Ombudsman's office, 2003 - 2010 (Prof. John McMillan AO)
Professor John McMillan AO was appointed Commonwealth Ombudsman in March 2003, and was reappointed in 2008 for a further five year term.
John is a member of the Administrative Review Council, which advises the Attorney-General on administrative law matters. In 2007 he was appointed on an acting basis for six months to be the first Integrity Commissioner to establish the new Australian Commission for Law Enforcement Integrity. John was also appointed to the Security Legislation Review Committee, to review Australian counter terrorism laws (2005-6); and to a committee to review the Legislative Instruments Act (2008).
John was made an Officer of the Order of Australia in the Australia Day Honours List 2010.
In early 2003, Mr Ron McLeod’s term as Ombudsman expired, and his successor, Professor John McMillan was appointed from March 2003. Deputy Ombudsman Oliver Winder resigned to take up the position of Deputy Auditor-General in the Australian National Audit Office, and Mr Ron Brent succeeded him in June 2003.
The total number of complaints increased by 3 per cent, but remained below 20,000. There was an increase in complaints about the Child Support Agency, the Australian Federal Police and Centrelink. These increases were offset by a comparable fall in the number of complaints received within the Tax and Defence jurisdictions.
Immigration matters remained a difficult area of work, although complaint levels remained relatively static. The Ombudsman again expressed his concern at the number of women and children held in detention.
The Ombudsman finalised systemic investigations into the complaint-handling mechanisms employed by the Australian Taxation Office and the Department of Employment and Workplace Relations (with respect to the Job Network) whilst continuing an investigation of the Department of Immigration and Multicultural and Indigenous Affairs’ complaint-handling system.
The year also marked the first inspections by Ombudsman staff of controlled operations conducted by the Australian Federal Police and the former National Crime Authority, now the Australian Crime Commission. A report of these activities was presented to the President of the Senate and the Speaker of the House of Representatives in December 2002.
The total number of complaints (17,496) decreased by 12 per cent from 2002 - 03. Decreases in the number of complaints received were experienced in most areas, with significant decreases in complaints about the Department of Immigration and Multicultural and Indigenous Affairs, the Child Support Agency, Centrelink and the Australian Taxation Office. There was an increase in complaints about the Department of Transport and Regional Services and the Department of Employment and Workplace Relations.
The decrease in total complaints received is against the trend of the past few years, during which the number of complaints received has been fairly stable. There was, however a steady increase in the number of more complex matters. There was also a fall in the number of other approaches to the office such as out-of-jurisdiction matters and requests for information.
The Ombudsman investigated 30 per cent (5,910) of all complaint issues finalised, compared to 29 per cent in 2002 - 03. For complaint issues invested, agency error or deficiency was identified in 20 per cent (compared to 29 per cent in 2002 - 03), while there was no error or defect identified in 43 per cent (compared to 42 per cent in 2002 - 03).
Increased funding was allocated in the 2004 Budget for four years to expand delivery of Ombudsman services in regional and rural areas of Australia. An Outreach Manager was appointed in August 2004.
The Ombudsman released reports on four own motion investigations during 2003 - 04 on:
- Australian Taxation Office complaint handling (July 2003)
- Department of Employment and Workplace Relations, complaints handling in the Job Network (August 2003)
- Child Support Agency change of assessment decisions made on the basis of parents’ income, earning capacity, property and financial resources (May 2004)
- Australian Crime Commission investigation into a review of the operational and corporate implications for the Commission arising from alleged criminal activity by two former secondees (June 2004).
A number of systemic problem areas identified by the Ombudsman in 2003 - 04 included:
- Record keeping - General problems with record keeping included ineffective agency systems for registering correspondence and papers, repeated requests by agencies for information already provided, and the quality of agency documents. Numerous complaints were received during the year about agencies making continual requests for information already provided, missing or lost documents and inadequate filing practices.
