Ombudsman's office, 1993-1998 (Philippa Smith)

Ms Philippa Smith was the first female and the first non-lawyer to be appointed as Commonwealth Ombudsman.

Her background in consumer advocacy equipped her admirably to lead an outward-looking and responsive office.

Public knowledge of and confidence in the office of Ombudsman increased significantly during her term.

1992-93

Alan Cameron resigned as Commonwealth Ombudsman in December 1992. Ms Lindsay Shaw acted as Ombudsman until Ms Philippa Smith took up her appointment on 17 May 1993.

Administration

As a result of the Senate Standing Committee on Finance and Public Administration’s review of the Ombudsman’s office, the office received some additional funding in the 1992 - 93 Budget to upgrade the information technology system and employ several new staff members to cover the increasing workload.

Issues

The new Ombudsman announced her priorities for the office. She said the office would provide a greater focus on the identification and correction of the underlying causes of complaints, and improve the outreach of the office.

An Ombudsman survey indicated that 54 per cent of Australians knew about the Ombudsman’s office. Although this was a relatively high level of awareness, the survey also showed that these people tended to be better educated. The survey results prompted the Ombudsman to initiate outreach activities focusing on those groups who were under represented, including Aboriginals, people from non-English speaking backgrounds and youth.

Jurisdiction

A legislative change was made to the standard of proof in Australian Federal Police disciplinary matters from the criminal standard (beyond reasonable doubt) to the civil standard (balance of probabilities).

No benefit from mistake…

The Ombudsman reported the case of long-term unemployed Michael, who changed from Unemployment Benefit (UB) to Austudy, but was unknowingly below the required hours of study to receive Austudy following his enrolment. The Department of Employment, Education and Training (DEET) did not discover this for five months, and then raised an overpayment.

The Ombudsman suggested that DEET waive the debt because Michael had acted in good faith, that DEET should have advised Michael of the shortfall, and that Michael could have received UB instead of Austudy if he had applied to DSS instead. DEET waived the debt.

The Ombudsman commented that DEET and DSS should introduce a ‘knock for knock’ arrangement for people in such circumstances.

1993-94

The report of the Access to Justice Advisory Committee, Access to Justice: an Action Plan, recommended that the Ombudsman should focus more on systemic issues rather than individual complaints - so that certain types of complaints could help to highlight and resolve systemic problems causing difficulty for people dealing with government. The Access to Justice report also recommended that as a consumer protection issue, the word ‘Ombudsman’ should only be used by organisations that could guarantee standards of independence and effectiveness in the complaint resolution process.

Jurisdiction

The report of the Joint Committee on Public Accounts into the Australian Taxation Office (ATO) recommended the establishment of a specialist Taxation Ombudsman within the Ombudsman’s office. The government provided an additional $750,000 per year to fund a new tax team, which began operating in April 1995, resulting in an immediate increase (145 per cent) in complaints about ATO matters.

The government initiated an amendment of the Ombudsman Act to provide the Commonwealth Ombudsman with jurisdiction over contracted case managers employed by the new Employment Services Regulatory Authority.

Following a consultant’s review of the Ombudsman’s office and functions, the government provided a $1.5 million increase in the Ombudsman’s funding for 1993 - 94 and future financial years. The Budget increase provided funding for new projects: a major projects team which would investigate complex cases and those cases which highlighted systemic issues related to public administration; the appointment of four specialist liaison officers to work on targeted outreach programs; the establishment of a policy and public affairs unit; and employment of a staff training officer.

The COT cases…

The Ombudsman reported she had received four complaints regarding access to documents under the Freedom of Information(FOI) Act from members of a group calling itself the Casualties of Telecom or COT.

The COT were claiming that problems with their telephone connections had caused them to lose business, and they sought documents from Telecom under FOI to support their claims.

The COT alleged Telecom had delayed or withheld the release of documents and provided inadequate reasons for its decisions. The complaints initially related to more than 50,000 documents and eventually involved 180,000 documents. The Ombudsman released two public reports that were both critical of Telecom’s failure to provide information and operate in the ‘spirit’ of FOI.

1994-95

The Ombudsman reported that many government agencies were still not acting within the ‘spirit’ of the Freedom of Information (FOI) Act.

Issues

In her previous annual report the Ombudsman mentioned that her office had received an increased number of complaints about the Aboriginal and Torres Strait Islander Commission (ATSIC), including one from the New Burnt Bridge Aboriginal Corporation.

Twelve months later, the Ombudsman reported that ATSIC had not responded to the recommendations made in a formal report under the Ombudsman Act about New Burnt Bridge, but had instead applied to the Federal Court for an injunction to prevent the Ombudsman from reporting to the Prime Minister, the Parliament or the public about the New Burnt Bridge complaint.

The Ombudsman reported that ATSIC’s actions in the case had set an ‘unfortunate precedent’ in using public funds to delay the Ombudsman’s processes of external scrutiny and accountability.

The Federal Court decision on the New Burnt Bridge case broadly supported the authority of the Ombudsman to investigate the complaint, but imposed some limitations: see Chairperson, ATSIC v Commonwealth Ombudsman (1995) 134 ALR238.

