Part 4 - What we do

Social Services agencies and programs

Department of Human Services

In 2016–17, the Office received 13,832 complaints about Department of Human Services (DHS) programs. This represents a 30 per cent increase compared to the 10,662 received in 2015–16. This was largely due to an increase in the number of Centrelink complaints.

The department delivers a range of payments and services to millions of people across Australia.³ This includes services delivered through Centrelink and the Child Support system. Our Office acknowledges that it is inevitable that errors and delays will occur in an operation of this scale. However, we also recognise that this can affect some of the most vulnerable members of our community. As a result, our Office works with DHS to improve service delivery.

Table 4 – DHS complaint trends

DHS — Centrelink

DHS delivers a range of social security and other payments and services to people through Centrelink. Complaints about Centrelink represent a substantial proportion of complaints to our Office. This is not surprising considering the size and complexity of its service delivery responsibilities.

In cases where a person is vulnerable or requires help to make a complaint about Centrelink to DHS, our Office continues to use a complaint transfer arrangement. This means the complaint is passed directly to DHS on the understanding that the complainant may come back to us if they have not been contacted within five working days or the complaint has not been resolved.

Significant Issues

Table 5 – Most common complaint issues⁵

The Office continued to monitor a number of issues of interest. During 2016–17, the most significant of these were:

• Centrelink Online Compliance Intervention system
• Centrelink debt recovery
• various aspects of the disability support pension (DSP)
• various aspects of Centrelink Authorised Review Officer reviews.

The Office has continued regular engagement with DHS staff to discuss and resolve systemic issues in Centrelink complaints, through scheduled quarterly meetings and ad hoc meetings by telephone or in person. Overall, the Office continues to monitor systemic issues arising and make recommendations both formally and informally in relation to strategic improvements.

Reports

Centrelink's automatic debt recovery system own motion investigation

In 2015–16, the Office liaised with DHS about improving customers' experience of Centrelink debts. DHS' management of Centrelink debt and the customer experience continued to be a focus for the Office in 2016–17. In July 2016, Centrelink launched a new online compliance intervention (OCI) system for raising and recovering debts. After the OCI system was implemented, the Office received many complaints from people who had incurred debts under the OCI. As a result, the Office considered the issue from a systemic perspective and, in April 2017, the Ombudsman published an investigation report into Centrelink's automated debt raising and recovery system.

The Office was satisfied the data matching process itself was unchanged, the debts raised by the OCI were accurate based on the information available to DHS at the time of decision, and it is reasonable for DHS to ask customers to explain discrepancies as a means of safeguarding welfare payment integrity. We found however, the OCI's initial messaging to customers, both through its letters and in the system itself, was unclear and did not include crucial information. Many of the OCI's implementation problems could have been mitigated through better project planning and risk management at the outset, such as more rigorous user testing, a more incremental rollout and better communication to staff and stakeholders.

We acknowledged the changes DHS had made to the OCI since the initial rollout, noting the changes had been positive and improved the usability and accessibility of the system. The Office also made recommendations about where further improvements could be made. DHS agreed with all of the recommendations.

DHS — Child Support

DHS' Child Support program has a variety of functions relating to the transfer of payments between separated parents or other carers of eligible children. The Ombudsman has jurisdiction to investigate complaints about DHS' administration of child support. The number of complaints received about Child Support remained relatively stable in 2016–17.

The major emerging complaint themes about Child Support are collection and enforcement, assessment, change of assessments and customer service. This year our Office received briefings from DHS about child support activities and trials undertaken relating to intensive collection activities. The department advised it has expanded its Departure Prohibition Orders (DPO) and enforcement teams. Our Office will continue to liaise with the department on this issue and monitor related complaints.

Child Support system

The department advised that the implementation of the redesigned child support IT system has proven to be more complex and costly than originally estimated. Implementation was expected to be complete by 30 June 2017. We are monitoring the implementation closely for any adverse impact on child support customers. We will continue to engage with DHS and expect to receive regular updates from the department.

Department of Social Services

Our Office has oversight of the Department of Social Services (DSS), the agency responsible for social security legislation and policy.

Garnishee orders

The Social Security (Administration) Act 1999 requires that a 'saved amount' be left in a person's bank account to ensure they are able to support themselves. That amount is four weeks of income support payments, less the amount of those payments already spent. However, timing of garnishee orders and administrative processes can mean that, for some people, the saved amount is zero.

During 2016–17 our Office, in collaboration with the NSW Ombudsman, has facilitated engagement with key stakeholders about options to reduce the impact of garnishee orders on people already experiencing, or at risk of, severe financial hardship. This included:

• producing a joint paper on the issue, that was provided to DSS, the electronic Statutory Information and Garnishee Notices (eSIGN) Management Committee, the Financial Ombudsman Service and the states that contributed information to the paper, and
• leading a discussion at the Australia and New Zealand Ombudsman Alliance's Financial Hardship Interest Group meeting. Following that meeting, an options briefing was provided to the interest group for feedback.

We expect to meet with DSS on this issue in early 2017–18.

National Disability Insurance Agency

The National Disability Insurance Agency (NDIA) is the agency responsible for administering the National Disability Insurance Scheme (NDIS), a Commonwealth scheme that provides funding to people with a permanent and significant disability to assist them to participate in everyday activities. People who are granted access to the NDIS are referred to as participants.

The NDIS was run on a trial basis in a number of trial sites from July 2013. In July 2016, the NDIA commenced gradually implementing the Scheme across the rest of Australia. The arrangements for entering the NDIS vary depending on the state or territory in which participants live.

The Commonwealth Ombudsman has jurisdiction to investigate complaints about the administrative actions and decisions of the NDIA, as well as complaints about organisations who are contracted to deliver services on behalf of the NDIA (for example, local area coordinators who conduct information gathering and pre-planning interviews).

Complaint trends

During 2016–17 we received 429 complaints about the NDIA, which is an increase on the 62 complaints we received during 2015–16. This escalation in complaints was not unexpected given that around 90,000 additional participants were due to access the Scheme during the year.

Complaints to our Office have covered many areas of the participant and provider experience, including:

• confusion about timeframes for receiving a plan after access to the Scheme is granted
• dissatisfaction with the mode and location of planning interviews
• delays in providers receiving payment for goods and services delivered
• difficulties using the participant and provider online portals
• delays in having quotes approved, particularly for home modifications and assistive technology
• confusion about how and when a participant may access NDIS funded supports
• confusion about NDIA's internal review and plan review arrangements
• lengthy delays in responding to complaints and requests for review.

The five most common complaint issues for this year are outlined in Table 6. These issues account for almost three quarters of all complaints about the NDIA.

Table 6 – Five most common complaint issues

Portal problems

In July 2016, the NDIA implemented new online 'portals' through which participants and providers can receive and send information to the NDIA. Many people and organisations reported to our Office and to the NDIA, problems they experienced using the portals. In some instances they also reported being unable to submit claims for payment for several months, resulting in financial hardship.

In response to the problems raised, the NDIA provided additional information to support providers and participants in lodging payment claims on the portal. This took the form of regular updates on the NDIA website and direct engagement with people and organisations who continued to experience problems.

The Department of Social Services (DSS) subsequently engaged PricewaterhouseCoopers (PwC) to undertake an audit of the implementation of the NDIA's new ICT system, including the online portals. PwC's report identified a number of areas in which the NDIA, its staff, participants and providers were not properly prepared for the change and made recommendations aimed at ensuring similar problems do not recur as the NDIS continues to be rolled out nationally.

In the second half of the year we received fewer complaints about problems with the portal, although some providers still report difficulties in obtaining adequate support from the NDIA to resolve technical issues as they arise. We continue to investigate those matters and to provide feedback to the NDIA as needed.

Reviews

Throughout this year we have received many complaints from participants and families who are having trouble with the NDIA's review processes. This includes:

• confusion about whether they should ask for an internal review of decision or a plan review
• what will be considered in a review
• whether they have the right to be involved in the review process
• the reasons for the eventual review decision
• whether they have any further review rights and, if so, how they pursue them.

The most common complaint about reviews relates to the time it takes for the NDIA to complete a review and the lack of acknowledgement or updates provided during the process.

In response to our investigations, the NDIA has acknowledged it receives large numbers of review requests and, at the time of publishing, does not have timeliness standards for acknowledging or completing reviews.

Access to robust, transparent and accessible review mechanisms is a key element of good public administration and is particularly important when an agency's decision is subject to significant discretion as is the case with NDIS plans. The NDIA's handling of reviews is likely to be a particular focus for our Office in 2017–18.

Major activities

Stakeholder engagement

Although complaints about the NDIA have increased during 2016–17, we are mindful that many people with a disability are reluctant to complain or may not feel able to do so without significant support. This year, to bolster our understanding of the experience of participants, families, providers and support organisations in engaging with the NDIS and the NDIA, we have travelled to a number of NDIS regions to meet with stakeholders. This included visits, public events and presentations in the Barwon, East Melbourne and North East Melbourne regions (VIC), Perth Hills region (WA), Barkly and Alice Springs regions (NT), Canberra (ACT), Townsville (QLD) and Western Sydney region (NSW).

These outreach activities also helped us build community awareness of our role in handling complaints about the NDIA.

Submissions

In 2016–17 we made submissions in response to:

• the Productivity Commission's inquiry into introducing competition and informed user choice into human services (February 2017)
• the Joint Standing Committee on the NDIS's inquiry into the provision of services under the NDIS to people with psychosocial disabilities related to a mental health condition (February 2017)
• the Productivity Commission's inquiry into the costs of the NDIS (March 2017)
• the Department of Social Services' discussion paper on an NDIS code of conduct (June 2017).

Quality and safeguarding arrangements for the NDIS

In February 2017 the Minister for Social Services announced the release of a Quality and Safeguarding Framework for the NDIS. The Framework was the result of consultation with the Australian community, including our Office, and outlines the arrangements for ensuring the quality and safety of NDIS funded services.

In the 2017 Budget, the government announced it will implement an NDIS Quality and Safeguarding Commission that will have responsibility for registration and oversight of NDIS funded services. It will also have responsibility for taking complaints about these services. The Commission will commence operations in July 2018 and will gradually assume the responsibilities of the state and territory disability complaints bodies who currently have jurisdiction over NDIS funded (and other disability) services.

We currently work closely with the state and territory oversight bodies to share information about our respective roles in handling complaints about the NDIS and, when needed, jointly investigate complaints. We will continue to do so during 2017–18 and as the state and territory bodies transfer their responsibility to the Commission in the following years.

Our Office will also have jurisdiction to handle complaints about the Commission once it is established.

Department of Employment

The Department of Employment has responsibility for the national policies and programs assisting Australians to find employment and work in a safe, fair and productive workplace.

Complaints in 2016–17

During 2016–17, we received 382 complaints about the Department of Employment, which is significantly less than the 499 complaints received in 2015–16. In 2016–17 our Office investigated and finalised 40 complaints.

Within our Office, all complaints about employment service providers are recorded against the agency with the oversight responsibility for the program complained about. This means that complaints concerning the Department of Employment's National Customer Service Line are directed to the agency that has policy responsibility for the employment program. For example, complaints about Disability Employment Services providers are recorded as complaints about the Department of Social Services, complaints about jobactive providers are recorded as complaints about the Department of Employment, and complaints about Community Development Programme providers are recorded as complaints about the Department of the Prime Minister and Cabinet (PM&C).

Most complaints received about the Department of Employment during 2016–17 concerned the actions of jobactive providers and the National Customer Service Line. The key issues in complaints about jobactive providers included the standard of service provided, job support services provided, quality of complaint-handling and job seekers wanting to change provider.

We have continued to engage with the Department of Employment, and have agreed to formal liaison meetings every six months. In 2016–17, the Department of Employment provided a briefing to our office about the National Customer Service Line.

Clarification of comments in our 2015–16 Annual Report

The Commonwealth Ombudsman's 2015–16 Annual Report included comments that the jobactive Deed provided no effective way for the Department of Employment to direct that efforts be more targeted and focused on participants' prior experience. Following consultation with the Department of Employment and further examination of the Deed and relevant guidelines, we recognise the statement was not correct.

We also acknowledge that comments made about receipt and investigation of complaints where it appeared that manifestly unreasonable referrals of job seekers to activities had occurred were not substantiated by the complaints we received in the relevant period.

We will continue to monitor any trends and systemic issues that arise in complaints we receive about the Department of Employment, as we do for all agencies within our jurisdiction.

INDIGENOUS

This year saw the completion of the Office's Indigenous Accessibility Review, undertaken by Aboriginal communications company, Gilimbaa Pty Ltd. This review involved Gilimbaa considering all elements of the Office's operations, to provide guidance about how we can ensure our services are accessible to Indigenous people irrespective of where they live in Australia. This project also aimed to enhance our capacity to handle Indigenous complaints effectively and appropriately, and contribute to a 'no wrong door' approach for Indigenous complaints.

The review focused on three key areas:

• communication and engagement with Aboriginal and Torres Strait islander audiences
• an enhanced internal strategy for handling Indigenous complaints
• staff training and development to support implementation activity across the Office.