- Giving advice - Complaints about the accuracy and quality of agency advice are a recurring theme. Typical complaints received alleged incorrect advice about how the assets test affects Centrelink benefits, visa requirements, the tax treatment of eligible termination payments, and calculation of child support liability.
- Dealing with the exceptional - Legislation is increasingly complex and tightly written. The Ombudsman receives many complaints each year from people who have fallen through the cracks of government schemes in unexpected ways. Legislation should enable agencies to respond in a flexible way to cases of hardship or unforeseen difficulty. An example was complaints received by the Ombudsman about the operation of the migration legislation. The highly specific rules about visa eligibility can mean that a person, for reasons beyond their control, cannot meet the time limit for renewing a visa to stay in Australia. The person may have no practical option other than to leave the country to lodge a fresh visa application.
- Schemes established by executive action - Many government schemes and programs are established by executive rather than legislative action. Executive schemes have the advantage of being flexible and easily changed, but this flexibility can deprive members of the public of important rights. In one case investigated an executive scheme was changed without any transitional provision for cases already in the pipeline. It is unlikely that such a point would be overlooked in a scheme based in legislation. Another difficulty is that changes made by executive that are sometimes difficult to trace, and different sections in an agency apply different versions of the rules.
The Ombudsman commenced a review of the Ombudsman Act 1976 to improve and modernise the legislative framework, with a view to putting proposals to government of the enactment of a new Ombudsman Act. Some of the issues addressed in the review included:
- a single drafting style to avoid apparent inconsistencies
- legislative acceptance of the government’s decision that the Ombudsman should have jurisdiction over the actions of certain Australian Government contractors
- bringing the Ombudsman’s jurisdiction to investigate AFP complaints under the Ombudsman Act, with features that recognise the special need of police actions for external oversight and accountability.
The Ombudsman received a total of 17,310 complaints, compared to 17,496 in the previous year. The pattern of complaints was similar to the pattern in 2003 - 04, with a decrease in complaints about the Australian Taxation Office, the Australian Federal police and Centrelink, and an increase in the number of complaints about Australia Post, the Child Support Agency and the Department of Employment and Workplace Relations.
The decrease in total complaints received in both 2004 - 05 and 2003 - 04 is against the trend of the previous few years, during which the number of complaints to the Ombudsman was fairly stable. There was an increase of 33 per cent in the number of other approaches to the office, such as out of jurisdiction matters and requests for information.
The Ombudsman investigated 33 per cent (6,198 issues) of all complaint issues finalised, compared to 30 per cent in 2003 - 04. Of those complaint issues investigated by the office, agency error or deficiency was identified in 14 per cent (compared to 20 per cent in 2003 - 04), while there was no error or deficiency identified in 43 per cent (the same as 2003-04). In the remaining 43 per cent of cases the matter was resolved without need to determine whether there was a deficiency.
Increased funding was allocated in the 2005 Budget for the Ombudsman to handle complaints arising under the new Free Trade Agreement with the United States of America and to provide the office with secure access to Fedlink.
A comprehensive review of the office’s complaints management system and internal work practices was completed. Improvements will be initiated in 2005 - 06 to achieve better integrated and streamlined work practices.
The Ombudsman published reports on seven own motion and major investigations. Two of the investigations (which related to the Tax Agents’ Board of NSW and the Australian Taxation Office) were completed and provided to the agency in 2003 - 04. Of the five own motion and major investigations finalised and released publicly in 2004 - 05, two related to the Australian Defence Force, two to the Department of Immigration and Multicultural and Indigenous Affairs, and one to the Australian Crime Commission.
One of the reports related to a review of the Australian Defence Force’s Redress of Grievance process, conducted jointly with the Department of Defence. The ADF accepted, and took action to implement, the 72 recommendations in the report. Recommendations included the need to increase staffing levels within the department’s Complaint Resolution Agency, to provide further training for investigation officers, to improve management information systems to introduce performance management and reporting standards, and to seek changes to the legislation and policies on complaint handing.
