Chapter 6
Looking at the agencies
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introduction
Our office investigates complaints about a range of defence agencies, including the Department of Defence, the Australian Defence Force (ADF) (Royal Australian Navy, Australian Army, Royal Australian Air Force), the Department of Veterans' Affairs (DVA) and Defence Housing Australia (DHA).
We investigate these approaches as either the Commonwealth Ombudsman or the Defence Force Ombudsman (DFO). The DFO investigates complaints that arise out of a person's service in the ADF, covering employment–related matters such as pay and entitlements, terminations or promotions. As Commonwealth Ombudsman, we investigate other administrative actions of these agencies.
In 2008–09 we received 609 defence–related approaches and complaints, compared to 562 in 2007–08. This represents an 8% increase in complaints.
TABLE 6.1 Defence–related approaches and complaints received, 2004–05 to 2008–09
Agency |
2004–05 |
2005–06 |
2006–07 |
2007–08 |
2008–09 |
|---|---|---|---|---|---|
Australian Army |
190 |
169 |
145 |
138 |
141 |
Defence Housing Australia |
28 |
29 |
36 |
28 |
43 |
Department of Defence |
165 |
138 |
106 |
135 |
157 |
Department of Veterans' Affairs |
216 |
276 |
256 |
139 |
160 |
Royal Australian Air Force |
69 |
80 |
57 |
48 |
45 |
Royal Australian Navy |
78 |
54 |
50 |
59 |
49 |
Other (see breakdown for 2008–09 in Appendix 3) |
12 |
4 |
20 |
15 |
14 |
Total |
758 |
750 |
670 |
562 |
609 |
TopDepartment of Defence
We received 157 approaches and complaints about the Department of Defence in 2008–09, compared to 135 in 2007–08. Of the complaints we investigated, the three main sources of complaint were:
- recruitment into the ADF
- the payment of financial compensation
- applications for honours and awards.
The number of complaints we investigated about honours and awards increased from 2007–08. Because the eligibility requirements for specific honours and awards are clearly set out in ministerial determinations and letters patent, our investigations normally focus on the accuracy of Defence's application of those rules to an individual's circumstances. The main cause of complaint to our office was where Defence had declined to give an award on the basis that its records showed the member was not eligible. However, the member believed that Defence's records did not accurately reflect their service.
In almost all of these complaints, investigation was made more complicated by the length of time that had passed. Many of our complaints related to service in the ADF more than 30 years ago. In the absence of supporting records to confirm a person's service, we do not believe that denying an honour to a member is unreasonable. However, in some cases alternative documentation and records are enough to reasonably establish a member's entitlement, as the case study Officially not there shows.
We do not normally investigate the reasons for establishing a certain award, or the limits of the eligibility criteria. These policy issues are more appropriately dealt with by the new Defence Honours and Awards Tribunal, which is an independent body set up to consider issues arising in the area of Defence honours and awards. In July 2008 the Government appointed the first members to the Tribunal. The inaugural chair, Emeritus Prof. Dennis Pearce AO, is a former Commonwealth and Defence Force Ombudsman.
Officially not there
Mr R considered he was entitled to the Australian Service Medal, as he served for more than 30 days in Malaysia in 1988. The Central Army Records Office had no record of Mr R serving in Malaysia, and the Directorate of Honours and Awards refused Mr R's application. After investigation by our office, Defence reviewed his application and accepted the statutory declarations by colleagues who testified that they served with him in Malaysia. A decision was then made to award Mr R the Australian Service Medal with Clasp 'SE ASIA'.
It seemed that Mr R's deployment was as a last–minute replacement for another ADF member, and was not officially recorded. Our office also investigated whether Mr R had suffered any detriment to his pay and allowances by not being officially recorded as being in Malaysia at that time.
Australian Defence Force
We received 235 complaints from serving and former members about the actions and decisions of the Royal Australian Navy, Australian Army and the Royal Australian Air Force, compared to 245 in 2007–08.
Of the complaints we investigated, the most frequent cause of complaint was about the ADF's internal complaint system, the redress of grievance (ROG) process. The ROG process has been the subject of much debate and inquiry over the past 10 years. In May 2008 the regulations governing the redress process were changed. One of the main changes was the introduction of a time limit of 90 days for a commanding officer to investigate and decide on a member's grievance. This was an important change.
If a member is not satisfied with the commanding officer's decision, the member may refer the matter to the Chief of their service. There is no time limit for consideration by the Chief, and we are receiving an increased number of complaints about delay. The delay usually occurs in the preparation of a brief prior to the Service Chief's decision, as the case study Four of the same shows.
