession and, in some circumstances, retain items for further examination.

      In examining complaints received we also looked at the information that Customs and Border Protection makes available about travellers' rights and responsibilities and how a grievance can be made or redress sought.

      Lack of information about making a complaint

      Mr A complained to this office about questioning and baggage examination by a Customs and Border Protection officer. He claimed that officers failed to assist him when he wished to make a complaint at the airport, and that there was inadequate information at the airport about a traveller's right to make a formal complaint.

      Our investigation identified that while Customs and Border Protection has a comprehensive complaints process, it is not supported by clear guidance to officers about how to handle complaints made at airports. A brochure explaining the complaint process is available in some areas within airports, however display of the brochure is limited and officers are not required to provide it when a traveller raise a grievance.

      Customs and Border Protection agreed that several aspects of the initial complaint process at airports could be improved and is in the process of developing new guidelines to resolve this issue.

      We look forward to working with Customs and Border Protection on improving its complaint-handling processes and making the information on avenues of complaint more accessible to passengers.

      Penalties for a ring

      Customs and Border Protection determined that GST was payable on a ring found in Ms B's luggage. She had not declared the ring and Customs and Border Protection imposed taxes and penalties totalling more than $1,000. It impounded the ring when Ms B was not able to pay and issued a notice to her that if she was dissatisfied with the decision, she could ‘lodge a taxation objection with the Commissioner within the specified periods'. The letter did not identify the Commissioner, provide the Commissioner's contact details or state the relevant period. Through her own enquiries, Ms B identified that the notice was referring to the Commissioner for Taxation. However, when she lodged a statement saying she would pay the GST but not the penalty, the ATO referred the matter to Customs and Border Protection because the objection was about the penalty. It reviewed the matter and upheld the penalty.

      As a result of our enquiries, Customs and Border Protection reviewed the penalty again and reduced it. We formed the view that Ms B's review rights were not adequately explained. Customs and Border Protection acknowledged that the process should be made clearer, and discussed the objection process with the ATO. It has since updated the online content of the 'Notice of Goods Impounded and/or Tax Assessed' form to include information about the ATO's contact details. It also advised that new forms would be available that include revised guidelines for making objections.

      The increased volume of information (and methods of storing information) that travellers now have available to them adds to the complexity of the Customs and Border Protection officer's role. Complaints to this office have often concerned an officer's power to examine laptops, memory cards and other electronic devices containing large amounts of data, including photographs, financial records, contact details and other information that the person considers to be personal. In this context, the lawful and fair exercise of powers is increasingly important.

      Copying a passenger's documents

      Mr C's baggage was examined twice by Customs and Border Protection officers in a three-week period. Relying on information already available to them about Mr C, the officers stopped him so they could copy documents he was carrying. Our investigation identified that this was an invalid exercise of an officer's power. Customs and Border Protection accepted our assessment, and reinforced with its officers the circumstances that must exist to allow them to copy documents found in a traveller's possession.

      Another complaint highlighted the need for consistent and correct record keeping before pursuing a debt. It also highlighted that systems need to be in place so that any issue over outstanding amounts can be resolved as soon as possible. The longer the time taken to follow up an unresolved debt, the more difficult it becomes to satisfactorily resolve the complaint.

      Pursued for an overdue fine

      Mr D complained to our office about action being taken by Customs and Border Protection in October 2009 to recover an $8,000 fine that was issued in 2007. Mr D contacted Customs and Border Protection to explain that the fine had been paid in full in 2007. Customs and Border Protection believed that $500 remained outstanding and Mr D had to provide evidence to verify payment. Mr D advised Customs and Border Protection that the only record he had was his cheque book balance, and to obtain further evidence he would need to pursue the matter with his bank.

      Mr D's records showed a payment of $500 had been made to Customs and Border Protection's Perth office. Once it had received that information, Customs and Border Protection checked its records and acknowledged the payment had been made but had not been reconciled with its Debt Management Area. It withdrew its request for payment, apologised to Mr D and undertook to improve its processes.

      During the year the Ombudsman commenced an own motion investigation into Customs and Border Protection's administration of some of its coercive powers in passenger processing. The investigation will assess Customs and Border Protection's policy and practice against legislation and principles of good administration, and in light of best practice principles set out by the Administrative Review Council. A report on the investigation is expected to be published in November 2010.

      In 2009–10 the Ombudsman's office received 5,199 approaches and complaints about Centrelink compared to 7,226 in 2008–09. This is a 28% decrease over the previous year and the lowest number in 10 years. The figure also includes 49 cases relating to the Northern Territory Emergency Response (NTER).

      Despite the decrease, Centrelink continues to be the agency about which the Ombudsman receives the highest number of complaints. This is not unexpected given the high volume of transactions, the breadth and complexity of the services and payments that Centrelink delivers on behalf of Australian Government agencies. Figure 5.2 shows the trend in approaches and complaints over the past five years.

      Figure 5.2: Centrelink complaint trend 2004–05 to 2009–10

      Figure 5.2: Centrelink complaint trend 2004–05 to 2009–10

      Complaint themes

      Although a number of factors are likely to have contributed to the reduction in Centrelink complaints, the absence of any stimulus or bonus payments (which generated large numbers of complaints in recent years) and the implementation of a more flexible social security compliance framework, appear to have contributed to the significantly lower figure.

      Procedural fairness

      Over the years, the Ombudsman's office has received complaints from customers about payments being suspended and/or debts being raised on the basis of wrong information. In many cases, Centrelink has not told these customers about the information it relied upon in deciding to suspend a payment or raise a debt, and therefore has not given them a chance to correct or provide more complete information.

      An example of this can be seen in the case study, P rocedural fairness in decision making.

      Procedural fairness in decision making

      Centrelink suspended Mrs E's parenting payment because it had identified that Mr E was transferring large sums of money through his bank accounts. Centrelink intended to investigate why these amounts had not been declared as income. Mrs E complained to this office about the suspension of her payment without warning or an opportunity to explain their circumstances. Centrelink subsequently learned that Mr E's accounts were being used as holding accounts for funds that were being transferred internationally for aid reasons, and that Mr and Mrs E derived no benefit from these transactions. As a result, Centrelink restored Mrs E's payments with arrears. Our office formed the view that Mr and Mrs E had been denied procedural fairness.

      Transfer to more suitable payment

      Previous Ombudsman reports have highlighted the effectiveness of analysing complaints from individuals to identify whether the same issue affects a larger number of existing or potential customers. Our focus on identifying systemic problems has continued this year. An example of this approach can be seen in the case study, Transfer to age pension.

      Transfer to age pension

      We received a complaint from Ms F that Centrelink had not transferred her to the age pension (AP) when she reached age pension age in 1998. Ms F was on a lower payment until transferring to AP in 2009 and asked for a review of the start date of her AP (back to 1998). Centrelink decided that it could treat Ms F as having transferred to AP when she originally reached age pension age, and paid her arrears for the amount she had missed out on.

      While investigating Ms F's complaint, we asked Centrelink about whether other customers had remained on a lesser payment despite reaching age pension age. We were advised that approximately 1,800 other customers had been identified as receiving another income support payment despite having reached age pension age and that Centrelink had subsequently invited those customers to apply for AP. We will continue monitoring this issue during 2010–11 to ensure that these customers are not disadvantaged.

      Cross-agency issues

      Many complaints to our office require us to make enquiries of 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.

      Complaints that involve more than one agency can be particularly difficult to resolve. This challenge is evident in the case study Medicare or Centrelink FAO service?

      Medicare or Centrelink FAO service?

      Both Centrelink and Medicare Australia deliver services on behalf of the Family Assistance Office (FAO). Ms G complained to our office that the wording used in an FAO letter had caused her offence and confusion. Our investigation confirmed that the letter appeared to be inaccurate and confusing, and we suggested that Centrelink apologise to Ms G. Centrelink advised that the letter in question had been issued by Medicare and, as such, it would be more appropriate for that agency to apologise. We contacted Medicare to seek an apology and, following protracted discussions with both Medicare and Centrelink, eventually Medicare apologised to Ms G. It took nine months for the two agencies to agree who was responsible and take action to resolve Ms G's concerns.

      In some instances the business of one agency can be affected by system errors or failures on the part of another agency, often to the detriment of the customer. An example of this can be seen in the case study, Cross-agency errors—FaHCSIA, Centrelink and ATO.

      Cross-agency errors—FaHCSIA, Centrelink and ATO

      During 2009–10 the Australian Taxation Office (ATO) undertook a major upgrade of its information technology systems. The upgrade affected the ATO's ability to advise Centrelink that it had received tax returns. Also during this time, the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) implemented a policy which saw customers have their Family Tax Benefit (FTB) suspended if they failed to lodge past year tax returns. The Ombudsman's office subsequently received a number of complaints from Centrelink customers whose FTB payments had been suspended because Centrelink's records indicated they had not lodged their tax returns. We encouraged these complainants to provide copies of their completed returns to Centrelink so that their payments could be manually restored pending receipt of official confirmation from the ATO.

      Reports

      Compensation for Detriment caused by Defective Administration

      In August 2009 the Ombudsman's office released its own motion investigation report into the administration of the Compensation for Detriment caused by Defective Administration (CDDA) scheme. Under the scheme, the Ombudsman has a specific capacity to make recommendations that agencies reconsider cases where compensation has been refused.

      The report focused on the handling of CDDA claims by Centrelink, the ATO and the Child Support Agency, but made recommendations relevant to all agencies handling CDDA matters. Since the publication of the report, the assessment of CDDA cases by Centrelink has improved. However, the office continues to be concerned about the lack of awareness of the scheme generally, particularly amongst non-government organisations representing people who are vulnerable to the effects of poor government administration.

      Economic Security Strategy Payment

      Our 2008–09 annual report reflected on the large number of complaints our office had received about the assessment of claims for the Economic Security Strategy Payment (ESSP). In November 2009 the Ombudsman's office released its report into the administration of the ESSP. The report focused on the broader lessons for policy departments for improving how they communicate about, and administer, payments to be delivered within tight time frames.

      Review of circumstances leading to a fraud conviction

      In May 2010 the Ombudsman's office released an investigation report into the handling of a fraud matter by Centrelink and the Commonwealth Department of Public Prosecutions. The Ombudsman's report identified that both agencies relied on incomplete and inaccurate information in deciding to pursue prosecution against the customer. We expressed the view that, but for these errors, legal action and a conviction against the customer may not have eventuated. The report made recommendations for the agencies involved to provide redress to the individual customer, and to revisit their handling of her case and other similar fraud matters.

      Reviews and delays

      Our 2008–09 annual report noted continuing concerns with Centrelink's internal review processes and advised that we expected to release an own motion investigation report in 2009–10. This report has been completed and should be published before the end of 2010.

      Engagement

      In addition to investigating individual complaints, the Ombudsman's office has an important role in improving public administration. By maintaining regular, robust liaison with Centrelink during 2009–10 our office has been able to ensure it is informed of planned changes to social security and family assistance law and policy, provide input into how these changes might be implemented and communicated to customers. For example, we provided feedback to Centrelink about the way in which the same-sex reforms were communicated to customers who might be affected by them.

      We also meet regularly with Centrelink to keep abreast of progress in changes to policy or operations that have resulted from Ombudsman recommendations. One example is the Government revisiting its approach to delivering payments to customers with acute or terminal illnesses.

      Looking ahead

      Same-sex initiatives

      From 1 July 2009 Commonwealth legislation was revised to remove discrimination against same-sex couples. While most changes provided beneficial outcomes, in some cases in the social security and family assistance arenas, these changes had the potential to reduce or cancel the entitlements payable to some couples and families.

      Early in 2010 the Government announced that Centrelink staff would take a ‘compassionate approach' to raising or recovering debts resulting from these legislative changes. Centrelink acknowledged that fears of discrimination could result in same-sex relationships not being declared. The Ombudsman was able to advance procedural instructions to support more consistent outcomes and will continue to engage with Centrelink on these matters.

      Acute and terminal illness

      In March 2009 the Ombudsman's office released an own motion investigation report into the assessment of claims for disability support pension (DSP) from people with acute or terminal illnesses.

      Following our report, the government announced that from March 2010 customers with a serious illness receiving an activity-tested payment could be granted a long-term exemption from activity testing. It also means that there are fewer reporting requirements that involve a job capacity assessment or repeated medical certificates.

      Given the short time frame in which the new policy has been in place, we have not yet had an opportunity to assess the impact on customers.

      Mental illness—servicing vulnerable customers

      In 2009 we commenced an own motion investigation into the engagement of customers with a mental illness in the social security system. The investigation focused on the services delivered and overseen by Centrelink, the Department of Education, Employment and Workplace Relations and FaHCSIA in response to feedback from customers, carers, non-government organisations and agency staff that some customers with a mental illness have difficulty navigating the social security system.

      Our investigation, Falling through the cracks , examines the effectiveness of current government policies and procedures as they affect customers suffering from a mental illness. The report should be published in second half of 2010.

      Child support agency

      The Child Support Agency (CSA) is an organisational unit within the Department of Human Services. In 2009–10, the Ombudsman received 2,280 approaches and complaints about the CSA, a decrease of 7.8% from the previous year. Approximately 28% of complaints were investigated.

      Complaint themes

      Complaint themes in 2009–10 included debt management, ‘care percentage' decisions used in child support assessments, and a backlog in income reconciliations.

      Collecting child support debts

      The biggest area of CSA debt recovery is the collection of child support payable by payers for transfer to payees. However, the CSA also recovers overpaid child support from payees. A payee can be overpaid when the CSA retrospectively reduces the child support assessment, or if by error the CSA paid an amount to the payee without first having received it from the payer.

      CSA's debt enforcement method accounted for 14% of complaint issues, and was the largest investigated issue category. Almost as many complaints related to the CSA's failure to collect (13.5%).

      Debtors complain to us about the harshness of the CSA's collection action and question the accuracy and fairness of the debts. Those relying on the CSA to collect debts and transfer money to them complain that the CSA is too lenient, or is not taking sufficient enforcement action. They may be frustrated by the CSA's unwillingness to provide detailed or regular information about its efforts. By investigating these complaints we can independently confirm the reasonableness of the CSA's actions, or alternatively, uncover and seek remedies for delay or inaction.

      In 2009–10 we investigated three cases where the CSA had collected late payment penalties from a payer's tax refund despite having agreed to cancel the penalties when the person had paid off their child support debt. We were concerned that the CSA's processes allowed this to happen and seemed to prevent the debtor from exercising their objection rights. The CSA has now refunded those penalties. In another case the CSA continued to charge late payment penalties on a debt that a court had suspended. We will continue to monitor the CSA's administration of late payment penalties in 2010–11.

      ‘Care percentage' decisions

      We identified a pattern of complaints about the CSA's administration of the rules for deciding what ‘care percentage' to use for each parent when calculating child support, including delays, confusing advice and, in some cases, a lack of understanding on the part of CSA staff of the complex rules that applied from 1 July 2008. At the same time, we noted that the rules used by Centrelink to work out a parent's level of care for Family Tax Benefit (FTB) did not seem to cause the same problems.

      In the 2009–10 Budget, the Government announced that from 1 July 2010, it would align the CSA and Centrelink rules for working out care percentages (the ‘alignment of care' measure). In preparation we met with policy officers in FaHCSIA to highlight the problems we had identified in complaints. Many of those problems appear to have been addressed by the alignment of care measure; however, we will continue to monitor this area of the CSA's administration.

      Income reconciliations

      Last year we reported significant delays in the CSA reconciling parents' estimated incomes against the Australian Taxation Office's (ATO) assessments. This backlog arose from system problems and resourcing decisions within the CSA, not the ATO. As at 30 June 2010, the CSA reported having reconciled 249,732 estimates, with approximately 143,000 remaining. A change in child support law from 1 July 2010 will overcome the need for the CSA to manually calculate every estimate reconciliation. The CSA expects to complete the backlog of estimate reconciliations by 30 June 2011.

      The CSA's reconciliation of a parent's income can lead to an additional child support debt for the payer or an overpayment of child support for the payee. If they have not kept detailed records of their income, the person whose income has been reconciled may not be able to challenge the CSA's decision. This was a problem in one complaint where the CSA reconciled a parent's 1999 income years later, in 2010. Lengthy delays like this mean that statutory time limits for the Change of Assessment (CoA) process and court applications for leave to apply for a CoA have often expired.

      These statutory time limits can also have unfair results for one parent when the other parent lodges a late tax return showing that their income was less than the CSA had used in working out child support. Two complainants to this office have been required to repay money to the CSA that they received in good faith and have no way to challenge. We have recommended that the CSA assist these complainants to prepare an application to the Department of Finance and Deregulation for these debts to be waived.

      The CSA's interaction with other Commonwealth agencies

      The CSA and Centrelink share information to ensure that people receiving the higher rate of FTB for a child of a previous relationship also have a current child support assessment for that child. The following case shows how a CSA error can flow on to affect a person's FTB.

      The CSA and the ATO share information required to administer the child support scheme. Sometimes, the automatic exchange of information is not enough. The case study Caught in the wheels shows that it can sometimes be difficult to get the two agencies to communicate with each other.

      Little mistakes with serious consequences

      A particular challenge facing the CSA is to ensure that its processes do not harm the relationship between separated parents. A small slip-up can have serious repercussions, as in the case study A trail of errors.

      Computer says no!

      The CSA mistakenly deleted Mrs H's child support case for her daughter from its system. It told Mrs H it would take up to three months to fix this problem. Based on a computer match shortly afterwards, Centrelink advised Mrs H that she had been overpaid $9,000 in FTB. Centrelink's decision was based on records that showed no child support assessment since 2005.

      Mrs H and the CSA told Centrelink about the error. Centrelink said that it would cancel the overpayment when the CSA fixed the mistake, but in the interim, it would deduct $60 per fortnight from her FTB for the overpayment. Mrs H complained to the Ombudsman but it still took almost two months for the CSA problem to be resolved and for Centrelink to cancel the overpayment and refund the deductions to Mrs H.

      Caught in the wheels

      The CSA asked Mr J to pay a child support debt based on an incorrect ATO assessment. Mr J told us that although the ATO had since amended its assessment, the CSA refused to update his child support unless he could prove that the assessment was incorrect because of an ATO mistake.

      We recommended that the CSA provide Mr J with a letter to the ATO explaining the information the CSA needed and why. The CSA did this, but the ATO refused to give Mr J a letter to take back to the CSA. Only at our request did the CSA contact the ATO to get the information it needed and amend Mr J's child support assessment, cancelling the incorrect debt.

      A trail of error

      Ms K was a child support payee with a fear of domestic violence from her former partner, Mr L. The CSA discovered that Mr L had underestimated his income for his child support assessment and asked him to pay arrears. Ms K was afraid that Mr L would force her to give back anything that the CSA collected for her. She spoke to a Centrelink social worker about her situation, then instructed the CSA to cancel her child support assessment and Mr L's arrears.