Conditions in immigration detention facilities (IDFs) continued to be a source of complex complaints. Ombudsman staff made regular visits to IDFs to discuss complaints from detainees. Some of the complaints related to access to medical services, with detainees concerned about delays in referrals to specialists and other appropriate services, the frequency of visits by medical staff to IDFs, and the quality of medical services. The office also pursued the issue of detainees being placed in more restrictive accommodation units at IDFs, whether the units are appropriate and adequate as a behaviour management tool and whether due regard is paid to each individual’s circumstances.
The Ombudsman’s monitoring role expanded with passage of the Surveillance Devices Act 2004 and amendments to the Workplace Relations Act 1996. The initial inspections of the use of surveillance devices by members of the Australian Federal Policy and the Australian Crime Commission, and the use of compliance powers by members of the Building Industry Taskforce, will be conducted in the first half of 2005 - 06.
A review of the legislation establishing the office of the Commonwealth Ombudsman (commenced in 2003 - 04) continued during 2004 - 05. The review aims to improve and modernise the legislative framework, with a view to putting proposals to government for the enactment of a new Ombudsman Act.
It is not proposed to change the role of the Ombudsman. Two specific issues being addressed in the review are to:
- extend the jurisdiction of the Ombudsman, in line with an earlier government announcement, to cover the actions of certain Australian Government contractors
- bring the AFP jurisdiction under the Ombudsman Act, with provisions to take account of special issues that arise in external oversight and accountability of police actions.
In August 2004, legislation to create a separate office of Postal Industry Ombudsman (PIO) was introduced into Parliament. Under the proposed legislation, the Commonwealth Ombudsman will undertake the role of PIO. The jurisdiction of the PIO will extend to private sector postal operators who register to participate in the scheme. The PIO will have the normal powers of an ombudsman to require information or documents and to publish findings. The Bill is to be further debated during 2005 - 06.
In June 2005, Parliament enacted amendments to the Migration Act 1958. These changes give the Ombudsman a statutory role in reviewing the cases of detainees who have been held in immigration detention for more than two years (cumulative), with follow-up reviews every six months if the person remains in detention. This statutory monitoring role substantially enhances the office’s capacity to oversight the administration of important and sensitive legislation that can have a major impact on people’s lives.
In July 2005, a report from an independent inquiry into the immigration detention of Ms Cornelia Rau was followed by an intense public and political focus on immigration issues. Arising from this report, the government proposed enhancing the role of the Commonwealth Ombudsman in immigration matters by designating the office as the Immigration Ombudsman and providing additional funding.
The total number of approaches and complaints received (28,227) remained fairly stable (29,323 in 2004 - 05), with the majority (75%) being about five agencies - Australia Post, the Australian Taxation Office (ATO), Centrelink, the Child Support Agency (CSA), and the Department of Immigration and Multicultural Affairs (DIMA).
There was an increase in the number of more complex matters brought to the office and in complaints that alleged systemic problems in public administration. There was, however, a decrease in the number of other approaches to the office such as out of jurisdiction matters and requests for information.
The Ombudsman investigated 35% (6,176) of all complaint issues finalised compared to 33% in 2004 - 05, and identified agency error or deficiency in 1% (14% in 2004 - 05), and no error or deficiency in 11% (43% in 2004 - 05). In the remaining 88% of issues investigated, complaints were resolved without the need to determine whether the cause of the problem related to administrative deficiency, and no determination was made about the agency’s performance.
This reflects the office’s new emphasis on working to resolve a complaint efficiently by identifying a practical solution or remedy that assists the complainant. Often this can be done without determining that an agency acted incorrectly or that there was an administrative deficiency in its conduct.
A review of the office’s internal complaint-handling processes and complaints management system was conducted during 2004 - 05. As a result of the review, a five-tiered structure was implemented for categorising and responding to complaints, based on the type of approach, the degree of effort required to resolve a complaint, and any potential sensitivities. A new complaints management system was rolled out to support the new work practices, together with a comprehensive online work practice manual, and training for all staff.
