Investigations, Reports and Submissions

Two of the key strategies of the Ombudsman’s office, outlined in the Portfolio Budget Statements, are to:

• conduct own motion investigations and produce publications that promote good public administration, and
• make submissions to Parliamentary and government inquiries and contribute to broader public debate which promotes good public administration and accessibility of government program design and implementation.

This chapter outlines our work this year in these two areas.

Reports

Reports released in 2011–12 were:ƒƒ

• Department of Education, Employment and Workplace Relations (DEEWR): 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 (Cth) 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).

A summary of the office’s published reports is set out below.

Inspection reports of the controlled operations records of the Australian Federal Police (AFP), Australian Crime Commission (ACC) and 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.

This year, the office also published independent research commissioned to better inform the development and provision of accessible complaint services to Indigenous communities. The research was undertaken by 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 that provides services to, or engages with, Indigenous people and communities. Accordingly, the office made the research available publicly.

Report summaries

National School Chaplaincy and Student Welfare Program

In March 2012, the Acting Ombudsman confirmed that she was satisfied that the Department of Education, Employment and Workplace Relations (DEEWR) had, during the past six months, acted on recommendations from the Ombudsman’s earlier report published in July 2011, Administration of the National School Chaplaincy Program (Report No 06/2011).

During 2010–11, the Ombudsman had conducted an own motion investigation into DEEWR’s administration of the National School Chaplaincy Program, in response to a report released by the Northern Territory (NT) Ombudsman following her office’s investigation of complaints about the program. The NT Ombudsman’s report identified issues with DEEWR’s administration of the chaplaincy program, which she was unable to investigate due to a lack of jurisdiction. These matters were referred to our office for consideration, leading to the decision to initiate the investigation.

By March 2012, DEEWR had made a significant effort to reform its administration of the newly-named National School Chaplaincy and Student Welfare Program. The program had been expanded to allow schools to engage welfare workers, as well as chaplains, all of whom must now hold or be working towards a minimum qualification in youth work, pastoral care or an equivalent discipline. New internal guidelines had been developed that required more rigorous assessment of applicants and provided greater clarity in relation to child protection issues and police checks.

Some of the problems highlighted by the Ombudsman’s investigation last year involved processes for gaining parental consent for children to participate in the program, funding agreements and complaint handling. Since then, DEEWR has responded by:ƒƒ

• agreeing to develop and provide to parents relevant information about the program
• clarifying its expectations about what constitutes adequate consultation with the school community and consent processes
• creating a service agreement between funding recipients and schools to ensure that: all key participants in the program are accountable; protection of children and parental rights is central to the administration of the program; schools manage the program in accordance with the guidelines; and consistent national monitoring of the program can be undertaken by schools and DEEWR officials
• amending and expanding the program’s code of conduct, and
• reviewing complaint-handling procedures and auditing the operation of new procedures.

Biosecurity

In April 2012, the Ombudsman released a report of an own motion investigation into the compliance and investigation activities of the Biosecurity Program (formerly the Australian Quarantine and Inspection Service) in the Department of Agriculture, Fisheries and Forestry (DAFF).

The office conducted five reviews between 2010 and 2011 at all regional offices of the Biosecurity Program. The reviews examined a total of 25% of all investigations finalised or substantially finalised during this period.

The reviews found that, overall, investigations were conducted professionally by qualified and experienced staff and in accordance with relevant legislation. However, the reviews also found that the Biosecurity Program needed to improve record keeping, provide due process to recipients of correspondence, and strengthen internal guidelines. As such, the Ombudsman made a number of suggestions and recommendations, which DAFF accepted and agreed to implement.

As a result of our reviews and the recommendations made, DAFF amended relevant policies and guidelines and implemented a new internal audit program. DAFF Biosecurity’s Investigations and Enforcement Program has been strengthened by direct Ombudsman oversight during the past three years.