      The CSA paid Ms K $600 that it had intended to refund to Mr L. Ms K contacted the CSA to find out whether she should return it. The CSA told Ms K that she could keep it: Mr L might not know she had received the money and he would probably think the CSA had kept it. Ms K complained to the Ombudsman about this advice, as she was not sure what to do. She suspected that Mr L knew the CSA had paid the money to her and was afraid of what might happen if she attempted to conceal this from him. Our investigation of Ms K's complaint achieved the following:

      • we were able to confirm for Ms K that Mr L was aware that she received the money, making it easier for her to handle any consequences
      • the CSA advised Mr L that it had been ‘remiss' in paying $600 to Ms K and invited him to apply for compensation
      • the CSA acknowledged the sensitive nature of Ms K's case and apologised to her
      • the CSA re-examined the breakdown in its procedures and identified a system improvement to reduce the risk to other vulnerable payees.

      Reports

      Own motion investigations and submissions about the CSA

      This year we published a report, Australian Federal Police and the Child Support Agency, Department of Human Services: Caught between two agencies: the case of Mrs X (report 14|2009) . The Ombudsman also made a written submission to an independent review of the CSA's administration by Mr David Richmond AO, Delivering Quality Outcomes.

      In 2009 we commenced an own motion investigation into the CSA processes and practices involved in accessing a parent's ‘capacity to pay'. Another own motion investigation commenced in 2009 relates to ‘write only' procedures, which limit service to customers who display difficult and challenging behaviour. Both investigation reports are due for release in the second half of 2010.

      Improved timeliness for CSA objections

      We have previously reported our concern about the CSA's failure to finalise its internal reviews, known as objections, within the 60-day period set by law. In 2009–10, results significantly improved and compliance is now nearly 100%.

      Better Departure Prohibition Order procedures

      The CSA can stop a person who owes arrears of child support from leaving Australia by making a Departure Prohibition Order (DPO). In June 2009, the Ombudsman released a report Child Support Agency: Administration of Departure Prohibition Orders (Report No 8/2009) with eight recommendations, which the CSA has implemented. The CSA now has better DPO procedures and its letters contain a comprehensive list of appeal rights and options to challenge a DPO.

      Comcare

      Comcare regulates workers' compensation and work health and safety. The majority of complaints received by our office about Comcare concern its management of claims from injured workers. During 2009–10 our office received 72 complaints about Comcare, down from 95 the previous financial year, representing a 24% decrease.

      Comcare will often need to consider a range of medical information when making decisions regarding eligibility for compensation. This can prolong the time taken to make a decision, which is a source of frustration for complainants. During 2009–10 the office was able to assist complainants by ensuring any unnecessary delays were addressed and facilitating better explanations of decision processes.

      The investigation of two complaints about Comcare highlighted a gap in its ability to fully compensate claimants who had suffered a financial loss due to administrative error. In both cases the complainants had originally missed out on their proper entitlement due to an error in calculation. The mistakes were undetected in one case for 13 years, and 10 years in the other. Upon discovering the error, Comcare paid the amount originally owed, but determined that under its legislation it could not pay interest on that money.

      Although the office accepted that the payment of interest in these cases was problematic under Comcare's legislation, the Ombudsman issued a report (report 4|2010) recommending that Comcare give further consideration to the issue of compensation for the two complainants. The Ombudsman also recommended that Comcare consider how it could address similar claims in the future.

      In response, Comcare found a way to fully compensate one of the complainants and has indicated that it hopes to at least partially compensate the other. Comcare has also given the office an undertaking to develop and seek approval for a scheme to deal with future claims for compensation caused by its defective administration. It is hoped that such a scheme will enable the complainant who has only been partially compensated to receive their full entitlement.

      It is pleasing to note that after the report was issued, Comcare undertook its own review to ascertain if there were other similar cases. While the review has not identified any further underpayments, Comcare's proactive response to the report is a good example of how an agency can use feedback from individual complaints as an opportunity to improve customer service more generally.

      Department of Education, Employment and Workplace Relations

      In 2009–10 the Ombudsman's office received 479 approaches and complaints about the Department of Education, Employment and Workplace Relations (DEEWR). This is a 16% decrease from the 571 approaches and complaints we received in 2008–09. Figure 5.3 shows complaint trends over the past five years. The number of approaches and complaints received about DEEWR during 2009–10 was the lowest in the past four years, and sees a return to the level of complaints received prior to the implementation of the Welfare to Work social security reforms.

      Figure 5.3: Complaints received for the period 2004–05 to 2009–10

      Figure 5.3: Complaints received for the period 2004–05 to 2009–10

      Complaint themes

      As part of our ongoing work in looking at complaint trends and themes, we engaged with DEEWR to discuss issues about individuals as well as broader groups of customers, and to make recommendations for how policies and procedures might be improved.

      Some of the issues that our efforts focused on in 2009–10 were about the:

      • accuracy and consistency of decision making about applications for pre-migration skills assessment
      • advice given by contracted providers
      • timeliness of decisions made under the General Employee Entitlements and Redundancy Scheme (GEERS).
      Apprenticeships

      During 2009–10 the Ombudsman's office investigated several complaints about the handling of claims made under the Australian Apprenticeship Incentives Program administered by DEEWR. Two main issues emerged from these complaints: quality of advice given by the Australian Apprenticeships Centre about claimants' eligibility; and consistency in decision making.

      Consistency in decision making

      The case study Australian Apprenticeship Support Services is an example of an investigation which considered the adequacy of DEEWR's guidance to staff to ensure consistency of decision making.

      Australian Apprenticeship Support Services

      Ms M took on an apprentice and expected to receive an incentive payment. When she found out that she did not qualify for the payment because of a change made to the guidelines while the apprentice was working for her, Ms M complained to this office. Our investigation found that DEEWR's decision to refuse Ms M's claim was not unreasonable. However, no consideration had been given to whether Ms Ms claim could be granted under the ‘exceptional circumstances' provision of the payment guidelines.

      Discussion with DEEWR revealed that it did not have any examples or guidance regarding what might be considered exceptional circumstances. We queried DEEWR about the lack of information for claimants to decide whether or not to seek payment under exceptional circumstances. A lack of guidance also gives decision makers broad discretionary powers. DEEWR advised that it does not consider specific examples would be appropriate, but explained that staff considering claims of exceptional circumstances need to discuss these to ensure consistency of outcomes. Our office is currently considering whether to pursue this issue further.

      Compensation for advice or actions of contracted providers

      During 2009–10 our office received a number of complaints from people who believed they had been financially disadvantaged as a result of advice given or actions taken (or not taken) by providers contracted to deliver services on behalf of DEEWR. If the complainant had dealt directly with DEEWR on these matters, it would have been open to them to lodge a claim for compensation under the Compensation for Detriment caused by Defective Administration (CDDA) scheme. However, they had no such avenue of redress when dealing with contracted providers.

      Our office provided DEEWR with an issues paper on this topic in June 2010, suggesting that it consider implementing some CDDA-type means of compensating victims of defective administration under existing contracts and incorporating this process into new contracts.

      In response DEEWR acknowledged that the suggestion raised in the issues paper was worthy of further consideration, however, the matter raised broader issues that should be canvassed at a whole-of-government level. DEEWR further noted that consideration might be given to revisiting the issue after the Senate Legal and Constitutional Affairs Committee issues their report on government compensation payments.

      Policy supporting sensible decisions—Trades Recognition Australia and the Trans-Tasman Mutual Recognition Agreement

      In 2009 the Ombudsman's office received a complaint about the interaction between two schemes for assessing skills for living and working in Australia. Our investigation, outlined in the case study TRA and the TTMRA, highlighted the incongruence of a licence that had been granted to a person on the basis of an international mutual recognition scheme not being considered suitable evidence to assess their job skills for permanent residency. This resulted in DEEWR agreeing to revisit its approach to these matters.

      TRA and the TTMRA

      Mr N was a New Zealand citizen living in Australia who was issued a licence to work as an electrician under the Trans-Tasman Mutual Recognition Agreement (TTMRA). Mr N decided to apply for permanent residency, and was required to undergo a skills assessment conducted by Trades Recognition Australia (TRA). Despite the fact that he was already living and working as a licensed electrician in Australia, TRA rejected Mr N's application on the basis that he had not sufficiently demonstrated his qualifications.

      Our investigation revealed that under the Uniform Assessment Criteria (UAC) used by TRA to assess applications, a licence issued under the TTMRA was not considered suitable evidence of a qualification. We highlighted the lack of logic in this approach and, as a result, TRA has given an undertaking that it will revisit its treatment of licences issued under the TTMRA in the course of its review of the UAC.

      Updates

      Trades Recognition Australia

      In our 2008–09 annual report we noted that we had received a large number of complaints from applicants wishing to obtain trade recognition for migration purposes. Applicants were unclear why their applications had been unsuccessful. In 2009–10 the number of complaints reduced significantly, though it is not yet clear whether this reduction is the result of improved decision making, recording and advice by TRA, or other factors, such as a recent change in TRA's assessment process. We also note that there is a cost to applicants in seeking a review.

      The office will continue to monitor the adequacy of feedback that TRA provides to applicants prior to decision review.

      Job seeker transfers

      It is pleasing to note that the number of complaints regarding job seeker transfers has reduced significantly during 2009–10. While there could be a range of reasons for this reduction, it is worth noting that DEEWR implemented its new ‘Job Services Australia' (JSA) model of employment services from 1 July 2009. The JSA model replaced the previous Job Network and is promoted by DEEWR as giving job seekers and providers increased flexibility to access appropriate support and services.

      Despite the reduction in complaints on this issue, it continues to be a significant source of complaints for our office and we will continue to monitor it in the coming year.

      Cross-agency issues

      Child care payments—Centrelink and DEEWR responsibility

      In previous annual reports we have discussed the complexities of investigating complaints that involve more than one agency. In 2009–10 we received a number of complaints about the Child Care Management System (CCMS), which is used by the Government to exchange information with child care providers about customer usage and entitlements. While Centrelink delivers the payments to assist families with the cost of child care, DEEWR has responsibility for managing the CCMS and relationships with child care providers. This has led to customers experiencing confusion and difficulty in understanding which agency is responsible for resolving errors in the assessment of child care entitlements. The following case study, Centrelink or DEEWR CCMS? illustrates just such an example.

      Looking forward

      In March 2010 DEEWR implemented a new model of delivering employment services to people with a disability, called Disability Employment Services. This model replaces a number of different ways that these services were previously delivered, and combines them into two distinct streams of support.

      Given the short time frame in which the new model has been in place, we have not yet had an opportunity to fully assess how the new model is working for jobseekers. We will monitor this area for complaints during 2010–11.

      Centrelink or DEEWR CCMS?

      Ms O complained that she had not received her quarterly child care tax rebate (CCTR) payment despite contacting Centrelink more than 15 times. She advised that, at the request of Centrelink, her child care provider had resubmitted its attendance data three times and still no payment had been forthcoming.

      We contacted Centrelink and DEEWR and were advised that, in order for the problem to be rectified, Ms O's child care provider would have to retract all previous attendance data and resubmit the data. This information had not previously been provided to Ms O because she had been dealing with Centrelink and not with DEEWR, who oversees the CCMS.

      We contacted Centrelink and DEEWR to draw their attention to the problems faced by families when trying to understand why their CCTR had not been paid, and recommended that a suitable complaint process be implemented. DEEWR and Centrelink subsequently advised that there was a process in place through Centrelink with escalation points to the CCMS. The agencies advised that, following our investigation, they had met to review the complaint process and explore further improvements.

      Department of Environment, Water, Heritage and the Arts and Department of Climate Change and Energy Efficiency

      During 2009–10, we received 341 complaints about the Department of Environment, Water, Heritage and the Arts (DEWHA), and 153 complaints about the Department of Climate Change and Energy Efficiency (DCCEE).

      In contrast, in 2008–09 we received only 46 complaints about DEWHA and six complaints about the Department of Climate Change. In 2009–10 we formally investigated 64 complaints about DEWHA and 69 complaints about DCCEE.

      Most complaints received during 2009–10 concerned the Australian Government's energy efficiency and renewable energy programs, particularly the solar panel rebate under the Solar Homes and Communities Plan, the solar hot water rebate under the Energy Efficient Homes Package, the Home Insulation Program, and the Green Loans program.

      On 8 March 2010, DEWHA's energy efficiency and renewable energy functions were transferred to the Department of Climate Change, which became the Department of Climate Change and Energy Efficiency.

      Complaint handling

      Many of the complaints we received raised concerns about DEWHA's failure to respond adequately to enquiries and complaints lodged directly with that department. In light of this, in September 2009 we commenced an own motion investigation into DEWHA's complaint-handling policies and processes.

      In its response to this investigation, DEWHA acknowledged that enquiries and complaints to the department had increased in parallel with the expansion in its energy efficiency programs, and that its complaint-handling arrangements were no longer adequate given its changed circumstances. It advised that it was in the process of revising its complaint-handling policies and procedures, with reference to the Ombudsman's Better practice guide to complaint handling.

      In early 2010, staff from the Ombudsman's office and DEWHA met via teleconference to discuss the department's enquiries and complaints processes, particularly in relation to the Green Loans program.

      After the transfer of DEWHA's energy efficiency programs to DCCEE in March 2010, we decided to finalise our investigation without publishing a report, given that DEWHA was already in the process of bringing its complaints policies and procedures into line with our Better practice guide to complaint handling . We will continue to work with DEWHA as it goes through this process.

      We also worked closely with DCCEE as it established new complaint-handling processes after responsibility for the energy efficiency program was transferred to it. Once again, we will continue to work with the department as it implements a centralised complaint-handling system that reflects our better practice guide.

      Delay in processing

      Mr P applied for a solar panel rebate in early 2009. The claim form indicated that processing would take six weeks. Five months later Mr P complained to our office that his application had not been finalised, and that DEWHA had not explained the delay, despite him making several phone calls to the department and writing to the Minister. The department explained to us that the delay was caused in part by Mr P's application having been incomplete. The department had sought the missing information from the installer, who had taken two months to provide it. However, the department acknowledged that it had not responded appropriately to Mr P's complaints. It had not explained to him that his application was incomplete, nor that it had sought the information from the installer.

      No complaint process

      Ms Q applied for a solar hot water rebate in May 2009. Several weeks later she contacted DEWHA to confirm that it had received her application. She was told that that information was not available, and to call back in four weeks. Four weeks later, Ms Qcalled the department and was told that the department still could not confirm that it had received her application because of delays in processing applications. Ms Q complained to our office that when she then asked to speak to a supervisor to lodge a complaint, she was told that there was no process available to do so. Subsequently Ms Q's application was approved, but there was a delay by the department in depositing the funds into her bank account. Ms Q then lodged an online complaint with the department, and made further phone calls, but the department did not respond to her complaint. The recorded reason was: ‘Due to the tone of her calls I have not attempted to respond or provide further explanation to her complaints (misinformation, poor service, incompetence etc.)'.

      Solar panel rebates

      On 8 June 2009, the Minister for the Environment announced that the Australian Government would only accept completed applications for the popular $8,000 solar panel rebate that were sent to DEWHA before midnight on 9 June 2009.

      We subsequently received many complaints about DEWHA's rejection of applications because they were received late or were incomplete. We carefully considered the reasonableness of the department's criteria for determining whether an application had been sent before the 9 June 2009 cut-off, the reasonableness of its criteria for deciding whether an application was substantially complete or not, and how the department applied these criteria in particular cases.

      In many cases, we were able to satisfy the complainants that the department's criteria were reasonable, and had been properly applied in their cases. In other cases, the department agreed to reconsider the applications as a result of our investigation.

      We also received complaints about solar panel applications having been lost. The department confirmed that more than 1,000 applications may have been lost. Most of these were claimed to have been sent in bulk by installers before the 9 June cut-off. It was unlikely that an investigation by this office would be able to determine whether any particular applications had in fact been lost, and whether the loss had occurred in transit or after they had been received by the department.

      In light of this, we again focused on the reasonableness of the criteria used to determine whether to accept resubmitted applications. DEWHA and DCCEE proactively engaged with us in designing the process for considering resubmitted applications. We ensured that the criteria were clearly communicated to the installers who had complained to our office, as well as to their individual customers.

      Group application

      Fifty permanent residents of a caravan park formed a group to apply for solar panel rebates through a single installer. The installer claimed to have submitted all 50 applications prior to the 9 June 2009 deadline. DEWHA accepted 43 applications, but rejected seven for lateness and/or incompleteness. Upon review, one application was accepted but the rejection of the other six was upheld. However, after investigation by our office, the department (now DCCEE) conducted a second review and granted approval for the remaining six applications.

      Two out of three

      Mr R complained that an installer had submitted three applications for the solar panel rebate for himself and two other members of his family. The other two applications had been approved, but his had been rejected as incomplete. Our investigation confirmed that, in Mr R's case, the installer had neglected to include the part of the application in which the installer certified that the proposed system would comply with the relevant standards and legislative requirements, meet the rebate guidelines, and was appropriate for Mr R's location. We considered that it was not unreasonable for DCCEE to have assessed the application as materially incomplete.

      Lost applications

      Mr S has a business installing solar panels, and complained that he had sent in more than 3,000 solar panel rebate applications before the 9 June 2009 cut-off, but DEWHA had no record of receiving 618 of these. Mr S had met with the department in October 2009, and had followed up but had not received clear advice about the missing applications.

      Mr S also complained that the department had paid the rebate to three of his customers whose applications had been lost, after they had submitted duplicate applications together with statutory declarations stating that their original applications were posted by 9 June 2009. However, DEWHA had not adopted this for other missing applications.

      In response to our inquiries, DEWHA advised that it had approved Mr S's three customers' applications in error. It again met with Mr S and advised him that it was still finalising its policy on lost applications. Mr S also contacted us after the meeting and expressed concerns about the department's request that he provide copies of the original applications. He explained that very few of his customers had kept copies.

      We discussed the situation with DEWHA and also DCCEE (after responsibility for the program was transferred to it in March 2010). We emphasised the need for a timely resolution to the problem, given the large number of people who were affected.

      Ultimately, in May 2010 DCCEE wrote to all applicants whose applications were missing, inviting them to resubmit their applications, together with supporting evidence to show that they had applied before the 9 June 2009 cut-off. Where applicants had not kept a copy of their original application, they were offered the opportunity to submit a duplicate application together with a statutory declaration to that effect.

      In our view, this policy for dealing with lost applications seemed reasonable.

      Home Insulation Program

      We received more than 60 complaints concerning DEWHA/DCCEE's administration of the Australian Home Insulation program. Most of these complaints were from householders who were concerned about delays in rebate applications being approved, or from installers about approved rebates being paid.

      Some householders were concerned about the quality and safety of the insulation that had been installed in their homes, and whether the department was taking steps to regulate installers and check the quality and safety of the insulation materials used.

      Householders also complained about fraudulent claims for the rebate in relation to their properties. In some cases, the possibility of a fraudulent claim came to the householder's attention when their rebate application was rejected because a rebate had already been paid for their property. In other cases, the householder received a letter from the department confirming that a rebate had been paid to an installer for their property, when the householder had not in fact made an application. In these cases, we advised the complainant to draw the department's attention to the issue so that it could take compliance action.