Implementation of the report and recommendations will be a priority for the Office in 2017–18.

Reconciliation Action Plan

During the year we started working on our second Reconciliation Action Plan (RAP). This is being developed by a working group of staff from across the Office.

The new RAP will be underpinned by the actions from the accessibility review. It will focus on enhancing relationships with our Aboriginal and Torres Strait Islander stakeholders, implementing programs for cultural learning, employment of Aboriginal and Torres Strait Islander people and supplier diversity.

The RAP is a vital part of our continuing commitment to an Office that is culturally aware, respectful, collaborative, inclusive and trusted.

Events

The highlight of our National Reconciliation Week activities was an Aboriginal Art Workshop held in Canberra which brought together staff from each state.

The Office held a stall at the Indigenous Expo at Yarramundi markets at the Aboriginal and Torres Strait Islander Cultural Centre in Canberra in May 2017.

We coordinated a number of Community Round Tables and stakeholder events throughout 2016–17. Round Tables provide an opportunity for local legal, community and support organisations to talk to us about issues they and their clients are experiencing with ACT or Australian Government agencies. They also allow us to talk with stakeholders about the work we do.

Outreach

As part of our outreach program, we met with a number of Indigenous communities in the Alice Springs and Tennant Creek areas of the Northern Territory during 2016–17. These meetings provided valuable insights into a range of issues, including the use of Indigenous Language Interpreters, the administration of the Community Development Programme, the roll-out of the National Disability Insurance Scheme to Aboriginal and Torres Strait Islander peoples, and issues related to the delivery of Centrelink services in remote communities.

From 14 May to 24 June, the Office participated in the Jawun program, which partners with the Australian Public Service and the corporate sector to develop greater self-sufficiency for Indigenous people and their communities. Jawun aims to share skills and knowledge to build the capacity of Indigenous people and organisations and increase cultural awareness.

Community of Practice

We held our second Commonwealth Government Indigenous Complaint-Handling Community of Practice event in Canberra in April. Thirty five staff from 10 Commonwealth agencies participated. The theme for the symposium: Engaging meaningfully with Indigenous Australians using digital media—opportunities and challenges for government..

The highlights included:

• Aunty Violet Sheridan opened the event with a welcome to country on behalf of the Ngunnawal people
• Professor Peter Radoll, Dean of Aboriginal and Torres Strait Islander Leadership and Strategy at the University of Canberra, delivered a keynote address about how Indigenous Australians use media
• Ten speakers across two panels spoke about opportunities, challenges and lessons learned by business, welfare, youth and government sectors. These discussions also challenged the negative discourse relating to Indigenous issues and the 'narrative of the downtrodden'.

Feedback from the symposium indicated it was a successful event that provided valuable insights into the complexities, challenges and opportunities for government agencies using these mediums to engage with Aboriginal and Torres Strait Islander peoples.

Working groups

Right to Complain working group and ANZOA Indigenous Complaint-Handling interest group

During 2016–17 the Office coordinated an Indigenous Right to Complain working group, comprising representatives from a number of agencies we oversee and also facilitated the Australian and New Zealand Ombudsman Association's (ANZOA) Indigenous Complaint-Handling interest group.

The purpose of these groups was to identify and share best practice in Indigenous complaint-handling and promote a 'no-wrong-door' approach across sectors.

Issues of interest

We continue to monitor a number of important issues of interest. This year, the most significant of these were:

• use of Indigenous language interpreters
• accessibility of disability support pension for remote Indigenous people
• Indigenous Centrelink debt
• income management and the cashless debit card trials
• Centrelink call wait times in remote areas
• Centrelink Agent Services
• administration of the ABSTUDY program.

Reports and own motion reports

Disability support pension report

In December 2016, the Ombudsman published an investigation report into the accessibility of the disability support pension (DSP) for remote Indigenous Australians. The investigation analysed complaints from remote Indigenous DSP claimants and included case studies which illustrate the challenges Aboriginal and Torres Strait Islander peoples face in the DSP claim process. For example, barriers to accessing supporting medical evidence and lack of access to face-to-face job capacity assessments.

The report analysed areas where the Department of Human Services' claim process could be improved to address these barriers. It made practical recommendations about the job capacity and medical assessment processes, including the conduct of assessments, flow of information to and from health professionals, and communication with claimants about DSP 'program of support' requirements.

During the investigation of these complaints and the production of this report, DHS made a number of improvements to the claim process for remote Aboriginal and Torres Strait Islander customers. We recommended that DHS establishes a framework to monitor and evaluate the effectiveness of these changes.

Indigenous interpreters own motion

In April 2016, the Ombudsman approved an own motion investigation into the accessibility and use of Indigenous language interpreters spanning 47 government agencies.

The investigation considered the performance of government agencies against the recommendations of our 2011 Report 'Talking in Language: Indigenous language interpreters and government communication 05/2011'.

The findings of the investigation were published in a formal report. While there has been some progress since 2011, communication between government and Indigenous non-English speakers continues to be undermined by major barriers to accessing Indigenous language interpreters.

Our investigation found that accessibility challenges go beyond the ability of any one agency to address, and a coordinated whole of government response is required. After the commencement of the investigation, the Department of the Prime Minister and Cabinet (PM&C) reconvened an Inter-Departmental Committee for Indigenous Interpreters.

Our report recommended that PM&C work with the states and territories to prioritise finalisation and adoption of a National Framework for Indigenous Interpreters and further investment in programs and trials that have delivered results. It recommended that all agencies consider how their policy settings and administrative arrangements might be developed or better oriented to address the issues raised in the report and proposed best practice principles for the use of Indigenous language interpreters.

Postal Industry Ombudsman

Overview

The Postal Industry Ombudsman (PIO) role of the Commonwealth Ombudsman was established in 2006 to provide an industry ombudsman service for postal operators and their customers. This year marks our 10 year anniversary.

The Office investigates complaints about postal and similar services provided by Australia Post and Private Postal Operators (PPOs). We also investigate complaints about administrative actions and decisions taken by Australia Post.

Australia Post is a mandatory member of the PIO Scheme, while PPOs may choose to voluntarily register. As at 30 June 2017, there were six voluntary members on the Private Postal Operator Register.

Statistics

In 2016–17, we received 4,213 complaints, representing an 18 per cent decrease from the previous financial year.

Figure 2 – PIO complaint numbers: 2006–07 to 2016–17

Most of the complaints (4203) we received were about Australia Post (including Startrack), the largest provider of postal services in Australia.

A nominal number of complaints (10) were received regarding the other PPOs.

Significant issues

We have observed an increase in complaints about parcels and a decrease in complaints about letters. This is consistent with Australia Post's reports of increases in domestic parcel deliveries and a reduction in the demand for its reserved letter services.⁷ Around 90 per cent of complaints about Australia Post related to non-reserved services such as parcel delivery, express and premium services and retail services. The remainder related to reserved services predominantly concerning the delivery of regular letters.

Complaints about loss, delivery and delay continue to generate significant numbers of complaints to our Office, with the main focus on particular delivery processes like 'Safe drop' and carding.

Figure 3 – Australia Post complaint issues in 2016–17

Outcomes

The Office values the complaints we receive from the community about postal services and uses this feedback to work with Australia Post and help it improve its customer service.

On 1 July 2016, we replaced our 'Second Chance Transfer' process which has been in operation since 2012 with a new short investigation process focusing on the rapid resolution of postal disputes.

In 2016–17, we finalised 881 investigations—and we have continued to provide feedback to Australia Post following our investigations. One of the factors that contributed to the rise in investigations was the replacement of the transfer process with a short investigation process. The Office continues to explore methods to improve its operational efficiency and effectiveness.

Some key investigative outcomes this year have been:

• the faster resolution of complaints with the average time taken to finalise investigations reducing by over one third on last year
• the provision of better explanations by our Office and by Australia Post
• apologies provided by Australia Post to complainants
• the provision of financial remedies including compensation, refunds, goodwill payments and in-kind services
• feedback to Australia Post staff.

Not all complaints need to be investigated. Almost 30 per cent of complainants who contacted us had not first complained to the postal operator, which is the fastest and most effective way to address the complaint. Some complaints are resolved before we commence an investigation.

Commencement of review of Australia Post

In June 2017, we commenced a review of three historical PIO reports regarding Australia Post to address the issues we continue to receive regarding delivery, loss and damage, and compensation.⁸ The review will consider Australia Post's implementation of the recommendations and observations in the previous reports in addition to the other measures it has introduced to address these issues.

The review will look at the impact of these measures on current complaint numbers and common issues and is scheduled for release in late 2017.

Additional reporting under s 19X of the Act

It is a requirement of the Office to report on the following in regard to s 19X of the Act:

• The Postal Industry Ombudsman made no requirements under section 9 during 2016–17.
• There were no occasions where a complaint—or part of a complaint—was transferred from the Postal Industry Ombudsman to the Commonwealth Ombudsman under subsection 19N (3).
• The Postal Industry Ombudsman made no reports during the year under section 19V.

Immigration Ombudsman

Overview

The Office investigates complaints about the Department of Immigration and Border Protection including the Australian Border Force (the department), and we review systemic issues that can arise from complaints.

The complaints can be about general immigration matters like visa processing delays, or detention-related issues, and complaints about Customs' functions, such as delays in releasing inspected international cargo. We also monitor the department's compliance activities and detention centres. Monitoring of visa compliance activities involves looking at the issuing of warrants that allow departmental officers to enter premises where there is reasonable cause to believe that a person is residing unlawfully in Australia. We regularly inspect immigration detention facilities. We also have a statutory reporting function to report to the Minister on people who have been detained for more than two years.

Complaints

In 2016–17 we received 2,071 complaints about the department, compared with 2,341 in 2015–16, a decrease of 11 per cent. Of these, we investigated 438 (21 per cent). The Office generally declines to investigate when:

• the matter is out of jurisdiction (for instance it might relate to the actions of a Minister)
• the complainant has not approached the agency first (we generally give agencies an opportunity to address matters)
• the matter complained of is more than 12 months old
• there is no prospect of getting a remedy for the complainant.

Common themes for detention complaints are similar to those in previous years: loss or damage to detainees' property, placement within the detention network and medical issues such as access to specialist care, appropriate treatment for injuries and illness, and delays in the processing of claims for asylum.

Complaints about delays in granting citizenship have continued to increase. We sought a briefing from the department on this issue in 2015–16 and we were advised that the department is taking actions to minimise the delay for people applying for citizenship, taking into account the need to ensure that appropriate attention is given to identity and security matters. We continue to monitor this issue.

Investigations

Delays in the processing of permanent partner visa applications is another issue of interest for the Office. We have observed a significant increase in processing times for onshore partner visa applications despite a decline in the overall number of applications. The department has advised that the impact of staffing reductions, introduction of mandatory police checks for sponsors since 18 November 2016, and managing visa grants within the migration program planning levels, have contributed to the average processing time exceeding 12 months. In turn, this has resulted in increased enquiries and complaints from applicants trying to find out the status of their visa application.

There have been delays in processing visas for those partners and families who are sponsored by former irregular maritime arrivals. Under Ministerial Direction 72, the department has been directed to move these to the lowest processing priority.

Own motion investigations

The Ombudsman released three reports on own motion investigations about immigration in 2016–17:

Report 07/2016 (published December 2016) 'The administration of people who have had their Bridging Visa cancelled due to criminal charges or convictions and are held in immigration detention'

We commenced this investigation in response to complaints and stakeholder concerns raised with us about the cohort of people who have had their Bridging visa cancelled on the basis of a criminal charge, conviction, or the possibility that the person poses a threat to the Australian community. The Minister can (but is not required to) cancel a person's Bridging visa if that person has been convicted or charged with a criminal offence, or there is a possibility that the person poses a threat to the Australian community.

When a person's visa is cancelled, they will be liable for immigration detention if they remain in Australia unlawfully. If they are considered to be an irregular maritime arrival, the law prohibits them from lodging any further visa application without the personal intervention of the Minister. Intervention by the Minister is facilitated by departmental identification of cases that fit the guidelines for referral to the Minister.

We were concerned that people were being detained based on criminal charges:

• where the charges are later withdrawn, and
• the person is not promptly released from immigration detention once the criminal charges against them have been resolved.

The report identified a case management system that is struggling to adequately manage the volume of people in immigration detention. This, coupled with the mandatory requirement for ministerial intervention in many cases before any progress toward status resolution can be made, means people are remaining in detention longer than is desirable.

The report cites examples of people who were not prioritised for consideration for release from detention after their criminal charges were resolved and who have remained in immigration detention.

The report's recommendations encouraged the department to:

• allow the person who is the subject of a Notice of Intent to Consider Cancellation of a visa, adequate time and resources to seek advice
• provide written notice of decisions for Bridging visa cancellations in the person's own language including the reasons for the decision, review rights, the timeframe for seeking review, details on how to seek a review and how the department can facilitate contact with the tribunal and a legal representative
• not transfer a person between detention facilities until the statutory time to lodge an appeal has expired (two days), and ensure that a person has the resources, such as access to the internet, in order to request a review
• promptly seek the Minister's intervention to grant a visa where a decision is set-aside by the Administrative Appeals Tribunal but the person's visa has expired, and identify all such cases and brief the Minister
• ensure the case management and escalation framework supports timely referral of cases to the Minister that meet the referral guidelines.

