Commonwealth Ombudsman Annual Report 2011–2012 | Chapter 2

Report on Performance

This chapter summarises the office’s performance based on the outcomes and program structure set out in the Portfolio Budget Statements and Portfolio Additional Estimates Statements 2011–12. An overview of people and financial management performance is provided in Chapter 3. Further financial information is available in the Appendices.

The following chapters provide a more comprehensive review of the outcome of the office’s work:

Chapter 4 provides an overview of complaint issues, statistics and other information relevant to the five agencies that produced the highest volume of complaints to the office during the past year
Chapter 5 comprises case studies of complaints handled by the office during the reporting period, focusing particularly on the outcomes achieved for individuals and agencies
Chapter 6 provides a summary of the published Ombudsman reports and submissions made to inquiries
Chapter 7 looks at the specialist roles and functions performed by the office.

The Portfolio Budget Statements for 2010–11:

Fair and accountable administrative action by Australian Government agencies by investigating complaints, reviewing administrative action and inspecting statutory compliance by law enforcement agencies.

Supporting the Outcome statement was the Program called the Office of the Commonwealth Ombudsman.

Program Objectives Deliverables and Key Performance Indicator Analysis

The Portfolio Budget Statements for 2011–12 state that the Ombudsman’s office seeks to be an exemplar for government agencies in delivering fair and accountable administration by pursuing the following objectives:

continue high standards in complaint handling by ensuring effective responses to new areas of complaint, without impacting on timeliness, accountability or transparency
continue to develop compliance auditing expertise and improvement of auditing methodologies and reporting
enhance staff capability, attraction and retention to ensure quality standards for complaint handling and reporting
ensure the continued timely effective resolution of complaints through sound working relationships with Australian Government agencies
and related service providers
enhance engagement opportunities for collaboration with stakeholders and intermediaries, national integrity agencies, regional and international partners
make targeted submissions to Parliamentary and government inquiries, to contribute to debates on key public administration, integrity, accountability, and transparency issues that promote delivery of fair government policies and programs
contribute to improving accountability of government through oversight and administration of prescribed legislative functions
undertake own motion investigations and produce reports.

Deliverables listed for the office are:

there will be improved public satisfaction with the quality of services provided by the Ombudsman’s office
better targeted stakeholder engagement through the provision of information and education regarding the role and importance of the Ombudsman’s office
greater adherence to internal service standards for complaint handling
the Ombudsman’s office will identify and report on significant and systemic problems in public administration, making recommendations and reporting on implementation
the Ombudsman’s office will contribute to Parliamentary and government inquiries and public debate through the presentations of submissions and papers, and appearances at associated forums
the quality and timeliness of services of the Ombudsman’s office will be enhanced through the review and development, and improvement of consistent and transparent policies, procedures and practices
greater parliamentary and public assurance that covert powers are lawfully used by enforcement agencies.

Key performance indicators for the office are:

administration of government programs will be attuned to accountability obligations and principles of good administration. While complaint numbers to the Ombudsman’s office are unlikely to decline, administration of the areas of government exposed to this office will be improved
internal complaint handling within agencies will resolve an increasing proportion of complaints. Through assistance provided by the Ombudsman’s office, agencies’ responsiveness and capability to deal with complaints will improve
there will be improved compliance with legal requirements by enforcement agencies in the use of covert powers. Inspection reports will be timely and identify areas for improvement.

Deliverable 1

There will be improved public satisfaction with the quality of services provided by the Ombudsman’s office.

Reviews

The office has a formal review process for complainants who may be dissatisfied with the conclusions and decision/s reached about their complaint. In 2011–12, the office received 217 requests for review, compared to 251 received in 2010–11. The decreased number of requests for review may reflect an improvement in the level of satisfaction with the initial investigation and decision.

In 19 cases, the request for review was declined. Reasons for declining a request for review included that the matter was out of jurisdiction, the matter had been reviewed already, the complainant did not provide any information that gave grounds for a review or the complainant had not taken up previous advice to raise the matter with the relevant agency in the first instance.

