Specialist and Other Roles
In addition to the Ombudsman’s role in investigating complaints about the administrative actions of Australian Government departments and agencies, the office has a number of specialist oversight functions. These include the following responsibilities:
- Defence Force Ombudsman: investigate complaints about the Australian Defence Force (ADF) relating to or arising from present or past service
- Law Enforcement Ombudsman: oversight of Australian Government law enforcement agencies including joint responsibility for handling complaints about the Australian Federal Police (AFP) with AFP's Professional Standards
- Immigration Ombudsman: in addition to investigating complaints, conducts visits to immigration detention facilities and reports to the Immigration Minister in relation to people who have been in immigration detention for two years or more
- Taxation Ombudsman: investigate complaints about the Australian Taxation Office (ATO)
- Postal Industry Ombudsman: investigate complaints about Australia Post and other postal or courier operators that are registered as a Private Postal Operator
- Overseas Students Ombudsman: investigate complaints about problems that overseas students or intending overseas students may have with private education an training in Australia.
In August 2012, the office added a further specialist role as the Norfolk Island Ombudsman.
In addition to these specific specialist Ombudsman roles the office also has the following functions:
- statutory responsibility for compliance auditing of the records of law enforcement and other enforcement agencies in relation to the use of covert powers
- an international role as an active participant within the international community of ombudsmen, with a focus on sharing its experience in handling complaints about government agencies and fostering good public administration within various countries in the Asia-Pacific Region
- over the past five years, oversighted the administration of programs to Indigenous communities under the Australian Government’s Northern Territory Emergency Response (NTER) and Closing the Gap initiatives in the Northern Territory. Funding for this role has now ceased.
This chapter reports on these specialist Ombudsman roles (except for the Taxation Ombudsman and Postal Industry Ombudsman roles which are dealt with in Chapter 4), and other functions over the last year.
Defence Force Ombudsman
There are a number of Defence‑related portfolio agencies that we receive complaints about and which we can investigate as either the Commonwealth Ombudsman or the Defence Force Ombudsman, depending on the circumstances. This year the Commonwealth and Defence Force Ombudsman received 662 complaints about Defence-related agencies, compared with 632 received in 2010–11.
The primary themes arising from complaints this year were the quality and timeliness of service delivery by the Department of Veterans’ Affairs (DVA) and delays in the processing of Australian Defence Force (ADF) Redress of Grievance (RoG) decisions at the service chief level.
Many current and former ADF members contacted our office seeking a better understanding about their eligibility for benefits, compensation and military superannuation under one or more of the three Acts administered by DVA. We have also observed an increase in complaints from former ADF members receiving adverse DVA decisions based on the circumstances of their discharge from the ADF, the discharge usually having occurred many years prior to the DVA decision.
People also complained about delays by the Department of Defence (Defence) sending information to DVA which in turn delayed DVA finalising their claims for compensation or benefits. In May 2012, the Government responded to DVA’s Review of Military Compensation Arrangements, recommending the establishment of key performance indicators to ensure timely access to Defence information in resolving compensation claims.
We received 38 complaints about delays associated with the RoG process, an increase of four from the previous year. The backlog of longstanding RoG claims was significantly reduced by a temporary resourcing increase in Defence. However, the consistent rise in complaints received by our office each year indicates that the problem of RoG delay remains as a systemic issue. Many of our earlier recommendations about improving RoG processing were accepted and recorded in the Department of Defence’s Pathway to Change: Evolving Defence Culture publication of March 2012.
The governance role of the Defence Force Ombudsman in relation to the Review of Allegations of Sexual and other Abuse in Defence (the Review), conducted by law firm DLA Piper, continued in 2011–12. Twenty‑two submissions to the Review that were unable to be assessed by DLA Piper due to a conflict of interest were referred to our office, with the consent of the complainants. The Defence Force Ombudsman is assessing these cases and will provide advice to the Minister for Defence, consistent with the methodology used by DLA Piper.
Reports and Submissions
We made three submissions to Defence-related inquiries: Review of the Management of Incidents and Complaints in Defence; Phase Two of the Review into the Treatment of Women in the Australian Defence Force, and Inquiry into Workplace Bullying.
Stakeholder engagement, outreach and education activities
On 17 August 2011, the Defence Force Ombudsman met with senior Warrant Officers of the Tri-services to discuss issues of delay, tensions and problems in the ADF, increasing our awareness of contemporary concerns and emerging issues.