In response, the department suggested that the application of Direction 63 has delivered the policy intent expected by government. The department did not accept the recommendations and provided a substantial response that is attached to the published report, which includes responses specific to each recommendation.

Our Office notes in particular, the department's overall comment that the Australian Border Force (ABF) has matured since the investigation was undertaken, with increasing skill levels as well as broader familiarity with legislative and policy requirements. The department acknowledged some capability gaps around cancellations since the integration of ABF and the department—which it indicated it was addressing—and recognised a need for further training of officers so that cancellation decisions can demonstrate clear consideration of Ministerial Direction 63 and clear assessment against cancellation grounds.

Report 08/2016 (published December 2016) 'The administration of section 501 of the Migration Act 1958'

The Ombudsman's Office has a long standing interest in the administration of s 501 of the Migration Act 1958 and in 2006 completed an own motion investigation, Administration of s 501 of the Migration Act 1958 as it applies to long term residents. That report was critical of the quality of information provided to the decision maker when considering visa cancellations. In particular the Office was concerned that the then Department of Immigration and Multicultural Affairs (DIMA) did not always provide the Minister with all relevant information, especially mitigating information, about long-term Australian residents.

Section 501 was amended on 11 December 2014 by the Migration Amendment (Character and General Visa Cancellation) Bill 2014. Changes included the insertion of s 501(3A) that requires mandatory cancellation of visas in certain circumstances. The number of visas cancelled under s 501 increased from 76 in 2013–14 to 983 in 2015–16.

Complaints to our Office, observations from our compliance monitoring of the department's use of intrusive powers and our inspection of immigration detention facilities raised concerns about the following aspects of the administration of s 501:

• the length of time a person spends in immigration detention while awaiting a revocation request outcome
• notification of a visa cancellation shortly before release from prison
• the impact of prolonged and interstate detention on detainees and their families
• the impact on immigration compliance operations and the detention network.

The department aims for cancellations of visas under s 501 to occur well before the estimated date of release from prison so that any revocation process can be finalised while in prison.

Our report concluded that there was:

• a backlog in identifying people subject to a possible s 501 cancellation which prevents the cancellation/revocation process from being considered prior to the end of a prisoner's custodial sentence
• a delay in deciding the outcome of revocation requests. This leads to former prisoners spending prolonged periods in immigration detention.

The Ombudsman's recommendations focus on:

• improving the administration of s 501 by trying to have the cancellation and revocations processes completed prior to the end of a prisoner's sentence, and
• prioritising cases impacting upon children.

The department accepted the Office's recommendations and has provided the Office with information about the initial measures it has taken to implement these.

Report 01/2017 (published January 2017) 'Investigation into the processing of asylum seekers who arrived on the SIEV Lambeth in April 2013'

In July 2015 our Office identified apparent errors in the assessment of individuals' claims for protection as part of its statutory reporting obligations under s 486 of the Migration Act 1958 to report on the circumstances of people who have been detained for more than two years.

Some of the passengers of the SIEV Lambeth were taken aboard an Australian Customs vessel and sailed through the waters of Ashmore Lagoon (a place excised from the Australian migration zone) for the purpose of rendering them as offshore arrivals and subject to the s 46A bar. Other passengers were taken directly to Darwin for medical treatment. We sought information from the department to clarify our understanding of this situation. The department took an unreasonably long time to respond and some of the information was incomplete, or contradictory. The Ombudsman commenced an own motion investigation in December 2015.

The investigation looked at the processing of irregular maritime arrivals between 13 August 2012 and 20 May 2013 (the Australian mainland was excised from the migration zone on 20 May 2013).

We discovered that:

• not all of the of people were subject to the s 46A bar
• relevant information was not recorded in the department's records.

Overall, we were satisfied that the department's processing of these passengers reflected the legislation in force at the time. The Ombudsman made two recommendations:

• That the department review the information that was recorded for people arriving on board SIEV Lambeth and identify any shortcomings in the scope and manner of the information recorded and ensure that all relevant information is available to all departmental officers who have a reasonable need for access to it.
• That the department consider any learnings from this review and apply these to its systems more broadly where appropriate.

The department accepted both recommendations and has provided a response outlining the initial measures taken to implement the recommendations. The department has also completed a review of all persons who arrived between 13 August 2012 and 20 May 2013 and is considering the review findings.

The full reports can be found at ombudsman.gov.au/publications/investigation-reports

Liaison and stakeholder engagement

We meet with the department regularly to discuss systemic issues and matters of interest. We also receive briefings from the department where we request detailed information on an issue.

In May 2017, the department provided its first quarterly update to the Ombudsman's Office on the implementation of recommendations made in own motion investigations. Following consultation with our Office, the department is actively tracking the implementation of recommendations made in the Ombudsman's reports with progress on implementation reviewed by the department's audit committee.

We have a program of community roundtable meetings and held meetings in all capital cities in the first quarter of 2017, as well as meeting with, and presenting to, advocacy groups such as the Refugee Council of Australia.

The Office also hosts quarterly meetings between our Office, and the heads of the Australian Human Rights Commission, the United Nations High Commissioner for Refugees, the Australian Red Cross and Foundation House.

Compliance monitoring

The Office conducts an ongoing own motion investigation into the department and the Australian Border Force (ABF) compliance activities that locate, detain and remove unlawful non-citizens. The investigation provides the government and the public with assurance that Australian Border Force's processes are lawful and in accordance with good practice.

We presented at training courses for ABF compliance staff on the functions of the Ombudsman's Office and observed field compliance operations in:

• Darwin – August 2016
• Melbourne – March 2017
• Brisbane – March 2017
• Sydney – April 2017
• Perth – June 2017
• Adelaide – June 2017.

Australian Border Force officers were observed to carry out their duties professionally and we did not identify any areas of significant or systemic concern. However, we identified that many of the administrative issues raised in the field compliance report for 2014–15 report sent to the department in September 2016, remained ongoing areas for improvement in the 2015–16 report, provided to the department in June 2017. Both reports recommended the Australian Border Force:

• ensure that when detaining a person, departmental officers secure and tag the detainee's valuables in bags and provide a receipt to the detainee
• afford detainees a reasonable opportunity to secure and dispose of their assets before their removal, where practicable
• examine options to allow the ABF to seize identity documents such as Medicare cards and passports not belonging to household members.

The 2014–15 report also noted two issues but did not make a recommendation. These related to:

• ensuring officers are aware that when a person requires medication during a field compliance operation, officers must contact the Health Advisory Service for advice
• Translating and Interpreting Service (TIS) displaying some poor practices and difficulties obtaining a TIS interpreter outside of business hours.

The department's response to the 2014–15 report (provided in April 2017) accepted all the report's recommendations and outlined their commitment to address the issues raised in that report.

People detained and later released as 'not-unlawful'

The department provides the Ombudsman with six-monthly reports on people who were detained then later released with the system descriptor 'not-unlawful'. This descriptor is used when a detained person is retrospectively found to be holding a valid visa, usually because of case-law affecting their particular circumstance or because of notification issues surrounding visa cancellation decisions.

For the 2016 calendar year, the department reported that out of a total of 6,876 people detained, 25 (0.36 per cent) were later released as not-unlawful, compared to 22 (0.29 per cent) out of 7,653 persons detained during 2015. The average time people have spent in detention prior to errors being identified, and their subsequent release as 'not-unlawful', decreased from an average of 46 days in 2015 to an average of nine days during 2016.

Generally detention in these cases was not the result of maladministration but a complex immigration record. However, in seven of the 25 cases we noted that the person was the target of an ABF operation. It appears that the ABF systems either do not adequately support field staff who are required to make on the spot decisions, or there is human error involved. Considering the serious consequences of making a wrong decision—that is a person is detained in an immigration detention centre in error—it is important that departmental systems adequately support quality decision making. We regularly see in the reports of people detained and later released as not unlawful that a more thorough examination of departmental records, often by the detention review manager, will identify issues such as invalid notification advices from previous visa decisions. When this occurs it becomes clear that the person still holds a valid visa and that they should be released from detention.

We are aware that two Australians were wrongly held in immigration detention following their release from prison. The department advised the Ombudsman promptly when this was discovered and the department undertook an external review of the situation and provided that report to our Office. The Ombudsman's Office is continuing to engage with the department on these matters.

Immigration Detention Reviews

Statutory reporting (two-year review reports)

When a person has been in immigration detention for two years, and then after every six months, the Secretary of the department must give the Ombudsman a report, under s 486N of the Migration Act 1958, relating to the circumstances of the person's detention.

Section 486O of the Act requires the Ombudsman to give the Minister for Immigration and Border Protection an assessment of the appropriateness of the arrangements for that person's detention. The Office also provides a de-identified version of the assessment that protects the privacy of the detainee and this version is tabled in Parliament and published on the Ombudsman's website.

The trend for an increase in the number of assessments the Ombudsman sends to the Minister continued in 2016–17. A total of 1,325 reports were tabled, an increase of 469 (55 per cent) over the previous year.

There was a decrease in the number of s 486N reports received from the department from the previous year's total of 1,662, with 1,320 being received in 2016–17. This trend is forecast to continue and is one factor that is likely to result in a gradual decline in the number of assessments the Ombudsman sends to the Minister in 2017–18.

In 2016-17, we saw an increase in assessments for people who have had their visa cancelled under s 501 of the Act as they did not pass the character test. It is anticipated that this cohort of detainees will continue to increase in 2017–18. However, with the number of detainees being released from detention, either on Bridging or other visas, or being removed from Australia, it is anticipated that this will further reduce the number of assessments the Ombudsman will send to the Minister in 2017–18.

In 2016–17 the Ombudsman made recommendations in 475 assessments. In 296 cases these were generic recommendations that applied to a cohort of detainees, such as those who were barred from lodging visa applications under s 46A of the Act. 169 reports contained recommendations that were specific to the individual detainee, and included matters such as placement within the detention network, access to appropriate medical treatment, having the assessment of their immigration status expedited, and consideration of the granting of a visa or placement into community detention.

Issues raised in the s 486O assessments include:

• delays in the processing of claims for protection
• the possibility of indefinite detention for those assessed as not being owed protection but who are not able to be returned to their home country
• the movement of detainees within the detention network that can impact on their ability to attend specialist medical or court appointments, as well as their access to family support and legal representation
• the uncertainty for people who have returned to Australia from Regional Processing Centres for medical treatment and who, under current policy settings, are not able to have their claims for protection assessed in Australia.

Figure 4 – s 486O assessments tabled by year

Detention inspections

The Office oversights immigration detention facilities and during 2016–17, we inspected the immigration detention facilities listed in Table 7 below:

Table 7 – Immigration detention facility inspections

The inspection function has been undertaken under the provisions of the Ombudsman's own motion powers⁹, and in accordance with our jurisdiction to consider the actions of agencies and their contractors. The Office provides feedback to the facility after each visit including any observations and suggestions. The Office submits a formal report to the department at the end of each inspection cycle (every six months). The level of co-operation with this Office across the immigration detention network is generally high, with all staff having a reasonable understanding of the role of the Office.

The key issues that arose over this reporting period include:

• security based models in administrative detention
• restrictive practices within detention
• use of Force and the Continuum of Force
• placement of detainees in the detention network
• management of internal complaints
• introduction of a service provider operational electronic records management system
• programs and activities
• management of detainee property
• access to mobile phones.

Security based model of administrative detention

The Migration Act 1958 enables the detention of unlawful non-citizens, such as those who enter or remain in Australia without a valid visa. Detention has been mandatory for all unauthorised maritime arrivals since 1992 and since 2014, for people whose visas have been cancelled on character grounds. ¹⁰

While placement in an immigration detention facility is mandatory for certain cohorts, it is administrative in nature, that is, an individual is detained for the purpose of conducting an administrative function rather than as an end state of the criminal justice system.

The operations of an immigration detention facility is not supported by a legislative framework. The reliance on an administrative rather than a legislative framework to underpin the operations of the immigration detention network remains a key concern for the Office.

During this inspection cycle we noted an increasing emphasis on a security based operational model. While the increasing numbers of detainees with histories of violent or anti-social behaviours require an increased focus on safety and security, we remain concerned that this may be at the expense of a focus on the welfare of detainees. This is not to imply that welfare should be the primary consideration when determining the management program for a detainee, but rather both welfare and security need to be in balance to achieve a fair and reasonable outcome for all concerned.

Security based operational models such as the 'controlled movement model' are the most restrictive of all operational models. Detainees are restricted to accommodation areas and unable to move freely between common areas. Whilst there are circumstances where this model is appropriate, such as in high security compounds, facilities where detainees are vulnerable to coercion or intimidation, or immediately following periods of unrest, this model should not be the first preference for an administrative detention environment.