The office finalised 232 reviews during the year including some received in 2010–11. Of the finalised reviews, the original outcome was affirmed in 184 reviews (80%), fewer than in 2010–11 (82%). The office decided to investigate or investigate further 30 reviews (26 in 2010–11) and to change the decision on the original complaint in 15 reviews (three in 2010–11). Oner;request for review was withdrawn by the complainant.

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

Table 2.1: Internal review of decisions 2011–12
COMPLAINANT'S REASON FOR SEEKING REVIEW	OUTCOME AFFIRMED	OUTCOME VARIED	FURTHER INVESTIGATION	REVIEW WITHDRAWN	GRAND TOTAL
Advice	1				1
Inadequate/Unclear	1				1
Behaviour	1
Bias	1				1
Decision/Action	184	15	30	1	230
Bias	3				3
Failed to address issue	22	3	3		28
Misunderstood issue	10	1	3		14
Other	8	1			9
Wrong	141	10	24	1	176
GRAND TOTAL	186	15	30	1	232

Timelines

In 2011–12, the office finalised 80% of all approaches and complaints within one month of receipt, up from 75% the previous year. Figure 2.1 shows the time taken to finalise all approaches and complaints for the periods 2005–06 to 2011–12.

In 2011–12, 27% of investigated complaints were finalised in one month (up from 20% the year before) and 39% were finalised within three months (down from 59%). Table 2.2 shows some of the variation in the time it takes to finalise investigated complaints about different agencies.

Figure 2.1: Time taken to finalise all approaches and complaints 2005-06 to 2011–12.

Figure 2.1

Table 2.2: Time taken to finalise investigated complaints for selected agencies 2011–12
	NUMBER INVESTIGATED	% FINALISED WITHIN ONE MONTH	% FINALISED WITHIN THREE MONTHS
Australia Post	482 (871)	9 (19)	62 (87)
Australian Taxation Office	437 (708)	19 (10)	37 (47)
Centrelink	1532 (1269)	51 (44)	33 (79)
Child Support Agency	668 (751)	35 (30)	38 (68)
Department of Education, Employment and Workplace Relations	96 (150)	9 (9)	57 (59)
Defence agencies	234 (162)	9 (4)	47 (31)
Department of Immigration and Citizenship	275 (373)	4 (4)	38 (40)
Australian Federal Police	48 (104)	0	17 (60)

Deliverable 2

Better targeted stakeholder engagement through the provision of information and education regarding the role and importance of the Ombudsman’s office

In 2011–12 we targeted our stakeholder engagement to three main sectors. Firstly, we engaged with those who were, in turn, able to influence and educate others. These engagements included:

hosting a Social Support Round Table in Perth, attended by a number of community stakeholders including community legal centres and welfare rights centres
presenting at a legal workshop for first year law students at the Australian National University
informing legal advocacy services in the Northern Territory
participating in a Community Roundtable meeting in Melbourne to discuss child support issues, with parent and carer support groups, community legal centres and Victoria Legal Aid
launching the Overseas Students Ombudsman role at the Council of International Students Australia conference
participating in an orientation session for new members of the Australian Federal Police
holding consultations with community and advocacy groups in Sydney and Perth about Centrelink issues
attending Child Support State Stakeholder Engagement Group (CSSEG) meetings in Parramatta, Adelaide and Melbourne
attending roundtable meetings relating to detention with immigration and refugee community interest groups in Melbourne, Sydney and Darwin

We also targeted our engagement to the most vulnerable sectors of society. This year we:

conducted outreach visits, ran community complaint clinics and information sessions in several remote Indigenous communities and town camps in the Northern Territory, to deal with complaints and raise awareness of our Office
conducted regular complaint clinics at the Women’s Information Service and the Hutt Street Centre, which provides support for homeless and vulnerable residents of inner-city Adelaide
engaged with older Australians through stalls at the Sydney Retirement & Lifestyle Expo and seniors’ days at the Royal Easter Show
participated in the Department of Human Services Child Support Family Violence Reference Group
took our message to rural and regional Australia, by presenting at the Central Coast Connect Day, the Nowra Aboriginal Community Information & Assistance Day, the 2011 NSW Aboriginal Rugby League Knockout in Bathurst, the Good Service Forum in Wilcannia, and the Dubbo Indigenous Family Fun Day and information day held in Goodooga.