      Green Loans program

      We received 126 complaints about the Green Loans program from Green Loans assessors concerned about difficulties in obtaining assessment bookings, or about delays in the processing of invoices and difficulties in communicating with the departments generally.

      Green Loans assessors

      We received complaints from Green Loans home sustainability assessors about the DCCEE's delayed payment of their invoices. In some cases, the complainants had contacted the department numerous times to enquire about the status of their payments. Although they had used the dedicated email address and phone number advertised by the department, they had not received any response. DCCEE advised our office that the same team processing the payments was also required to deal with complaints and enquiries. As payment processing was considered a priority, the department was not able to respond to complaints or enquiries in a timely manner. At our suggestion, DCCEE improved the information it provided to assessors about payment time frames by posting regular payment processing updates on its website, and amending its auto-reply email message to inform complainants to expect delays and to advise which invoices the department was currently processing.

      Systemic issues

      Many of the complaints to our office echoed media concerns about the energy efficiency programs. The Australian Government has responded to some issues by making changes to administration, or by commissioning an inquiry into the relevant aspect of the program.

      We declined to investigate complaints where the departments were already taking steps to remedy problems, and where our investigation would have duplicated another inquiry. However, even in these cases we liaised regularly with the departments to ensure that they were aware of the full range of issues and concerns that complainants were raising with us, and to ensure that steps were being taken to address the problems. We also regularly sought improvements to their complaint-handling processes and the way in which information was provided to the public.

      Department of Families, Housing, Community Services and Indigenous Affairs

      Indigenous programs in the Northern Territory

      The office has been funded until 2011–12 to provide independent oversight of the Northern Territory Emergency Response (NTER) and the Closing the Gap NT initiatives.

      Apart from oversighting the NTER and the Closing the Gap NT initiatives, the Indigenous Unit of the Commonwealth Ombudsman also monitors all Australian Government programs that have an impact on Indigenous Australians in the Northern Territory (NT).

      Complaints received from Indigenous Australians in the NT primarily relate to the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), the Department of Education, Employment and Workplace Relations (DEEWR) and Centrelink. This is to be expected as they are large and complex government agencies responsible for programs that have an impact on people's everyday lives. The Ombudsman also works with other agencies as the need arises.

      Complaint themes

      The Ombudsman's office dealt with 322 complaints relating to the NTER or Indigenous programs in the NT. Almost all of these complaints were received during outreach to 39 communities and town camps.

      In considering these statistics the following should be noted:

      • the number of complaints received is directly related to the number of outreach visits conducted because few complaints are received from Indigenous people through the office's usual avenues (telephone, letter and internet)
      • the Ombudsman's office's outreach program is scheduled to ensure adequate time is available for investigations to be completed, and issues to be pursued
      • it is clear from our outreach visits that there are many more complaints than this office is presently resourced to handle.

      The issue which attracts the highest number of complaints is housing. Problems arise from complex leasing arrangements, the Strategic Indigenous Housing and Infrastructure Program (SIHIP), the devolution of housing repair and maintenance services to local shires, as well as the delivery of municipal and essential services to communities. Such complaints are recorded against FaHCSIA; however, they often also concern the NT Department of Housing, Local Government and Regional Services (DHLGRS), for example:

      • housing repairs and maintenance
      • rent
      • tenancy agreements
      • housing allocation decisions
      • housing reference groups
      • municipal and central services—such as mowing, fencing, repairs to and usage of public buildings.

      The case studies on the following page highlight the diversity of concerns.

      Other major issues of complaint relate to Income Management, the School Nutrition Program, Job Services Australia providers and land council decisions. Businesses and individuals also complain about the BasicsCard scheme.

      House maintenance

      Ms T complained about the condition of her house, saying that the stove did not work and that no repairs or maintenance had been undertaken in her community for some time. This was an issue for many people in the community.

      Our investigation revealed some confusion about who was responsible for the repairs. While FaHCSIA was the landlord, responsibility for tenancy management and repairs had been devolved to the NT DHLGRS. DHLGRS had provided funding to the local shire for repairs and maintenance, but the shire was not clear on whether stoves were included in those things they were required to maintain.

      As a result of this complaint and our investigation, the shire arranged for Ms T's stove to be replaced, along with 19 others in her community.

      Community access to playgrounds

      Residents of a remote community complained that there was no play equipment for the children outside of school hours as the school gates were locked at the end of the school day. We were told that new play equipment had been ordered for two other communities in the area, but not for this community. While we were in the community we saw metal grids placed in the area where the community said they would like a playground located.

      When we investigated, we were advised that the Shire Council had not ordered play equipment for this community because there was play equipment at the school. Following our investigation, the Shire Council ordered new play equipment and the agency will fund the erection of shade cloth over the play area.

      BasicsCard usability

      Mr U owned a roadhouse and had applied to Centrelink to be approved as a BasicsCard merchant for fuel, power and groceries. Centrelink had approved Mr U to be a BasicsCard merchant for fuel and power, but not for groceries because the policy, which was developed by FaHCSIA, did not allow roadhouses to sell groceries through BasicsCards. Mr U had requested a review of the decision, but did not receive a response.

      Following an Ombudsman investigation of this complaint, Centrelink reviewed its decision and decided to approve Mr U's roadhouse for the full range of BasicsCard purchases, including groceries. We recommended that Centrelink review its decision letters to merchants so that it explained the merchant's review rights. Centrelink accepted our recommendation and amended its template letters. The complaint investigation also prompted a review of the roadhouse policy.

      Complaint themes and cross-agency issues

      It is evident that most agencies have not established accessible complaint mechanisms of their own in remote communities. Consequently, many issues that could be resolved by agencies do not come to their attention until we raise the complaint with them.

      The need for improved communication was the subject of a public report that we released in late 2009 arising from complaints about asbestos management in remote communities.

      A recurring theme throughout complaints is a concern about poor communication or a lack of information provided to Indigenous people about government programs affecting them. This is particularly acute where program decisions are made but not adequately conveyed or explained. Passive delivery of information, and information which is inappropriately targeted, misleading, unclear, untimely, inaccessible or simply non-existent lies at the heart of a significant number of complaints investigated by the Ombudsman, either as a primary issue or related factor.

      This often involves a failure to engage, or interpreters not being available (which is the subject of a separate public report under consideration by this office).

      This issue is seemingly at odds with the observation made by a number of community organisations that Aboriginal communities feel they have been ‘over-consulted'. Perhaps it is the same few prominent community leaders who have been consulted many times on issues of lower importance, and on broader more important issues, consultation with communities has not been well targeted. An ongoing issue reported to this office is the failure of clear follow-through or reporting back on consultations.

      Poor communication is often compounded by the increasing trend towards service delivery involving two and often three tiers of government. While multijurisdictional service delivery can present complex problems for agencies, there is an increased risk of people being passed from one level of government to another without their concerns or needs being addressed.

      The Ombudsman's role is particularly complex in this area because so many programs for Indigenous Australians are cross-agency or multijurisdictional. Additional issues arise because of the way Council of Australian Governments (COAG) agreements define or describe Australian Government responsibility for outcomes.

      Programs and services may also be delivered through memorandums of understanding (MOU) and service level agreements between the Australian and NT Governments or through more direct funding to states and territories. We generally assert Commonwealth jurisdiction on the basis that the Commonwealth, primarily via FaHCSIA, is accountable for the delivery of outcomes under these high-level agreements.

      Reports

      The Commonwealth Ombudsman is currently drafting a report about agency access to Indigenous language interpreters.

      We are also finalising a report under s 15 of the Ombudsman Act that arose from an investigation into a specific complaint concerning the administration of Performance Funding Agreements for service providers based in remote Indigenous communities. Another report we are currently finalising relates to the review rights of income-managed people in the NT.

      Engagement

      In addition to complaint investigations, the Ombudsman's office conducts regular formal liaison meetings with the key agencies involved in Closing the Gap NT programs. The aim is to gain early feedback about various government programs and to provide an opportunity for agencies to adjust and refine their programs and processes before more people are adversely affected.

      This strategy has the potential to address a problem before it affects more clients and attracts wider attention and criticism. The Ombudsman is in a strong position to contribute to the improved delivery of government programs and if these cooperative objectives are understood, improved outcomes should follow.

      The Ombudsman's office deals predominantly with FaHCSIA, Centrelink and DEEWR and attends regular liaison meetings in Darwin and Canberra. During 2009–10, we attended agency liaison meetings with other agencies that run programs for Indigenous people and remote communities in the NT, including:

      • the Attorney-General's Department
      • Department of Broadband, Communications and the Digital Economy
      • Department of the Environment, Water and Heritage
      • Department of Health and Ageing.

      During the year, we also met regularly with:

      • the Indigenous Policy Branch of the Department of the Prime Minister and Cabinet in an effort to advance whole-of-government issues and receive updates from inter-agency forums of which we are not members
      • the Coordinator-General for Remote Indigenous Services to share information and discuss relevant issues and approaches
      • Territory Housing—a joint Australian and NT Government office in Darwin.
      Outreach

      The Commonwealth Ombudsman is the primary avenue of independent oversight of many Australian Government Indigenous programs. As a result, visits to Indigenous communities in the NT form a very important component of our outreach program.

      An MOU with the NT Ombudsman signed in December 2009 facilitates a single interface for people who wish to complain about cross-jurisdictional issues in the NT.

      The frequency of outreach visits and the time taken to investigate complaints can be significantly lengthened due to agency response times. We recognise the challenges that a large government agency such as FaHCSIA has in responding to our questions, which will often relate to a complex and multijurisdictional environment. We are currently refining our approach to complaints that involve cross-agency issues in consultation with FaHCSIA and relevant NT Government agencies.

      Community organisations

      We continue to examine how we can best engage with community agencies and organisations in the NT. These organisations are an important source of information about issues of concern and they also have the capacity to refer their clients to our services.

      In 2009–10 we continued to share promotional and educational activities with other organisations. For example, together with the NT Ombudsman we made a presentation to the Batchelor Institute.

      Other activities included information presentations about Ombudsman services to community board meetings and other community organisations such as the Central Australian Youth Link-Up Service (facilitating internet access at Papunya).

      Looking ahead

      Many complaints arise from the experience of one individual who is lost in the enormity of government programs. People need to know where to get information about government programs that affect them.

      After more than three years of the NTER and Closing the Gap NT, communication challenges in remote NT remain a significant issue, and are the underlying cause of many complaints.

      These challenges are shared by the office in its own communication with Aboriginal people and communities in the NT and nationally. The office is committed to improving its engagement to make its own services more widely accessible.

      A project officer was engaged to develop an Indigenous communication and engagement

      strategy in 2010. A key part of this project is formal evidence based research in order to shed light on how we can communicate better. We want to find out what messages Indigenous people respond to and why. We want to target our messages better and use the most appropriate tools. This research will be completed in the second half of 2010. It will assist the office to:

      • be accessible to more Indigenous Australians
      • use best practice communication with Indigenous Australians
      • engage more closely with community and other stakeholders by sharing this information.

      In other policy areas, decision-making tools can get in the way of good decisions at the expense of policy outcomes. The case study Helping Children with Autism Scheme illustrates this issue.

      Helping Children with Autism Scheme

      Ms V was granted assistance under the Helping Children with Autism (HCWA) scheme, which aims to support early intervention for under-school-age autistic children. Ms V complained to us that FaHCSIA had refused her claim for the Outer Regional and Remote Payment (ORRP), which provides additional assistance for HCWA recipients, because her address was not considered ‘outer regional and remote' (under the Accessibility Remoteness Index of Australia (ARIA+) tool used to assess ORRP claims). Ms V complained that she would not be able to use the HCWA funding she had been granted because she could not afford to travel to access these services.

      We advised FaHCSIA of our view that while a grantee may live near a ‘service centre' as classified by ARIA+, it does not necessarily follow that there is a FaHCSIA approved provider in the vicinity of that service centre. We suggested that FaHCSIA consider using an alternative method of assessment. In response, FaHCSIA agreed to implement a special consideration for assessing ORRP applications. Under the changes, Ms V was granted the ORRP for her family. In addition, as a result of this enquiry other internal review processes were implemented to assist families seeking assistance.

      Fair Work Ombudsman

      The Office of the Fair Work Ombudsman (Fair Work Ombudsman) was established on 1 July 2009 to promote harmonious, productive and cooperative workplace relations, and to monitor, enquire into, investigate, and enforce compliance with relevant Commonwealth workplace laws. Its predecessor, the Office of the Workplace Ombudsman, had similar functions, although the Fair Work Ombudsman has a greater educational role.

      In 2009–10 we received 57 complaints about the Fair Work Ombudsman, compared to 65 complaints about its predecessor the year before. The main issue centred on the conduct of investigations.

      During 2009–10 we undertook an own motion investigation ( Fair Work Ombudsman: Exercise of coercive information-gathering powers , report no. 09|2010) focusing on the policies and guidelines used by the Fair Work Ombudsman when exercising its powers during investigations. We used the principles contained in the Administrative Review Council's (ARC) The Coercive Information-Gathering Powers of Government Agencies (report no. 4, May 2008) as a guide.

      Overall, we found that the Fair Work Ombudsman is acting consistently with the principles contained in the ARC report. We were impressed with the quality of the procedures in place to manage the coercive information-gathering powers used by its inspectors. The own motion report included some recommendations for further procedural improvement, which were positively received by the Fair Work Ombudsman.

      Department of Health and Ageing

      The Ombudsman finalised 151 approaches and complaints about the Department of Health and Ageing (DoHA) in 2009–10, of which 57 were investigated.

      The main themes arising from complaints were:

      • the quality of DoHA investigations into aged care complaints
      • the currency, accuracy and appropriateness of communications with the public (including material made available to the public on DoHA's websites)
      • access to DoHA services in remote communities.

      Complaint themes

      The most common type of complaints received about DoHA concerned its Aged Care Complaints Investigation Scheme (CIS) and its decisions on recommendations made by the Aged Care Commissioner (ACCr).

      In September 2009, the Ombudsman made a submission (based on complaints received) to DoHA's Review of the Aged Care Complaints Investigation Scheme conducted by Associate Professor Merrilyn Walton.

      Respecting the dignity of care recipients

      The complainant's father and another resident had raised some concerns during a general meeting of the care facility. They felt that the manager was rude to them in response. The complainant said that the following day the manager had spoken to each of them separately in their rooms and they felt that this was bullying in response to the incident at the meeting. The manager said she spoke ‘sternly' to the residents but had not treated them with disrespect.

      The CIS decided that there had been a breach of the requirement to respect the dignity of care recipients, but that this had been rectified and no further action was required. Both the facility and a resident's family appealed to the ACC. The facility argued that there had been no breach of the requirements and the resident's family argued that there should be further action taken. The ACC decided that there was insufficient objective evidence of the conversations to establish that a breach had occurred.

      In this case the complaint process met regulatory needs, but placed the parties in an adversarial position. The process did not address the perceptions of the parties, which were likely to continue to affect their ongoing relationship. Addressing these matters is important to the way residents feel in a care facility that is essentially their home.

      Our concerns about the complaints investigation scheme include:

      • the time frame of 14 days for a person to appeal to the ACC against a decision of the CIS is too short. Complainants in the aged care context may need to talk about their complaint with family members before proceeding and most similar administrative appeals processes allow at least 28 days
      • the scheme does not cover government funded aged care services outside the Aged Care Act 1997 , such as flexible programs providing services to Aboriginal and Torres Strait Islander Communities
      • the scheme is directed towards regulatory rather than complaint resolution outcomes, often leaving a complainant's dispute unresolved or without redress
      • the scheme does not always offer sufficient opportunity to comment before a decision or a recommendation is made
      • in some cases the reasons for decisions of the department's delegate to accept or reject the ACC's recommendations are not sufficiently transparent.

      In particular, the current complaints scheme has not provided the type of resolution mechanism required in circumstances where there will be an ongoing relationship between a care facility and care recipient.

      The case Explaining decisions how a complaint can remain unresolved due to inadequate explanation to the complainant of the reasons for a decision.

      Explaining decisions

      Mr W's care facility decided that it could no longer care for him due to his increasing needs and that he would be better placed elsewhere. The User Rights Principles (the Principles) provide for certain processes to be followed where a residence either asks or requires a care recipient to leave in these circumstances. In this case the care facility said it did not follow the process under the Principles because Mr V left the facility voluntarily.

      On Mr W's behalf, the complainant complained to the CIS and to the ACC that Mr W had not left voluntarily, but rather was told he would have to leave.

      The CIS weighed up what both parties said had occurred in a meeting between the facility and the complainant and decided that it couldn't reach a positive conclusion about whether Mr W had been asked or required to leave. This was because the facility's officers may have understood the complainant's reactions (including crying) as expressing sadness at the situation, but not as disagreement with the proposal that Mr W be relocated. The ACC did not agree and referred to a contemporaneous file note made by the care facility after the meeting, which referred to still having to convince the complainant.

      The Secretary's delegate decided not to accept the ACC's recommendation, referring to what each party had originally said to the CIS and deciding that it couldn't be positively satisfied whether Mr W was asked or required to leave. Despite its prominent place in the reasoning of the ACC, the delegate made no reference to the file note. Because the complaint was about how a particular conversation was perceived at the time, the contemporaneous file note was a significant relevant consideration which needed to be addressed in the reasoning for the decision.

      In response to our enquiries, DoHA advised that it has reviewed the CIS's letters and conducted a training program focused on the provision of clear and logical statements of reasons. However, while it acknowledged that the reasons afforded the complainant in this case could have been clearer, DoHA did not provide a statement addressing the file note to the complainant in this case. This omission left the complainant to wonder whether or how the file note was taken into account, and reduced the likelihood that the decision would be acceptable to the complainant.

      Associate Professor Walton's report on the Review of the Aged Care Complaints Investigation Scheme was publicly released on 12 April 2010. Since then, DoHA has advised that it will work with the aged care sector, consumers and others to develop and implement a range of quality improvements to the CIS. In particular, these will include:

      • more timely responses to complaints through early risk assessment and resolution
      • greater access to clinical expertise
      • improved processes, procedures and training for the CIS
      • a broader range of options for resolution of complaints
      • an enhanced communications strategy for the CIS
      • improved access to an independent review of the CIS's decisions and processes.

      We will monitor the effectiveness of the proposed improvements through complaints made to this office.

      Communication and publicly available information

      The case study of Mr V is also an example of a failure to understand what information a member of the public would expect to be addressed in government correspondence.

      In 2009–10 we conducted a number of investigations that showed room for improvement in communications with members of the public by some areas of DoHA, including the Therapeutic Goods Administration (TGA) and material available to users through the TGA website.

      In two complaints about the regulation of therapeutic goods that the complainants believed had caused serious side effects to their family members, we found that DoHA, through the TGA and its committees, had conducted substantial regulatory work. However, DoHA's responses to the complainants' enquiries did not do justice to this work and left the complainants believing that insufficient work was being done.