Immigration detainee transfer

In April 2012, the Ombudsman released an investigation report into the transfer of 22 detainees by the Department of Immigration and Citizenship (DIAC) to the Metropolitan Remand and Reception Centre at Silverwater during the April 2011 riots at Villawood Immigration Detention Centre. The Ombudsman investigated the transfer following a complaint by the detainees’ legal representative, a member of the NSW Council for Civil Liberties.

The report found deficiencies in the way in which detainees were notified about their transfer to Silverwater, the records kept by DIAC and the follow-up with detainees after their transfer. Notwithstanding the operational demands at the time, once the physical threat to staff and detainees had passed, DIAC had an obligation to ensure that all procedural and administrative requirements were met. This did not occur. For instance, DIAC did not fully comply with its mandated requirement to visit a detainee in a correctional institution within 24 hours of arrival at the institution and to contact them weekly thereafter, either in person or by telephone.

DIAC agreed to the Ombudsman’s recommendations for improving its processes and instigated a review of transfer arrangements between immigration and correctional detention, as well as within the wider immigration detention network. DIAC expects to update relevant policy and procedures for implementation later in 2012.

Remote housing reforms in the Northern Territory

In June 2012, the Ombudsman released an investigation report into remote housing reforms in the Northern Territory (NT).

Over the past two years, concerns about the implementation of the housing reforms have been a key source of complaints to the Ombudsman. Through investigations of these complaints, the office has identified areas in which further work by the Australian and NT governments would improve service delivery in remote Indigenous housing. In reporting on areas for improvement, the office acknowledged that the scale of the reforms and the complex nature of the environment in which they were being delivered presented significant challenges for the agencies involved.

The report highlighted a range of service delivery problems and provides recommendations to address them. The report identified three thematic issues underlying these problems— communication, IT systems support, and accountability and complaints processes.

Income management

In June 2012, the Ombudsman released an investigation report into two aspects of the Department of Human Services’ (DHS) income management decision making. The investigation examined:ƒƒ

• decisions not to exempt a person from income management because they are financially vulnerable, and
• decisions about applying income management to a person because they were considered vulnerable.

The reviewed decisions had all been made between August 2010 and March 2011.

The report highlighted that the initial decision-making tools and guidelines used by DHS decision makers did not adequately assist them to meet legislative requirements. The Ombudsman’s review also identified problems with the use of interpreters, record keeping, training and dealing with review and exemption requests. Some decisions reviewed by the office did not show that legislative criteria had been met and many lacked a sound evidence base. Letters designed to explain decisions were inadequate and did not inform customers of their review rights.

Given the seriousness of the issues that the investigation found, the Deputy Ombudsman wrote to DHS and the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) part way through the investigation to raise her concerns. The agencies took substantial action to address the problems raised by the office, including:

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• establishing a taskforce to review decisions, training, decision-making tools and templates, policy and guidelines and to develop a quality framework for income management decisions
• amending decision-making tools and processes to ensure decision makers properly address the legislative criteria
• revising its training packages and delivering training to 300 staff
• updating policy, reference material and guidelines to better reflect the intent of the legislation
• improving procedures relating to the use of interpreters and establishing a working group to advise on the appropriate use of interpreters in line with best practice
• updating and improving template decision letters.

DHS income management decision making has undergone significant revision and improvement in response to concerns identified during this review.

Submissions

In addition to reports, the Ombudsman makes formal submissions to Parliamentary committees. This year, the Ombudsman made submissions to House of Representatives and Senate standing and joint select committees, including on language learning in Indigenous communities, cybercrime, and immigration detention. Submissions made in 2011–12 were:ƒƒ

• 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 Australia’s clean energy future; and
• Inquiry into the Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and Other Measures) Bill 2011, the Education Services for Overseas Students (TPS Levies) Bill 2011, the Education Services for Overseas Students (Registration Charges) Amendment Bill 2011 and the Higher Education Support Amendment Bill (No. 2) 2011.

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

• the Australian Law Reform Commission’s inquiry into family violence and Commonwealth laws
• the 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, and
• The Department of Immigration and Citizenship’s review of the student visa assessment level framework.