Wherever possible, we increased our efficiency by working with other oversight bodies. For example:

jointly with other NT complaints or oversight agencies we attended a Consumer Rights’ Expo in Darwin, and a Consumer Rights and ‘50 something’ expo in Alice Springs, to raise awareness about the role of the office
jointly with the South Australian Ombudsman we held regular complaint clinics and staffed stalls at Homeless Connect, the Federation of Ethnic Communities’ Councils of Australia with SA Ombudsman, the Royal Adelaide Show and the Courts Administration Authority of SA Open Day.

Deliverable 3

Greater adherence to internal service standards for complaint handling.

Our service charter sets out the standards of service the public can expect from us. Improvements in the quality of our service may be shown by the reduced number of requests for review of our decisions, as discussed above. Our most important quantitative measure is our undertaking to investigate as quickly as possible. As our timeliness statistics above show, the number of complaints we finalised within one month increased from 75% to 80%.

Deliverable 4

The Ombudsman’s office will identify and report on significant and systemic problems in public administration, making recommendations and reporting on implementation

The office identified significant and systemic problems in public administration and released the following reports in 2011–12:

Department of Education, Employment and Workplace Relations: Administration of the National School Chaplaincy Program (Report 06/2011)
Department of Agriculture, Fisheries and Forestry (DAFF): Report on reviews of investigations conducted by DAFF Biosecurity’s Investigations and Enforcement program (Report 01/2012)
Department of Immigration and Citizenship: Detention arrangements—the transfer of 22 detainees from Villawood Immigration Detention Centre to the Metropolitan Remand and Reception Centre Silverwater (Report 02/2012)
Department of Families, Housing, Community Services and Indigenous Affairs (Cwth) and Department of Housing, Local Government and Regional Services (NT): Remote housing reforms in the Northern Territory (Report 03/2012)
Department of Human Services and Department of Families, Housing, Community Services and Indigenous Affairs: Review of Centrelink income management decisions in the Northern Territory (Report 04/2012).

In addition, inspection reports of the records of controlled operations of the Australian Federal Police (AFP), the Australian Crime Commission (ACC) and the Australian Commission for Law Enforcement Integrity (ACLEI), and the surveillance devices records of the AFP, ACC and Victorian Police Special Projects Unit were published in January and March 2012 respectively.

Independent research commissioned by the office to better inform our approach to providing accessible complaint services to Indigenous communities was also made public in 2011–12. The research was undertaken by the Indigenous communications and research company, Winangali Indigenous Communications and Research. Although it focused on improving Ombudsman services, the research provides insights useful to any entity providing services to, or engaging with, Indigenous people and communities. Accordingly, the research was made publicly available.

Deliverable 5

The Ombudsman’s office will contribute to Parliamentary and government inquiries and public debate through the presentations of submissions and papers, and appearances at associated forums

In 2011–12, we made seven formal submissions to House of Representatives and Senate standing and joint select committees on a broad range of public interest matters:

Inquiry into the Public Service Amendment (Payments in Special Circumstances) Bill 2011
Inquiry into language learning in Indigenous communities
Inquiry into Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011
Inquiry into the Cybercrime Legislation Amendment Bill 2011
Harmonisation of the regulatory framework applying to insolvency practitioners in Australia (consultation to The Treasury)
Joint Select Committee on Australia’s Immigration Detention Network
Inquiry into Australia’s agreement with Malaysia in relation to asylum seekers
Inquiry into the Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and Other Measures) Bill 2011.

The office also made a number of submissions to government inquiries:

Australian Law Reform Commission’s inquiry into family violence and Commonwealth laws
Australian Law Reform Commission’s inquiry into grey areas—age barriers to work in Commonwealth laws
Phase two of the Australian Human Rights Commission’s review into the treatment of women in the Australian Defence Force
Department of Immigration and Citizenship’s review of the student visa assessment level framework.