      Regulation of naltrexone implants

      In 2009 we received a number of complaints about the regulation of the manufacture and supply of naltrexone implants (used in the treatment of drug addiction). The product is not approved for marketing or supply in Australia but, under an exemption in the Therapeutic Goods Act 1989 , may be manufactured by a medical practitioner for the treatment of a life threatening illness in their own patients.

      The complainants questioned the intensity of compliance activity conducted by the TGA to ensure the requirements for the exemption were met. We found that the TGA had recently focused on this area to ensure compliance with the requirements for the exemption. However, we also found that the TGA's guidelines published on its website did not accurately reflect its legal compliance powers, and that responses to people who had complained to the TGA about the use of the implants had referred them to an internet page on which these incorrect guidelines could be found. The TGA corrected its guidelines as a result of our investigation.

      Access to DoHA services in remote communities

      The Ombudsman's Indigenous Unit has observed aged care arrangements and received complaints about aged care services during its outreach to communities and town camps. The underlying theme in aged care complaints received by the Indigenous Unit is the inaccessibility or unavailability of aged care services. Residential aged care is viewed favourably by complainants in remote communities. However, we receive regular feedback that the focus on care and treatment in larger centres has meant that older people may be forced to leave their communities to be cared for or miss out on care because they find it too difficult to leave their communities. Elderly Indigenous people often choose to remain in their community with minimal or no services, rather than be away from family, social networks and spiritual supports in their country.

      Complainants have raised concerns with the Ombudsman about the complexity of the process for applying for aged care funding and its associated costs. They have advised the office that these difficulties dissuade organisations from providing aged care services in remote areas.

      Communication is another common theme in aged care complaints received by the Indigenous Unit. It is the Ombudsman's experience that in some communities there is uncertainty as to whom residents should approach about aged care needs: the shire, the health clinic or the Australian Government representatives stationed in the community. It is often difficult for complainants to navigate the aged care bureaucracy to determine their entitlements. This challenge is exacerbated for complainants who do not speak English, or who speak English as a second, third, fourth, or even fifth language, as is often the case in the NT.

      As the Office of Evaluation and Audit has identified, there are currently no Indigenous aged care quality standards. The Indigenous Flexible Aged Care Program operates outside of the Aged Care Act 1997 , and does not have to comply with the mainstream aged care quality standards. There is also currently no requirement to provide a complaint and redress mechanism under the flexible aged care program. Although the Ombudsman does have jurisdiction to take complaints relating to Indigenous aged care arrangements, it is our view there should be mechanisms for redress within government agencies, and clients and their families should be made aware of these.

      Medicare

      In 2009–10 the Commonwealth Ombudsman received 171 approaches and complaints about Medicare Australia (Medicare), up marginally from 161 received for the 2008–09 year.

      Approaches and complaints received by the Ombudsman about Medicare are diverse and range from entitlement enquiries and complaints about service delivery to incorrect advice and policy matters.

      Complaints alleging incorrect advice are particularly difficult to resolve as Medicare does not have a system for recording the details of verbal advice given to customers, as illustrated in the case study Recording verbal advice .

      Recording verbal advice

      Ms X's doctor had lodged the necessary Medicare forms for a person to be placed on its dental plan permitting access to benefits for certain dental treatment. The form did not ask whether the treatment was to take place within a hospital.

      Ms X advised the Ombudsman's office that she called Medicare's dental health plan phone number to confirm that the GP care plan items had been claimed and paid before starting dental treatment, as this is a Medicare requirement. Ms X said that she was informed that approval had been given. Ms X later contacted Medicare to see if her anaesthetic fee and hospital bed expenses would be claimable. Ms X said that she was told they would not, but all other treatment costs would be met. Ms X then went ahead with the treatment.

      Subsequently, her surgeon recommended that Ms X contact Medicare and cross-check the Medicare item numbers that had been used. She again called Medicare's general public enquiries phone number and was informed that all listed item numbers could be claimed. However, when she attended the Medicare office and presented her receipts, Ms X was informed that, because the treatment had taken place in a hospital, it was not claimable.

      Ms X rang Medicare's general public enquiries phone number again and was told that the item was claimable. Ms X then requested to be transferred to a supervisor. The supervisor noticed that Ms X was also claiming for an anaesthetic on the same date and asked whether the procedure had occurred in a hospital, to which Ms X replied 'yes'. She was then advised that, as the treatment had occurred in a hospital, a benefit was not payable.

      Ms X complained that she was not told at the outset that the treatment could not be claimed if carried out in a hospital. However, because Medicare does not have a system for recording verbal advice given to customers, there are no records of exactly what Ms X was told and any advice given can only be inferred from all of the circumstances.

      The Ombudsman has raised this issue with Medicare, and Medicare advised that it is examining various options for recording verbal advice.

      Electronic funds transfer

      Another complaint highlighted the risks for customers of government services moving towards electronic funds transfer systems, as seen in Incorrect BSB .

      Incorrect BSB

      The complainant had accidently given Medicare an incorrect BSB number for the payment of her benefit. Medicare used the number as provided and paid the benefit into an unknown person's account. Medicare contacted the Reserve Bank of Australia (RBA), which advised that the payment could not be retrieved. The RBA provided information to us about its processes and capacity to retrieve payments in these circumstances. Under the Bulk Electronic Clearing System rules, the RBA will contact the destination financial institution, which will then use its best endeavours to contact its customer about the matter.

      If the customer consents, the destination financial institution will withdraw the amount and repay it to the RBA. Otherwise, the requesting agency will need to take separate steps to identify the recipient and use any applicable laws to recover the money. There is no industry time limit on the RBA making a request to a destination financial institution. In this case, Medicare had paid the amount at the direction of the complainant and there was no legal obligation on it to take further action to recover the payment on behalf of the complainant. In concluding our investigation, we suggested to Medicare that it ensure customers are apprised of the importance of accuracy in providing their account numbers.

      Compensation for Detriment caused by Defective Administration

      Early in the financial year we observed delays in the processing of requests made by customers under the Compensation for Detriment caused by Defective Administration (CDDA) scheme under Finance Circular 2009/09.

      As a result of enquiries made by the Ombudsman about the length of time taken to process claims, Medicare revised its processes by:

      • introducing a simplified and faster process for requests where the claimed loss is less than $1,000, the claim does not involve complex legal issues and the claimant is not represented
      • arranging training for Medicare officers, working in a range of program areas, about the operation of the CDDA scheme
      • obtaining the approval of the Minister for Human Services for 14 positions within Medicare to approve claims for compensation up to the value of $250.

      Freedom of information

      This was the last full year for which this office was responsible for investigating actions taken by Commonwealth agencies under the Freedom of Information Act 1982 (FOI Act).

      The Australian Information Commissioner Act 2010 commences from 1 November 2010. That Act creates offices of the Australian Information Commissioner and the Freedom of Information Commissioner who, together with the existing Privacy Commissioner, will be responsible for information access and related matters in the Commonwealth.

      In 2009–10 we received 137 complaints about FOI requests. During the year we finalised 159 complaints about FOI, addressing 161 issues. Of these, 120 were about access to personal documents and 41 about access to general documents. As with previous years, the majority of complaints were about delay, the imposition and remission of fees and charges, and decisions that were not well explained.

      Our experience is that complaints to the Ombudsman about delay can often be avoided if agencies better inform applicants about the progress of their request, and the reasons for the delay. The Ombudsman continues to encourage agencies to improve the level of contact with FOI applicants to decrease the need for our involvement. In cases where the Ombudsman finds there has been a delay, the usual remedy is to speed up the processing of the request and provide an apology to the applicant. In some cases we have suggested that the agency provide additional resources to manage their processing of FOI requests, and appropriate staff training in the requirements under the FOI Act.

      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 their obligations under this provision. Some agencies did not assist an FOI applicant where an FOI request was invalid, or where the agency suggested that the request be dealt with informally outside the FOI Act.

      Monitoring and inspections

      The Ombudsman is required under law to inspect the records of law enforcement and other enforcement agencies in relation to the use of covert powers. We do this to determine compliance with legislative requirements governing the use of those powers, which include:

      • telecommunications interceptions by the Australian Federal Police (AFP), the Australian Crime Commission (ACC) and the Australian Commission for Law Enforcement Integrity (ACLEI)
      • access to stored communications by Commonwealth agencies, including the AFP, ACC, ACLEI, Australian Customs and Border Protection Service and the Australian Securities Investment Commission (ASIC), and state and territory agencies
      • use of surveillance devices by the AFP, ACC and ACLEI, and by state and territory law enforcement agencies (under Commonwealth legislation)
      • controlled operations undertaken by the AFP, ACC and ACLEI.

      In addition, we have the function, recommended by the Senate Rural and Regional Affairs and Transport Legislation Committee in 2006 and agreed by the Department of Agriculture, Fisheries and Forestry (DAFF), to review investigations carried out by the Biosecurity Services Group within DAFF.

      We were involved in inspection and oversight of 16 different agencies, at both Commonwealth and state level, under the requirements of four different Commonwealth Acts.

      Definitions

      Telecommunications interceptions are the recording of telephone conversations or other transmissions passing over a telecommunications network. Interceptions occur under warrant for the purposes of obtaining information relevant to an investigation.

      Stored communications typically refer to emails and text messages, but may include images or video, which are electronically stored by a telecommunications carrier or internet service provider. For instance, an SMS message is stored by a carrier and sent when the intended recipient is able to take the message. Stored communications access occurs under warrant for the purposes of obtaining information relevant to an investigation.

      Surveillance devices are typically listening devices, cameras and tracking devices that are used to gather information for criminal investigations and for the safe recovery of children. The use of these devices usually requires a warrant.

      A controlled operation is a covert operation carried out by law enforcement officers under the Crimes Act 1914 (Cth) for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious offence. An authority to conduct a controlled operation permits, within limits, a law enforcement officer to engage in conduct that might otherwise constitute an offence.

      Telecommunications interceptions

      Under Chapter 2 of the Telecommunications (Interception and Access) Act 1979 (TIA Act), the Ombudsman is required to inspect the records of the AFP, the ACC and ACLEI twice a year. We do this to ascertain the extent of compliance with requirements to destroy restricted records, keep documents connected with the issue of warrants and keep records of interceptions. Our office has provided oversight of the regime since 1988.

      Our office may report any contraventions of the TIA Act that come to our notice in the course of the inspections.

      In September 2009 we presented reports to the Attorney-General on inspections of the AFP and ACC undertaken in 2008–09 (ACLEI did not conduct any interceptions in that year).

      We conducted two inspections each of AFP and ACC records in 2009–10 relating to warrants that were issued between April and September 2009, and October and December 2009 (ALCEI did not conduct any interceptions during this period).

      The AFP was generally found to be compliant with the requirements of the TIA Act. Three recommendations were made, two of which related to the keeping of ‘use and communication logs' and the other to the description of offences on warrants.

      The ACC was found to be compliant with the requirements of the TIA Act. No recommendations were made.

      In general, the level of compliance with the requirements of the TIA Act is very high. The telecommunications regime has been in operation for a considerable period and there is a good understanding by agencies of the legislative requirements. The process is highly automated with appropriate safeguards.

      Stored communications

      Under Chapter 3 of the TIA Act, the Ombudsman is required to inspect the records of enforcement agencies that relate to the access of stored communications. Our role is to ascertain the extent of compliance with the relevant provisions of the TIA Act. During 2009–10 we carried out 17 inspections of stored communications records maintained by 15 agencies.

      Those agencies were the AFP, ACC, ASIC, New South Wales Crime Commission, NSW Police, Queensland Police, Crime and Misconduct Commission, South Australia Police, Tasmania Police, Victoria Police, Office of Police Integrity, Western Australia Police, Corruption and Crime Commission (CCC) and Australian Customs and Border Protection Service. In the case of Customs there were three inspections in different regional offices.

      The stored communications access scheme is designed to permit access to communications that have been stored by a carrier, rather than permitting enforcement agencies to monitor communications over a period of time, which would be akin to interception. This is particularly evident in the short period that a warrant remains in force, being five days from issue or until first executed.

      The legislative controls and restrictions governing access to stored communications are generally set at a lower level than those relating to telecommunications interception. This, together with tighter time frames for accessing stored communications, places a significant obligation on agencies to closely manage stored communications access if they are to be compliant with the TIA Act.

      Problems were again identified with respect to access of stored communications and compliance with the TIA Act. There also continues to be disagreement about the requirements that legislation places on both agencies and carriers. These difficulties have been compounded by a lack of record keeping demonstrating when warrants are executed. We have raised our concerns with the Attorney-General.

      Surveillance devices

      Under the Surveillance Devices Act 2004 (Cth) (SD Act), the Ombudsman is required to inspect the records of Commonwealth, state and territory law enforcement agencies that utilise powers under the SD Act.

      During 2009–10, two inspections each of the AFP and the ACC and one inspection of the CCC were conducted. The inspections examined records relating to surveillance devices warrants, tracking device authorisations and emergency authorisations that had expired or were revoked between 1 January 2009 and 30 June 2009 and 1 July 2009 and 31 December 2009. We provided a report to the Attorney-General in March 2010, which was tabled in the Parliament in June 2010. The report contained the results of inspections finalised during January to December 2009.

      Overall there was a high level of compliance by each of the agencies inspected. However, we have raised concerns with the ACC and AFP in relation to their preference to obtain new warrants to authorise ongoing surveillance activities rather than utilising extension provisions within the SD Act. While the practice of obtaining a new warrant is not unlawful, it has the potential to obscure the duration that a target has been under surveillance and the subsequent impact on the target's privacy. This is a relevant consideration for issuing officers. We have continued to draw attention to this issue with agencies and the Parliament.

      Controlled operations

      Part IAB of the Crimes Act 1914 (Crimes Act) prescribes the process of applying for, granting, and ending an authority to conduct a controlled operation. Where a controlled operation is authorised, law enforcement officers and certain other persons are generally exempt from criminal liability arising in the course of such an operation, and are indemnified from civil liability.

      The Ombudsman has the function of inspecting and overseeing the requirements of Part IAB of the Crimes Act. The Ombudsman must also produce a report on the results of inspections (published in November 2009), and brief the Parliamentary Joint Committee on the ACC. During the year we conducted four inspections of controlled operations records that ended between 1 February 2009 to 31 July 2009 and 1 August 2009 to 31 January 2010—two each at the AFP and the ACC. We concluded that both agencies were generally compliant with the legislative requirements.

      In conducting the inspections, we are always mindful of the sensitivities involved in controlled operations and the amount of information we need to access in order to perform our function. We must have access to sufficient information to allow our office to give reasonable assurance that operations are conducted within the bounds of an authority. At the same time we must be cognisant of security implications. We emphasise to agencies that the decision about what is sufficient information is a matter for us to determine taking into consideration the need to balance these factors.

      Prior to 19 February 2010, the Crimes Act permitted controlled operations to be conducted for a maximum of six months on the condition that they were externally reviewed by the Administrative Appeals Tribunal after three months.

      On 19 February 2010 the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 came into effect and a large number of changes were made to Part IAB of the Crimes Act.

      Of particular note was the extension of the period of a controlled operation from a maximum of six to 24 months, subject again to external scrutiny requirements. Explanatory memorandum for the new legislation makes it clear that any one operation has a distinct limit to its operation. We are discussing these changes with the ACC, including how they affect the approval and conduct of operations.

      Review of investigations—Biosecurity Services Group

      During 2009–10, we undertook an own motion investigation into the activities of the Compliance Branch, Biosecurity Services Group, in DAFF. The own motion investigation was conducted at the Sydney office of the Compliance Branch.

      The Compliance Branch undertakes investigations of possible breaches of legislation administered by DAFF (for example, the Quarantine Act 1908 ), and provides briefs of evidence to the Commonwealth Director of Public Prosecutions to consider criminal prosecution in certain cases.

      Our understanding of this function flows from a recommendation contained in the Senate Rural and Regional Affairs and Transport Legislation Committee's report on the administration by DAFF of the 2004 outbreak of citrus canker. In its June 2006 report, the Committee criticised DAFF for its response to the citrus canker outbreak and the failure of an earlier investigation to prevent or mitigate the outbreak.

      As a result, the Committee recommended that the Commonwealth Ombudsman review investigations carried out by the then Australian Quarantine and Inspection Service (now the Biosecurity Services Group).

      As part of the own motion investigation, we looked at the Sydney office's timeliness in commencing investigations, the training and qualification of investigators, its compliance with legislative requirements in using enforcement powers and adherence with policies issued by DAFF. We are currently completing the report on the results of this investigation.

      It is expected that we will continue the own motion investigation of the Compliance Branch in 2010–11, visiting regional offices in Melbourne, Adelaide, Sydney, Perth and Brisbane. DAFF provides funding to the Ombudsman to carry out this function.

      Providing greater assurance

      As we advised in our previous annual report, the introduction of the stored communications access regime increased the number of inspections we conducted and reports we provided by 60% in 2008–09. This prompted a rethink of the way we approach inspections to allow us to provide greater assurance to the Attorney-General and the Parliament that agencies are properly using their covert and coercive powers.

      In 2009–10, we made significant changes to our work practices, focusing on a more robust and risk–based approach to our auditing. The changes include:

      • identifying specific areas of risk for each agency by gaining a better understanding of their internal processes and controls for the use of covert powers
      • assessing areas within each regime where the highest levels of risk exist for agencies and their stakeholders, and developing inspection methodologies to focus on these areas
      • developing materiality thresholds to make a more consistent and objective assessment of an agency's compliance with legislative requirements
      • developing tests that more rigorously cross check against and interrogate electronic records and systems.

      We will continue to implement these enhancements in 2010–11.

      As a result of these changes, our reports will provide a more balanced view of an agency's performance against legislative requirements. The reports will not simply raise issues of non-compliance, but include an assessment of agencies' internal safeguards and performance against legislative requirements.

      The effectiveness of these changes is already evident. Our inspections are focused on those areas where problems are likely to arise, yet they are conducted in shorter time frames with fewer resources.

      We aim to provide more targeted advice to agencies to assist their legislative compliance and, at the same time, a greater level of assurance to the Parliament on agency performance.

      Assisting agencies

      In February 2008, the ACC implemented an ‘excellence in compliance' strategy to improve its legislative compliance. As part of this, the ACC worked with us, was open about problems and listened to our advice. In our most recent report on surveillance devices and in our two most recent reports on telecommunication interceptions, the ACC was found to be compliant with all requirements of the Acts and no recommendations were made by our office.

      Such results are, in part, about accepting oversight and inspection as a necessary and integral part of a regime where extraordinary powers are granted by the Parliament. When agencies accept that and work with us, oversight and inspection can provide both assurance and improved compliance.

      Tasmania Police, Queensland Police and the Crime and Misconduct Commission have stood out as agencies keen to seek our advice on compliance issues and maintain communication with our office. In preparing to use certain powers for the first time, ACLEI has also sought our assistance and we are keen to work with the Commission to ensure high levels of legislative compliance.

      Contributing to policy and legislative change

      In monitoring compliance with the various Acts, the Ombudsman is able to observe accountability mechanisms and assess those that work well and those that do not. Armed with this knowledge, we made submissions to the Senate Committee on Legal and Constitutional Affairs in 2009–10 in relation to the:

      • Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009
      • Parliamentary Joint Committee on Law Enforcement Bill 2010
      • National Security Legislation Amendment Bill 2010.

