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CHAPTER
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| other agencies |
Other agencies menu: Department of Family and Community Services | Department of Employment and Workplace Relations | Department of Transport and Regional Services | Department of the Treasury | Australian Maritime Safety Authority | Insolvency and Trustee Service Australia | Australian Securities and Investments Commission
The jurisdiction of the Commonwealth Ombudsman extends to nearly all Australian Government agencies. However, the vast majority of the complaints we receive relate to the agencies covered earlier in this chapter. The remaining 2,002 (or 12%) of the complaints we received in 2004–05 related to 84 agencies in 16 portfolios. Table 4.2 sets out the ten other agencies about which most complaints were received.
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This section provides some examples of complaints handled by the Ombudsman and the themes taken up by the office, to illustrate the diversity of issues handled each year. These examples show the variety of situations in which people seek assistance in handling the difficulties they encounter with government. Complaints also present an opportunity to improve government administrative practice.
Some of the more interesting complaints came from agencies that do not make the list of 'top ten other agencies', as can be seen from the complaint issues relating to the Department of Family and Community Services (FaCS).
During 2004–05, significant changes were made to the policy responsibilities of FaCS. Previously, the department had policy responsibility for most payments and programs administered by Centrelink. Responsibility for a number of these assistance programs and payments has been transferred to the Department of Education, Science and Training and the Department of Employment and Workplace Relations (DEWR).
We gave particular attention to three areas of FaCS's responsibility during the year: the $600 one-off payment for families; the marriage-like relationship policy; and the extension of advance payments.
The 2004 Budget provided that a $600 one-off payment (per child) would be paid to families who, on Budget night on 11 May 2004, were entitled to receive fortnightly instalments of Family Tax Benefit Part A (FTB). The bonus payment was to be paid in June 2004.
Following the introduction of this bonus payment, we received complaints about non-payment of the entitlement by Centrelink. Some parents had been told that they could not be paid the bonus payment in June because their FTB had been cancelled or suspended for various reasons prior to Budget night. This was despite the fact that their FTB had since been restored and backdated.
FaCS had taken the view that some parents were not eligible to receive the payment in June 2004 because of the terms of the family assistance legislation. However, a special administrative scheme had been established to ensure that those families would be paid by September/October 2004.
We took the view that there was no legal reason why these families should wait until September/October 2004 to be paid. FaCS agreed with this view and took steps to ensure that appropriate payments were made. FaCS later advised that the number of customers paid as a result of our office's inquiry was 6,117, with a total outlay of $3.32 million.
Numerous complaints to the office during the year raised a variety of issues relating to the implementation of the marriage-like relationship policy.
The relationship status of a customer is important for social security purposes. A person's eligibility for a social security payment and their rate of payment can be affected if they are considered to be a 'member of a couple'. The Social Security Act 1991 sets out a number of options for the meaning of a 'member of a couple'. For example, a person may be a member of a couple if they are considered to be in a marriage-like relationship.
Given the importance of a person's relationship status to their social security entitlements, the office commenced an own motion investigation to examine the policy underpinning the administration of marriage-like relationships under the social security law. This investigation will continue into 2005–06.
Advance payments are available to most income support recipients, but not for those receiving Parenting Payment (Partnered). We reported on this issue in previous annual reports and recommended to FaCS that the advance payment scheme available to income support recipients should be extended to Parenting Payment (Partnered) customers.
The basis for our recommendation was that it was unreasonable and discriminatory to exclude recipients of the partnered rate from the advance payment scheme. The Ombudsman was informed that the recommendation had merit, and that legislative change would be considered. Some time elapsed without any formal commitment to or timetable for legislative change.
In late 2004 the Ombudsman made a formal report to the Prime Minister under s 16 of the Ombudsman Act, recommending that the advance payment scheme be extended. The Prime Minister subsequently informed the Ombudsman that the government had decided that Parenting Payment (Partnered) recipients should be able to access advance payments. As matters relating to Parenting Payment customers now fall within the portfolio responsibility of the Minister for Employment and Workplace Relations, policy responsibility for this change has transferred from FaCS to DEWR.
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.
In last year's annual report, we outlined the work we had undertaken with DEWR in relation to the administration of the General Employee Entitlements and Redundancy Scheme (GEERS). Complaint issues regarding GEERS accounted for 163 (or 44%) of the 370 DEWR complaint issues finalised in 2004–05, compared to 118 complaint issues (or 40%) in the previous year.
Of the 163 complaint issues about GEERS, we investigated 28%. While the number of complaints is small in comparison with the 11,376 GEERS claims processed by DEWR in 2004–05, there has been a noticeable increase in complaints during the year.
