CHAPTER 8 | promoting good administration

Own motion investigations

The Ombudsman can conduct an investigation as a result of a complaint or on his own motion (or initiative). During the year, reports were released on four own motion investigations. Two of the investigations were completed and provided to the relevant agency in 2002–03, and were reported in last year's annual report. They dealt with ATO complaint handling and complaint handling in the Job Network administered by the Department of Employment and Workplace Relations. The other two reports dealt with Child Support Agency (CSA) change of assessment decisions (described further below), and a review of the operational and corporate implications for the Australian Crime Commission arising from alleged corrupt activity by two former secondees (see Chapter 5). The four reports made 31 recommendations that were accepted by agencies.

Several own motion investigations currently being conducted are due to be completed in early 2004–05. Details of three investigations are set out below: under-aged people in the military, the administration of traffic infringement notices, and the use of coercive powers by the ATO. Another own motion investigation into the quality of Freedom of Information processing by Australian Government agencies is described in the 'Looking at the agencies—Freedom of Information complaints' section.

In 2003–04, the Ombudsman revised the system for publication of reports, including reports on own motion investigations. Reports that culminate in a formal finding by the Ombudsman of agency deficiency are, as far as possible, published in full or in an abridged version on our website at www.ombudsman.gov.au. The reports are presented in a numbered series. Reports are not always made available, wholly or in part, because of statutory secrecy provisions or for reasons of privacy, confidentiality or privilege.

Child Support Agency's assessment decisions

In May 2004, the Ombudsman released a report of his investigation into the CSA's change of assessment decisions based on one or both parents' income, earning capacity, property or financial resources. This report looked at the administrative procedure for making a change of assessment to a person's child support payment. More than 1,000 decisions made over a six-month period were evaluated for their standard of decision making.

'The Ombudsman made 12 recommendations, which were all accepted …'

The Ombudsman found an acceptable quality of decision making in a majority of cases. Nevertheless, in 25% of the cases analysed the decisions were rated as not being reasonably open or available to the decision maker, not being the best possible decision or not being possible to categorise.

The report pointed to regional differences in the quality of decisions and the criteria applied by decision makers in assessing a parent's liability or entitlement. The Ombudsman made 12 recommendations, which were all accepted by the Department of Family and Community Services and the CSA. The recommendations included the need for the CSA to provide more guidance to decision makers and to develop training programs that address areas of weakness and inconsistency. The Ombudsman noted that the CSA had cooperated fully with the office in conducting the study and responding to the recommendations. The CSA showed a readiness to resolve problems promptly when they were identified in the course of the investigation.

The report is entitled Child Support Agency change of assessment decisions—Administration of change of assessment decisions made on the basis of parents' income, earning capacity, property and financial resources and is available on our website at www.ombudsman.gov.au.

Under-aged people in the military

An own motion investigation was initiated in 2003 into administrative matters relating to the Department of Defence's dealings with Australian Defence Force (ADF) personnel under the age of 18 years. The investigation is in response to several serious complaints that were received in recent years raising concerns about the adequacy of Defence's administration of such people. The purpose of the investigation is to determine whether:

• policies and procedures are in place to deal with key issues that arise in dealing with people under the age of 18 years
  
  
• there are mechanisms and procedures in place to ensure that these policies are understood by key staff, and that the policies are implemented and monitored
  
  
• there are mechanisms in place to handle complaints and to respond to any problems identified.

'… examining the treatment of ADF personnel under 18 years … extensive site visits have been completed and interviews conducted.'

Issues being considered include:

• the legal status of the ADF–member relationship, and the ADF–parent relationship where the member is under 18 years (for example, in loco parentis, duty of care, United Nations convention and privacy issues)
  
  
• the advice provided to young people on how to deal with any concerns (on matters such as equity, harassment and complaints)
  
  
• how on-base living arrangements are set up, what guidelines are used to guard against inappropriate activity and to monitor and deal with it if it occurs, and the recreational and support services available
  
  
• identifying and assisting young people in crisis (arising from Defence or external circumstances)
  
  
• the involvement of parents where there are problems.

Extensive site visits have been completed and interviews conducted with Army, Navy and Air Force personnel (both supervisors and trainees) to gather information relevant to the investigation. It is expected that a draft report of the investigation in relation to ADF members will be provided to the Chief of the Defence Force late in 2004. While not specifically covering ADF cadets, the report should inform the ADF's consideration of how it deals with cadets.

Administration of Traffic Infringement Notices

For two years, Ombudsman staff have been working collaboratively with the Australian Federal Police (AFP) on a project to investigate the AFP's role in deciding whether disputed Traffic Infringement Notices issued in the Australian Capital Territory should be withdrawn by executive action, or whether the dispute should be resolved in court. The project was initiated because of the high level of complaints over several years about the AFP's traffic responsibility.

'The project was initiated because of the high level of complaints ...'

This has proven to be a complex area of administrative decision making, as the investigation deals with the difficult issue of the administrative resolution of legal liability where a judicial process is also available. The investigation also considers the adequacy of the internal administrative policies that structure this exercise of discretion to ensure consistency of decision making and effective complaint-handling procedures. It has been beneficial to run the project for a two-year period, and to map and address the range of issues that have led people to complain.

During the course of this investigation—and partially in response to it—the AFP has adopted new procedures for traffic disputes. The new procedures reflect a heightened appreciation of the principles of procedural fairness, and have resulted in a significant reduction of complaints. We hope that agreement will be reached early in 2004–05 on a new policy to guide decision makers in traffic adjudication. We also expect that lessons learned from this investigation will be applied to other government agencies facing similar challenges in administrative decision making.

Australian Taxation Office coercive powers

We continued an own motion investigation, mentioned in last year's annual report, into a selected aspect of ATO's use of its entry and search powers. The investigation was in response to a recommendation by the Senate Standing Committee for the Scrutiny of Bills that the Commonwealth Ombudsman undertake a regular, random 'sample audit' of the ATO's use of these powers.

An initial audit of the ATO's use of access powers conducted during 2003–04 examined a sample of high-profile cases from the serious non-compliance and aggressive tax planning areas of ATO operations. The audit did not bring to notice any significant difficulty with the ATO's use of these powers. Consistent with the Standing Committee's recommendation that the Ombudsman conduct ongoing monitoring, a further own motion investigation will be conducted in 2004–05.