      The Ombudsman's oversight role gives us a unique perspective on the use of special powers. We have developed a deep understanding of the working arrangements and administrative processes that enforcement agencies employ.

      We understand the limitations and problems that legislation can create, often inadvertently. Yet we are able to distinguish between limitations imposed for purposes of accountability and those that manifest as unintended consequences. We continue to seek opportunities to engage with law enforcement agencies and the Attorney-General's Department to add value in this area.

      Overseas students

      Subject to amendments to the Education Services for Overseas Students (ESOS) legislation, the Commonwealth Ombudsman will have a new role in relation to international students in 2011.

      The Ombudsman will have jurisdiction to investigate complaints from international students intending to study or currently enrolled with private education providers where there is not already a statutorily independent complaint body available to them. The office will also assist private education providers to develop and improve their own internal complaint-handling processes in line with best practice.

      A Bill containing those amendments was referred to the Senate Education, Employment and Workplace Relations Legislation Committee on 25 June 2010. The Committee is due to report in late 2010.

      Defence Force Ombudsman

      Each year the Commonwealth and Defence Force Ombudsman (DFO) receives, on average, between 550 and 750 approaches and complaints about Defence-related matters. This year we received 578 complaints, a decrease of 5% from last year's figure of 609.

      Among Defence-related agencies are the Department of Defence, each arm of the Australian Defence Force (ADF), Department of Veterans' Affairs (DVA) and Defence Housing Australia.

      We can investigate approaches as either the Commonwealth Ombudsman or the DFO depending on the circumstances of the complaint. Complaints that arise as a result of a person serving or having served in the ADF are usually investigated under the DFO role. These employment-related matters can include complaints about termination, promotion, postings, pay and entitlements.

      The Commonwealth Ombudsman usually investigates complaints from members of the public about Defence-related agencies and the ADF. Complaints of this nature can include issues such as weapons firing ranges, military aircraft noise, contracting matters and service delivery.

      Table 5.1: Defence-related approaches and complaints received, 2005–06 to 2009–10

        1st report 2nd report Total
      Received from DIAC 165 8 173
      Review sent from Ombudsman 84 5 89
      Closed without review*    83

      Department of Defence

      We received 176 approaches and complaints about the Department of Defence and the ADF. Significant issues arising from these complaints included:

      • delays associated with the Redress of Grievance (ROG) process
      • failure to provide adequate reasons to unsuccessful candidates seeking re-enlistment to the ADF
      • problems associated with record keeping.

      Our office received 20 complaints about delays in the ROG process, a matter that is currently the subject of a joint review by our office and the Department of Defence. Since we reported on this issue in last year's annual report, the problem of delay appears to have become more pronounced.

      The ROG process involves a defence force member's Commanding Officer (CO) as the first avenue of complaint. The CO normally has 90 days in which to investigate the complaint and, if the member's concerns cannot be resolved at that point, the member has the statutory right to refer their complaint to the chief of their service.

      Once a complaint is referred to the service chief no formal time frame for action applies, although a 180-day benchmark has been agreed.

      Complaints to our office have highlighted delays in some cases of 12 months to two years before the service chief makes a determination on the complaint. Our view is that this time frame is excessive and we are working with Defence to develop a range of recommendations aimed at improving the underlying risk assessment methodology and review process attached to the ROG system.

      Unreasonable delay

      Lieutenant Colonel (LTCOL) Y lodged a Redress of Grievance (ROG) with his administrative CO in August 2008. At the time he complained to our office in November 2009, LTCOL Y's ROG had been dealt with by his CO and forwarded to the service chief for review. LTCOL Y complained that his complaint had not yet been allocated to a case officer to prepare a brief for the service chief. That is, some 14 months after initially lodging his complaint, it had still not been allocated for further action.

      We approached Defence about this delay and were advised that it would refer the complaint to a case officer to consider the matter. By this time we had also commenced our joint review of the ROG process with Defence, and our advice to LTCOL Y was that in addition to assisting to have his case actioned, we were following up on the systemic issues related to such delays.

      Another significant issue investigated by our office concerns the reluctance of the services to provide reasons to unsuccessful candidates seeking re-enlistment to the ADF. Our office received seven complaints about this subject, and while this may not be a large number, it raised a concern about a key principle of good administrative decision making.

      When a person who has previously served in the ADF leaves (for whatever reason) and then seeks to re-enter the ADF at a later date, the relevant prior defence service Career Management Agency (CMA) is consulted as part of the re-enlistment process.

      Defence Force Recruiting (DFR) asks the CMA for comment on the suitability of the candidate. The CMA refers to the candidate's previous service history and, where this is acceptable, the person is usually recommended and the re-enlistment process can continue.

      Complaints to our office indicate that where an application for re-enlistment has been turned down by the CMA, reasons are not provided by the CMA to DFR so that the candidate can be advised. Some complainants were told that they should have known why they were discharged previously and that this would be the reason they are not suitable for re-enlistment.

      Our view is that this approach is a poor substitute for a set of adequate reasons supporting an adverse administrative decision. It is problematic for the candidate and for Defence. The candidate has a right to know the reasons relating to the decision so that, if they wish, they can an appeal the decision.

      In some cases we have investigated it was clear that Defence had a valid basis to not recommend a candidate and, had it provided those reasons, it is unlikely that a complaint would have arisen.

      We are currently involved in discussions with Defence about this issue and expect to be able to positively influence the way in which reasons are given to re-enlistment candidates in the future.

      Failure to provide adequate reasons for a decision

      Mr AA had previously served in the Army and applied to re-enlist in the ADF, this time with the Royal Australian Air Force (RAAF). His application was accepted and a request for a service suitability check was forwarded to the RAAF CMA. The CMA sought advice from the Army about Mr AA's prior service. Mr AA had previously been discharged for involvement with prohibited substances, but this wasn't included in the advice given to DFR. It simply referred to Mr AA being assessed as an unsuitable risk for employment with the RAAF.

      Mr AA complained to our office and we investigated the failure to provide adequate reasons to Mr AA. In our view, given the reasons for Mr AA's discharge, it was reasonably open to the RAAF to reject his application for re-enlistment. However the RAAF should have taken steps to ensure a more complete basis for their decision was given to the candidate.

      An Ombudsman staff member met with HMAS Coonawarra Crew

      An Ombudsman staff member met with HMAS Coonawarra Crew

      Record keeping is another fundamental aspect of good administration. Failure to accurately record events contemporaneously or to ensure records are properly kept can affect a person's eligibility for benefits or entitlements.

      We saw evidence of problems associated with record keeping through complaints we received. These problems ranged from the incorrect assignment of a discharge category for an ADF member through to the removal of documents from a person's service record. The explanation for these failures is often associated with a lack of training or attention to detail.

      Poor record keeping puts entitlements at risk

      Ms BB was approved to play civilian sport while serving in the ADF. Approval to play in civilian competitions means that a service member who is injured while playing sport will receive medical treatment and, where appropriate, compensation or rehabilitation as a Defence member.

      Ms BB asked that the letters approving her participation in civilian sporting competitions be kept on her personal file, held by the unit clerical staff. Some months later, Ms BB had reason to inspect her file. When she did so, she noted that none of the documents approving her participation in sport were on the file. No explanation was available for the missing documents.

      The documents approving participation in civilian sport are important. If Ms BB was injured playing sport, there would be no question that medical treatment would be provided by the ADF. If, in later years, she developed a disability from a sporting injury, then the documents would support any claim she made for compensation or disability made to Department of Veterans' Affairs.

      Department of Veterans' Affairs

      The Department of Veterans' Affairs (DVA) administers a wide range of services and benefits to almost half a million Australians. During 2009–10 we received 167 approaches and complaints about DVA.

      Complaints about DVA are often complex. Depending on the nature, time and place of a person's service with the ADF, eligibility for benefits, rehabilitation or compensation under one or more of three pieces of legislation may be possible. An important role of our office can be to offer a better explanation for a decision or action.

      In addition to complexity of provisions, it is common for complainants to have mental and physical health conditions that need to be considered in responding to complaints appropriately. Because of this, it sometimes takes time to develop an accurate understanding of the complaint issues and the interaction the claimant has had with the department prior to a complaint reaching our office. In such cases we have found DVA ready to assist by providing information to clarify its involvement with the person and discussing any follow-up issues. DVA has also provided training to our staff and briefings on emerging issues when requested.

      Notwithstanding this complexity, we have observed that DVA regularly advises claimants of their available review rights and invites veterans to consider resubmitting a previously refused claim under the same or alternative legislation if they feel their condition has worsened over time. DVA has also established a client liaison unit that deals with particularly complex cases and allows claimants to have regular contact with a dedicated case officer. From our perspective, this shows that DVA recognises the life-long relationship it has with most of its client base.

      With some DVA complaints, the only remedy that is available is to provide a better explanation for the agency's decision.

      Where something has gone wrong—for example, a systems failure, we have noticed an increased willingness by DVA to apologise.

      The complex nature of service

      Ms CC served in the ADF, suffered an injury, was discharged and receives Incapacity Payments under the Military Rehabilitation and Compensation Act 2004 (MRCA). She complained to our office that these payments had reduced after 45 weeks of receipt. She also complained that the distinction between warlike and non-warlike service was unfair and discriminatory.

      We wrote to Ms CC and explained that the reduction in her incapacity payment was not unreasonable given the operation of the MRCA. We also explained, in some detail, the reasonableness of the distinction between warlike and non-warlike service in the ADF and the differing degree of entitlement that can result from the nature of a person's service.

      Without providing a tangible remedy, our independent view was able to allay the Ms CC's concerns that DVA was not acting in a fair manner.

      Defence Housing Australia

      Defence Housing Australia (DHA) provides housing and relocation services to ADF members. DHA also maintains properties and manages leases with members of the public who lease their houses to DHA. When an ADF member relocates on posting, DHA calculates and arranges for the payment of associated allowances and benefits.

      During 2009–10 we received 31 approaches about DHA. This was eight fewer than the previous year and represents a decrease of about 19% in the number of complaints.

      While a small number of complaints were received, many of the matters considered by our office related to the adequacy of policy concerning ADF removals and allowances payable to ADF personnel. DHA is responsible for delivering a service on behalf of Defence using policy created by Defence. Therefore such cases tend to be about Defence policy. Possible systemic issues relating to the adequacy of entitlement policy and accessibility of this information have been considered as part of our own motion investigation into factors affecting conditions of service decisions in the ADF.

      In the future, DHA will be responsible only for housing matters and the management of leases with DHA. The functions associated with an ADF member's removal on posting and payment of allowances will be handled by TOLL Transitions.

      We have met with Defence staff responsible for the implementation of the TOLL Transitions contract and the transition of these functions to ensure that processes to provide a smooth transfer of responsibilities are implemented and that adequate complaint-handling mechanisms exist.

      Formal reports and submissions

      Two major investigations were commenced during the 2009–10 financial year. The first was a joint review with the Department of Defence into delays associated with ROGs once they are elevated to the relevant service chief.

      Our second investigation was an own motion investigation into decisions on conditions of service in the ADF. The results of these investigations will be reported in the 2010–11 annual report.

      At the invitation of Mr D J Campbell, Senior Counsel assisting the HMAS Success Commission of Inquiry, we provided a submission on matters of administration of the ADF that affect the system of military justice. Our submission discussed the complexity of Defence administration and the delay in finalising redresses of grievance.

      Stakeholder liaison

      Our office meets regularly with representatives from Defence and DHA. As part of our work with DHA we will be meeting more frequently to assist where we can with the establishment of the department's new complaint-handling area. Given TOLL's new role in relation to ADF removals and payment of allowances, we also plan to meet with that agency to ensure complaints are being adequately managed.

      During the year staff from our office met with representatives from the Returned and Services League (RSL) of Australia, travelled to a large number of military establishments and spoke with commanders, administrators and general service members about the role and function of the DFO. We also delivered presentations to service training courses, most notably to the RAAF. We plan to conduct similar outreach in the forthcoming financial year.

      Immigration Ombudsman

      Immigration and Citizenship

      In 2009–10 we continued our program of inspections of immigration detention facilities, own motion investigations into systemic issues, monitoring of compliance and removal actions, and ongoing engagement with the Department of Immigration and Citizenship (DIAC) through regular meetings and consultation on proposed initiatives. This preventive approach has been helpful in reducing the volume of complaints received about systemic issues. It has helped DIAC to quickly implement processes to address underlying problems.

      In addition to the statutory review of two-year detention cases which commenced in 2005, the Ombudsman regularly reviews all cases where a person has been held in detention for six months or more. Our work continues to expand with our oversight role for immigration activities on Christmas Island, which remains the central point for processing irregular maritime arrivals.

      Complaints themes

      In 2009–10 we received 1,600 approaches and complaints about DIAC, a 10% increase from the previous year. Figure 5.4 shows the number of approaches and complaints received in the past six years.

      In 2009–10 the following areas of DIAC's administration were a particular focus of complaint:

      • changes announced to the General Skilled Migration Program
      • delays associated with security clearances
      • international student visa processing.

      Figure 5.4: Department of Immigration and Citizenship approach and complaint trends, 2004–05 to 2009–10

      Figure 5.4: Department of Immigration and Citizenship approach and complaint trends, 2004–05 to 2009–10

      Complaint handling

      Monitoring of DIAC's internal complaint-handling processes

      Throughout 2009–10 we have been actively monitoring the quality of DIAC's internal complaint handling, which is conducted by its Global Feedback Unit (GFU). This supports our decision to encourage complainants to try to resolve their problem with the agency before the Ombudsman becomes involved.

      An important monitoring activity for the Ombudsman has been to meet and liaise with the GFU staff to discuss their processes for taking, resolving and completing the complaints it receives. We also discussed our role with them and our better practice guidelines for complaint handling. We monitor the unit's complaint-monitoring practices and reporting by reviewing GFU complaint records.

      Our monitoring activities noted that generally the GFU's complaint handling was satisfactory and had properly dealt with the issues raised by complainants. In the small number of cases where we found the complaint handling incomplete, the underlying themes related to complaints about delays in security clearances. When the complexity of a case required it to be referred to the processing area, GFU had experienced difficulties in getting a timely response. These problems have been raised with DIAC on a case-by-case basis.

      On 29 June 2009 DIAC appointed Serco to manage all of its detention centres. The changeover of management was implemented in stages throughout the remainder of 2009.

      In November 2009, DIAC re-established a centralised Complaints Handling Unit (CHU) to address all detention service-related complaints and to monitor the quality and timeliness of responses provided to our office. The new process required Serco to register all complaints, requests and feedback with the GFU, which helped DIAC to proactively monitor trends and identify systemic issues that needed to be addressed. This has resulted in a stronger focus on DIAC's management of the services provided by Serco and its compliance with the terms of the contract.

      Detainees are encouraged to raise issues with Serco in the first instance. Our office is focusing on addressing the systemic issues raised through complaints and inspections of detention centres.

      General Skilled Migration program

      During the 2009–10 financial year, we received a large number of complaints about the introduction of changes to the General Skilled Migration (GSM) program. Changes to the GSM introduced processing priorities for skilled visa applicants, a reduction in the number of occupations on the Skilled Occupations List (which determines the occupations that are eligible for general skilled migration), removal of the Migration Occupations in Demand List and ceased the processing of unfinalised applications received before 1 September 2007.

      We have continued to work with DIAC to resolve complaints received from skilled migration applicants who believe that DIAC has dealt with their applications in an untimely or unfair manner as a result of the changes. DIAC undertook to keep us informed about the changes that were announced to the GSM program in order to assist the affected applicants. We liaised with DIAC to develop useful information for complainants that clearly explained the changes and how their current applications were affected.

      Security clearance delays

      We received a number of complaints from visa applicants who were concerned about the time taken to finalise their visa applications. The following case provides a good illustration of the type of unnecessary delay some complainants have experienced.

      Security clearance issues

      Ms DD, a British citizen, complained about DIAC's delay in finalising an application for permanent residency for herself and her partner, Mr EE, who was included in the application as her dependent spouse. DIAC claimed it had no control over the delay because it was caused by a security check of Mr EE's background, which was being conducted by an external agency.

      Our investigation revealed that DIAC had failed to provide mandatory information about Mr EE's family, travel and residential history to the external agency. Several requests for the missing information had been made by the external agency before DIAC provided the documentation required to complete the security check.

      Shortly after Ms DD complained to the Ombudsman, the visa was granted. This office recommended that DIAC consider apologising to Ms DD and Mr EE.

      Our investigations found that in a majority of cases, delays were due to the high number of visa applications requiring security clearance checks that were being carried out by external agencies. Coupled with these high volumes of applications, the unforeseen closure of some overseas processing locations caused delays. These delays were not always within DIAC's direct control.

      DIAC has worked with external agencies to tackle delays caused by problems in the referral process, which have resulted in the development of a dedicated system to manage and monitor the referrals and clearances.

      DIAC has actively sought to identify and resolve outstanding paper-based referrals and record them in the system so that progress can be properly monitored. Ongoing support and training of onshore and offshore staff has also been implemented. We have noted a decrease in the number of complaints due to delays in processing security clearances.

      Throughout 2009–10, DIAC has provided our staff with demonstrations and briefings of the new referral system and how it deals with arrears. This has greatly assisted the Ombudsman investigation officers in their work.

      International student visa processing

      During 2009–10, there was extensive media coverage about the exploitation of international students and the quality of education they were being provided. DIAC briefed the Ombudsman's office about the preventive measures it was taking to address this issue. These involved working with the Department of Education, Employment and Workplace Relations to identify non-genuine education providers and migration agents, more rigorous checking of documentation and information provided with applications, and developing awareness campaigns for students in the countries affected most by the alleged exploitation. The increased rigour in assessing applications led to an increased number of refused applications and more complaints from migration agents and students alike.

      Some complaints stemmed from the reforms to the GSM program, particularly changes to the skills needed in the Australian labour market. Changes to the skills sought meant the studies being undertaken by some students aspiring to gain permanent residency became redundant.

      There was also a period of several months during which a review of the skills sets Australia needed was conducted. Students, migration agents and educational institutions raised concerns about the impact this had on their capacity to make informed decisions.

      Our office noted some processing issues related to students, particularly concerning misunderstandings about the verification of course completion dates provided by educational institutions. The case study Student visa issues illustrates one such issue.

      Student visa issues

      Ms FF applied for a permanent visa with a condition that the application must be made within six months of completing an appropriate Australian course of study. The ‘completion date' used to calculate this period (as defined within DIAC guidelines) is the date that students are notified of their results. Despite making the application within the required time frame, the application was refused.

      Our investigation established that the refusal was based on Ms FF's last day of attendance at the course rather than the date she was notified of the course results.

      Ms FF gave DIAC her certificate, which had the correct date. However, the decision maker did not use that information and sought confirmation from the educational institution of the ‘completion date' instead of the date Ms FF was first notified of her results. This error was compounded because the request asked the educational institution to choose between two dates (neither of which was relevant) and did not indicate how the information would be used by the decision maker.