The Public Contact Team was created to receive and assess all telephone approaches and electronically submitted complaints, enhancing the office’s ability to provide a nationally consistent service.
The Ombudsman published reports on seven own motion and major investigations. The reports contained a total of 51 individual agency recommendations - agencies accepted 49 of the 51 recommendations. The generic issues taken up in those reports included the need for better training and clearer guidance for government officers, for further review of some contentious features of agency administration, and for senior level engagement in resolving problems of the kind addressed in those reports.
Four of the investigations dealt with matters relating to DIMA. The topics of those four reports were: the immigration detention and removal from Australia of an Australian citizen, Ms Vivian Alvarez; the immigration detention of an Australian citizen, Mr T; the administration of s 501 of the Migration Act 1958; and the management of a frail aged visitor to Australia, Mrs Agha.
The other three investigations dealt with the Australian Defence Force's management of service personnel under the age of 18; the Australian Taxation Office's administration of the Superannuation Co-contribution Scheme; and the administration of the Freedom of Information Act 1982 in Australian Government departments and agencies.
The office was more active in immigration oversight, participating in DIMA’s newly established committees that provide advice on training, detention health, and values and standards. New own motion projects on matters such as complaint handling, notification of review rights and compliance operations were also initiated.
The Surveillance Devices Act 2004 came into operation in December 2004 and a program of two inspections a year for law enforcement agencies was commenced. The first inspections of the records of the Australian Crime Commission and the Australian Federal Police on their use of surveillance devices were conducted in 2005.
Work continued on the review, initiated in 2003 - 04, of the Ombudsman Act 1976. The review is looking at ways to improve and modernise the legislative framework for the office, with a view to putting proposals to government for the enactment of a new Ombudsman Act.
Changes made to the Ombudsman Act in 2005 relate to jurisdiction over Commonwealth contractors, disclosure of documents to the Ombudsman, and oversight of law enforcement and the postal industry. Those changes picked up some of the issues that had earlier been identified in the review of the Ombudsman Act.
The Ombudsman's report to the Prime Minister in January 2006 made further recommendations for improving and simplifying the framework for administrative investigation in the Act, and addressing some of the difficult interpretation and jurisdictional issues that can hinder efficient investigation. A response to the Ombudsman’s report is expected following the government's consultations in early 2006 - 07.
The Ombudsman’s office acquired the following new functions and titles:
- Immigration Ombudsman - in relation to immigration matters, including immigration detention. A new statutory role of the Ombudsman is to provide a report to the Minister for Immigration and Multicultural Affairs that is to be tabled in the Parliament in relation to each person who has been in immigration detention for two years or more; a further report is provided at six monthly intervals if a person remains in detention. In 2005 - 06, reports on 66 individual cases were finalised and tabled in Parliament. The government also asked the Ombudsman to investigate 248 individual cases of people who had been held in immigration detention but later released on the basis that continued detention was not authorised.
- Postal Industry Ombudsman - handling complaints about Australia Post and private sector postal service operators who register with the scheme. The PIO scheme commenced in October 2006.
- Law Enforcement Ombudsman - reforms to the AFP’s complaints-handling system changed the Ombudsman’s role from 30 December 2006, enabling the office to investigate complaints about the actions of AFP members and the policies, practices and procedures of the AFP as an agency.
The Ombudsman also now has jurisdiction to investigate the actions of ‘Commonwealth service providers’ as if the relevant department or authority had taken those actions. A Commonwealth service provider is a contractor or subcontractor that provides goods or services for or on behalf of an Australian government agency, to a person other than the agency.
Passage of the Building and Construction Industry Improvement Act 2005 brought to an end the Building Industry Taskforce and the function of the Ombudsman under the Workplace Relations Act 1996 to review the use of coercive powers by the taskforce. The office conducted a final review of the taskforce’s use of coercive powers before it ceased to exist. The new body that replaces the taskforce, the Australian Building and Construction Commission, will be subject to the jurisdiction of the Ombudsman in the same way as other Australian Government agencies.