In June 2012, the DFO finalised a Memorandum of Understanding with the Chief of Air Force to formalise the Ombudsman's role in investigating complaints about aircraft noise arising from the Australian Super Hornets operations at RAAF Base Amberley.
Law Enforcement Ombudsman
The Commonwealth Ombudsman is also the Law Enforcement Ombudsman and has a comprehensive role in oversight of Australian Government law enforcement agencies. The Ombudsman deals with complaints about the:
- Australian Federal Police (AFP)
- Australian Commission for Law Enforcement Integrity (ACLEI)
- Australian Crime Commission (ACC)
- Attorney-General’s Department (AGD)
- Australian Transaction and Reports Analysis Centre (AUSTRAC)
- Commonwealth Director of Public Prosecutions (CDPP), and
The Ombudsman can refer allegations of corruption against law enforcement officers to the Integrity Commissioner of ACLEI.
The Ombudsman also has a statutory responsibility to review AFP complaint-handling arrangements.
Australian Federal Police
The Ombudsman’s office investigates complaints about the AFP from both members of the public and AFP members. We also have a legislative requirement to conduct annual reviews of the AFP complaint management processes under Part V of the Australian Federal Police Act 1979.
With this combination of functions, the Ombudsman is well placed to promote public confidence in the AFP by being independent, impartial and honest in views formed through our oversight activities.
During 2011–12, we received 334 complaints about the AFP. This is a reduction on the 349 received in 2010–11. We advised 54% of the complainants to contact the AFP in the first instance, in line with our office’s policy that the agency complained about should have the first opportunity to resolve a complaint.
We finalised 357 complaints about the AFP in this reporting period. Apart from those that we referred to the AFP in the first instance, we declined to investigate 86 complaints for reasons such as there being insufficient basis for a complaint, or the matter being complained of was being considered by a court or tribunal, or the complaint was over 12 months old.
We completed 48 investigations and advised the AFP that we were critical of its actions in several of these cases. One case related to an unreasonable delay in the AFP finalising a complaint; one related to the use of a search warrant and one related to an incorrect National Police check being provided to a person’s employer.
Complaints and systemic issues
The complaint themes were:
- inappropriate action, such as excessive delay, failure to act or inadequate investigation
- customer service
- serious misconduct
- minor misconduct.
In September 2011, we provided a report to the AFP Commissioner titled, Report on a review of the AFP’s administration of Part V of the Australian Federal Police Act 1979.
In November 2011, we provided our annual report on the Commonwealth Ombudsman’s activities under Part V of the AFP Act to Parliament, covering the period 1 July 2010 to 30 June 2011.
We reviewed all of the use of force reports relating to tasers by ACT Policing General Duties officers and our report on this will be published in the next financial year. We will continue to maintain an interest in this use of force option over the next reporting period.
The only cross-agency issue that arose during the reporting period was the AFP’s involvement in providing support to the Department of Immigration and Citizenship (DIAC) at Christmas Island in March 2011, following a disturbance by immigration detainees. The office investigated these events and provided comments to the AFP Commissioner in June 2012, rather than a formal report, noting that the office’s considerations were consistent with recommendations made by the Hawke Williams report, ‘Review of Immigration Detention Centre Incidents’.
The office attended the AFP Complaint Management Team Forum held in July 2011. One outcome of that forum was that AFP Professional Standards introduced new procedures for Category 1 conduct issues to simplify the processes in communicating with complainants where an investigation was not considered appropriate.
The office has worked closely with AFP Professional Standards in order to reduce the time taken to finalise complaint investigations. During the past year, improvements have been noted. Information on this is available in our annual report to Parliament. We made no formal recommendations in our report to Parliament in November 2011, but we did note areas where the AFP could improve its complaint-handling methods.
Stakeholder engagement, outreach and education activities
During the year, the Ombudsman Law Enforcement Team:
- attended the AFP Professional Standards/Ombudsman annual forum in July 2011, which considered the AFP Categories of Conduct—a legislative instrument determined jointly by the AFP Commissioner and the Ombudsman under the AFP Act
- presented at a legal workshop for first year law students at the Australian National University in April 2011. Feedback from the workshop indicated that attendees found the information very helpful
- presented at an orientation session for new members of the AFP Professional Standards (PRS). This provides us with an opportunity to make new members of PRS aware of our role in managing complaints about AFP members
- attended an AFP demonstration in August 2011 of less-lethal AFP weapons used on Christmas Island in March 2011. This aided our understanding of the practical use of these weapons and the impact they may have on an individual.
