CHAPTER 5 | looking at the agencies

Other agencies menu: Department of Employment and Workplace Relations | Australian Electoral Commission | Family Court of Australia | Health Insurance Commission | Telstra Corporation | Australian Customs Service | Tender and contract issues

The jurisdiction of the Commonwealth Ombudsman extends to nearly all Australian Government agencies. However, nearly 90% of complaints to the Ombudsman are about the few agencies dealt with in the earlier sections of this chapter. The remaining 1,952 (or 11%) of complaints are received about 82 other agencies across 16 portfolios. Table 5.2 sets out ten of the agencies for which the most complaints were received.

Any description of the complaint and investigation role played by the Ombudsman in relation to 82 different agencies is necessarily selective. Many of the complaints relate to administrative decisions or actions that form part of the specific, and at times unique, schemes being administered by particular agencies. There are, nevertheless, common themes that emerge in complaint handling, often to do with the timeliness of decisions, transparency in the decision-making process, rigidity in applying rules, and the clarity and sufficiency of the reasoning given in support of decisions.

'There are common themes that emerge in complaint handling …'

This section provides some examples of the complaints handled this year by the Ombudsman, and the themes taken up by the office. The themes and examples have been selected to provide a picture of the diversity of issues handled each year. They show, at the same time, the variety of situations in which people seek assistance from an independent agency such as the Ombudsman in relation to their dealings with government agencies. Complaints also present an opportunity to improve government administrative practice. In focusing on this systemic dimension, the Ombudsman's office can draw on 27 years of experience in handling a broad range of complaints.

Department of Employment and Workplace Relations

The Department of Employment and Workplace Relations (DEWR) is one of many government agencies that manage financial assistance schemes and other programs that provide grants or financial concessions to individuals and companies. It is to be expected that any scheme of entitlement in which applications are not always successful will generate complaints about the adverse decisions and how those decisions were made. This is particularly the case in the early days of a new scheme, when systems and processes are being developed, and entitlement criteria are being refined. At this stage in the development of a program it can be all the more importantto have oversight by an Ombudsman or another review process.

These observations have been borne out in complaints received by the Ombudsman regarding the administration of the General Employee Entitlements and Redundancy Scheme (GEERS) introduced in 2001. Complaints regarding GEERS now account for over 40% of all DEWR complaints, and underscore the noticeable increase in the total number of DEWR complaints received by the Ombudsman. There was a 69% increase in DEWR complaints in 2002–03 and a further 20% increase in 2003–04.

As Table 5.2 shows, these numbers are small in absolute terms. The 20% increase is in a figure of only 245 complaints for the year. Of the DEWR complaint issues investigated, 59% resulted in a remedy being proposed, compared with 69% for all issues investigated by this office. An example of a complaint dealt with this year is in the case study, Defining the period.

GEERS is a scheme that was established by executive rather than legislative action. The only right of review provided for by the scheme is to a more senior DEWR officer; there is no appeal right to an external tribunal. Complaint investigation by the Ombudsman can therefore play an important role.

A meeting was held between staff of the Ombudsman and DEWR in early 2004 to discuss a number of issues, including:

• denial of natural justice, which can occur if an applicant for a GEERS payment is not given the opportunity to comment upon information obtained from a third party that conflicts with the applicant's information
  
  
• a lack of detail in notification letters about how amounts are calculated and the evidence on which a decision is based
  
  
• inadequate investigation, when an unsuccessful applicant has sought review of the decision, particularly where 'independent verification' of outstanding entitlements is required
  
  
• inadequate notification of the scheme to those eligible to apply under it, resulting in some applicants failing to lodge an application within 12 months of the termination of employment, as required by GEERS.

DEWR responded positively to the meeting with Ombudsman staff, drawing on our experience both in the administration of other entitlement schemes and in the handling of complaints. The Department undertook to respond to the matters raised at the meeting and to action a review of the particular GEERS processes and documentation in question.

The other major area of complaint in DEWR is the Job Network, which provides job search assistance and other employment services for people registered for unemployment benefits. The Job Network provider organisations are private and community-based organisations that have been selected through a competitive tendering process. They are contracted by DEWR to provide employment services in accordance with a code of practice. The case study, Tailoring services to individual requirements, provides an example of complaints received about the Job Network.

The Ombudsman conducted an own motion investigation into complaint handling in the Job Network, releasing a report in August 2003. This investigation checked the progress made by DEWR in implementing recommendations made by the Ombudsman in 2001 regarding suggested improvements to Job Network complaint-handling arrangements. DEWR had accepted ten of the 11 recommendations arising from the investigation. The Ombudsman noted that some of the recommendations had already been incorporated into requirements under the new employment services contract, which commenced in July 2003. While the investigation revealed that there had been significant progress in complaint handling within the Department, improvements were still required to arrangements for complaints made directly to Job Network providers.

We will continue our interest in DEWR's administration of complaints about the Job Network and the response to the recommendations in our 2003 report. A copy of the August 2003 report, entitled Own motion investigation into complaint handling in the Job Network, is available on our website at www.ombudsman.gov.au.