Restrictive practices in detention

The department and their service providers have a duty of care to both detainees and their staff to protect them from violent/aggressive behaviours and the ongoing risk of damage to people or property. We acknowledge that there are occasions where for the good order, security and welfare of the facility a detainee may need to be placed in restraints or moved to a more restrictive environment. Furthermore, since the implementation of the Minister for Immigration and Border Protection Direction 65, and the subsequent increase of detainees with histories of violent or anti-social behaviours, we have noted an increasing use of these restrictive practices across the immigration detention network.

Without a legislative framework to underpin these practices, the department must rely on its administrative framework to support operating in this environment. We are concerned that the administrative processes underpinning these practices are not as robust as they should be, and have identified shortfalls associated with the:

• use of mechanical restraints when transferring detainees
• use of the controlled movement operational model as the standard operational model
• placement of detainees in behaviour management programs.

Where there is no legislative framework to support the use of restraints or placement in contained environments, the administrative framework must support the principles of procedural fairness, provide independent points of review and appeal, and appropriate mitigation against the risk of such practices becoming punitive in nature.

We acknowledge that the ABF has taken steps to tighten the administrative frameworks surrounding the use of high care accommodation and has adopted practices that provide procedural safeguards for detainees placed in behaviour management regimes. We consider that this area provides a significant area of risk to the department and we would encourage the department to continue to strengthen the administrative framework that supports these critical operational areas.

Use of Force and the Continuum of Force

Over the inspection cycles of this period the Office has noted an increasing use of unplanned force¹¹ by the department when dealing with detainees. While it is accepted that use of force can be necessary to protect the individual, other people or property, we are concerned that the review of incident management records did not reflect the use of de-escalation techniques prior to the application of force.

The continuum of force¹² commences with verbal de-escalation and escalates through a number of phases to the ultimate use of deadly force. On occasions, we perceived that some operational staff considered the application of physical force to address noncompliant behaviour as the start-point rather than the mid-point of the continuum. This suggests a continued need for training in this area.

In facilities where additional training in negotiation and de-escalation skills have been undertaken, the Office has observed an overall improvement in the method of engaging with detainees. That is, the first option is to approach a situation with a view to achieving a negotiated outcome first, with the use of force only considered as a last resort.

Placement of detainees within the network

The Commonwealth, through the ABF and its respective facility Superintendents, has a duty of care to all detainees.¹³ In order to fulfil the duty of care, detainee placements within a facility and the broader network should be made by considering the full set of circumstances of a detainee. The Office remains concerned that placement decisions do not apply adequate weighting to detainee circumstances such as court appearances, specialist medical treatment and family considerations. We acknowledge that the risk assessment of a detainee is a significant consideration, however it would appear that little consideration is given to other factors.

While placement will be driven by operational needs, in particular bed space in east coast facilities, this should not be the sole basis for placing a detainee on Christmas Island or at Yongah Hill. Where the facility is remote and isolated, it is essential that placement decisions take account of all relevant considerations and information.

Of equal concern to the Office is an inaccurate risk assessment or a poorly analysed assessment that is applied without consideration of individual circumstances. Determining that all detainees who have a criminal history involving violence exhibit high-risk behaviour can result in unfair outcomes. Good decision making requires consideration of relevant factors such as the type of behaviour, the age of the detainee at the time of the incident, the passage of time since the incident, and the circumstances that generated the behaviour and the relevance to the current environment. Positive reinforcement of good behaviour is negated in an environment where the negative behaviours of the past consistently dictate the use of restraints or placement in remote facilities.

Towards the end of this reporting period, we have noted an increasing willingness to provide a more thorough analysis to the information upon which the risk assessment is based. The improvement in the provision of information held externally to the department has assisted in this and the ABF continues to work with these sources to maximise the effectiveness and accuracy of the risk assessments.

We have been advised that the placement tool used by the department is intended to address these issues and take into account the detainee's personal circumstances, family and community linkages, and legal or medical circumstances. We acknowledge that the placement considerations involve juggling numerous competing considerations ranging from ensuring the safety and security of detainees and staff through to coordinating complex medical and legal needs and the decreasing bedspace on the east coast as the detention network is realigned. As the placement processes including the application of the revised placement tool have evolved during this reporting period, we have noted that the decisions relating to the placement of a detainee within the network have improved with decisions being made in a somewhat more holistic manner. We will continue to monitor this as the placement modelling and risk assessment processes continue to evolve.

Management of internal complaints

One of our primary focuses for this reporting period was the management¹⁴ of internal complaints by the ABF and its service providers. Good complaint management requires a systematic approach that is timely, appropriate and responsive. Overall, the standard of complaint management across the immigration detention network was reasonable with the suggestions made by the Office for improvements being implemented in a number of facilities.

During 2016–17 we undertook a detailed assessment of the internal complaint management practices across the immigration detention network. We noted during the June – December 2016 inspection cycle that there was no overarching ABF policy for the management of complaints and considerable variation in the processes and procedures applied in the individual facilities. The department subsequently reviewed the management of complaints during this reporting period and issued an overarching standard operating procedure. Despite this we continued to note inconsistency in the manner or methods applied to the management of complaints made against the department and/or their service providers. We will continue to closely monitor this issue.

Introduction of service provider operational electronic records management system

During this reporting period Serco Immigration Services have introduced an electronic record keeping and process management tool. This system is intended to streamline and capture operational activities such as welfare checks, attendance at activities, detainee property management and the compilation of incident management documents.

Despite a number of initial connectivity and other operation alignment issues, we have noted an overall improvement in the quality of record keeping with the use of this system. We will continue to monitor the impact that this system has on the quality of reporting within the immigration detention network, especially in those areas where the tool does not reflect the current departmental or service provider policies. This is apparent in the management of detainee property where the tool has generated a process that is not reflective of the current guidelines.

Programs and activities

Where detainees fail to engage with programs and activities, it is more than likely that they will experience deteriorating levels of mental health, and an increased likelihood of self-harm or other non-compliant behaviour.¹⁵

Engagement should be meaningful and involve activities that the detainees wish to undertake, rather than simply being carried out to alleviate boredom. We noted that activities that focused on physical fitness, life skills (such as cooking, resume writing and job interview skills), and adult art and craft, were more likely to be considered meaningful by detainees and attract higher participation rates. Activities that were considered to be juvenile appeared to generate participation that was based on avoiding tedium rather than enjoyment.

We acknowledge there has been a significant change in the types of activities offered to meet the needs of the changing cohorts within centres. However, additional effort needs to be made to address the adult education needs of people who have often been educated in the Australian education system in an age appropriate manner. Additionally, while most centres still offer an excursion program, ineligibility due to high risk ratings has dramatically reduced participation rates.

Management of detainee property

The management of detainee property is a key area of interest for this Office. During this reporting period we noted an overall general improvement across the network. The introduction of an electronic record keeping and process management tool has improved the overall management of detainee property. We have noted a number of inconsistencies that will be addressed as the property management guidelines are amended to include the new electronic management system.

There are outstanding complaints and associated issues relating to the compensation for items lost or damaged in the November 2015 unrest on Christmas Island. During the unrest, the secured storage facility used for the storage of detainee intrust property was ransacked and detainees' personal property removed. This incident and the subsequent difficulties that the department has experienced in compensating detainees for the loss of their intrust property reinforces the importance of detainee property being accurately recorded.

The new electronic property management system that includes both photographs and a detailed written description should address a number of the issues arising from this incident including:

• correctly identifying lost property
• providing appropriate levels of compensation for items that cannot reasonably be returned to a detainee on departure.

Access to mobile telephones

Since 2010, this Office has raised the issue of the inequity within the department's policy relating to the possession of mobile telephones by detainees within the network. Irregular Maritime Arrivals and all detainees held on Christmas Island are the only detainee cohort not permitted to hold mobile telephones in their possession. Whilst the department had sought to introduce a blanket no mobile policy within the detention network this has been challenged in the Federal Court where an interlocutory injunction ordered was issued on 17 February 2017.¹⁶ We remain of the view that the policy regarding access to mobile telephones should be the same for all detainees. We will continue to monitor this issue.

Optional Protocol to the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (OPCAT)¹⁷

On 9 February 2017, the Attorney-General Senator the Honourable George Brandis QC announced the Government's intention to ratify OPCAT in December 2017.¹⁸ Ratification of OPCAT creates obligations on states parties regarding oversight of places of detention. This oversight is intended to assist states to better protect people in detention from torture and mistreatment.

Ratification of OPCAT requires the establishment of a 'National Preventive Mechanism' (NPM) to prevent torture and mistreatment. This Office has been appointed by the government to undertake the coordination role for the NPM. We expect the formal establishment of the NPM within one to three years after ratification of OPCAT.¹⁹

Our Office is working with both the Attorney-General's Department and the Australian Human Rights Commission in the lead up to ratification.

Overseas Students Ombudsman

Overview

The Office investigates complaints and appeals from intending, current and former international students about private colleges, universities and schools.

Public institutions, including most universities, do not fall within our jurisdiction. In most cases, complaints about them can be diverted to state ombudsmen.

In 2016–17, we received 981 complaints and appeals, 12 per cent more than in 2015–16. The growth in complaints and appeals is consistent with the sustained growth in the international student sector.

Figure 5 – Overseas Students Ombudsman complaints received by year

In 2016–17 we started 349 complaint investigations and completed 356, compared to 315 investigations started and 291 completed last year. We started and completed more investigations than in any previous year of operation.

Of the completed investigations, 40 per cent were resolved in favour of the provider, and 26 per cent in favour of the complaining student. In 34 per cent of cases, our investigation outcome favoured neither party because the case was otherwise finalised. For example, the provider fixed the problem before we needed to investigate, or we decided after starting an investigation that the issue would be better dealt with by another complaint-handling body.

Figure 6 – Outcome favoured

We finalised 635 complaints without investigating (compared to 575 last year) because we:

• referred the student back to his or her education provider's internal complaints and appeals process
• transferred the complaint to another complaint-handling body as provided by s 19ZK of the Ombudsman Act 1976
• formed a view based on the documents provided by the student that no further investigation was required.

Figure 7 – How complaint issues were finalised

Table 8 – Complaints transferred to other complaint bodies

Helping students through impartial complaint-handling

Complaint issues

The two main complaint issues continued to be provider refunds and fees disputes (396 complaints/external appeals) and providers' decisions to refuse a student transfer to another provider under Standard 7 of the National Code (177 complaints/external appeals).

The decision by a provider to report students to the Department of Immigration and Border Protection (DIBP) for failing to meet attendance requirements under Standard 11 of the National Code, was the third most common issue (82 complaints/external appeals).

The fourth main complaint issue was the decision by providers to report students to DIBP for unsatisfactory course progress under Standard 10 of the National Code.

The top five complaint issues represent 68 per cent of all issues raised in complaints received in 2016–17 (792 out of a total of 1,171 issues).

Table 9 – Top five complaint issues

Reports to the regulators

We have the power under s 35A of the Ombudsman Act 1976 to disclose information of concern about provider actions to the relevant regulator. In 2016–17 the Office made two s 35A reports to Australian Skills Quality Authority (ASQA), compared to six last year.

The two s 35A disclosures to ASQA concerned two issues:

1. the obligations of providers towards students who are under 18, where that provider confirms to the Department of Immigration and Border Protection that it is assuming responsibility for the student's accommodation and welfare arrangements.
2. managing the transition to updated training courses and completion of courses within expected time frames.

We did not use our s 9 powers (of the Act) to obtain information or documents in 2016–17.

Reports on trends and systemic issues

Submissions and issues papers this year include:

• a submission to the Department of Education and Training (DET) on the revision of the National Code 2007 in March 2017
• a consultation report on external complaint avenues for international students, published in February 2017
• three reports on the providers we have received the most complaints and appeals about, published in January 2017, December 2016 and August 2016
• four quarterly statistical reports highlighting key issues, trends and outcomes
• two e-newsletters for private education providers, published in March 2017 and August 2016
• an OSO advertisement in the Insider Guide for international students, published in Adelaide, Brisbane, Canberra, Melbourne, Perth, Sydney, China, the Middle East, South East Asia and India in January 2017
• online articles in the Insider Guides e-newsletter for international students published in July and August 2016
• a student video produced in English, Hindi, Korean, Indonesian, Malay, Mandarin and Vietnamese, published in July 2016.

We collaborated with VOIS Magazine (Voice of International Students in Australia), a student-run publication which produced a student video in Mandarin with English subtitles to illustrate common complaint issues and how we can help international students.

Stakeholder engagement and promoting best practice complaint-handling

Student focused activities

In 2016–17, we collaborated with student leaders at the Council for International Students Australia (CISA) national conference in Darwin in July 2016, to present a series of interactive role plays to highlight common complaint issues and how students can avoid common problems. In September 2016, we provided training to CISA's first grievance officers.

We presented to students at the Australian Federation of International Students – Study Melbourne, international student information day in March and participated in the ACT Minister's welcome event for international students in Canberra in March 2017.