      Ms FF queried the visa refusal notice, however, DIAC reiterated its decision. DIAC advised her that it had relied on the completion date confirmed by the educational institution and that she should pursue her claims through the Migration Review Tribunal (MRT).

      Our investigation asked DIAC to consider whether the information it sought from the educational institution would ensure the correct date had been provided. As a result DIAC vacated the decision without the need to have it reviewed by the MRT.

      Monitoring and inspecting DIAC's detention, compliance and removal activities

      Since the annual report of 2008–09 was published, the number of people detained by DIAC has significantly increased. On 25 June 2010 there were 4,077 people in some form of detention, both onshore and offshore, including immigration detention centres, residential housing, transit accommodation and community detention.

      Immigration detention inspections program

      Our program of inspection visits to Immigration Detention Centres (IDCs) and other places of immigration detention aims to monitor the conditions and services provided to detainees, and assess whether those services comply with the immigration values and obligations of DIAC and the contracted service provider.

      The issues we have focused on in our inspections reflect complaints received and matters raised by detainees as part of the regular client consultative meetings conducted by the service provider and DIAC in the IDCs.

      During the year we conducted inspections at all IDCs, including Brisbane Immigration Transit Accommodation, Maribyrnong IDC, Melbourne Immigration Transit Accommodation, Perth IDC, Perth Immigration Residential Housing, Port Augusta Immigration Residential Housing, Sydney Immigration Residential Housing, Villawood IDC and specified alternative places of detention.

      We provided DIAC with feedback on a range of issues, including:

      • the handling of complaints by the service provider
      • placements within IDCs and transfers to other less restrictive immigration detention environments
      • recreational activities available to detainees
      • the availability of information about the role of the Ombudsman and access to our complaint forms.
      Detention—irregular maritime arrivals

      People entering Australia at Christmas Island or another place excluded from Australian territory for migration purposes are designated as irregular maritime arrivals (IMAs). An IMA may not lodge a valid protection visa application unless the Immigration Minister personally decides to permit the application.

      The number of IMAs being detained on Christmas Island has significantly increased over the 2009–10 period. When Ombudsman staff visited the island in October 2008 there were only 31 people in detention. By September 2009, this number had reached 700.

      When Ombudsman staff visited the Christmas Island IDC in late February 2010, there were 1,700 people detained in the centre, growing to 2,441 people detained on Christmas Island as at 25 June 2010.

      Since early in 2010 a minimal number of IMAs has been transferred from the Christmas Island detention facilities to onshore IDCs and immigration residential housing. For instance, unaccompanied IMAs identified as minors (under the age of 18) have been accommodated in the Port Augusta Immigration Residential Housing. This is in keeping with the Australian Government's policy position that minors should not be detained in the more restrictive setting of an IDC.

      A non-statutory refugee status assessment (RSA) has been operating since 2008 to progress the claims of IMAs. Features of the RSA process include free migration agent assistance for asylum seekers who appear to engage Australia's international protection obligations, independent review of unfavourable RSA assessments, better procedural guidance, and oversight by the Ombudsman. The Ombudsman continues to conduct an oversight role of the RSA process under the own motion powers of the Ombudsman Act.

      During 2009–10 Ombudsman office staff made visits to Christmas Island and inspected detention conditions, dealt with complaints from detainees, oversighted the RSA process and interviewed detainees who have been detained for more than six months. On these visits our staff also reviewed the entire immigration processing experience from arrival on the island to the point of a visa being granted to a person or a person's removal from Australia.

      Managing arrivals, and consequent health, law enforcement and immigration processes on Christmas Island involves multiple Australian Government agencies, contracted service providers, non-government organisations and legal representatives.

      Ombudsman staff monitored the processes followed by government agencies and service providers, liaised with the many stakeholders and met with detainees and their legal representatives. They were also in close contact with members of the Christmas Island community and those involved in providing services and support to people detained at the IDC, in alternative detention and in community detention.

      We received a broad range of complaints from people detained on Christmas Island. The issues investigated in these complaints included:

      • delays in the processing of RSA cases, in particular the delays in arranging for review hearings and issuing review decisions
      • delays in finalising security clearances (which is a requirement before a detainee may make an application for a protection visa after receiving a positive RSA decision)
      • access visits and contact between relatives detained in separate places on Christmas Island
      • overcrowding and the lack of opportunity to be placed in a less restrictive immigration detention setting such as community detention.

      We have noted improvements in key areas. These include:

      • more interpreters being made available to detainees
      • more DIAC case managers for detainees, assisting to streamline and manage any potential backlog or delays in processing detainees
      • a better coordinated cross-agency approach to processing RSA claims.
      Compliance and removals

      Monitoring of DIAC's compliance functions demonstrated an improvement in its compliance field operations and training. The main purpose of this ongoing monitoring is to assess the effectiveness of DIAC's policies and procedures governing the location, identification and detention of unlawful non-citizens.

      Some concerns remained, however, which included:

      • some compliance staff were not confident in using the new IT system for the identification and ‘single-view' of a client (we suggested more staff training to address the issue)
      • the basis used to establish ‘reasonable cause to believe' that a person of interest could be found at a particular place was not clear in some warrant applications. (For example there did not appear to be sufficient surveillance of some premises to ensure that the ‘persons of interest' were present, before committing a large compliance team to approach the premises).

      Field observations by Ombudsman staff indicated that DIAC officers were detaining people as a last resort, in keeping with the Minister for Immigration and Citizenship's statement relating to ‘detention values'.

      We also observed some of the DIAC training sessions for its field operations staff who plan and conduct compliance activities.

      Reporting on people held in immigration detention

      Two-year review reports

      Under the Migration Act 1958 (Migration Act) , the Ombudsman is required to review the cases of people held in immigration detention for two years or more. Section 486N of the Migration Act requires DIAC to provide a report to the Ombudsman 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 Immigration Minister with an assessment of the appropriateness of the person's detention arrangements under s 486O of the Migration Act.

      The number of s 486N cases has continued to decline. In announcing the immigration detention values in July 2008, the Minister identified three groups as being subject to mandatory detention:

      • all unauthorised arrivals, for management of health, identity and security risks to the community
      • unlawful non-citizens who present unacceptable risks to the community
      • unlawful non-citizens who have repeatedly refused to comply with their visa conditions.

      Where a case has not fallen clearly into any of these groups, the Ombudsman has requested that the Minister review whether continuing detention is consistent with the immigration detention values.

      Recurring issues in our preparation of s 486O reports have been the:

      • physical and mental deterioration of people who have been subject to confinement in IDCs
      • difficulty of justifying restrictive immigration detention solely on the grounds that a person's identity cannot be conclusively established.

      Table 5.2 shows that DIAC provided 45 reports under s 486N during 2009–10, just over half the number provided in 2008–09. The table also shows the number of s 486O reports the Ombudsman provided to the Minister. The Minister tabled 42 reports in the Parliament.

      The case study on the following page, Two year review—identity investigation , shows some of the facets of our work in this area.

      Six-month review reports

      DIAC and the Ombudsman agreed that DIAC would provide a report to the Ombudsman every six months while a person is detained. The Ombudsman would then report back to the Secretary of DIAC on the appropriateness of the person's detention arrangements.

      The Ombudsman provides a consolidated report to the Minister. The six-month review process runs parallel to the statutory process, where upon the Ombudsman reports to the Minister on detentions of more than two years. In practical terms the new non-statutory review regime provides faster feedback from the Ombudsman to DIAC and more frequent external scrutiny of individual detention cases.

      DIAC provided the first report to the Ombudsman in April 2009. Reports have covered people detained for periods from six months to 18 months, and the Ombudsman has provided a report on a number of cases to the Secretary of DIAC.

      Table 5.2: Reports under s 486N and s 486O of the Migration Act, 2009–10

      Report on person
        1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th Total
      s 486N reports received from DIAC 15 10 8 6 0 0 0 1 2 2 1 45
      s 486O reports sent to the Minister 16 8 7 3 2 0 1 1 3 2 0 43

      * The first report is after a person has been in detention for two years, and subsequent reports are made every six months. Some reports may be combined.

      Two-year review—identity investigation

      Mr GG arrived in Australia as a stowaway with no identity documents and was detained in November 2007. He told us that he was born in Sudan, but was taken to Kenya at the age of seven for safety reasons. He said that he received minimal schooling, was a domestic servant with a family for many years and as an adult transited through a number of African countries before coming to Australia. He claimed to be a citizen of Sudan.

      The history of DIAC's investigation of Mr GG's nationality raised some concerns with this office. Initially DIAC was inclined to accept Mr GG's nationality as Sudanese. However, another area within DIAC stated that there was conflicting information about Mr GG's nationality and proceeded to investigate numerous alternative nationalities. We were concerned that DIAC was relying on speculative information and Mr GG's childhood recollections.

      There appeared to be an expectation that a person in Mr GG's situation should have a clear memory of childhood details that were never of critical importance to him. Despite DIAC's attempts to establish Mr GG's identity and nationality, after more than two years the issue of identity was not resolved as at the end of June 2010, and Mr GG remains in detention. In May 2010 the Minister noted our concerns and requested that DIAC prepare a formal response addressing the issues that we raised.

      Table 5.3: Immigration and detention-related own motion reports, under the Ombudsman Act 1976 , 2009-10

        1st report 2nd report Total
      Received from DIAC 165 8 173
      Review sent from Ombudsman 84 5 89
      Closed without review*    83

      * Our office does not complete a report if the person is removed or released before being interviewed by Ombudsman staff.

      Issues arising in our preparation of six-monthly reports
      • Concerns about the risk assessment factors that are considered when deciding upon the type of immigration detention environment in which a person may be placed (for example community detention, residential housing or an IDC).
      • The probity applied to the information relied upon to support placement decisions of detainees in immigration detention.
      • Delays in providing medical assessments that have an impact on the case management progress.
      • Delays in finalising security clearances that have an impact on the health and welfare of detainees accommodated in the more restrictive immigration detention environments.
      • Access to medical services, with the additional difficulty in providing medical or specialist medical services to detainees being accommodated in remote locations, both onshore and offshore.

      Six-monthly review—health information

      Mr HH is a citizen of the People's Republic of China (PRC) who was detained at Villawood IDC in November 2008 after over-staying his Bridging Visa. Mr HH told the Ombudsman's office that he was tortured and gaoled for his Falun Gong practice in the PRC.

      In June 2009 DIAC advised that Mr HH's mental health appeared to be deteriorating, and following an incident of self harm in February 2009, Mr HH was referred to the Service for Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS). DIAC requested information from DIAC Detention Health Services on three occasions. After a delay of six weeks, DIAC received Mr HH's diagnosis of Post-traumatic Stress Disorder. The Ombudsman noted that the delayed provision of medical advice to those responsible for assessing the impact of continued detention on the management of people who are showing signs of mental distress was not consistent with DIAC's Detention Health Framework.

      DIAC confirmed that internal provision of health information had been identified as a problem and correcting protocols were put in place in July 2009. Following the Ombudsman's assessment, procedures were implemented to ensure a smooth flow of information while still protecting the privacy of detainees' health records.

      Own motion investigations

      In July 2009, the Ombudsman released Department of Immigration and Citizenship: Invalid visa applications (Report No 10/2009). This investigation focused on DIAC's management of invalid visa applications and considered the problems that can occur when invalid visa applications are poorly managed. The investigation looked at the timeliness and adequacy of advice given to visa applicants about their invalid visa applications.

      The report found that overall, DIAC's management of applications was in accordance with current policy and legislation. However, key areas in need of attention related to:

      • improving the clarity of DIAC policies
      • addressing the delays associated with assessing invalidity
      • improving the advice to visa applicants about the invalidity of their applications
      • improving record keeping practices.

      DIAC has been taking steps to address these issues, preparing six-monthly reports on its progress for the Ombudsman.

      Law Enforcement Ombudsman

      Law Enforcement

      The Commonwealth Ombudsman is also the Law Enforcement Ombudsman and has a comprehensive role in oversight of Australian Government law enforcement agencies. The Ombudsman deals with complaints made about the Australian Federal Police (AFP), Australian Crime Commission (ACC), Attorney-General's Department (AGD), Australian Transaction Reports and Analysis Centre (AUSTRAC) and CrimTrac. We also review the AFP's complaint-handling arrangements.

      The Ombudsman 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 M onitoring and inspections section of this report.

      Australian Federal Police

      Complaints about the AFP are dealt with by the AFP under the Australian Federal Police Act 1979 (AFP Act) and may also be investigated by the Ombudsman under the Ombudsman Act. The Ombudsman is notified by the AFP of complaints received that are categorised as serious conduct issues (category 3 under the AFP Act).

      Complaints made by members of the public about the actions of members of the AFP remained an important part of our work in the reporting period. In addition, the Ombudsman's oversight of the AFP complaint-handling system through reviews conducted under Part V of the AFP Act was a focus of our efforts in 2009–10. We also completed one own motion investigation and commenced another; both are discussed later in this report.

      At the start of 2009–10 two cases remained outstanding and were handled by the AFP and oversighted by the Ombudsman under the Complaints (Australian Federal Police) Act 1981 (Complaints Act). That Act was repealed in December 2006. Both cases have been completed.

      Review of complaint handling

      The Ombudsman has a responsibility to review the administration of the AFP's handling of complaints through inspection of AFP records. This includes records of the handling of complaints about ACT Policing. The Ombudsman reports to the Commonwealth Parliament annually, commenting on the adequacy and comprehensiveness of the AFP's handling of conduct and practice issues, and inquiries ordered by the Australian Government Minister.

      The office conducted inspections to review the AFP's administration of complaint handling and provided three reports to the AFP Commissioner as follows:

      • September 2009 for the period 1 August 2008 to January 2009
      • June 2010 for the period 1 February 2009 to 31 July 2009
      • July 2010 for the period 1 August 2009 to 28 February 2010.

      The results of these reviews will be reported to the Parliament in the latter part of 2010.

      The most recent report to the Parliament, which covered review activities conducted during 2008–09, was tabled in December 2009.

      This report shows that the AFP has been striving toward consistent quality of complaint resolution. The technology used for complaint management remains an issue, as does timeliness for complaint resolution.

      The AFP has noted that improving the standard of adjudications of (the more serious) category 3 complaints has caused delay in finalising some matters. It has sought to address this by establishing an AFP Professional Standards Adjudication Panel. This will be a panel of seven Senior Executive Service band 1 officers that will assist the Manager Professional Standards by adjudicating category 3 complaints.

      The report noted that the AFP had made progress in improving its complaint-management practices and procedures, particularly in outcome letters. There remains further room for improvement in the consistency of communication (particularly when matters are delayed), and keeping the complainant abreast of the progress of their complaint.

      The AFP has generally responded positively to the reviews conducted by the Ombudsman's office. The AFP is now addressing the constraints concerning its data collection and reporting capabilities. The Ombudsman has suggested that when this has been accomplished, the AFP will need to focus on analysing the data collected. It should aim to use the analysis to improve its administration of complaints and provide insight into organisational issues.

      Complaint themes

      During 2009–10 we received 389 approaches and complaints related to the work of the AFP at the local (ACT community policing), national and international level. Of these, 188 were immediately advised to contact the AFP in the first instance. The office further examined 122 of the complaints. Collectively, the most common issues concerned:

      • inappropriate action, such as excessive delay, failure to act, inadequate investigation (145)
      • conduct on duty (88)
      • property and exhibits (58)
      • arrest (24).

      In 44% (169) of the approaches, the complaints were about AFP members acting in their ACT community policing role. Our work in this area is described in more detail in the ACT Ombudsman annual report, available at http://www.ombudsman.act.gov.au.

      Of complaints alleging inappropriate action, 30% were about excessive delay in either the investigation of the complaint or the adjudication. While the introduction of the Adjudication Panel should assist with those complaints delayed at the adjudication phase, complaints to us have also been about delays at other stages of the investigation.

      Lengthy delays occurred In some of the more minor cases, as the following case study shows.

      Excessive delay and inadequate explanation

      Mr JJ lodged a complaint with the AFP in early 2007, in which he sought an explanation about why AFP officers had stopped and questioned him on three separate occasions over a three hour period for the same alleged incident. The AFP sent him a reply two years later that did not address his concerns.

      Mr JJ then complained to us about the incompleteness of the explanation and the length of time that it took for the AFP to reply. Our investigation revealed that no action was taken to investigate the complaint, despite repeated requests from the Professional Standards area. When another investigator was assigned to look into the matter, he did not question the officer who was the subject of the complaint (and who was a higher-ranking officer than the investigator).

      We recommended that the AFP apologise to Mr JJ for the delay in finalising his complaint, which it did. We were also able to provide Mr JJ with a more detailed explanation of the events in question, and to confirm that he was not adversely recorded on any AFP database. Mr JJ was greatly reassured and he expressed his gratitude. We were critical of the delay in this case. The AFP advised that improved protocols for managing complaints against senior officers had been put in place in response to recommendations from an earlier Ombudsman's report.

      Complaints finalised

      Under the Ombudsman Act, we finalised 331 complaints about the AFP. In 188 cases we referred the complainant to the AFP on the basis that a complainant should contact the relevant agency before asking the Ombudsman to conduct an investigation. We completed 53 investigations and referred 13 cases to other agencies, courts or tribunals, or the Minister. Some investigations that were commenced during the period are yet to be completed.

      Own motion investigations

      An own motion investigation was conducted following a complaint against a senior officer in the AFP. It was alleged that the officer misused his position in the AFP to send three AFP officers to intervene on a relative's behalf in a property dispute.

      This investigation did not find any evidence to support the allegation. It did identify specific deficiencies with the AFP's investigation of the original complaint, more general deficiencies in the policy and procedure for dealing with complaints against senior AFP officers, and a problematic ACT Policing practice of attending when property is removed or locks changed in disputes about property rights.

      As a result of this investigation the AFP introduced improved protocols for the investigation of complaints against its senior officers.

      In March 2010, the Ombudsman commenced an own motion investigation to determine if the AFP's payments to witnesses, particularly large payments, is a widespread practice, and if so, whether the governance in place is suitably robust. The investigation is ongoing.

      Who hit me?

      Mr KK was in a car accident that was attended by ACT Policing. He was injured in the accident and unable to obtain the other party's name and address at the scene. Mr KK contacted ACT Policing by telephone and in person to ask for the other party's contact details so that he could make an insurance claim. According to Mr KK, ACT Policing advised that it was unable to give him that information for privacy reasons. This was incorrect advice. We advised Mr KK that for a small fee he could apply for a copy of the accident report, which would contain the name and address of each party in the accident.

      Search warrant process

      Mr LL complained about the actions and alleged harassment by the AFP in relation to members of the Tamil community.

      The police conducted a terrorism-related operation that resulted in charges being laid against three individuals. The complaint particularly related to the execution of search warrants and access to interpreters. The search warrants were executed on several residences and places of business for members of the Tamil community who were not charged with any offences, but were contacted (or had search warrants executed on their premises) by the AFP in its evidence gathering.