Four of the same
Within a few days in February 2009 we received four separate complaints by four Army members who had requested their ROG be referred to the Chief of Army. The requests had been made in July, August and September 2008. When we asked Defence about the status of these ROGs, we learned that none of the referrals had yet been allocated to a case officer. Two were due to be allocated in March 2009, and two were unlikely to be allocated before June 2009.
Although we consider these delays to be unreasonable, we were unable to recommend that any of the complaints be given priority over any other complaints in the queue. Instead, we decided to question the processes and systems used by Defence, with the aim of improving timeliness for all redresses that have been referred to the Service Chief. This is ongoing.
We raised our concerns about the delays with the Senate Committee on Foreign Affairs, Defence and Trade in June 2008, in its public hearings to gather evidence for its fourth progress report into the reforms to Australia's military justice system. We were also consulted by the Honourable Sir Laurence Street AC, KCMG, QC and Air Marshal Fisher AO (rtd), who were appointed by the Chief of the Defence Force (CDF) to conduct a review into the effectiveness of the overhauled military justice system. The delays in the ROG process were noted in Sir Laurence and Air Marshal Fisher's Report of the Independent Review on the Health of the Reformed Military Justice System, released in March 2009.
We are concerned that the excellent structural and process reforms that have been put in place in the last few years are in danger of being undermined by this single bottleneck. Our experience shows that confidence in an internal complaint system is essential. If confidence is lost because there is seen to be excessive delay at any stage, then the system will not be used.
The Ombudsman wrote to the CDF in June 2009, drawing his attention to our assessment of the potential pitfalls. We noted that the ADF put considerable effort into ensuring that decisions were beyond reproach. We queried with the CDF whether this thoroughness should be consciously balanced against the dangers of excessive delay.
Defence has acknowledged that the delay is of concern, and is of the view that the cause lies in resource constraints rather than any systemic failings. We are continuing to work with Defence on this issue.
25th anniversary of the Defence Force Ombudsman
December 2008 marked an important event in the history of administrative oversight of military justice—the 25th anniversary of the establishment of the Defence Force Ombudsman in December 1983. In the last 25 years, our office has been joined by other oversight bodies, notably the Inspector–General of the Australian Defence Force (IGADF). Academic interest in military justice has grown also, as shown by the establishment in 2008 of the Australian Centre for Military Law and Justice (ACMLJ) at the Australian National University.
On 26 November 2008 our office, together with the IGADF and the ACMLJ, hosted a one–day seminar at the Australian War Memorial to examine the military justice system. The seminar looked at the challenges arising in administrative oversight of military justice, and what is needed to ensure fairness in complaint handling, grievance resolution and administrative inquiries.
A range of senior practitioners and commentators in the area of military justice spoke. The speeches were a starting point for engaged and interesting discussion. Key speakers included:
- the Hon. Warren Snowdon MP, then Minister for Defence Science and Personnel
- Senator Mark Bishop, Senator for Western Australia and Chair of the Senate Committee on Foreign Affairs, Defence and Trade
- Lieutenant General Peter Leahy AC (rtd), Director of the National Security Institute, University of Canberra
- Prof. John McMillan, Commonwealth and Defence Force Ombudsman
- Mr Geoff Earley, IGADF
- Prof. Robin Creyke, Director ACMLJ
- Dr Matthew Groves, Law Faculty, Monash University
- Ms Di Harris, Director–General, Fairness and Resolution Branch, Department of Defence
- Mr Neil James, Australia Defence Association.
The seminar was preceded by dinner at the Australian War Memorial, where Prof. Dennis Pearce spoke of his early experiences in monitoring military justice.
A full program of speakers and copies of presentations and speeches are available on our website at www.ombudsman.gov.au.
To celebrate the 25th anniversary, we also released a publication Defence Force Ombudsman: Twenty–five years of service. This publication describes the changes we have noticed in 25 years of investigating complaints about the ADF and the way in which the changes in the ADF reflect changing community attitudes.
Over the last 25 years, complaints to our office have centred on the main concerns of ADF members and their families—pay, entitlements, relocations and dismissals. Our work in this area has resulted in numerous changes to legislation and policy, and has also provided assistance to many thousands of people. The work of the DFO has also shown that the need for sound and accountable administration is as applicable to Defence as it is to all government agencies.
This publication is available on our website, or on request.
Department of Veterans' Affairs
The Department of Veterans' Affairs provides a wide range of services to nearly half a million Australians. During 2008–09 we received 160 approaches and complaints about DVA, compared to 139 in 2007–08, a 15% increase.
The single biggest group of DVA's clients are World War II veterans and their families, followed by a substantial number of Vietnam veterans. An increasing number of DVA's clients are younger people who have left the ADF and now require medical treatment for injuries or illnesses resulting from their ADF service.