Conferences and forums:

We presented to or participated in the following conferences:

• Australian Council for Private Education and Training (ACPET) conference in Hobart in August
• English Australia conference in Brisbane in September
• National Overseas Student Complaint Handlers Forum, hosted by Study Melbourne in October
• Australian International Education conference in Melbourne in October
• Council for International Education in Adelaide in February
• Tuition Protection Service (TPS) education provider sessions in Sydney, Melbourne, Brisbane and Canberra in February
• Victorian schools registrars meeting in Melbourne in March
• Universities Australia Deputy Vice Chancellors meeting in Brisbane in April
• Australian New Zealand education agent and provider workshops in Cairns in April
• NEAS national conference in Sydney in May
• Australian Council for Private Education and Training Victorian State Forum in June
• Australian Skills Quality Authority (ASQA) provider information sessions held in various capital cities in April, May and June.

Liaison activities

In October 2016, we discussed our role in helping international students with representatives from the Ombudsman Republik Indonesia and the Office of the Ombudsman of the Republic of Korea.

We facilitated regular meetings with the regulators, Australian Skills Quality Authority, the Tertiary Education Quality Standards Agency, Tuition Protection Service, the Department of Education and Training and Department of Immigration and Border Protection, to discuss issues relating to international education and overseas student complaints.

The Office participated in the Commonwealth, State and Territory International Education and Training Forum.

Looking forward

In February 2017, we published a consultation report on external complaint avenues for international students with a complaint about their education provider. We asked stakeholders whether any changes could be made to strengthen or simplify the existing external complaint avenues.

There was significant support for the creation of a single international student ombudsman to handle complaints from students studying with public and private education providers as well as the introduction of a national data reporting standard for international student complaints.

We will continue to work with stakeholders on ways to improve access to external complaint avenues for international students.

VET Student Loans Ombudsman

The Australian Government's new VET Student Loans program commenced on 1 January 2017, replacing the VET FEE-HELP scheme. To complement the VET Student Loans program, the government established a VET Student Loans Ombudsman (VSLO) function within the Office.

We commenced operations as the VSLO on 1 July 2017, providing a free, independent and impartial service to students and VET Student Loans scheme providers.

The VSLO is an industry-focused ombudsman function responsible for investigating complaints, making recommendations, and reporting on providers delivering education and training services under both VET Student Loans and VET FEE-HELP.

We also give VET Student Loans scheme providers advice and training about best practice complaint-handling and will lead the development of a Code of Practice in collaboration with industry.

If required, we have powers to compel VET Student Loans or VET FEE-HELP approved providers to attend meetings, and to make recommendations to other Commonwealth agencies in relation to systemic issues about provider practices uncovered through our investigations.

Since the announcement of the new function, our staff have consulted with a range of stakeholders to raise awareness of the Office's new VSLO function, identified information sharing opportunities and determined processes and actions that would meet the needs of affected parties.

Stakeholder engagement activities

Community and stakeholder focused activities

In 2016–17, we collaborated with a number of external agencies to take part in community engagement activities to raise awareness of the new function, and to engage with on-the-ground contacts in vulnerable communities. Specifically, we participated in community sessions as part of the Northern Territory Australian Competition and Consumer Commission's service provider session in the Bagot Community, the Energy and Water Ombudsman NSW's Bring Your Bills Day in Walgett, Coonamble, and Gulargambone, and the NSW Government's Aboriginal Youth Day in Parkes.

The VSLO Team presented to a wide range of agency and industry stakeholders at the Financial Counselling Australia Conference, and presented to nearly 3,000 vocational education and training providers across Australia as part of the Australian Skills Quality Authority (ASQA) provider briefing sessions.

Memoranda of Understanding

As part of our stakeholder engagement activities, we are finalising a number of Memoranda of Understanding with key agencies and departments.

A Memorandum of Understanding (MoU) was signed between our Office and the Commonwealth Department of Education and Training (DET). The MoU specifically covered information sharing and the transferring of legacy complaints. The MoU was signed in May 2017.

We are in the process of establishing MoUs with the following organisations:

• Australian Skills Quality Authority (ASQA)
• Victorian Registration and Qualifications Authority (VRQA)
• Tertiary Education Quality and Standards Agency (TEQSA)
• Victorian Department of Education and Training
• Training Accreditation Council of Western Australia (TACWA)
• Western Australian Department of Education and Training (WA DET)
• Australian Competition and Consumer Commission (ACCC)
• Western Australian Government, and
• The Queensland Ombudsman.

Looking forward

From 1 July 2017 we started focusing on investigating disputes between students and providers.

As part of this, we will continue extensive stakeholder engagement in the general community, with providers, and with departments, agencies and interested community groups.

Private Health Insurance Ombudsman

Context

The Commonwealth Ombudsman is also the Private Health Insurance Ombudsman (PHIO). Our role is to protect the interests of consumers in relation to private health insurance. The Ombudsman is an independent body that acts to resolve disputes about private health insurance at all levels within the private health industry. We also report and provide advice to industry and government about these issues.

Overview of 2016–17

In a busy period with an increase in workload, it was pleasing that the standard of service provided to complainants was maintained, and in some areas improved, as measured by audit and survey data. The level of overall satisfaction as reported by complainants to our Office was 84 per cent, compared to 85 per cent in the previous year.

After several years where private health insurance complaint levels remained steady, the past four years have seen an increase. In 2016–17, we received 5,750 private health insurance complaints, compared to 4,416 in 2015–16. As total complaints in Figure 8 indicates, the private health insurance complaint workload over the past 10 years has continued to grow.

The number of enquiries relating to private health insurance remained stable. In our consumer information and advice role, we received 3,749 consumer information enquiries in 2016–17, of which 67 per cent were received through consumer website privatehealth.gov.au

Complaints about Private Health Insurers

The following table illustrates the number of complaints and disputes received about registered private health insurers, and compares these to their market share. A high ratio of complaints or disputes compared to market share usually indicates either a less-than-adequate internal dispute-resolution process, especially for complex issues, or an underlying systemic or policy issue.

Figure 8 – Total complaints and enquiries by year

Table 10 – Complaints or disputes about registered private health insurance

Complaint Issues

Service

Complaints: 1,370

Key issues:

• service delays
• premium payment problems
• general service issues

Service issues are usually not the sole reason for complaints. The combination of unsatisfactory customer service, untimely responses to simple issues, and poor internal escalation processes can cause policy-holders to become more aggrieved and dissatisfied in their dealings with the insurer, until the service itself becomes a cause of complaint as well as the original issue.

There was a significant increase in the number of service-related complaints in 2016–17. This was mainly the result of Information Communication Technology (ICT) problems at Medibank Private which caused significant delays in the issuing of tax certificates, and various problems associated with premium payments and policy administration. The insurer took action to reduce the causes of the ICT and service complaints in the second half of 2016 and consequently, the incidence of new ICT complaints reduced by the end of the 2016–17 year.

Information

Complaints: 599

Key issues:

• verbal advice
• lack of notification

Information complaints usually arise because of disputes or misunderstandings about verbal or written information provided by an insurer. In most years, verbal advice is the cause of more complaints than any other sub-issue and these can be particularly complex if the insurer has not kept a clear record or call recording of its interaction with the member.

Membership

Complaints: 1,159

Key issues:

• cancellation
• clearance certificates

Membership complaints typically involve policy administration issues, such as processing cancellations or payment of premium arrears. Delays in the provision of clearance certificates when transferring between health insurers is also a major cause of complaint.

Benefit

Complaints: 1,740

Key issues:

• hospital exclusions and restrictions
• general treatment (extras or ancillary benefits)
• delay in payment

The main issues of concern were hospital policies with unexpected exclusions and restrictions. Some basic and budget levels of hospital cover exclude or restrict services that many consumers assume are routine treatments or standard items. Delays in benefit payments and complaints about insurer rules that limited benefits were the other large areas of complaint.

Table 11 – Complaint issues

Complaints about hospitals, health practitioners, brokers and others

Most complaints (88 per cent in 2016–17) are made about health insurers. However, complaints can also be made about providers including hospitals, health practitioners, health insurance brokers and other practitioners (such as dentists).

Table 12 – Number of complaints about hospitals, health practitioners and brokers

Overseas Visitors Health Cover

Each year, we help consumers with complaints about Overseas Visitors Health Cover (OVHC) and Overseas Student Health Cover (OSHC) policies for visitors to Australia. These complaints are counted separately from complaints made against domestic health insurance policies.

The most common issue for overseas visitors included 87 complaints about policy cancellation and refunds, 55 complaints about the pre-existing condition waiting period and 49 complaints about delays in paying benefit payments. We received 23 complaints about hospital gaps in 2016–17, increasing from 7 complaints in the previous year.

Table 13 – Overseas visitors health cover complaints

Complaint-handling procedures and categories

In 2016–17, 81 per cent of complaints were resolved as 'Problems'. In most instances, we refer a complaint directly to a nominated representative of the insurer or service provider, on behalf of the complainant. This approach ensures a quicker turnaround time and our client satisfaction survey confirms that complainants have a high satisfaction rate with this method of resolution.

'Grievances' are a moderate level of complaint. They are dealt with by investigating the issues of grievance and providing additional information or a clearer explanation directly to the complainant, without the need for a report from the health insurer or health care provider. Approximately six per cent of complaints were registered as 'Grievances'.

Approximately 13 per cent of complaints were classified as 'Disputes' (slightly lower than last year's 19 per cent). In these cases, we request a detailed report from a health insurer or other object of a complaint. The report is then reviewed and a decision is made on whether the initial response was satisfactory or further investigation is warranted.

Complaint outcomes

We regularly carry out a postal survey of randomly selected private health insurance complainants. Each fortnight, we send survey forms to a sample of complainants whose cases have been closed during the previous period. In 2016–17, we received 163 responses (30 per cent)—a reasonable participation rate for a postal survey of this kind.

Overall, 84 per cent of clients who responded were satisfied or very satisfied with the handling of their complaint, compared to 85 per cent the previous year.

Consumer website:
privatehealth.gov.au

In 2016–17 we responded to 2,503 individual enquiries, provided written consumer information and advice and managed the consumer website privatehealth.gov.au which is Australia's leading source of independent information about health insurance for consumers.

Website usage has continued to grow annually since the website's launch in 2007, with 1,297,851 visits in 2016–17.

During 2016–17 we worked with industry representatives on improving the Compare Policies feature for consumers and the new feature was launched in February 2017. The new search allows consumers to select the benefits and features most important to them, and ranks the search results accordingly, from most to least relevant to each individual's search.

Table 14 – Client survey for private health insurance complaints

Inspections of covert, intrusive or coercive powers

Figure 9 – The independent oversight process

Our oversight activities

In 2016–17, the Ombudsman performed oversight functions under the Telecommunications (Interception and Access) Act 1979, the Surveillance Devices Act 2004, Part IAB of the Crimes Act 1914, Fair Work (Building Industry) Act 2012 and the Building and Construction Industry (Improving Productivity) Act 2016. This legislation grants intrusive, and often covert, powers to certain law enforcement agencies. Our role is to provide assurance to the government, Parliament, and the public, that these agencies are using their powers as Parliament intended, and if not, hold the agencies to account.

We are required to inspect the records of enforcement agencies, and report to the relevant Minister (who is responsible for administering the Commonwealth Acts we oversee) on the activities agencies have undertaken, under each legislation. Reports to the Minister are subsequently tabled in Parliament.

Table 15 – Overview of our oversight activities in 2016–17

Other activities

In 2016–17, we appeared before the Parliamentary Joint Committee on Law Enforcement regarding the involvement of the Australian Criminal Intelligence Commission and the Australian Federal Police in controlled operations under Part IAB of the Crimes Act 1914, and similarly briefed the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity regarding the Australian Commission for Law Enforcement Integrity's controlled operations.

We also regularly responded to requests from agencies for advice about best practices in compliance, and requests from other oversight bodies for guidance in developing inspection methodologies.

Our approach

We value independence, fairness and transparency. These values inform the way we conduct inspections and reviews, and how we engage with the agencies.

For each of these inspections and review functions, we develop sets of methodologies that are applied consistently across all agencies. These methodologies comprise test plans, risk registers, checklists and templates. They are based on legislative requirements and best practice standards in auditing, and ensure the integrity of each inspection and review.

We focus on areas of high risk and take into consideration the effect of non-compliance such as, unnecessary privacy intrusion. It is our practice to regularly review our methodologies to ensure their effectiveness.

We also give notice to agencies of our intention to conduct an inspection and provide them with a broad outline of our criteria against which we assess compliance.

To ensure procedural fairness, we provide a draft report on our findings to the agency for comment before it is finalised. Depending on our reporting requirements under each function, the final report is either presented to the relevant Minister or forms the basis of our published reports.

For our published reports, we remove reference to any sensitive information that could undermine or compromise law enforcement activities. All of our published reports are available on our website.

Metadata oversight for 2016–17

On 13 October 2015, new laws came into effect under the Telecommunications (Interception and Access) Act 1979 (the TIA Act) requiring telecommunication carriers and service providers to retain certain data associated with its services, known as 'metadata', for a mandatory two-year period.

In 2015–16 we conducted a 'health check' at each agency, analysing its policies and procedures for accessing metadata. The results of our 'health checks' were presented in a report to the Commonwealth Attorney-General (the Minister), and we used these results to inform our records-based inspections in 2016–17. The Ombudsman is required to report its inspection findings to the the Minister after 30 June 2017.