      We investigated the complaint from Mr LL, concentrating on the way the AFP interacted with members of the Tamil community. Our investigation found that the process followed by the AFP during the execution of the search warrants was not unreasonable.

      Australian Crime Commission

      Complaints about the ACC are managed under the Ombudsman Act. The ACC also notifies the Ombudsman's office about other significant matters, allowing us to consider whether further investigation is warranted. In 2009–10, we received seven complaints about the ACC, all of which we declined to investigate.

      The Ombudsman conducted an own motion investigation into the ACC's collection, storage and dissemination of information. The investigation was prompted by a request from the ACC's Chief Executive, following a leak to the media in September 2008 of an ACC document detailing conversations at a ministerial dinner.

      The investigation established that the ACC performs its intelligence gathering role in accordance with its legislation and that it does not appear to hold improper or unauthorised records. The creation of the document in question was entirely inappropriate, but seems to have been an anomaly.

      However, the Ombudsman found that the ACC needed to improve the way it handled sensitive information. Central to the issue were conflicting policies, guidelines and other documents (such as all staff emails from senior management).

      The Ombudsman noted that staff appeared to be confused about whether the organisation endorsed a ‘need-to-share' or a ‘need-to-know' policy. The Ombudsman also found that conflicting and out-of-date internal information policies, multiple databases with varying degrees of security and low staff morale increased the risk of confidential ACC intelligence falling into the wrong hands.

      The Ombudsman acknowledged the ACC's efforts to build a culture of integrity and improve information handling, and made recommendations to assist this process. The report recommended that the ACC should:

      • develop an overarching information governance policy as a matter of high priority
      • review the guidance given to consultants in relation to the use of ACC information
      • develop a definition for unauthorised information access and enforce it
      • consider improving audit and incident reporting systems.

      The ACC accepted the recommendations and advised that the report set out a constructive way to address the identified issues.

      The Ombudsman's report, Australian Crime Commission—Review of collection, storage and dissemination of information , report 15|2009, is available at http://www.ombudsman.gov.au.

      Australian Commission for Law Enforcement Integrity

      The Ombudsman can refer allegations of corruption against law enforcement officers to the Integrity Commissioner of ACLEI. The Ombudsman can also investigate complaints about ACLEI. In 2009–10, we received two complaints about ACLEI. We investigated one and declined to investigate the other.

      CrimTrac

      In 2009–10, we received two complaints about CrimTrac. We declined to investigate the complaints, both of which related to the Australian National Child Offender Register.

      AUSTRAC

      In 2009–10, we received five complaints about AUSTRAC. We declined to investigate four complaints and were still assessing the other at the end of the reporting period.

      Attorney-General's Department

      In 2009–10, we received 36 complaints about the Attorney-General's Department.

      We investigated six and declined to investigate 30. The complaints we investigated alleged failure to act, and provision of deficient advice. We made no adverse findings against the agency.

      Postal Industry Ombudsman

      Postal Industry

      The Postal Industry Ombudsman (PIO) role was established in October 2006 as an industry ombudsman function for the postal and courier industry. Australia Post is automatically subject to the PIO's jurisdiction, and other private postal operators (PPOs) can register with the PIO. At 30 June 2010 the following PPOs were registered with the PIO:

      • Australian Air Express Pty Ltd
      • Cheque-Mates Pty Ltd
      • D & D Mailing Services
      • Federal Express (Australia) Pty Ltd
      • The Mailing House
      • Mailroom Express Pty Ltd
      • Universal Express Australia Pty Ltd
      • 329 Motorcycle Courier Services.

      Complaint themes

      The PIO received 2,421 approaches and complaints in 2009–10, a 19.5% increase on the 2,026 approaches received in 2008–09. Some of this increase can be attributed to the growing public awareness of the PIO. Table 5.4 shows the number of approaches received, and complaint investigations commenced and completed, during the year.

      The PIO can only investigate activities relating to the provision of a postal or similar service. The PIO cannot consider complaints about other aspects of a postal provider's operations, such as employment matters or environmental issues. The Commonwealth Ombudsman retains jurisdiction over those administrative actions of Australia Post that do not fall within the jurisdiction of the PIO.

      A complaint about Australia Post may be transferred from the Commonwealth to PIO jurisdiction, or vice versa. Further detailed reporting, including the number of times complaints were transferred from the PIO jurisdiction to the Commonwealth jurisdiction, is provided in Appendix 4.

      Table 5.4: Approaches to, and investigations by, the PIO in 2009–10

        Approaches received Investigations commenced Investigations completed
      Australia Post 2,410 503 439
      Private Postal Operators 11 2 1
      Total 2,421 505 440
      Australia Post complaints overview

      In 2009–10, we received 2,626 approaches and complaints about Australia Post across PIO and Commonwealth jurisdictions. This is an 18.3% increase on the 2,219 received in 2008–09. Figure 5.4 shows the number of complaints received about Australia Post during the past six years, and the division between the Commonwealth and PIO jurisdictions. While the overall number of complaints to our office is small when compared to the volume of mail delivered daily by Australia Post, there is a significant upward trend, with overall complaint numbers doubling over the six-year period.

      Figure 5.5: Australia Post complaint trends, 2004–05 to 2009–10

      Figure 5.5: Australia Post complaint trends, 2004–05 to 2009–10

      The three main issues for complaints about Australia Post were: recurrent problems in the method of mail delivery (23.6%); the customer contact centre's quality of service (17.8%); and one-off problems with registered post (10.0%). Some of the major investigations and themes we have worked on this year are discussed in the rest of this section.

      Passports lost in the mail

      In June 2010 we published a report on an own motion investigation into the loss of passports in the mail. The investigation was prompted by an increase in the number of complaints we received about this problem. Although the number of complaints received by our office may seem relatively modest when compared to the large number of passports sent by mail, the consequences for those whose passport goes missing can be significant.

      The most frequent causes of complaint are that passports are lost, and that the amount of compensation offered by Australia Post is inadequate. We examined Australia Post's processes and practices relating to lost passports and compensation arrangements.

      We also sought information from the Department of Foreign Affairs and Trade (DFAT). DFAT sends out many passports through the post and is the agency responsible for issuing passports and dealing with reports of their loss.

      Our investigation concluded that there are measures that Australia Post and DFAT could put in place to capture better data about lost passports. This would enable better analysis of patterns of loss and expose any possible systematic stealing of passports.

      We recommended that Australia Post redraft its terms and conditions and other information it provides to the public about sending passports through the post, and about the compensation payable if a passport is lost.

      Generally speaking, we did not consider it unreasonable for Australia Post to exclude payment of compensation for consequential loss (such as loss of income related to time off work to deal with a lost passport). However, customers should be made aware of the difficulties that may arise in the event of a lost passport.

      Both DFAT and Australia Post accepted our recommendations and advised us that they are taking steps to implement changes and improvements. We appreciate the detailed responses both agencies provided, and their assistance in explaining some of the issues involved in handling reports of lost passports.

      Compensation

      During the year we undertook an own motion investigation into the level of compensation paid by Australia Post for loss or damage of postal items. We regularly receive complaints about compensation available for uninsured ordinary post and registered items.

      In February 2010 we released our investigation report Australia Post: Determining levels of compensation for loss or damage of postal items (report No. 1|2010).

      Our investigation found that the maximum level of $50 payable for items sent by ordinary post had not changed since 1987 and its real value had halved since that time. The basic compensation level of $100 for registered post items had not changed since 1996 and its real value had decreased to $70.

      We disagreed with Australia Post's view that compensation provided for ordinary items should be set as a proportion (half) of that for registered items. In our view, the link between the ordinary letter service and the registered service is unwarranted.

      Australia Post has a monopoly over the ordinary letter service whereas the service for registered items is open to competition.

      We recommended that Australia Post formally review its compensation level for ordinary post items, and in particular consider the rationale for the original and current $50 level, and whether that rationale is valid when viewed independently of compensation levels payable for other services.

      The Australian Competition and Consumer Commission (ACCC) has a statutory role in monitoring price increases for Australia Post's letters service. We recommended that when Australia Post advises the ACCC about proposed increases to the basic postal rate, it include information on the compensation levels for the service.

      Australia Post did not accept our views and recommendations. Its 2010 price notification submission to the ACCC did not include information about compensation levels.

      ‘Safe drop' program

      In September 2008 Australia Post instituted its Safe Drop delivery policy nationwide. This was a significant change in delivery practice. Under this program, non-signature items that do not fit in an addressee's letterbox can be left in a safe place on the property, rather than being taken back to the post office and carded for collection, as was the previous practice. Items can only be left if they are out of view of the street, safe from weather and pets, and undamaged. Items requiring a signature upon delivery cannot be left.

      During the year we monitored safe drop complaints and in March 2010 we released the report Australia Post: ‘Safe Drop' program—a review of the first year (report No. 3|2010).

      Our review did not find any systemic problems or widespread concerns with the Safe Drop program. However, we recommended that Australia Post give further consideration to ways that may improve the program. Issues related to:

      • additional training and awareness for staff about safe places for delivery
      • a procedure for people who want to opt out of the Safe Drop program
      • leaving a card when an item is ‘safe-dropped'.

      Australia Post confirmed that conditions under which safe-drop delivery may be made are set out in its procedures and advised that management within delivery areas continue to ensure the procedures are followed. It also confirmed that its policy requires a notification card is to be left at all times when a parcel is delivered by the safe-drop method.

      However, Australia Post considered that developing a procedure for people who wish to opt out of the program would be cost prohibitive. Instead, it has made available ‘Do not safe drop' labels that an addressee can request a sender attach to a parcel at the time of lodgement.

      Customer contact centres

      In our last annual report we noted that Australia Post was in the process of implementing national complaint-handling guidelines. It was also rationalising its existing structure of six customer contact centres into two centres (in Melbourne and Brisbane), which became operational in early 2010.

      These changes to systems will affect Australia Post's complaint handling. We are continuing to monitor arrangements and hope the new structure will demonstrate improvements in Australia Post's complaint handling.

      We acknowledge the commitment of Australia Post's customer service officers and note that the recurring themes in complaints tend to involve limitations in complaint-management systems, and issues with training and policy guidance.

      Private Postal Operators

      In May 2009 we asked all registered Private Postal Operators (PPOs) to complete a questionnaire about their complaint-handling processes. The questionnaire was designed to help us understand how PPOs manage complaints and describe the information they give their clients about the PIO. Six of the eight registered PPOs responded.

      The PPOs considered they had a high level of customer satisfaction and believed this was why the number of complaints coming to our office is low. We found that while PPOs may refer their customers to us, they do not necessarily do so as a matter of course.

      We concluded that the role of the Ombudsman as an avenue of complaint has not been well promoted by PPOs. To address this we asked them to include information on the Ombudsman and a link to our website on their websites, and to refer dissatisfied complainants to us. Several PPOs agreed to do so.

      We have continued to liaise with other postal industry stakeholders, particularly the Post Office Agents Association Limited.

      Case studies

      The following case studies indicate the diverse nature of the complaints regarding Australia Post that have been handled by the Ombudsman during the year.

      Street delivery

      Australia Post told Ms MM she could receive a street delivery service if she put a letter box on the boundary of her property. However, Ms MM's property is accessed via a council easement and private road. The council would not let her put a letter box on its land, and Australia Post would not drive down a private road. Australia Post did not act on Ms MM's complaints, and continued to charge her the full price for a post office box as it had been doing for several years. Our investigation confirmed that street delivery could not be made to Ms MM, and therefore she was eligible for a discounted rate for her post office box. Australia Post agreed with our view and refunded $500 to Ms MM.

      Registered Post and compensation

      Mr NN sent a registered post item containing retail vouchers valued at more than $1,200. The addressee did not receive the item, and Australia Post had not obtained a signature to verify delivery. Australia Post refused Mr NN's request for compensation because the delivery contractor advised it had a standing authority from the addressee to leave parcels at the address.

      Upon investigation, the delivery contractor was unable to provide a written confirmation of authority to leave parcels without a signature. As a result Australia Post offered Mr NN discretionary compensation of $1,200 plus the postage costs.

      ‘Lost' item

      A horse saddle sent interstate by registered post went missing in transit. The sender, Miss OO, complained to Australia Post and provided photos to help the search. Australia Post said it could not locate the saddle and offered Miss OO $100 compensation in accordance with its terms and conditions. Miss OO was concerned that Australia Post had not conducted a thorough search for the saddle.

      We asked Australia Post to clarify what searches it had conducted. After our contact Australia Post located the saddle at a Mail Redistribution Centre (MRC) and returned it to Miss OO. Australia Post discovered the saddle had arrived in the MRC shortly after Miss OO sent it, but its details had not been entered on the MRC database and so it had not been found through a database search.

      We concluded that if the MRC had catalogued the item on the database in a timely fashion, and if Australia Post had circulated the photos of the saddle to relevant MRCs, Australia Post may have located the saddle earlier.

      Secure delivery

      For many years a caravan park and Australia Post had an informal arrangement whereby residents' incoming and outgoing mail would be delivered and collected by the postal delivery officer from a locked box on the property. Ms PP, a park resident, complained that the park manager had access to the collection box and was using that access to interfere with residents' mail.

      When we investigated, Australia Post agreed with our view that it had an obligation to provide a greater level of security if it was going to collect mail from the box. Rather than cancel the collection service altogether, which it was entitled to do, Australia Post liaised with the initially reluctant park manager to get written agreement for the locks to be changed. As a result, only Australia Post staff could access the box. Park residents were able to continue a long-standing and convenient mail collection arrangement with greater security.

      Retail products

      Ms QQ purchased a Visa card valued at $100 from a post office. When she tried to use the card 24 hours later, she found it had no available credit. She contacted Visa and was told that Australia Post had not ‘activated' the card. She then contacted Australia Post and was told it could not compensate her for the cost of the card. Following our investigation Australia Post reconsidered its decision and advised that it would activate the card.

      Ms RR's daughter purchased a Visa card from a post office. When Ms RR received it, she found the card had expired prior to purchase. Ms RR's daughter requested a refund. The post office staff acknowledged she had purchased the card, but refused a refund as she did not have the original receipt. Ms RR complained to Australia Post and made several follow-up calls but received no response.

      When we investigated, Australia Post was able to verify that Ms RR's Visa card number matched Australia Post's transaction record and confirmed that the Visa card had already expired at the time of purchase. Australia Post refunded the value of the card to Ms RR and issued a letter of apology. Australia Post's product manager also implemented a pop-up system to check gift card expiry dates prior to sale.

      Taxation Ombudsman

      The Commonwealth Ombudsman investigates complaints about the Australian Taxation Office (ATO) as well as the newly-established Tax Practitioners' Board (TPB). In 1995 the Ombudsman was given the title of Taxation Ombudsman following a recommendation by the Joint Committee of Public Accounts. It recognised the unequal position of the ATO and taxpayers, and aimed to give greater focus to the investigation of complaints about the ATO.

      The TPB was established on 1 March 2010, taking over responsibility for the regulation of tax agents and BAS (Business Activity Statement) agents from the previous state-based Tax Agents' Boards. With one centralised board now dealing with tax agent regulation, we look forward to a productive relationship with the TPB and to this end we are liaising with the TPB regarding the establishment of its complaint-handling and review processes.

      Australian Taxation Office

      Complaint themes

      In 2009–10 we received 1,810 approaches and complaints about the ATO, an increase of 27.3% from 1,422 received in 2008–09. This was a continuing trend from the previous year and amounts to a 48.6% increase in the two years to 2009–10. It is the highest number of complaints about the ATO in five years. The current level is similar to the highs reached in 2003–04, when complaints about the period of mass-marketed tax schemes were tapering off.

      The increase in complaints to the Taxation Ombudsman in 2009–10 is in contrast to an overall reduction in the complaints to the Ombudsman's office of 18%. This may be a reflection of the impact of the economic climate on many taxpayers, particularly in relation to complaints about superannuation and debt collection.

      Figure 5.6: ATO complaint trends, 2004–05 to 2009–10

      Figure 5.6: ATO complaint trends, 2004–05 to 2009–10

      Delays in receipt of refunds, amended assessments and other interactions with the ATO have generated the most complaints from taxpayers and tax professionals. The ATO's Change Program for income tax release was a new source of a significant number of complaints. The most frequent and significant complaint issues are discussed below.

      During the year we finalised 1,762 approaches and complaints, of which 316 (17.9%) were investigated. This is a similar number of complaints investigated to the previous year, but a lower percentage (last year 23% of complaints were investigated). One reason for the slightly lower than expected investigation rate is that, in 2009–10, we introduced streamlined information exchange procedures with the ATO. These procedures involve the ATO providing this office with limited information about its interactions with the taxpayer complaining to us. In some cases, this information has enabled us to resolve the complaint without progressing to a full investigation. This procedure was particularly effective when resolving complaints about delays in receiving refunds.

      We transferred 22.5% of the complaints we received directly to ATO Complaints under our assisted transfer process. Transfers occur when the taxpayer has not already complained to the ATO, and they agree to us referring their complaint directly to the ATO's complaint-handling system. This is an increase from the 14% complaint transfer rate in 2008–09, but more in line with the 2007–08 transfer rate, which was 25%. We believe that the assisted transfer process is a valuable service to assist people to pursue their complaints through the most appropriate mechanism.

      In 2009–10 we achieved one or more remedies in 56% of the cases we investigated. The most common remedies were better explanations (36% of all remedies), apologies (13%), and actions being expedited (13%).

      Most frequent complaints

      The complaints we received covered a broad range of ATO activities and products. The most frequent complaints related to the lodgement and processing of forms (31%), debt collection (13.3%) and superannuation (12.7%). While these have been the most frequent complaint topics in previous years, there has been some growth in the percentage of complaints about superannuation.

      The Change Program

      The ATO's Change Program for income tax release in January 2010 was a new source of complaints and accounted for about 12% of the complaint issues recorded in 2009–10. Most of these complaints concerned delays in lodgement and processing. The Ombudsman provided a submission to the Inspector-General of Taxation's (IGT) Review into the ATO Change Program.

      The office recorded 195 approaches and complaints about the implementation of the income tax release of the ATO's Change Program to the end of June 2010. Most of these issues were about delay in receiving expected refunds. Other main areas of complaint included:

      • delay in receiving a replacement Tax File Number (TFN), where the TFN had been compromised
      • government benefits delayed/changed due to information from the ATO not being received by Centrelink
      • inadequate communication from the ATO
      • inadequate response by the ATO when a complaint had been made.

      These complaints showed that the Change Program had caused considerable inconvenience to taxpayers and, in some cases, caused consequences with other agencies, such as Centrelink and the Child Support Agency (CSA). Many complainants expressed frustration about the inconsistent information available about the Change Program.

      In our submission to the IGT we recommended that the ATO's response to problems with its systems should:

      • include clear messages to the community about any delays when they occur, not after the fact
      • ensure that the messages taxpayers receive when they contact the ATO are consistent with public comments being made by the ATO
      • ensure all areas of the ATO and key external stakeholders are aware of problems and identified ‘workarounds'.
      Lodgement and processing

      Almost a third of the complaints we received during the year were about lodgement and processing issues. These most commonly related to income tax assessments and refunds. Many of the complaints related to delays in receiving a refund or confusion about the tax assessment.