A varied client base means that DVA engages with many other organisations where their responsibilities overlap. For example, older veterans' medical and accommodation needs are also met by Commonwealth and state agencies with responsibility for aged care and health provision. This sharing of responsibility presents challenges for DVA in administering veterans' entitlements, and for our office in investigating complaints.
In particular, DVA must necessarily maintain a close liaison with Defence. For example, if an ADF member is injured during their service, the ADF takes responsibility for medical treatment and rehabilitation. When the member leaves the ADF, the responsibility moves to DVA. Both Defence and DVA aim to make this transition as seamless as possible, ensuring that the quality and timeliness of the medical treatment is maintained without disturbance. To add to the complexity, DVA is also responsible for administering some entitlements for currently serving ADF members, as the case study Wrong guidance shows.
Wrong guidance
The Defence Home Ownership Assistance Scheme (DHOAS) commenced on 1 July 2008. It provides home ownership subsidies for eligible serving ADF members, including Reserve members, and is administered by DVA on behalf of Defence.
Defence provided policy guidance to DVA on the intent of the scheme. This policy guidance was incorrect, in that it required Reserve members to perform 20 days service during the financial year before becoming eligible for DHOAS. The legislation provided that Reserve members were eligible unless they failed to perform 20 days service (in other words, members could get the subsidy but then lose it if they failed to perform the required service).
We received five complaints in July 2008 from Reserve members whose applications for DHOAS had been denied. We investigated this matter further with Defence. Defence accepted our interpretation of the legislation, and issued further policy guidance on Reserve members' entitlements to DHOAS. The affected members were able to put in new applications, which DVA fast–tracked for assessment.
Inquiry into RAAF F–111 deseal/reseal workers and their families
In July 2008 we gave evidence to the Joint Standing Committee on Foreign Affairs, Defence and Trade's inquiry into compensation for former F–111 deseal/reseal workers and their families. We also provided a written submission. In previous annual reports we have described the complaints made to our office about claims made to DVA under the ex gratia scheme, and the administrative challenges the scheme presented for DVA.
Previously this office had raised our observations about the administration of the claims with the Secretary of DVA. The Secretary responded fully and openly, acknowledging some areas for improvement and explaining the process in more detail. We were satisfied with the Secretary's response, and did not take any further action.
Our submission to this inquiry highlighted the following problem areas in processing claims:
- deficiencies in the original records created by the RAAF
- a lack of guidance for assessors on gathering and using evidence to assess claims
- maintaining adequate staffing resources to assess claims
- delay in processing more complex or unusual claims
- the quality of recordkeeping on claim files created by DVA.
The committee reported in June 2009, concluding that our criticisms in relation to DVA's use of evidence in assessing claims was a 'cause for deep concern'.1 The report made 18 recommendations, including extending the health care scheme and the ex gratia payments to former RAAF members who had previously been excluded. The Government has not yet responded to these recommendations.
Defence Housing Australia
Defence Housing Australia provides housing and relocation services for all members of the ADF. DHA maintains properties and manages leases with property owners. DHA staff also calculate and process allowances and entitlements for ADF personnel who are moving to a new posting as part of the relocation process.
Over the past 12 months we received 43 approaches and complaints about DHA, compared to 28 in 2007–08. The complaints we investigated were mostly about the quality or standard of accommodation, including the classification of the property under the current classification policy.
DHA operates under contract to Defence. DHA is responsible for the administration and delivery of Defence's housing and relocations policy. We receive many complaints which are, on the face of it, about a decision by DHA. However, the complaints are often about the policy that underpins that decision. We sometimes find that, even though DHA has acted in accordance with the rules, the member's complaint is that the policy underlying those rules has operated to disadvantage the member in their particular case. As shown in the case study Reasons for no removal entitlement, we investigate the reasons for that policy with Defence.
Reasons for no removal entitlement
Mr S lived in his own house at the time he stopped continuous full–time service in the Navy Reserve. Once he had finished working, Mr S wanted to buy, and move into, a house in another suburb within the same posting location. Mr S was only entitled to a removal if he moved to a different posting location, or if he moved from service or rented accommodation.
After investigation, we accepted DHA's view that it had applied the rules correctly. We then investigated the reasons for this policy with Defence. Defence's view was that the removals policy was about supporting its operational effectiveness. If Defence required someone to live at a particular location, it would offer support with accommodation during the posting and a removal out of that accommodation at the end of service. However, there was no operational requirement to assist members to move between properties they owned in the same location.
We considered that the policy was reasonably open to Defence. We were able to provide a further explanation to Mr S about the intent of the policy.
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