In addition to our record-based inspections, the Office hosted a Metadata Senior Leadership Forum in Canberra, where we communicated our key findings and identified risks from our 'health checks'. Leaders from 18 different law enforcement agencies attended, including some commissioners of police and chief executive officers. We also hosted two Operational Metadata Forums in Melbourne and Sydney. The forums were well attended by all 20 agencies subject to the Ombudsman's oversight.

New counter terrorism oversight function

In 2016–17 the Ombudsman acquired a new oversight role with the passing of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 in Parliament. The bill amended the Crimes Act 1914 by introducing Part IAAB, which provides for both overt and covert powers for law enforcement agencies to monitor a person subject to a control order.

Part IAAB includes a number of safeguards and accountability mechanisms, including record keeping and reporting requirements, and independent oversight by our Office of the covert powers. The Ombudsman must also report annually to the Minister on agency compliance with Part IAAB. In gaining this new oversight function, we ensured an effective oversight model was provided in the Act through engaging in the public debate regarding the bill.

Stakeholder engagement

During 2016–17, we participated in, and presented at, various forums and workshops held by the law enforcement community. At the following forums we provided advice on best practices in achieving compliance with relevant legislation and working productively with our Office:

• Australian Internet Governance Forum
• Police Technology Forum
• Public Sector Fraud and Corruption Summit
• National Policing Summit
• Inter-Agency Integrity Forum
• New South Wales Police Stored Communications Workshop.

Law Enforcement Ombudsman

The Office has a comprehensive role in the oversight of the Australian Federal Police (AFP). When performing functions in relation to the AFP, the Commonwealth Ombudsman may also be called the Law Enforcement Ombudsman.

These functions include:

• assessing and investigating complaints about the AFP
• receiving mandatory notifications from the AFP regarding complaints about serious misconduct involving AFP members, under the Australian Federal Police Act 1979 (AFP Act), and
• statutory reviews of the AFP's administration of Part V of the AFP Act.

In 2016–17 we received 290 complaints about the AFP, compared to 286 in 2015–16. Of these, we investigated 37. Of the complaints we received in 2015–16, we finalised 149.

In the majority of cases, we declined to investigate complaints if the person had not first complained to the AFP. In this case, we referred them back to the AFP. We also declined to investigate a small number of complaints due to another oversight body being the more appropriate agency with whom to raise the matter. Other reasons for not investigating included: that the matter had already been to court, the complaint lapsed due to the complainant not providing us with certain information, the complainant had insufficient interest in the matter, and some complaints were withdrawn.

When we investigate a complaint, we first look at how the AFP handled the issue, and assess the particulars of the matter against the relevant law, policy and practice. Six of the complaints we investigated were finalised because an appropriate remedy was provided by the AFP. However, the majority of complaints were finalised on the grounds that further investigation was not warranted in all the circumstances. This usually meant that the issue, actions and decisions of the AFP were open to be made and not unreasonable. Additionally, in resolving and finalising 11 complaint investigations in 2016–17 we made suggestions to the AFP with a view to remedying individual complaints and for future improvements.

Our Office also conducted two reviews of the AFP's administration of Part V of the AFP Act and published a report on the results of previous reviews.

As well as our regular engagement with the AFP Professional Standards (PRS), such as presenting at induction programs for new investigators, we monitored aspects of the AFP's cultural reform agenda. In particular, we noted the AFP's pro-active response to the report Cultural Change: Gender Diversity and Inclusion in the Australian Federal Police, which detailed the findings of a comprehensive study of diversity and inclusion in the AFP, by former Sex Discrimination Commissioner Elizabeth Broderick. This work will continue during 2017–18.

Defence Force Ombudsman

The Office investigates complaints from serving or former members of the Australian Defence Force (ADF). Defence agencies include:

• the ADF
• Department of Defence
• Department of Veterans' Affairs (DVA)
• Defence Housing Australia (DHA)
• Australian Defence Force Cadets.

In 2016–17, we received 635 approaches about administrative matters, compared to 491 in 2015–16. The main areas of complaint concerned:

• the Redress of Grievance process
• discharge
• career
• DVA entitlements
• access to healthcare.

In 2016–17, we finalised 562 complaints, compared to 490 in 2015–16. Of the 562 complaints finalised, 438 were finalised without a formal investigation (compared to 375 in 2015–16).

Stakeholder engagement

During 2016–17 our Office regularly engaged with stakeholders from Defence agencies, veterans and ex-service organisations and members of Parliament.

Outreach to Defence bases

We commenced an outreach program to Defence bases around Australia in 31 January 2017. Our staff travelled to 40 Army, Navy and Airforce bases over two months and gave 52 presentations to around 2,000 members. The program provided members with an overview of the role of the Office and included information on the new abuse reporting function. It also provided members with an opportunity to talk to our staff about any issues of concern.

Submissions and Reports

During 2016–17 the Ombudsman made six submissions to Senate Committee Inquiries relating to the work of the DFO.

Defence Abuse Reporting

Since 1 December 2016, the DFO jurisdiction includes an independent, external and impartial process for serving and former ADF members to report serious abuse. Reports of abuse can also be made by Australian Public Service employees and contractors deployed outside Australia in connection with Defence activities.

From 1 December 2016 to 30 June 2017, we received 163 reports of abuse.

Our expanded DFO function enables reportees (people who have experienced abuse) to confidentially report abuse if, for whatever reason, they feel unable to report through internal Defence complaint mechanisms. We will not take action in response to a report of abuse which is the same in substance as a complaint that was previously dealt with by the Defence Abuse Response Taskforce (DART).

We can offer reportees a range of support options, including counselling services and Restorative Engagement conferences.

Reparation Payment

On 9 May 2017, the Australian Government announced it would further expand our functions to enable the DFO to recommend that Defence make a reparation payment in certain circumstances. We are working with the Government to settle the policy parameters for such payments.

Public Interest Disclosure scheme

The Office supports and monitors the administration by other agencies of the Public Interest Disclosure (PID) scheme established under the Public Interest Disclosure Act 2013 (the Act).

The Act, established in January 2014, created a legislative 'whistleblower' scheme to investigate allegations of wrongdoing in the Commonwealth public sector and provide robust protections for public officials making disclosures.

One hundred and seventy-six Commonwealth departments and agencies are currently subject to the PID scheme.²⁰ The Ombudsman can investigate PIDs and complaints made about the outcomes of an agency's PID investigation. The Office of the Inspector-General of Intelligence and Security (OIGIS) performs a similar role in relation to the six Australian intelligence agencies.

The Ombudsman is also required to assist agencies in relation to the operation of the Act, including by conducting educational programs relating to the Act and reporting annually to Parliament on the operation of the Act.

The Parliament intended the PID scheme to be a reporting mechanism that facilitates cultural change in the Australian Public Service. Due to the strong protections and low threshold for making a PID, public officials are encouraged to come forward and report any suspicions of wrongdoing.

The PID scheme encourages agencies to investigate PIDs internally and to seek guidance and support from our Office, if required. The scheme encourages agencies to consider PIDs as risk management tools. Staff are able to come forward to identify potential wrongdoing in their agency, which can be rectified before any reputational damage or serious risks are realised. This Office promotes a pro-disclosure Australian public service in its educative role under the PID scheme.

Figure 10 – Encouraging a pro-disclosure culture

Operation of the PID scheme

The PID scheme is designed to encourage public officials to raise concerns about potential wrongdoing in the Commonwealth. The threshold for disclosable conduct is deliberately low. It is our view that agencies with a high number of disclosures do not necessarily have significant problems. At this early stage in the Act's implementation, those numbers are more likely to reflect agencies who have effectively promoted the Act, as their public officials appear more willing and confident to make disclosures.

An allegation or complaint meets the criteria of a PID when: a public official (current or former) discloses information about disclosable conduct, to an authorised internal recipient.

As the threshold is low, most matters are determined to be a PID and subsequently invoke the PID Act protections.

Figure 10 on page 99 shows how the PID scheme can be seen as encouraging reporting of all types of wrongdoing.

The disclosure is then investigated by the agency (or in limited circumstances by our Office) through the most appropriate means. This includes, but is not limited to, a PID investigation, Code of Conduct investigations, Fraud investigations and Work Health and Safety investigations. A PID investigation must be completed within 90 days of allocation, with a report provided to the discloser, unless an agency seeks an extension from our Office.

The tight timeframes and reporting requirements make PID a unique integrity measure in the Commonwealth. Unlike other investigative processes, the PID scheme ensures the discloser is recognised for raising concerns and is provided with feedback on the outcome of the investigation. The Act directs agencies to ensure that PIDs are considered as soon as a concern is raised and that the investigation is completed in a timely manner.

When a matter has been accepted as a PID by an agency and allocated for investigation, our Office is notified. This allows us to track the number of investigations each year. This oversight also enables the Office to observe any significant increases or decreases in PID reporting amongst agencies and to provide training and/or assistance where needed.

What is happening with PID

A review of the operation of the PID Act (in accordance with s 82A) took place in the first half of 2016. The review was led by the former Integrity Commissioner, Mr Philip Moss AM, and informed by public submissions. The Moss Review was tabled in Parliament on 20 October 2016. We understand that the government is considering its response.

Prior to the Statutory Review, the Office focused resourcing on ensuring that agencies had the appropriate frameworks in place to allow their employees to make PIDs. This included training authorised officers, disseminating guides and providing advice on implementing procedures.

In the 2016–17 financial year, recognising that the PID Act was now quite well understood in the Commonwealth, the Office focused on increasing awareness. Analysis of last year's annual report data identified that smaller agencies required greater engagement with this Office and did not have a well-developed understanding of the operation of the PID scheme. Recognising our educative role under the scheme, the Office has engaged in general awareness training, communities of practice and has worked on improving usability of online materials.

Assistance, education and awareness

The PID practitioner community is a strong contributor to the operation of the PID scheme. Authorised officers and investigating officers are able to disseminate information across their agencies and are a useful resource for providing feedback to us. Our Office hosted a Community of Practice forum for PID practitioners to discuss best practice risk management and risk of reprisal under the PID scheme. This was identified as an area where improvements could be made in the 2015–16 annual report data.

The Community of Practice encouraged practitioners to discuss their experience with the PID Act's operation directly with our Office. Due to the success of this event, similar forums have been planned for 2017–18 in Canberra and nationally. Each event will target issues raised by practitioners in the Office's annual report survey.

The Ombudsman, in accordance with the Act, assists principal officers, authorised officers and public officials (current and former) with their understanding of PID. This is effectively achieved through publically available information packages and by conducting educational and awareness programs.²¹ Our Office delivered 22 training presentations on the PID scheme to agencies. Feedback showed that attendees are satisfied with the information they are receiving on the PID scheme. This year, we met directly with over 80 agencies, and in a number of cases helped to review their procedures and information on the PID Scheme for staff and contractors. Meeting with almost half the number of agencies subject to the PID Act was part of our new proactive stakeholder engagement strategy to promote compliance and cultural change.

Enquiries about the PID Act

The Office received 265 enquiries in relation to the PID Act through our dedicated telephone line and email contact points. In addition to the complaints, disclosures and agency notifications were received.

Information gathered from these enquiries provides an important insight into the day-to-day operational issues faced by agencies and officials. Advice provided by our Office to agencies, regularly involved complex matters demonstrating an improved understanding of the Act by both agencies and disclosers.

Information and guidance materials

The Office's PID website was improved this financial year and continues to be a key resource for agencies looking for information about the scheme. During the year there were 12,082 visits to the PID website.²² We published two editions of PID e-News—in November 2016 and April 2017—providing articles on particular issues faced by PID practitioners, information about relevant events and links to our updated guidance products and forms.

The 2015–16 annual report data identified that contractors had limited access to the PID scheme. Recognising the prevalence of contractors in the Commonwealth, the Office conducted one-on-one consultations with key agencies who engage contractors regularly. The PID Team will be using the advice provided by these agencies to better target training to address contractors in the next financial year.

Overview of the data collected

Section 76(1) of the PID Act requires the Ombudsman to prepare a report on the Act's operation each financial year. In conjunction with the OIGIS, the Office asked agencies subject to the PID Act to complete a survey and workbook for the 2016–17 financial year.²³ All 176 agencies completed and returned the survey, providing responses to questions about their experience with the scheme.

Information gathered during the annual reporting period is essential to inform where we should target our resources.

PIDs received

A total of 684 PIDs were received by Commonwealth agencies subject to the PID Act during the 2016–17 financial year.

The overall number of PIDs made to a Commonwealth agency has increased from 612 in the 2015–16 financial year to 684.²⁴ However, the number of agencies receiving PIDs has decreased from 69 agencies in the 2015–16 to 57. Most PIDs were made in large agencies²⁵, with only 112 PIDs made in agencies with fewer than 1,000 employees.

The Office received 461 notifications of allocation of PIDs.²⁶ There were only four occasions when a PID was allocated without the required notification being made to our Office. The 99.1 per cent compliance rate in providing notifications is a substantial increase on the 88 per cent compliance rate in the 2015–16 financial year and suggests that agencies are more aware of their obligations.

