CHAPTER 9Problem areas in government decision making

Administrative drift

A common cause of complaint to the Ombudsman across all areas of jurisdiction is agency delay in making a decision or resolving a matter. The Ombudsman has taken up this issue in reports and submissions to parliamentary committees, drawing attention to the problem of delay in areas such as Defence investigations, FOI processing, immigration detention management, and determination of veterans' claims. However, the problem of delay is more widespread, and occurs in most areas of administration.

The label 'administrative drift' appropriately describes what occurs, because delay often results from a matter drifting far beyond anyone's expectation. Some of the reasons are familiar and pervasive---a file being given a lower priority than other matters or being put aside in the 'too hard' basket to be looked at later; responsibility for a decision passing from one officer to another; or one aspect of a case being reconsidered or referred for advice before a final decision on the whole case is made.

' ... the problem of delay is more widespread, and occurs in most areas of administration.'

As those examples show, delay can stem from many different causes. It sometimes arises from a short-term resource deficit in an agency, but more commonly it results from the lack of a binding process or clear strategy within agencies to ensure that delay does not occur. The strategies that can be used to prevent delay can be as varied as the causes themselves. However, the more important point is that each agency should have one or more strategies to deal with the kinds of delays that occur in its administrative processes. In short, there should be a clear agency policy on avoiding administrative drift. The following examples from recent experience in the Ombudsman's office illustrate a few different strategies that have been successfully used in different areas of government.

One effective means of avoiding delay can be a system of internal and external complaint handling. Experience suggests that any complaint from a member of the public about delay in their case, made either to the agency itself or to the Ombudsman, usually has some impact in triggering the agency to take action to resolve the matter or hurry it along.

Another effective, though indirect, means for controlling delay is to hold regular meetings to consider all cases that have been unresolved for a prescribed period of time. This can occur within agencies, but equally can occur between an agency and an oversight body such as the Ombudsman. For example, a series of meetings between the Ombudsman's office and the Department of Veterans' Affairs (DVA) to discuss unresolved complaints to the Ombudsman resulted, over ten months, in the number of DVA cases open for more than six months dropping (despite an increase in DVA complaints over that period).

A different strategy again is to have an early assessment procedure for cases that run the risk of being delayed. We were recently informed by the Department of Defence of a new procedure it had adopted to reduce delay in resolving Redress of Grievance (ROG) cases (which had been targeted in a joint report by the department and the Defence Force Ombudsman as a major problem). Now, the commanding officer to whom a ROG is submitted must, within five days, submit a written plan to the department's Fairness and Resolution Branch in Canberra, setting out the issues and explaining how they are to be handled.

We adopted a similar process this year for early assessment and case management of complaints, to handle the 30,000 or more approaches and complaints that come to the Ombudsman's office each year. Matters reaching the office fall into five different categories. Staff in the Public Contact Team handle simpler matters, described as category one matters; an investigation officer generally handles category two matters; and an executive level officer, a senior assistant ombudsman or a deputy ombudsman supervises more complex matters (categories three to five). An investigation plan is prepared for any case designated as category three or above. There is a two-monthly reconsideration of every case opened for more than six months.

Periodic review of unresolved cases can be brought about in other ways too. A new function conferred by statute on the Ombudsman's office in 2005 is to review the case of any person who has been in immigration detention for two years or more (cumulatively), and to do a further review each six months if the person remains in detention. When this function commenced in July 2005, 149 people had been in detention for more than two years, with the longest period of detention being more than seven years. At 30 June 2006, 66 people had been in a detention facility for more than two years, while 30 people had been housed in alternative detention arrangements. Many factors lie behind that change, but as a generalisation it can be said that the mechanism of an automatic two-year review has been instrumental in bringing many unresolved cases of detention to a conclusion. In some instances a person was granted a visa of some kind, while in other instances action was taken for a person's removal from Australia.

In discharging this reporting function, the Ombudsman's office has focused on whether the Department of Immigration and Multicultural Affairs (DIMA) is taking effective action to resolve a person's detention. The stumbling block can vary from case to case---for example, identifying a person or obtaining travel documents from another country. Unexplained inactivity or ineffective action by DIMA to resolve a person's detention has been a key factor taken into account by the Ombudsman in deciding whether to recommend to the minister that a person be granted a visa to be released from detention or be placed in community-based detention.

It should be noted that some statutes seek to pre-empt delay by prescribing a time period for making a decision. An example is the Freedom of Information Act 1982, which provides that an FOI request must be decided within 28 days, and internal review of an FOI denial must be completed within 30 days. Failure to comply with either time limit is deemed a refusal, which can be the subject of a review application. The FOI time limits have not been entirely successful in preventing delay, but they provide a clear statutory benchmark for applicants, agencies and the Ombudsman.