Following discussion with DEWR in mid-2004, our data showed a marked decline in complaints about GEERS. As the year progressed, complaint numbers again rose. This reflects the complex nature of some GEERS issues. Late in 2004–05, DEWR initiated further discussion, which has been a constructive way of addressing a range of complex issues that are highlighted in the case studies: Company restructures—the 'corporate veil' and Creditor priority. Another program administered by DEWR that directly affects individuals is the recognition of trade qualifications as part of the migration process. The Recognising differences case study illustrates the importance in such a program of tailoring procedures and processes to meet the needs of a diverse client base.
CASE STUDY |
company restructures—the ‘corporate veil’ |
Mr A had applied to the GEERS scheme for benefits lost when company H2, his employer, had gone into liquidation. On investigation it became clear that the company H2 had taken over the business of another company, H1, about halfway through Mr A's employment. Mr A was unaware of this corporate change: he continued to work at the same premises with the same people, doing the same work, and for a company with only a minor change in name. This corporate change placed about half of Mr A's employee entitlements outside the reach of his GEERS claim. Following discussions with DEWR, it was agreed that we would research whether H1 had also gone into liquidation. Depending on the outcome, DEWR would be able to assist Mr A with advice about a GEERS claim for company H1 or other action against H1 if this company was still operating. |
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CASE STUDY |
creditor priority |
Mr B was employed by a company in financial difficulty. By a Deed of Company Arrangement, the creditors of the company agreed to accept a reduced repayment of debts to allow the company to keep trading. In that circumstance, GEERS will not cover the liability to employees of the company unless the deed provides that GEERS, in substitution for the employees, has priority as a creditor. The effect of a provision of that kind is to give GEERS the same priority that employees would have under legislation. Without this safeguard, GEERS will not cover the liability of the company to the employees. If GEERS did pick up that liability, it could have the practical effect of providing a government subsidy to the other creditors of the company, by eliminating the priority claim of the employees. This restriction in the GEERS scheme is understandable, but it can impact adversely on employees of a company in financial difficulty. The employees are left in the position that they have no entitlement under GEERS, and must make individual claims against an employer, which is now the subject of a DOCA Whether and how employees should be covered in a situation such as this raises a complex issue of public policy. The Ombudsman's office has taken the issue up with DEWR, and it is the subject of ongoing discussion. |
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CASE STUDY |
recognising differences |
A migration agent contacted us, complaining about the way Trades Recognition Australia (TRA) processed an application made by his client for recognition as a cook/chef. His client, Ms C, had paid a higher fee to get priority processing and provided contact details of her employer in Iran, a restaurateur, to verify her employment. Priority applications take on average three months to process. There was an initial delay of nearly four months, following which TRA tried to make telephone contact with her employer in Iran. TRA rejected Ms C's claims when they were unable to contact her employer. Ms C's agent said TRA had sought to make contact during Ramadan, when restaurants in Iran are either closed or operate very limited hours. Following our investigation of the complaint, TRA agreed to reopen Ms C's application and to make contact with her employer. Ms C's application was subsequently granted. |
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In 2004–05, we received 35 complaints about the Department of Transport and Regional Services (DOTARS), compared to 104 in 2003–04. This was a decrease of 66%, and brings complaint numbers back to the level in earlier years, which was 40 complaints in 2001–02 and 49 complaints in 2002–03. The significant increase in complaints in 2003–04 was due to numerous complaints about import approvals not being granted for vehicles already physically landed in Australia. A Full Federal Court looked at the issue and held that import approval could be granted under existing legislation: Minister for Transport and Regional Services v Marra [2003] FCAFC 294.
We continued a review into the complaint-handling mechanisms employed by DOTARS. During the 2004–05, the department developed new complaint procedures within its Vehicle Standards Safety Branch and initiated a review of internal complaint-handling procedures in other areas.
A complaint we investigated about the Department of the Treasury (To build or not to build? case study) illustrated the importance of an agency paying close attention to the statutory provisions being administered. The case also illustrated, for members of the public, that a change in their circumstances does not necessarily mean they will be released from obligations they have entered into.
CASE STUDY |
to build or not to build? |
Mr D held a temporary visa when he purchased property in an Australian city. His acquisition of the property was approved subject to specific conditions, including a requirement to build a new dwelling on the property. Mr D later became a permanent resident. He complained to the Ombudsman after receiving a letter stating that he had failed to comply with the conditions of the approval, and requesting him to sell the property, irrespective of price, to an Australian citizen. As an Australian permanent resident, Mr D felt that he should be released from the conditions imposed when his residential status was different. We investigated the complaint and agreed that Mr D did not fall outside the operation of the Foreign Acquisitions and Takeovers Act 1975 by reason of having become a permanent resident. On the other hand, we considered that the procedure in the statute for compulsory sale did not come into operation until a person had first been convicted of an offence under that Act. Treasury agreed with this reading of the legislation, and accepted that in future it should warn a person in this situation that the matter may be referred to the Director of Public Prosecutions. |
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The Cape Jaffa Lighthouse platform case study, on a complaint about the Australian Maritime Safety Authority, provides a window into the diverse nature and complexity of complaints handled by the office.