We note that the number of PIDs reported by agencies at the end of the financial year was greater than the number of notifications of allocation decisions received by the Ombudsman throughout the year, pursuant to s 44 of the Act. Agencies are not obligated to notify the Ombudsman when a public official attempts to make a PID. The Ombudsman's Office is only notified when a PID is established and allocated for investigation. The PID Act asks our Office to collate data, on the number of PIDs received by an agency, not just those allocated for investigation. From this data, we are able to better identify the number of public officials seeking to utilise the PID scheme to raise concerns about possible wrongdoing within their Agency.

Table 16 on page 111 sets out, by agency, the number of PIDs received and the types of disclosable conduct. Table 17 on page 118 lists the agencies which did not receive any PIDs.

Disclosable conduct

Of the 684 PIDs reported, agencies identified 809 possible instances of disclosable conduct. The PID Act is not prescriptive about what conduct could constitute disclosable conduct under the Act and does not provide definitions of the terms used in the Act. It is at an agency's discretion how to determine the definitions of disclosable conduct. There may be some overlap in areas of disclosable conduct, for example maladministration and conduct that may result in disciplinary action can result from the same PID.

Examples of maladministration seen in notification summaries sent to our Office have included: giving contracts to a company that a spouse worked for without the correct security clearances or skill level and failing to afford procedural fairness in internal agency processes.

The Office understands that 'maladministration' and 'conduct that may result in disciplinary action' are broad notions. An authorised officer is not expected to initiate an investigation in order to determine the exact disclosable conduct. During the investigation process, the investigating officer is better placed to decide if the conduct amounts to maladministration or abuse of public trust for example. Therefore, the investigation may find that there was a different type of disclosable conduct to that alleged and allocated. Under the Act agencies are not required to advise this Office of the outcome of an investigation.

As shown in Figure 11 on page 104, the largest group (30 per cent) concerned conduct that may result in disciplinary action. This was an expected rise from last year's figure due to increased awareness of the low threshold for PIDs, as well as authorised officers understanding their role in the scheme. It suggests that authorised officers are accurately assessing matters as PIDs and using a broad interpretation of disclosable conduct where necessary.

The other common categories of alleged misconduct were contravention of a law of the Commonwealth, state or territory (28 per cent) and maladministration (23 per cent) which remains fairly consistent with the previous financial year. Conduct alleged to be engaged in for the purposes of corruption has notably decreased this financial year from four per cent to one per cent. We believe that authorised officers now have a greater understanding of the scheme and as such are not using specific definitions, such as corruption in their initial assessment.

Types of Disclosers

Nine per cent of PIDs were made by persons who were deemed to be public officials under s 70 of the PID Act. This figure may include anonymous disclosers or individuals who have 'inside information' through their close connection with an agency or public official. The Office has promoted 'deeming' in the case of anonymous disclosers to ensure the discloser can receive the protections under the PID Act.

Agencies reported that only seven per cent of disclosures were made to a supervisor, who then passed the information to an authorised officer. The vast majority of PIDs were received by authorised officers (83 per cent), and a smaller percentage directly to principal officers (10 per cent). The Office is now considering ways to provide greater awareness of the scheme for supervisors.

The 2016–17 financial year has seen a fall in contracted service providers accessing the scheme to nine per cent from 19 per cent in 2015–16. The 2016–17 survey identified that accessibility is an ongoing issue for contactors with only 70 per cent of agencies reporting that their PID procedures were publicly available.²⁷ This reduction can also be attributed to the decrease in PIDs received from contractors with Australia Post. Australia Post relies on the terms of the contract, supported by existing policies and procedures, for contractors to be aware of the scheme.

Figure 11 – Comparison of the kinds of disclosable conduct

Figure 12 – Types of disclosures

As shown in Figure 12, the PID Act is being used by a range of individuals to report possible wrongdoing across the Commonwealth. Agencies reported that most disclosers were current public officials (71 per cent). This increase of 12 per cent from last financial year may suggest an increased awareness of and confidence in the protections provided under the PID scheme.

Matters that were not internal PIDs

Thirty-four of the 176 agencies recorded the number of disclosures assessed by an authorised officer as not meeting the PID criteria. In those agencies, there were 227 matters that were assessed as not being PIDs. In contrast with the last financial year, the most common reason was that the discloser was not a public official (59 per cent).

This increase can be attributed to Australia Post. Australia Post has received the majority of matters which were not from a public official. We understand that the phrase 'public interest disclosure' may mislead members of the public to think they qualify as a discloser when it may be a customer or client concern.

A small percentage of agencies (three per cent) reported that they had determined a matter was not a PID for reasons other than the threshold criteria²⁸ or that the information was not provided to an authorised internal recipient. This indicates there may still be a number of instances where irrelevant considerations are leading to incorrect decisions regarding the classification of a disclosure as a PID and that authorised officers are perhaps not easily accessible to public officials (current and former).

Matters not investigated (s 48)

Of the 684 PIDs reported, covering 809 instances of possible disclosable conduct, agencies reported that in 106 instances they decided not to investigate (or not investigate further) under s 48 of the PID Act.²⁹ This occurs when the decision is made to not investigate the disclosure, or to stop investigating it, if one of the discretionary grounds, listed in Figure 13, of s 48 of the PID Act applies.

Figure 13 – Comparison of reasons for s 48 decisions

As shown in Figure 13, the most common reasons were that the information was the same, or substantially the same as information which had been, or was being, investigated under another law of the Commonwealth (34 per cent); and that the information did not concern serious conduct (25 per cent).

There has been a 14 per cent increase in the number of PIDs referred for subsequent investigation under the Code of Conduct in the Public Service Act 1999. This suggests that agencies have an enhanced understanding of how the PID scheme interacts with other mechanisms, specifically the Code of Conduct. Enhanced awareness by agencies is a direct result of the Office's targeted training on the intersection of PID and Code of Conduct.

Figure 14 – Findings of disclosable conduct

Findings, recommendations and actions taken

During the year our Office received 156 requests for extensions of time. The vast majority of these were approved in full or in part, with only eight denied. We also received 88 notifications of decisions not to investigate and 461 notifications of allocations of PIDs.

During the reporting period 21 agencies reported that they had completed 365 disclosure investigations. Table 18 on page 120 summarises the information provided by agencies about the number of disclosure investigations completed in the reporting period and the actions taken in response to recommendations from those disclosure investigations.

Of the 365 investigations finalised in 2016–17, 105 investigations found that there was at least one finding that disclosable conduct occurred. This financial year the types of conduct found to have occurred included:

• an employee fraudulently claiming to possess qualifications for positions
• sexual assault
• severe bullying and harassment
• staff making racist and sexist comments towards colleagues
• an employee leaking emails containing sensitive information to the media, and
• unsafe work practices such as falling asleep whilst operating heavy machinery.

This figure has more than doubled since the previous financial year. That is as a result of two agencies who commenced a large number of PID investigations in the 2015–16 financial year which were not completed until this year.

Figure 14 details the kinds of disclosable conduct found to have been engaged in. Agencies reported a range of actions taken in response to recommendations in disclosure investigations, including disciplinary action, termination of employment, internal reviews, and changes to policies and procedures.³⁰

There was an increase in findings that conduct occurred which may lead to disciplinary action. That is, from 28 of 57 allegations in 2015–16 financial year to 79 of 126 allegations in 2016–17 financial year. This suggests an increased use of the scheme by public officials as a reporting mechanism and that the scheme is assisting to identify wrongdoing.

There were two instances where state or federal police were notified of information in accordance with s 56 of the PID Act during the financial year. These results demonstrate that the scheme is an instrument which enhances the integrity of the public sector. As there is no requirement under the Act to inform us, this Office does not know what action was taken as a result of those referrals.

A PID investigation can result in the recommendation that the matter proceed under another law or procedure of the Commonwealth. Of the 365 PID investigations completed, 59 investigations recommended that the PID be reopened under another law or procedure. This shows us that the PID Act is being used by public officials to raise concerns about wrongdoing. It allows the public official to raise allegations of wrongdoing, and be protected from reprisal action and civil, criminal and administrative liability. It also allows an agency to consider the allegations through other established investigative mechanisms. We understand that PID is being used by agencies to facilitate reporting of wrongdoing. The PID Act provides agencies with scope to consider the most appropriate investigation process once an allegation is raised, increasing their flexibility and handling matters in the most effective way possible.

A decrease in the number of overall recommendations of referral at the conclusion of a PID investigation is attributed to investigations being redirected at an earlier stage in the process through s 48 decisions. As illustrated in Figure 15, decreases are observed in all types of referrals except one. The exception to this trend is the increase in recommendations of referral to ADF legislation or regulations. This reflects the overall increase in PIDs received by the Department of Defence and their strong PID awareness programs.

Figure 15 – Comparison of the kinds of referrals to other investigative methods

Ombudsman investigations

The Ombudsman accepted 60 direct approaches from people wishing to make a PID about another Commonwealth agency. We determined that two thirds of these approaches were not PIDs.³¹

In 17 of these matters the information disclosed did not meet the statutory threshold and were referred to the appropriate reporting body. In three of these matters the Ombudsman was not an authorised internal recipient because there were no reasonable grounds for the discloser to believe that the matter should be investigated by our Office.

Of the 40 PIDs which we accepted, 23 were allocated to the Agency concerned. Figure 16 illustrates the types of disclosable conduct found in these PIDs received by our Office.

The remaining 17 were allocated to the Ombudsman for investigation under the Ombudsman Act 1976. Three of the 17 PIDs investigated by the Ombudsman were referred to us by other agencies who had raised concerns about the complexity of the matters.

During the reporting period one investigation was finalised and referred to the Australian Public Service Commission as the relevant agency with jurisdiction. One investigation was finalised by the Office. There have been no own motion investigations arising from PIDs in this financial year. No investigations were finalised under section 48 of the PID Act.

Figure 16 – Types of disclosable conduct received by the Office

OIGIS investigations

Throughout the year the OIGIS provided assistance and advice to officials within the intelligence agencies.³² The OIGIS coordinates meetings involving all agencies of the Australian Intelligence Community on PID matters, as the need arises. This Office assisted the OIGIS, where needed, on the operation of the PID scheme and the performance of their functions under section 63 of the Act.³³

The OIGIS received 11 PIDs, four were allocated to AIC agencies for investigation, with five remaining with OIGIS for investigation. Two did not meet the PID Act threshold. During the year, five investigations were completed under the Inspector General of Intelligence and Security Act 1986 (OIGIS Act).

Managing reprisal risk and incidents of reprisal

The PID Act requires agencies to have procedures in place for assessing risks of reprisal against disclosers. The PID Act also obliges principal officers to take reasonable steps to protect public officials from detriment, or threats of detriment, in relation to making a PID.³⁴

Eighty-nine per cent of agencies reported they had procedures for assessing reprisal risk. During the year, 15 agencies reported having taken action in relation to 34 instances of potential or actual reprisal relating to a PID. This is more than double the instances of potential or actual reprisal relating to a PID in 2015–16.

This increase may reflect PIDs made several years' prior and subsequent allegations of reprisal. Allegations of reprisal cover all years in which the Act has been in force. Increased awareness of reprisal may also be attributed to the theme of the Community of Practice during the year, and therefore agencies are more astute in identifying such instances.

Our Office has received a number of complaints from disclosers relating to allegations of reprisal action. We are not aware of any cases in the Federal Court or Federal Circuit Court that have been finalised in relation to alleged reprisal or in pursuit of immunity from liability in relation to a PID.

Complaints

During the reporting period, our Office received 34 complaints about agencies' conduct in relation to PIDs and finalised 44 complaint investigations. Fourteen of these finalised investigations were carried over from the previous financial year. The OIGIS did not receive any complaints about the handling of PIDs this financial year. The majority of complaints we received were made by disclosers about the process and outcome of PIDs.

Consistent with previous years, timeliness, procedural issues and communication with disclosers, remain the most common areas of complaint. Disclosers continue to raise concerns about agencies' failure to keep them informed and comply with notification requirements. Additionally, disclosers complained about delays in the investigation and issuing the investigation report under s 51 of the PID Act, as well as the extent to which those reports were redacted.

Another common area of complaints related to the way in which PID investigations were conducted and the outcome of those investigations. Consistent with previous years, the key issues identified in complaints were:

• the investigation process was flawed because of a conflict of interest or bias
• insufficient enquiries were made, including failure to interview the discloser or key witnesses, and
• the investigator reached the wrong conclusion based on evidence.

We noted an increase in complaints alleging reprisal action in the two previous financial years. This trend continues, with disclosers concerned about reprisals against them and a lack of support, risk assessment and action in relation to reprisals and reprisal risk. Reprisal issues were often accompanied by concerns about breaches of secrecy and confidentiality in the PID process and fears that a discloser's identity had been compromised.

There has also been an increase in complaints alleging agencies' failure to identify the full range of possible disclosable conduct in a PID. Some of these complaints focus on the conduct of individuals, rather than broader procedural or systemic problems. We also received a number of complaints about agencies' failure to treat particular matters as a potential PID, and either not dealing with them or dealing with them outside of the PID Act.