During the year, the office contributed to public debate through a range of presentations, including five presentations made by the Ombudsman or Acting Ombudsman:

Prospects, promises and performance in public administration, 2011 National Administrative Law Forum
Improving administration: the impact and role of the Ombudsman, Institute of Public Administration Australia
Why do good policy ideas turn into porridge? MEAA and Walkley Foundation 2011 Public Affairs Convention
Wellbeing—the new measure of program success, 2011 Australian Government Leadership Network Conference
Addressing Gender Equality and Women’s Rights in Public Policy, Address to 2012 International Women’s Day Forum: APS Human Rights Network, Australian Human Rights Commission.

Deliverable 7

Greater Parliamentary and public assurance that covert powers are lawfully used by enforcement agencies

The Ombudsman is required by law to inspect the records of certain enforcement agencies in relation to their use of the following covert and coercive powers:

interception of telecommunications and access to stored communications under the Telecommunications (Interception and Access) Act 1979 (TIA Act)
use of surveillance devices under the Surveillance Devices Act 2004 (SD Act)
controlled operations conducted under the Crimes Act 1914 (Crimes Act).

During 2011–12, the office conducted a total of:

23 inspections under the TIA Act of both Commonwealth and state and territory enforcement agencies
six inspections under the SD Act of both Commonwealth and state and territory enforcement agencies
four inspections under the Part IAB of the Crimes Act of Commonwealth enforcement agencies.

We also continued to develop compliance auditing expertise and improvement of auditing methodologies and reporting. Staff members participated in external training and conferences, and a new internal training program on compliance auditing. Auditing methodologies were regularly reviewed and kept up to date, and methodologies were amended to reflect ongoing examination of legislative requirements and changes to agencies’ business practices.

The office is required to report to relevant ministers and parliament on the results of our inspections on an annual or bi‑annual basis. During 2011–12, all 20 of our statutory reports were submitted within the legislated timeframes. We published a report on our inspections of the controlled operations’ records of the Australian Federal Police (AFP), the Australian Crime Commission (ACC) and the Australian Commission for Law Enforcement Integrity (ACLEI), and published two reports on inspections of the surveillance devices records of the AFP, ACC and Victorian Police Special Projects Unit in January and March 2012 respectively.

Key performance indicators

The work of the Commonwealth Ombudsman is guided by the following key performance indicators:

KPI 1

Administration of government programs will be attuned to accountability obligations and principles of good administration. While complaint numbers to the Ombudsman are unlikely to decline, administration of the areas of government exposed to this office will be improved

Complaint investigation, compliance auditing and immigration detention oversight enables the office to deal with individual matters and also to provide regular feedback to agencies and suggestions for improvements. This work also provides an insight into broader systemic issues and other opportunities to contribute to improvements in public administration. We do this in a variety of ways, including conducting ‘own motion’ and major investigations into systemic issues, making submissions to parliamentary and other government inquiries, giving presentations at various forums and working with other oversight agencies.

The Ombudsman publicly released five own motion investigation and other reports during 2011–12 (see deliverable 4). Agencies adopted the majority of our report recommendations, leading to improvements in policy and program development, as well as administrative and complaint-handling practices. Examples of agency responsiveness to our reports and recommendations include: DEEWR made significant improvements to its administration of the newly-named National School Chaplaincy and Student Welfare Program. As part of its reforms,DEEWR addressed the concerns this office had about the administration of the National School Chaplaincy Program and, on further follow-up, acted on the recommendations made in our own motion report. DEEWR developed new guidelines to require more rigorous assessment of applicants, expanded the program’s code of conduct and agreed to improve complaint-handling procedures and program auditing processes. DEEWR also agreed to provide further information to enable greater clarity in relation to a range of matters such as child protection issues and police checks, requirements for adequate consultation with the school community and consent processes, and more rigorous service agreement between funding recipients and schools.