      Debt complaint issues

      Complaints about collection of debts continued as a major complaint category in 2009–10, accounting for more than 13% of all approaches to this office. The most frequent sources of complaint were payment arrangements, debt waiver or write-offs, actions of debt collection agencies, offsetting of refunds or credits against debts, and garnishee action.

      Unresolved issues with TFN compromise from Change Program roll out and subsequent consequences with Centrelink

      Mrs SS complained to us about a delay her husband, a Centrelink pension recipient, had experienced waiting for a new TFN. Mr SS was advised of a possible compromise of his original TFN as a result of suspected fraud. Consequently Mr SS was assessed as having a level of taxable income that caused Centrelink to raise a debt against Mrs SS's Family Tax Benefit (FTB) payments. ATO records showed Mr SS had not lodged an income tax return in either 2008 or 2009 when the incorrect returns were lodged.

      Mr SS applied to the ATO for a new TFN after the ATO advised him of the suspected TFN compromise. Mr SS rang the ATO on three occasions over three months to enquire when his new TFN would be issued. The ATO advised him that due to the Change Program systems upgrade there would be a delay in processing his new TFN. No firm time frame for issuing his new TFN was given.

      After his last unsuccessful enquiry with the ATO, Mr SS complained to the Ombudsman about the ongoing delay in the ATO issuing his new TFN.

      The ATO subsequently issued a new TFN to Mr SS and wrote to him to explain and apologise for the delay he had experienced. Our further enquiries revealed that Centrelink advised Mrs SS that it was waiting to receive the updated tax data from the ATO so that it could correct her FTB debt. The Ombudsman asked the ATO and Centrelink to expedite this process.

      Debt released after reconsideration by ATO

      Mr TT complained that he had incurred a $23,000 tax liability after relying on oral advice he had received from the ATO about the transfer of his UK pension into an Australian superannuation fund. Based on this advice, he transferred the funds believing he would not incur any tax liability on the transfer.

      After experiencing difficulties in obtaining information from the ATO about the liability, he was advised to lodge a claim for compensation and did so. The ATO refused the claim on two premises. First that Mr TT could not provide evidence that he had received incorrect advice, and second that he had not suffered financial detriment but had rather gained from the transfer.

      Mr TT complained to our office. Despite finding problems with the ATO decision, our office considered it was not in a position to further the matter towards an acceptable remedy. Mr TT was subsequently granted a review by this office, which prompted further investigation. Upon review, we found that the ATO decision had:

      • failed to properly apply an assessment of plausibility and instead seemed to interpret ‘plausibility' with ‘possibility'
      • introduced a profit motive for Mr TT, saying that one of the reasons he transferred the money at the time he did was to take advantage of a higher exchange rate, and provided a flawed calculation as evidence of a gain.

      After considering the issues raised by this office, the ATO agreed to waive Mr TT's debt.

      Superannuation complaint issues

      In 2009–10 nearly 13% of complaint issues recorded related to superannuation, including complaints about superannuation co-contribution payments and unpaid superannuation guarantee payments.

      Superannuation guarantee complaints commonly came from employees concerned about delays, a lack of information, or uncertainty about the ATO's progress towards collecting unpaid superannuation. We previously noted a reduction in the number of these complaints investigated from 2007–08 to 2008–09 (52 to 32). This decrease is attributed to improved processes, funding and changes to secrecy restrictions. In 2009–10 the number remained steady with 35 received. This still accounts for more than half of all investigated complaints relating to superannuation. It remains a substantial area of complaint. The ATO can continue to improve its timeliness and communication, as identified in our informal review in 2008–09.

      Lessons learned from automated decision making

      Mrs UU complained about the ATO's review decision that she was not eligible to receive the superannuation co-contribution for 2007–08 because her income was too high. The ATO had determined that her income for superannuation co-contribution purposes was more than $100,000, much higher than the $58,980 income cut-off. Her taxable income for the year was nil. Mrs UU argued that the ATO had incorrectly included an increase in the value of trading stock of more than $100,000 during the year.

      In response to our investigation, the ATO maintained that its calculation of Mrs UU's income was correct. We continued our investigation and suggested that the ATO had used the wrong test for dealing with trading stock increases, effectively double-counting these in her income assessment. The ATO then advised that there was a problem with the business rules for calculating income in this type of case that it had been working to resolve for many months.

      Despite an estimated 16,000 taxpayers being affected by this issue and another business rule problem, the ATO's complaint staff had not been told about the problem. As a result of our investigation, the ATO acknowledged shortcomings in its internal risk/issue escalation processes and engagement with its complaint staff and took action to improve it. We also recommended that the ATO review its processes for advising taxpayers where it makes review decisions that are later found to be incorrect. In addition to being paid the correct amount, it is important that taxpayers have written confirmation about the correct basis on which their contribution was determined.

      Unreasonable delay in release of superannuation funds

      Ms VV had requested urgent early payment of her superannuation funds on the grounds of medical and financial hardship. Upon receipt of her application the ATO advised Ms VV that payment would be made within three to four weeks. When no payment was received in the period indicated by the ATO, Ms VV complained to the Ombudsman.

      Our investigation revealed that all direct superannuation payments to taxpayers from Superannuation Holding Accounts were unable to be processed due to technical difficulties arising from the Change Program deployment. However, the ATO did not make this known to affected taxpayers for some time after the problems first arose, and no manual workaround was implemented as an interim fix.

      We found that there were flawed administrative procedures involved in the processing of these superannuation payments to taxpayers. The ATO agreed with our finding, and undertook to address the problems by:

      • identifying and implementing contingency procedures to mitigate possible systems failures
      • providing timely and adequate advice to taxpayers and ATO staff when such failures occurred
      • identifying and giving priority to hardship cases such as Ms VV.
      Reviewing tax administration

      In addition to resolving individual complaints, we use information from complaints to identify potential systemic problems in tax administration. Through our project work, including own motion investigations and less formal reviews, we review the effectiveness of specific areas of tax administration and consider areas for improvement.

      The Ombudsman's office meets regularly with the ATO to canvas ways to improve administration and prevent or respond more effectively to complaint issues. We also liaise regularly with the Inspector-General of Taxation and provide information or submissions to IGT reviews.

      ATO's use of access without notice powers

      In February 2010 we released an own motion report on the ATO's use of ‘access without notice' powers. These wide-ranging powers allow the ATO to enter a business or private premises, without the owner's permission, to examine and copy documents relevant to an investigation. The report was based on:

      • a review of a selection of access without notice visits conducted by the ATO in the period 2005–06 to 2007–08
      • the Ombudsman's office observing a coordinated, simultaneous multi-site access without notice visit in several states
      • a review of the supporting documentation that guides the ATO's staff in the use of its access without notice powers.

      We concluded that it was right and proper that the ATO used its access without notice powers only in exceptional circumstances, defined by a genuine belief that documents might be destroyed if notice was given, a well-founded concern that fraud or evasion is occurring, or inappropriate secrecy by the taxpayer. However, we suggested (and the ATO agreed) that the ATO's commitment to public accountability would be strengthened by:

      • greater transparency through, for example, reporting use of the powers in its annual report
      • fine-tuning the Access and Information Gathering Manual , especially in relation to the ATO's excisable goods regulatory role
      • improving the electronic case management system.
      Resolving tax file number compromise

      During the year we identified concerns with the ATO's response when TFNs have been compromised or TFN records are incorrectly linked. TFN integrity and ATO data and systems quality are areas of high importance to the tax system.

      In our view the action taken by the ATO in several cases involving TFN compromise was unreasonable. Our investigations suggest a systemic failure by the ATO to properly recognise and respond to the issues faced by taxpayers who, through no fault of their own, have their TFNs compromised or are incorrectly linked, by the ATO, to another person's TFN.

      In the cases we investigated, the taxpayers with compromised TFNs had not been able to resolve their problems with the ATO, despite having made a number of attempts to do so. Responses to these investigations suggest that there is a need for the ATO to improve its systems and processes for resolving more complex TFN compromise cases.

      Ongoing problems from ATO failure to recognise TFN compromise

      Since at least 2002 until an Ombudsman investigation in 2009, ATO systems allowed two taxpayers to share the same TFN. Mr WW complained to us because he had been unable to resolve his problem with the ATO in which he and another taxpayer with a similar name were sharing the same TFN. The other person was not required to lodge income tax returns, but had reported the TFN for his pension and bank interest income.

      As a result, the ATO had attributed the other taxpayer's income to Mr WW under its income- matching program. When Mr WW had contacted the ATO about the incorrectly matched income, the ATO had only acted to put the TFN on a list of numbers not suitable for matching. The situation recurred when the non-matching list was updated. Mr WW complained to the Ombudsman that the ATO had not dealt with the underlying problem. Mr WW said the ATO had advised that it would probably keep happening and he was upset about the prospect of having to have his record corrected on an ongoing basis.

      When we investigated, the ATO advised that because of the age of the TFN, it was uncertain whose TFN the number had been originally, or how it had come to be shared. However, TFN compromise procedures should have been commenced to resolve the situation when problems had arisen. This had not occurred because the ATO had only treated the situation as an incorrect match and had not recognised the case as a compromised TFN.

      In response, the ATO accepted our view and advised that it had updated its procedures to improve identification of compromised TFNs and escalate these to a senior technical officer.

      Other submissions

      The Ombudsman made submissions to government reviews of elements of tax administration relating directly to our role as an independent complaint-handling agency for taxation matters, including:

      • the Inspector-General of Taxation's review of the ATO Change Program
      • the Treasury proposal paper, Action against fraudulent phoenix activity .

      We indicated that we broadly supported the measures proposed to enable the ATO and ASIC to prevent and respond to those who deliberately seek to evade their tax responsibilities through phoenix activities.

      We noted the need to ensure that appropriate review mechanisms are included to enable the ATO to apply discretion in cases of disputed liability to avoid penalties being unfairly or arbitrarily imposed. In addition, our submission reinforced the need to ensure that decision-making processes are robust and transparent, based on clear criteria and appropriately documented.

      Outreach

      As Taxation Ombudsman we seek to promote ourselves as a place where people can complain about their problems with the ATO and have them investigated. We have replaced the annual Taxation Ombudsman Activities Report with a bi-annual e-bulletin. It is hoped that this will provide a more accessible and up-to-date form of communication with complainants, peak bodies, tax agents and other interested parties. We attended the Tax Institute Conference and sponsored a session on self-managed superfunds, a source of common complaint.

      We also have agreement with the ATO to provide Taxation Ombudsman brochures at ATO shopfronts.

      APRA, ASIC and Treasury

      Australian Prudential Regulation Authority

      The Australian Prudential Regulation Authority (APRA) is the prudential regulator of the Australian financial services industry. It oversees banks, credit unions, building societies and most members of the superannuation industry.

      In our 2008–09 annual report we noted an increase in complaints about APRA relating to the processing of applications for early release of superannuation benefits, particularly on mortgage relief grounds, which may have been related to an overall increase in applications of that type to the agency. Common complaint themes in that year were processing delays and unclear and/or piecemeal requests for information from applicants.

      In September 2009 we commenced an own motion investigation into the processing of early release of benefit applications. Following consideration of APRA's formal response to our request for information, we advised APRA in June 2010 that we were no longer investigating the matter and that neither a report nor recommendations would be issued. We recognised action taken by APRA to address potential processing delays in periods when high numbers of applications are received as a reason to discontinue the investigation.

      Complaint themes

      In 2009–10 we finalised 174 enquiries about APRA, of which 61 were investigated. As in previous years, the majority of complaints concerned the processing of applications for early release of superannuation benefits.

      Common complaint themes related to:

      • the quality of advice about the exact nature of information that APRA requires from applicants
      • multiple officers handling applications
      • applicants not being advised that APRA can, in limited circumstances, authorise partial release of superannuation for the purpose of obtaining the information required by the regulations covering early release, such as a specialist medical opinion.
      Case studies

      The circumstances in which APRA can approve early release of superannuation benefits are set out in regulations made under the Superannuation Industry (Supervision) Act 1993 . APRA is of the view that it must have evidence which relates directly to the prescribed circumstances before approval can be given and is not inclined towards inference.

      The Ombudsman's office resolved a number of complaints by helping people understand the details of APRA's requirements. However, in many cases, the very circumstances that gave rise to the person seeking early access to their superannuation benefits also limited their capacity to meet prescriptive requirements.

      Attention to criteria

      Mr XX suffered from a serious medical condition for which he took medication. Unfortunately the medication had a detrimental effect on his teeth. He sought early release of his superannuation benefits to obtain dental treatment. APRA requested that Mr XX provide certification from a dental specialist, but Mr XX did not see a dental specialist because the problem was caused by the underlying medical condition for which he saw a different specialist. Meanwhile Mr XX borrowed money from his parents to proceed with the urgent dental treatment.

      Following contact from our office, APRA re-assessed Mr XX's application, and required him to provide evidence from a registered medical or dental practitioner that the treatment was required to accommodate needs arising out of the other medical condition. These conditions were able to be met and the requested amount was released.

      Clarity of information requested

      Ms YY had ticked a box on APRA's application form indicating that the application was made on the basis of alleviation of an acute or chronic mental condition, yet her supporting documentation was from a reconstructive surgeon. APRA asked Ms YY to obtain supporting information from a medical specialist and a general practitioner, but did not explain that if she wished to pursue release on that ground, the medical specialist from whom she needed certification would need to be a psychiatrist. It was not until after Ms YY had re-submitted her application with the additional evidence that she was informed that this was the wrong medical specialist.

      Improved flexibility

      Mr ZZ contacted the Ombudsman after seeking early release of his superannuation benefits to assist with medical expenses relating to an operation and treatment for cancer. He had provided medical evidence of his condition, but was advised that the doctor also had to certify that it was ‘a life threatening illness' and one for which treatment was unavailable in the public health system. The doctor maintained that his previous letters should have been sufficient.

      On investigation we were advised by APRA that Mr ZZ's application had been declined on two occasions because his doctor's letters did not contain the precise wording APRA required. APRA offered to send a letter to the doctor advising of the required wording. We explained that the complainant advised that the doctor had previously said that his letter should be sufficient.

      APRA agreed that the matter was too complex for the complainant to explain to the doctor exactly what was required. APRA then telephoned the doctor and was able to obtain the information necessary to approve the application.

      Australian Securities and Investments Commission

      The Ombudsman finalised 163 approaches and complaints about the Australian Securities and Investments Commission (ASIC) in 2009–10. While this is an increase on last year, we now see fewer complaints about penalty fees than in previous years. This may be due to the improvements made by ASIC reported in our 2008–09 annual report.

      Complaints were made to ASIC about a wide range of programs. This year, however, one common complaint theme related to decisions made by ASIC not to investigate or take action on complaints made to it. In most cases this office found that these complaints could be resolved by:

      • providing more information about ASIC's discretion not to investigate
      • providing more information about ASIC's regulatory goals
      • seeking a more detailed explanation from ASIC.

      Publication of addresses

      We received two complaints about ASIC's policy of publishing (in its online gazette) the addresses of persons to whom money may be owed as a result of a compulsory acquisition of their shares. ASIC advised that it prints the addresses to avoid confusion between people with similar names and to assist in ensuring that the correct people receive their entitlements.

      Maintaining that they had personal safety grounds for not wishing their residential addresses to be made publicly available, complainants had approached ASIC asking that the addresses be removed, but to no avail.

      We referred one complainant to the Privacy Commissioner, who advised that it was not unlawful for ASIC to include the address, even though the Corporations Act 2001 (Cth) only required that the individual's name be published. We then put the view to ASIC that, as the individuals had come forward to ASIC to ask that their details be removed, the gazette had performed its function and there was no purpose to be served by retaining the details in the online register.

      On this occasion ASIC advised that it could not remove the details for technical reasons and that it could not control the working of other search engines through which the person's details, having once been published, could be obtained. We pointed out that the decision about the format of the publication had been made by ASIC and that, as publication of people's residential addresses could expose them to risk, ASIC needed to develop a mechanism to remove these details upon request as do other agencies like the Australian Electoral Commission.

      After further consideration, ASIC advised that it had established that it could suppress the electronic publication of the complainant's address and had put this into effect.

      Appointment of registered agents

      Mr AB complained that a company acting as a registered agent with ASIC had set up a company and named Mr AB as director without his consent. The company had subsequently borrowed money and gone into liquidation. We investigated the process by which a person or company can become a registered agent with ASIC and how an agent could register a company without the person named as director being made aware of that fact.

      ASIC informed us that, in deciding to register an agent, it relies upon the full and correct completion of a form which requires that the applicant attest that they will adhere to the Corporations Act 2001 , including not knowingly lodging documents that are false or misleading. The form does not require disclosure of any matters relevant to suitability. However, ASIC undertakes an examination of the Register of Disqualified Persons and will not register a deregistered company as a registered agent. There are no particular qualifications required of agents and no other suitability assessments are made. ASIC further advised that, upon lodgement of its form for notifying the appointment of an agent, ASIC sends out two notices: one to the company confirming the appointment of the agent and one to the agent confirming the nomination by the company.

      However, the notices are only generated where the form notifying of the appointment of an agent is lodged in paper form and not where it is lodged by electronic means. In the latter case, a standardised email noting receipt is sent to the registered agent who lodged the document. Therefore no confirmation was sent to Mr AB; instead an email was sent only to the person purporting to be his agent.

      We raised concerns about the process for registration of agents and confirmation of their appointment with ASIC. In response, while noting that complaints about registered agents were few, ASIC agreed to consider improvements to its registration form and also agreed to review its confirmation notice process with a view to extending notification to company office holders where a registered agent is appointed using the online service.

      The Treasury

      The Treasury's primary role is to provide advice to government. The Ombudsman receives a small number of complaints about The Treasury, which tend to be about their management of enquiries from the public. Complaints include failing to respond to correspondence within a reasonable time frame or to keep records of public enquiries.

      Feature: Good› better › best

      Good better best—changes in public integrity was the central theme of the Commonwealth Ombudsman's 2009 national conference held in Canberra on 23 and 24 September. It brought together policy makers, legal practitioners, community representatives and expert guest speakers, to discuss the challenges to complaint handling in our changing world.

      The conference opened with dinner, at which the Hon. John Clarke QC gave a keynote address. Mr Clarke provided a critical assessment of administrative accountability, transparency and cross-agency operations with reference to his experience as head of the Australian Government's inquiry into the counter-terrorism investigation into Dr Mohamed Haneef.

      More than 200 conference delegates then participated in an intensive day of workshops, forums and plenary sessions. A recurring theme of the conference was how to safeguard best practice in governance and public administration.

      Papers from the conference are available on our website at http://www.ombudsman.gov.au/pages/about-us/events/good-better-best/.

      Photo credit: Steve KeoghThe Hon. John Clarke QC addressed the 2009 Commonwealth Ombudaman national conference

      Photo credit: Steve KeoghThe Hon. John Clarke QC addressed the 2009 Commonwealth Ombudaman national conference