In the course of our complaint investigations, we identified shortcomings in some agencies' PID handling and recommended remedial action and improvements. In most of those cases we asked agencies to provide greater transparency for disclosers and to comply with timeframes, notifications and reporting requirements in the Act. In some matters we identified a need for improvements in the handling of PID information and recommended developing processes for confidentiality in PID investigations.

Table 16 – Number of disclosures received and kinds of disclosable conduct

Table 17 – Agencies that have reported not receiving PIDs

1. AAF Company
2. Anindilyakwa Land Council
3. Army and Air Force Canteen Service
4. Asbestos Safety and Eradication Agency
5. Attorney-General's Department
6. Australian Council for the Arts
7. Australian Accounting Standards Board and Audit and Assurance Standards Board
8. Australian Aged Care Quality Agency
9. Australian Centre for International Agricultural Research
10. Australian Commission for Law Enforcement Integrity
11. Australian Commission on Safety and Quality in Health Care
12. Australian Communications and Media Authority
13. Australian Criminal Intelligence Commission
14. Australian Curriculum, Assessment and Reporting Authority
15. Australian Digital Health Agency
16. Australian Electoral Commission
17. Australian Financial Security Authority
18. Australian Fisheries Management Authority
19. Australian Grape and Wine Authority
20. Australian Hearing
21. Australian Institute for Teaching and School Leadership
22. Australian Institute for Aboriginal and Torres Strait Islander Studies
23. Australian Institute of Criminology
24. Australian Institute of Family Studies
25. Australian Institute of Health and Welfare
26. Australian Law Reform Commission
27. Australian Maritime Safety Authority
28. Australian Military Forces Relief Trust Fund
29. Australian National Audit Office
30. Australian National University
31. Australian Pesticides and Veterinary Medicines Authority
32. Australian Prudential Regulation Authority
33. Australian Public Service Commission
34. Australian Radiation Protection and Nuclear Safety Agency
35. Australian Reinsurance Pool Corporation
36. Australian Renewable Energy Agency
37. Australian Research Council
38. Australian Sports Anti-Doping Authority
39. Australian Sports Foundation Ltd
40. Australian Strategic Policy Institute
41. Australian Transaction Reports and Analysis Centre
42. Australian Transport Safety Bureau
43. Bundanon Trust
44. Central Land Council
45. Clean Energy Finance Corporation
46. Clean Energy Regulator
47. Climate Change Authority
48. Coal Mining Industry (Long Service Leave Funding) Corporation
49. Comcare
50. Commonwealth Department of Treasury
51. Commonwealth Director of Public Prosecutions
52. Commonwealth Superannuation Corporation
53. Corporations and Markets Advisory Committee
54. Cotton Research and Development Corporation
55. Creative Partnerships Australia
56. Department of Education and Training
57. Department of the House of Representatives
58. Department of the Senate
59. Digital Transformation Agency
60. Export Finance and Insurance Corporation
61. Fair Work Commission
62. Fair Work Ombudsman
63. Family Court of Australia
64. Federal Circuit Court of Australia
65. Fisheries Research and Development Corporation
66. Food Standards Australia New Zealand
67. Future Fund Management Agency
68. Great Barrier Reef Marine Park Authority
69. High Court of Australia
70. Independent Hospital Pricing Authority
71. Independent Parliamentary Expenses Authority
72. Indigenous Land Corporation
73. Infrastructure Australia
74. Inspector-General of Taxation
75. Moorebank Intermodal Company Limited
76. Murray-Darling Basin Authority
77. Museum of Australian Democracy (Old Parliament House)
78. National Australian Day Council
79. National Blood Authority
80. National Captial Authority
81. National Competition Council
82. National Disability Insurance Scheme Launch Transition Agency
83. National Film and Sound Archive
84. National Gallery of Australia
85. National Health Funding Body
86. National Library of Australia
87. National Mental Health Commission
88. National Portrait Gallery of Australia
89. National Transport Commission
90. Northern Australia Infrastructure Facility
91. Northern Land Council
92. Office of Parliamentary Council
93. Office of the Australian Information Commissioner
94. Office of the Official Secretary to the Governor-General
95. Organ and Tissue Authority
96. Outback Stores Pty Ltd
97. Parliamentary Budget Office
98. Productivity Commission
99. Professional Services Review
100. RAAF Welfare Recreationale Company
101. Reserve Bank of Australia
102. Royal Australian Air Force Welfare Trust Fund
103. Royal Australian Navy Central Canteens Board
104. Royal Australian Navy Relief Trust Fund
105. Rural Industries Research and Development Corporation
106. Safe Work Australia
107. Screen Australia
108. Tertiary Education Quality and Standards Agency
109. Tiwi Land Council
110. Tourism Australia
111. Workplace Gender Equality Agency
112. Wreck Bay Aboriginal Community Council

Table 18 – PID investigations completed and actions taken in response to recommendations

International Program

Overview

In 2016–17 the Department of Foreign Affairs and Trade funded the Office's delivery of an International Program to improve the governance and accountability of integrity agencies in the Asia-Pacific Region.

We delivered three programs: a partnership program with the Ombudsman Republik Indonesia, a twinning program with the Ombudsman Commission of Papua New Guinea, and the Pacific Governance and Anti-Corruption Program with seven Pacific Island countries.

Indonesia

We continued our ongoing Partnership Program with the Ombudsman Republik Indonesia (ORI), exchanging knowledge and expertise in complaint-handling and investigations. The program supported Ombudsman-to-Ombudsman engagement and delivered a number of training activities and internships.

Throughout the 2016–17 period, 323 ORI staff were trained in a number of activities, focusing on basic investigations, leadership and complaint-handling. We also hosted two internship cohorts of ORI staff. This two week program supported interns to identify, scope and implement projects aimed at organisational change.

Papua New Guinea

We have a longstanding twinning program with the Ombudsman Commission of Papua New Guinea (OCPNG). In 2016–17, the program supported the delivery of ten activities, including training, placements and technical support.

This year saw enhanced senior engagement with the OCPNG. In April, the Chief Ombudsman and Secretary visited Canberra for an International Integrity Leaders Forum. The visit was an opportunity for the OCPNG to engage closely with counterparts in Indonesia and the Pacific. This followed a successful visit to Papua New Guinea by the Acting Commonwealth Ombudsman.

Three short-term twinning placements were completed in Australia in 2016–17. With training, mentoring and support from our Office, the OCPNG officers successfully progressed identified projects for the organisation. One officer drafted a comprehensive law reform paper for the OCPNG, while another officer prepared best practice guidance and an organisational strategy for developing complaint-handling in Papua New Guinea government agencies.

Lastly, the program strengthened mutual understanding and cooperation between the OCPNG and their counterparts in Indonesia. OCPNG staff participated in a regional complaint-handling workshop in Indonesia, alongside our Office and the ORI. OCPNG staff also completed an Australian Ombudsman internship program together with ORI investigators, exchanging information on best practice complaint-handling models.

Pacific

Throughout 2016–17, we delivered a number of key outcomes for the Pacific Governance and Anti-Corruption (PGAC) program. The program focused on strengthening engagement with senior integrity leaders and targeted training for addressing corruption and maladministration. Partners included ombudsman, public audit and leadership code bodies in the Federated States of Micronesia, Papua New Guinea, Republic of the Marshall Islands, Samoa, Solomon Islands, Tonga, and Vanuatu.

An International Integrity Leaders Forum was held in Canberra in April 2017, bringing together all of the Office's partnering organisations from across the Asia-Pacific Region. Ombudsmen and Auditors-General discussed leadership and organisational challenges, and opportunities to strengthen co-operation between integrity bodies tackling corruption in the Pacific.

The program also funded its first regional training activity in May 2017 on managing conflicts of interest within a Pacific context. Twenty-three participants tackled theory and practical sessions, exploring real case studies and learning how to develop best practice policy and management tools. The program also developed a network of practitioners from partnering organisations, who shared practical expertise on promoting good governance and overcoming barriers in integrity networks.

Integrity leaders from the Asia-Pacific Region, International Integrity Leaders Forum, April 2017.

^{3 Department of Human Services Annual Report 2015–16, page VIII}

^{4 Complaints about payments and services DHS delivers that are not part of the Centrelink or Child Support programs. For example, Medicare and early release of superannuation benefits.}

^{5 A single complaint may reflect more than one issue. In turn, the total number of issues reported will usually exceed the total number of complaints.}

^{6 A single complaint may reflect more than one issue. In turn, the total number of issues reported will usually exceed the total number of complaints.}

^{7 Australia Post's reserved and non-reserved services as defined under Division 2 of Part 3 of the Australian Postal Corporation Act 1989}

^{8 Australia Post: Use of notification cards – 2008; Australia Post: Determining levels of compensation for loss or damage of postal items – 2010; Australia Post: 'Safe drop' program – a review of the first year – 2010}

^{9 Ombudsman Act 1976 section 5(1)(b)}

^{10 Direction No. 65 Migration Act 1958 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA dated 22 December 2014}

^{11 Unplanned force is defined as the use of force that has not been given prior approval to be used. For example transferring a detainee with a high flight risk will generally include the pre-approved use of force in the form of mechanical restraints and the application of certain escort holds.}

^{12 www.crimedoctor.com/security-guards-2.htm, www.nij.gov/topics/law-enforcement/officer-safety/use-of-force/Pages/continuum.aspx}

^{13 Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; 219 CLR 486; 208 ALR 271; 78 ALJR 1056 (6 August 2004) Gleeson CJ at para [21].}

^{14 www.ombudsman.gov.au/docs/better-practice-guides/onlineBetterPracticeGuide.pdf}

^{15 www.ombudsman.gov.au/__data/assets/pdf_file/0022/30298/December-2013-Suicide-and-self-harm-in-the-Immigration-Detention-Network.pdf}

^{16 www.smh.com.au/federal-politics/political-news/federal-court-orders-halt-to-border-force-phone-confiscation-plans-20170219-gugdja.html}

^{17 UN General Assembly, Optional Protocol to the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 9 January 2003, A/RES/57/199, available at: http://www.refworld.org/docid/3de6490b9.html}

^{18 www.attorneygeneral.gov.au/Speeches/Pages/2017/FirstQuarter/2017-dfat-ngo-forum-on-human-rights-national-museum-of-australia-canberra.aspx}

^{19 OPCAT, article 24}

^{20 The six Australian intelligence agencies can make public interest disclosures to the Inspector-General of Intelligence and Security. The remaining 170 agencies report to the Commonwealth Ombudsman.}

^{21 In accordance with section 62 of the PID Act.}

^{22 This counts the number of unique page views to five of our main pages on the PID website, that is, the number of visits during which the specific page was viewed at least once. Where a person views the same webpage from the same computer more than once, this will only be counted as one unique page view.}

^{23 Information was obtained from the survey/workbook responses of 170 agencies, including a consolidated response for the six agencies of the Australian Intelligence Community.}

^{24 An internal PID is made when a public official discloses to an authorised internal recipient information which tends to show, or which the discloser believes on reasonable grounds tends to show, disclosable conduct (s 26)}

^{25 84 per cent of PIDs were made within 29 agencies with 1,000 or more employees.}

^{26 227 of the 684 PIDs were assessed by an authorised officer or principal officer as not meeting the threshold to be a qualifying PID.}

^{27 In 2015–16, 19 per cent of disclosers were identified by agencies as contracted service providers.}

^{28 Specifically not a public official, not disclosable conduct or not given to an authorised internal recipient.}

^{29 Noting that there may be more than one reason for not investigating a PID, or an instance of disclosable conduct contained in a PID.}

^{30 This information was obtained in accordance with s 76(2)(a)(iv).}

^{31 The threshold for an internal PID is in s 26 of the PID Act.}

^{32 In accordance with section 63 of the Act.}

^{33 In accordance with section 62(c) of the Act.}

^{34 See section 59 (1) and (3).}

^{35 A PID is information that has been assessed as meeting all the requirements under s 26(1) of the PID Act. These statements do not include reference to disclosures that were received under the PID Act but not assessed as meeting the s 26 requirements.}

^{36 This column details the percentage of each kind of disclosable conduct within the PIDs referred to in Column 1, as reported by agencies, noting that an individual PID may contain allegations of instances of more than one kind of disclosable conduct. It should be noted that this table lists the disclosable conduct alleged by the discloser, but does not represent the findings at the conclusion of any investigation. Percentages in this table have been rounded and may not total 100 per cent.}

^{37 The Office of the Commonwealth Ombudsman received 40 PIDs relating to other agencies.}

^{38 This column details the number of disclosure investigations that agencies completed during 2016–17. It includes investigations that commenced during the previous financial year but were not completed. It does not include investigations by the Ombudsman and OIGIS under their separate investigative powers.}

^{39 Noting that a disclosure investigation may or may not result in a recommendation being made, and the actions taken may or may not occur in the same financial year that the disclosure investigation was completed. Percentages in this table have been rounded and may not total 100 per cent.}