Australian Electoral Commission

A complaint about a decision by the Australian Electoral Commission illustrated the point that on occasions the decisions made by government agencies do not adhere to legislation or internal guidelines. External review by a body such as the Ombudsman can be useful in drawing attention to such a deficiency. This point was taken up in the case study, A street by no other name.

Family Court of Australia

Members of the public frequently rely on agency staff for advice on completing an official transaction. It is therefore important for staff who have direct contact with the public to be well-trained and experienced. The Experienced counter staff case study illustrates where this can be an issue.

Health Insurance Commission

The issue of the accuracy of agency advice given to a member of the public also arose in two complaints about the Health Insurance Commission. In one case, a Medicare office incorrectly refused to recognise a citizenship certificate as proof of Australian permanent residency. The Commission made a written apology and undertook to target specific training at the particular Medicare office.

In another case, Medicare staff told the complainant, whose Medicare card had expired, that he had to apply for a new card, even though no details had changed since he was last issued with a card. Medicare staff admitted that this was incorrect advice and apologised to the complainant.

Telstra Corporation

Telstra Corporation remains within the jurisdiction of the Commonwealth Ombudsman, although the Ombudsman's office handles few complaints since the introduction of the Telecommunications Industry Ombudsman (TIO). Generally, we advise a person complaining about Telstra to take their complaint to the TIO for consideration.

We sometimes receive complaints from individuals who do not agree with the TIO's conclusion. It does not come within the Ombudsman's jurisdiction to review the decisions of the TIO and we therefore do not investigate these types of complaints.

We receive a small number of complaints about Telstra each year, falling outside the charter of the TIO, in which the Ombudsman has a role to play. Two examples are in the case studies, Verifying events and Services and billing. The first, concerning the emergency telephone service (the 'triple 0' call facility) that Telstra provides as part of its Community Service Obligation, was outside the TIO's charter because it was not a matter of a competitive nature. The second, concerning difficulties an Internet Service Provider stated he was experiencing with Telstra relating to service provision and billing issues was outside the TIO's charter because the TIO does not examine disputes between its 'members'.

Australian Customs Service

The low number of complaints received about the actions and decisions of the Australian Customs Service (ACS) is notable, given the frequency with which the ACS interacts with members of the public and the increased scrutiny of passengers and goods at airports. Only 73 complaints were received in 2003–04 (compared to 70 the previous year).

In a small number of cases, our investigation indicated that a Customs officer may not have treated a passenger appropriately. ACS provided details of the strategies it put in place to minimise the likelihood of a recurrence and offered apologies to the passengers involved.

The willingness of ACS to respond to feedback was demonstrated during the investigation of a complaint about the return of a package to the sender during the period allowed for an objection to additional tax. ACS acknowledged that the information it published needed to be revised to provide clearer advice to importers of their responsibilities in such a situation. In addition, ACS decided to amend decision-making procedures so that more senior and experienced officers would be involved in such matters.

During the year, ACS released a revised Client Service Charter and an updated complaints and compliments brochure. These publications have taken feedback from our office into account. The new complaints and compliments brochure combines two former brochures and is designed to encourage feedback from members of the public affected by the actions of the ACS. The brochures are available at www.customs.gov.au.

Tender and contract issues

It is common for government agencies to contract with private sector bodies to deliver services previously provided directly by an agency. When this occurs, it is important that the public should not lose their right to complain about the way in which a service is being delivered.

Where a government service has been contracted out, the Ombudsman can often look at the responsibility of the government agency that is contracting the service, even if the contractor itself is outside our jurisdiction. For example, a private company manages immigration detention facilities, but that does not absolve the Department of Immigration and Multicultural and Indigenous Affairs from responsibility for the operation of detention facilities. Many complaints to the Ombudsman about the facilities are taken up with the Department.

The right to complain to the Ombudsman is not the only administrative law right that can be inhibited by the contracting out of government functions, as illustrated by the Outsourced service case study.

The Government has accepted in principle a recommendation by the Parliamentary Joint Committee of Public Accounts and Audit that the Ombudsman's jurisdiction be extended to cover the actions of Commonwealth contractors. The Government's view was that the action should be limited to contracts for the provision of goods and services to the public. As part of a review of the Ombudsman Act being undertaken by the office, we are examining the option of proposing to government that the Act be amended to confer this jurisdiction upon the Ombudsman.

Another way in which the Ombudsman becomes involved in contractual issues is that a private-sector body can complain to the Ombudsman about its dealings with government, including dealings around the tender and contract process. In 2003–04, we received 53 complaints about tendering processes and contractual disputes.

Before pursuing a complaint about a contractual matter, the office first considers whether a legal avenue may be a more appropriate alternative. In some instances, parties are better served by protecting their legal interests and pursuing a legal rather than an administrative remedy. There are, on the other hand, situations in which administrative review of the kind provided by the Ombudsman is a more suitable mechanism for resolving a problem that might otherwise escalate into a protracted and costly legal dispute.

Generally, we are prepared to commence preliminary inquiries or to conduct an investigation where there are indications of poor administrative practice and where a company's or an individual's financial capacity to pursue the issue through the courts appears more limited. Our aim is not to circumvent legal processes, but to try to assist in obtaining a quicker, less expensive resolution for both parties, and to identify any systemic administrative deficiencies and processes, in what are generally very complex cases.