DHS’s income management decision‑making underwent significant revision and improvement in response to concerns identified during an own motion investigation (Review of Centrelink’s Income Management Decisions in the Northern Territory). During that investigation we identified flaws in decisions not to exempt a person from income management because they were financially vulnerable and decisions about applying income management to a person because they were considered vulnerable. When initially notified of these concerns in the course of the investigation, the Department of Human Services immediately conducted its own review of decisions made between August 2010 and March 2011. In addition to the review, DHS took substantial action to improve income management decision-making, including reviewing training, tools and templates, policy and guidelines, and developing a quality framework for income management decisions.
During the year the office conducted an own motion investigation into certain aspects of the administration of Project Wickenby, a joint-agency taskforce which included the Australian Taxation Office and the Australian Crime Commission. While we did not publish the outcomes of this investigation, we were satisfied that the recommendations arising from the investigation had been accepted and were being implemented by the various agencies.

KPI 2

Internal complaint handling within agencies will resolve an increasing proportion of complaints. Through assistance provided by the Ombudsman, agencies’ responsiveness and capability to deal with complaints will improve

The office continued to work with agencies to improve their internal complaint‑handling systems. Using information gained through our unique position in investigating complaints, we have made recommendations for improvement at both an operational and structural level. Our fact sheet and guide, Better Practice Guide to Complaint Handling, have been provided to agencies as guidance on improving their internal systems. During the year we met with a number of agencies and provided feedback on how to improve their complaint handling. For example, the office met with the Department of Immigration and Citizenship to provide advice on how the department can use its own internal complaint system to provide feedback to the operational areas. In our role as the Overseas Students Ombudsman, part of our charter is to give feedback to private providers. We have also continued our streamlined process for transferring tax complaints back to the ATO.

KPI 3

There will be improved compliance with legal requirements by enforcement agencies in the use of covert powers. Inspection reports will be timely and identify areas for improvement

During 2011–12, inspections identified a high level of compliance by most agencies. We noted that most agencies had implemented our previous recommendations and we made fewer recommendations this year compared to the previous year. Other achievements made as a result of our inspections included:

ensuring that ongoing and long-term controlled operations conducted by Commonwealth agencies are externally reviewed
ensuring that law enforcement agencies obtain information and keep sufficient records to demonstrate that they are only dealing with lawfully obtained information
noting a high level of acceptance of the Ombudsman’s recommendations and suggestions for improvement, with agencies usually amending their processes to align with the office’s advice.

The office also continued the practice of making a report to relevant agencies on the outcomes of inspections prior to submitting statutory reports to ministers and/or the Parliament. This process gives agencies an opportunity to provide further information and comments in response to inspection findings and assists the office to ensure that the Ombudsman’s recommendations are accurate, relevant and constructive. In addition to inspection reports, we also met with agencies as required to resolve key compliance issues and give advice on improving their business practices.

Further information on some of these achievements is provided in Chapter 7.

Feature

Contributing to Australia's National Anti-Corruption Plan

In 2011–12, Ombudsman staff worked with the Attorney-General’s Department (AGD) to assist in work that will lead to Australia’s first National Anti-Corruption Plan.

The Australian Government announced its intention to develop and implement a national anti-corruption plan in September 2011. In the months following the announcement, Ombudsman senior staff met independently with counterparts in the Anti- Corruption Section of AGD and attended several interdepartmental committee meetings, workshops and forums.

'The Ombudsman’s office is well-positioned to identify potential corruption risks...’

These forums provided a platform for academics, private practice lawyers, energy resource investment companies, international aid and development agencies, and accountability think‑tank representatives to speak directly with government about the practical dilemmas and issues they confront in negotiating public–private partnerships within Australia and overseas. The need for better government communication, guidance and advice on corrupt practices and detection, as well as proactive training and deterrence resources, was a recurring message at the forums.

In the latter part of the year, the office provided written comments on a series of corruption risk profiles prepared by key Australian government agencies as part of the National Anti-Corruption Plan drafting process.

The Ombudsman’s office is well‑positioned to identify potential corruption risks that may emerge from a wide cross‑section of the Australian Public Service. Our daily interaction with agencies and our working knowledge of agency processes, systems and governance arrangements provides us with a valuable and unique perspective on corruption risks. It is with this background and knowledge that the office contributed toward the development of a National Anti-Corruption Plan.