CASE STUDY |
Cape Jaffa Lighthouse platform |
Mr E complained that the Australian Maritime Safety Authority (AMSA) had allegedly misrepresented an engineer's report by indicating that the condition of the Cape Jaffa Lighthouse platform situated on the Margaret Brock Reef in South Australia was such that it should be condemned rather than abandoned. AMSA had no further use for the structure, as the authority had relocated the maritime safety beacon. AMSA considered the obsolete structure to be a hazard to shipping and the marine environment and wanted to remove it. It was Mr E's view that the engineer's report did not recommend that the structure be demolished. Considerable efforts had been made by AMSA to offer the structure to various South Australian Government departments, which declined to accept responsibility for it. There was notable public interest in the structure, as it has a rich maritime history. In addition, the structure is a place of environmental significance because it is a nesting site for Australasian gannets and home to pied and black-faced cormorants. Following our investigation over a number of months, including examination of agency files, AMSA decided not to take action to commence demolition of the structure in April/May 2005 as originally planned. AMSA decided that the structure would remain in place until at least March 2006. This will allow one more breeding cycle to occur at the site and negotiations to continue with the South Australian Government before final action is taken. In reaching this decision, AMSA recognised the efforts of the local community and various members of the South Australian Parliament to develop a viable alternative to demolition of the structure. |
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Agency client service charters inform the public of the service standards they can expect from agencies. It is to be expected that members of the public will rely on an agency's charter in their dealings with the agency. It is therefore important that a charter should accurately reflect the service the agency is required to provide, or aims to provide. The All or any? case study illustrates a problem that can arise when charter wording is not accurate.
CASE STUDY |
all or any? |
The Insolvency and Trustee Service Australia (ITSA) Client Service Charter stated that the Inspector-General in Bankruptcy maintains high national standards of bankruptcy and procedures by 'inspecting the administrations of all bankruptcy trustees' and 'investigating complaints about any administration'. Mr O complained that ITSA's Bankruptcy Regulation Branch, which exercised the Inspector-General's powers, decided not to investigate all aspects of complaints about a registered trustee. Mr O contended that ITSA's actions were inconsistent with the ITSA Client Service Charter. We investigated and found that, while ITSA examines all complaints, there was no legislative requirement for the Inspector-General to inspect 'all' bankruptcy trustees or to investigate complaints about 'any' bankruptcy. These decisions are at the discretion of the Inspector-General and are based on the issues raised and available alternative remedies. We raised with ITSA the desirability of the Client Service Charter being changed to remove any ambiguity in their complaint handling, to which ITSA agreed. |
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The Ombudsman receives a small number of complaints each year about the Australian Securities and Investments Commission (ASIC), and some of these complaints throw up challenging issues of law and administration.
In one such case, the Ombudsman raised with ASIC whether it should develop public guidelines on what constitutes 'the public interest', for the purposes of ASIC bringing civil recovery proceedings under s 50 of the Australian Securities and Investments Commission Act 2001. This arose from a complaint to the Ombudsman from a member of parliament, querying the reasons given by ASIC to a constituent for not commencing proceedings under s 50. The Ombudsman did not find error in ASIC's decision, but pointed to the role that internal agency guidelines can play in promoting clarity and consistency in the administration of indeterminate statutory phrases.
Another ASIC complaint handled during the year drew attention to an instance in which legislative requirements were not being fully met in the discharge of an ASIC supervisory function. As the Unclaimed monies case study shows, we can be useful in bringing to the attention of government agencies the failure of organisations, over which they have a supervisory function, to comply with legislative requirements.
CASE STUDY |
unclaimed monies |
The Banking Act 1959 requires banks and other authorised deposit-taking institutions to lodge with the Australian Securities and Investments Commission (ASIC) a statement of all unclaimed moneys held in accounts, within three months of the end of each financial year. The statement must contain the name and last known address of the account holder, the amount, and the branch at which the account was kept. This information can be of assistance in identifying the owner or whoever may now be entitled to the funds. Following a complaint from a company whose activities included tracing potential owners of unclaimed monies, Ombudsman staff raised with ASIC a concern that some statements being lodged did not provide the last known address of the account holder or the branch where the account was held. ASIC acknowledged that this was occurring and advised that it would write to authorised deposit-taking institutions emphasising the importance of ensuring that all required details were included in the statement. ASIC also advised that, when statements were lodged without this information, it would write to the institution requesting reasons why the information was not included. |
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