The Ombudsman reported she was concerned that some agencies were not providing their clients with enough information about their services, causing people to ‘self assess’ their entitlement to benefits and services in situations which were not reasonable. She said some individuals missed out on their entitlements and/or that risk was inappropriately transferred to the individual applying for a benefit or other government service.

Jurisdiction

The Ombudsman reported on a new range of complaints coming from suppliers and consumers of contracted-out government services. The Ombudsman pointed to limits on her jurisdiction in dealing with these matters.

The Complaints (Australian Federal Police) Act was amended to allow the Ombudsman to conduct own motion investigations into the Australian Federal Police.

The Witness Protection Act 1994 formalised the Ombudsman’s power to accept complaints from people involved in the witness protection program.

In April 1995, the Special Tax Adviser began operating, resulting in an immediate increase (145 per cent) in complaints. The specialist tax team’s first public report attracted a great deal of interest.

TaxPack errors?

The Special Adviser on Taxation investigated a claim from the National Tax and Accountants Association that the 1995 version of TaxPack contained 42 errors and omissions.

Although the Special Adviser found the Association’s claim of 42 errors and omissions was not correct he did make a series of recommendations for improvement to the 1996 version of TaxPack.

1995-96

There was a new record in the number of complaints to the Ombudsman’s office, with complaints increasing by 28 per cent to around 20,000 and the office handling over 42,000 contacts (complaints and enquiries).

Issues

The Ombudsman faced a $1.98m or 19 per cent cut to her budget, which she said could undermine her office’s ability to continue providing adequate checks and balances. The financial pressure of the cuts caused the Ombudsman to close the office’s Hobart agency, abolish the special outreach programs, curtail the monitoring of the Australian Federal Police and National Crime Authority (now Australian Crime Commission) intercept audit function, and abolish the specialist Deputy for the Defence Force Ombudsman function. She also reported that the cuts would force an increase in the use of her discretion not to investigate complaints.

The Ombudsman reported also that:

  • contracting out could cause ‘a blurred zone’ of responsibility between public administration and commercial activity
  • complexity of some government programs was making administration more specialised at the operational level, creating problems for clients
  • cross agency contact was creating confusing gaps for individuals and small business.

Some of the public reports released by the Ombudsman during 1995 - 96 included:

  • a report of an own motion investigation into the improper accessing of information by members of the Australian Federal Police (September 1995)
  • a report of an investigation of complaints concerning the transfer of immigration detainees to State prisons (December 1995)
  • a report of an investigation of a complaint by New Burnt Bridge Aboriginal Corporation concerning actions of the Aboriginal and Torres Strait Islander Commission (March 1996)
  • a report of an investigation into the conduct of the Australian Federal Police in the execution of a search warrant on two Sydney premises on 9 January 1995 (June 1996).

Jurisdiction

The Ombudsman indicated that she would be approaching Parliament with a number of possible legislative amendments including:

  • introduction of a time limit within which an Ombudsman’s report would be considered by the Prime Minister and Parliament
  • a process by which public reports that did not involve outstanding recommendations could be tabled in Parliament
  • establishing the Commonwealth Ombudsman’s office as an independent Parliamentary office rather than an outrider agency of the Department of Prime Minister and Cabinet
  • broadening of jurisdiction to allow investigation of complaints about core government services provided by contractors and other third parties
  • strengthening of the Complaints (AFP) Act to enhance the role of the Ombudsman and allow the Ombudsman to investigate more serious complaints.

In April 1996 the Ombudsman released the report of her own motion investigation of Australian Customs’ search and detention procedures. The investigation began following allegations that Customs officers were exceeding their search powers.

1996-97

This was another record year for the Ombudsman, with complaints increasing by another 4,000 to an estimated 24,000 for the year. The office handled another 25,000 enquiries.

Administration

The cutback in staffing from 100 to 86 meant that the Ombudsman was forced to exercise a discretion not to investigate in a high proportion of cases.

Issues

The Ombudsman issued a formal report to the Prime Minister on the legislative and administrative arrangements for Department of Social Security Departure Certificates. The report followed an own motion investigation that found that the operation of the legislation was oppressive, and had contributed to the stranding of a number of pensioners in other countries. Despite the Department’s changes to the departure certificate legislation, the Ombudsman noted that its technical application of the new ex-gratia payment arrangements for defective administration defied common sense, and allowed some people to fall through the gaps. In February 1998, the Prime Minister decided that the pensioners should receive ex-gratia payments.

A number of police investigations highlighted problems with the execution by Australian Federal Police (AFP) officers of search warrants, prompting the Ombudsman to recommend changes to the AFP’s operational and training procedures. The Ombudsman also conducted an own motion investigation into the police treatment of youth, which uncovered ignorance and abuse of police powers in dealings with youth.

The office conducted a survey, which found that only 20 per cent of Commonwealth and ACT Government agencies had internal complaint handling procedures to deal with service standards. In response, the Ombudsman produced and distributed a publication titled A Good Practice Guide for Effective Complaint Handling. The Ombudsman also assisted the Child Support Agency, the Australian Taxation Office and several another agencies in the development of customer service charters.

Jurisdiction

The Ombudsman proposed changes to the Ombudsman Act designed to enhance and develop a more direct relationship with Parliament and create a transparency for the resourcing of the Ombudsman’s office.