CHAPTER 8 | promoting good administration

Submissions and participation in inquiries

The Ombudsman's office is frequently invited to contribute to inquiries being conducted by parliamentary committees and executive agencies.

The submissions made to parliamentary committees are listed more fully in the 'Year in review' chapter. They included (in addition to the two submissions listed below) submissions on the Medicare safety net, Norfolk Island governance, and human rights education in the Pacific.

The contribution made to executive inquiries is sometimes by way of a formal submission: an example during the year was a submission to the Australian Law Reform Commission for its report Keeping Secrets: the Protection of Classified and Security Sensitive Information. More commonly, the contribution to executive inquiries has been less formal. An example is the comments and information provided during the year to the Inspector-General of Taxation, and to the Australian National Audit Office concerning its inquiries into aspects of the superannuation surcharge, the management of immigration detention facility contracts, and Freedom of Information administration. Two other projects to which the office provided assistance are described below concern reviews into forensic procedures and income tax self-assessment.

Senate Select Committee on Ministerial Discretion in Migration Matters

Our 2002–03 annual report discussed the importance of the Minister for Immigration's 'safety net' discretionary powers under the Migration Act 1958. The Minister is authorised on public interest grounds to grant a visa to a person who otherwise does not qualify for a visa. The Ombudsman made a submission to the Senate Select Committee on Ministerial Discretion in Migration Matters in August 2003. The Ombudsman does not have jurisdiction to investigate ministerial actions, and the submission therefore focused on the role of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) in providing assistance to the Minister, especially in the preparation of submissions for ministerial consideration.

The report of the committee in March 2004 contained a number of recommendations that reflected the input provided by the Ombudsman's office. One such recommendation was that DIMIA should establish a system for routinely auditing the departmental submissions prepared for the Minister. The audit process should address areas previously identified by the Commonwealth Ombudsman as important and potentially problematic. Of particular concern was the need to improve departmental processes for handling cases, to ensure that claims are processed in a timely way and that case officers consider all the available material relevant to each case. The committee also recommended that the Ombudsman's office carry out an annual audit to gauge the adequacy of DIMIA compliance with the ministerial and administrative guidelines on the operation of the Minister's discretionary powers.

The Committee's full report can be viewed at:
www.aph.gov.au/senate/committee/minmig_ctte/report/index.htm

The Ombudsman's submission to the inquiry is available at:
www.aph.gov.au/senate/committee/minmig_ctte/submissions/sub28.doc

Senate Inquiry into the Effectiveness of Australia's Military Justice System

The Ombudsman provided written and oral submissions into the inquiry by the Senate Foreign Affairs, Defence and Trade Committee into the Effectiveness of Australia's Military Justice System. The issue has attracted public comment and some controversy, both as a result of the Committee's inquiry and more generally.

Our submission commenced by noting the role played by the Defence Force Ombudsman (DFO) in investigating complaints by members of the Australian Defence Force concerning personnel and grievance matters. The DFO cannot investigate matters in connection with a military discipline proceeding, but can investigate some administrative actions and inquiries occurring prior to commencement of a discipline proceeding. Examples of complaints investigated by the DFO are decisions on discharges, postings, performance assessment, formal warnings and promotions, as well as claims of harassment, victimisation and assault, and investigative practices employed by Defence personnel.

We drew attention to areas of difficulty that we had noted—principally, delay in the investigation process occurring within Defence. Generally, the DFO will not commence investigation of a complaint until the Redress of Grievance (ROG) process is finalised. If there is considerable delay in that process, it compounds the difficulty faced by the DFO in providing administrative justice to a complainant. We raised with the Senate inquiry the possibility of initiating Ombudsman investigations within a specified period of the lodgment of a ROG, both to hasten the resolution of complaints and to provide a practical incentive for early Defence resolution of grievance matters.

'… planning was underway for a joint Ombudsman/Defence study into delays in the ROG process.'

Other concerns we took up with the committee were that investigators within Defence were not always adequately trained for the investigation task they perform, and that efficient investigation by the Ombudsman's office has been hampered in some cases by a tendency within Defence to seek legal advice unnecessarily. We put the view that the DFO role is a valuable one. It is our view that it is important, particularly in relation to an organisation such as Defence with a strong internal culture, to have a mechanism for independent and impartial investigation of personnel disputes and grievances.

Some of the issues raised in our submission were already the subject of discussion with Defence, and have since been taken up specifically with senior officers in Defence. At a later public hearing of the Senate Committee, the Chief of the Defence Force, General Cosgrove, announced that planning was underway for a joint Ombudsman/Defence study into delays in the ROG process.

The Ombudsman's submission to the Senate Committee is available at:
www.aph.gov.au/senate/committee/fadt_ctte/miljustice/submissions/sub28.pdf

Review of forensic procedures—overseas incidents

The October 2002 bombings of nightclubs in Bali presented a significant challenge for Australia's disaster victim identification processes. Division 11A of Part 1D of the Crimes Act 1914 (Cth) was inserted by the Crimes Amendment Act 2002 as an urgent response to the terrorist bombings. Division 11A facilitates, among other things, the matching of DNA profiles across jurisdictions to assist in victim identification in incidents which occur outside Australia and Norfolk Island.

The Minister for Justice and Customs appointed former National Crime Authority Chair, Mr Tom Sherman AO, to lead an independent review of the operation of Division 11A of the Act. The review is to be completed in 2004–05. The Ombudsman's office is represented on the committee conducting the review. The committee will consider the extent to which the provisions of Division 11A contributed to the identification of persons who died as a result of the Bali bombings and to the criminal investigation of those bombings; the effectiveness and deficiencies of Division 11A; problems encountered in the administration of Division 11A; and any issues relating to privacy or civil liberties.

Review of aspects of income tax self-assessment

Drawing from our complaint experience, the Ombudsman's office made a submission in response to a discussion paper issued by the Department of Treasury on the Review of Aspects of Income Tax Self Assessment. The self-assessment system is now an established feature of the income taxation system, but contains some elements of concern. The responsibility placed on individual taxpayers to complete all transactions necessary for assessing their liability to taxation will lead to occasional and possibly acrimonious disagreement between them and the Australian Taxation Office (ATO) as to how properly that responsibility has been discharged.

'The thrust of our submission … was that there is a corresponding duty on the ATO …'

The thrust of our submission to the Treasury Review was that there is a corresponding duty on the ATO to manage the self-assessment system in a manner that is responsive to the problems and uncertainties sometimes faced by taxpayers. We drew attention to the importance of the discretionary powers exercisable by the ATO in managing the problems that can arise in a self-assessment system. These include discretionary powers to relax penalties and to approve arrangements for payment of unpaid tax. We also noted the improvements in administrative practice initiated by the ATO in recent years, which reflect a more developed understanding by the ATO of its role in administering a self-assessment system. These include a more active program by the ATO to make information available about arrangements considered to involve tax avoidance, the product ruling system, and ATO rulings and advice.

'During the year, reports were released on four own motion investigations.'