Over the next year we will continue to focus our attention on working with the AFP to improve its timeliness in finalising complaint investigations and make suggestions where appropriate to improve AFP complaint handling methods. We will also continue to monitor the way the AFP deals with complaints about excessive use of force, particularly against members of the public.
Other Law Enforcement Agencies
This office also investigates complaints about the Australian Crime Commission, the Attorney-General’s Department (AGD), the Australian Commission for Law Enforcement Integrity, the Commonwealth Director of Public Prosecutions, CrimTrac and AUSTRAC.
We received less than ten complaints about each of these agencies except for the Attorney-General’s Department about which we received 54 complaints. This was an increase from the previous year’s 31 complaints. In seven cases we found these were out of our jurisdiction to investigate—for example, they were employment-related matters—and in 18 cases we asked the complainant to provide their complaint to the AGD in the first instance. We investigated six complaints and were able to provide a better explanation to the complainants in these cases as there was no other remedy available to them.
While we did not formally register any systemic issues in relation to complaints received about AGD, we will be monitoring complaints about the following areas during the next year:
- marriage celebrants’ legislation
- the Federal Offenders Unit
- family law court complaints.
AGD has indicated that it is currently reviewing its complaint-handling methods and we look forward to providing input to this process during the year.
Overseas Students Ombudsman
The Overseas Students Ombudsman role was created following a recommendation by the Hon Bruce Baird in his Review of the Education Services for Overseas Students Act 2000 (ESOS Act). The Baird Review found that overseas students studying with private education providers were particularly vulnerable, and would benefit from access to a statutorily independent complaint handling body such as the Commonwealth Ombudsman. Following amendment to the Ombudsman Act 1976, the Overseas Students Ombudsman started operation on 9 April 2011.
The Overseas Students Ombudsman has three clear roles under the legislation:
- investigate individual complaints
- report on trends and systemic issues in the sector
- work with providers to promote best practice complaint handling.
Within the office of the Commonwealth Ombudsman, the Overseas Students Ombudsman role complements existing jurisdiction in relation to the Department of Industry, Innovation, Science, Research and Tertiary Education (DIISRTE) and the Department of Immigration and Citizenship (DIAC). It is also relevant to the ACT Ombudsman’s jurisdiction in relation to public education providers in the Australian Capital Territory.
During the period from 1 July 2011 to 30 June 2012, the office has continued to establish the Overseas Students Ombudsman role, resolving complaints for overseas students and working with education providers. We have engaged with peak bodies within the private education industry sector and those representing overseas students, and participated in, and presented at, industry conferences.
We have resolved a large number of complaints and provided advice back to providers on how to improve their compliance with legislation and the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (National Code) and improve their complaint handling and appeal processes. In addition, the office undertook a major investigation of the administration of the ESOS Act in relation to refund payments made from the ESOS Assurance Fund.
In order to satisfy the requirements s 19ZS(4) of the Ombudsman Act of 1976, Appendix 3 of this report provides additional detail to that contained in this section of the annual report.
The Overseas Students Ombudsman is not limited in the type of complaints it can investigate, as long as the complaints are made by, or on behalf of, an intending or actual overseas student, and in connection with the actions of a private registered education provider. The Ombudsman has a particular role in conducting external reviews of providers’ decisions to report students to DIAC for failing to meet course progress or attendance requirements.
The Overseas Students Ombudsman received 588 complaints related to private education providers, of which 262 investigations were undertaken where education providers were asked to explain their actions and provide documentation supporting their decisions.
The largest proportion of complaints (146) related to refunds of course fees. Issues arising from transfers between providers led to 101 complaints. External reviews of decisions to report students for failing to meet attendance (84) and progress requirements (33) were also significant. Issues relating to enrolment agreements accounted for 54 complaints.
As a whole, providers have been quick to respond to requests for information from the Overseas Students Ombudsman and to act on recommendations made as a result of complaint investigations. Common themes in complaints are discussed below.
Refunds following student default
Sections 27, 28 and 29 of the ESOS Act set out the rules relating to refunds in the case of student default. Complaints in this area generally relate to delay by providers in paying refunds where a prospective student has defaulted because their visa has been refused; or to either the delay, quantum of refund, or harshness of refund policies where a student cancels or withdraws from a course for other reasons.
Delay in the payment of refunds is quite common and can be an indicator of a provider experiencing financial difficulty. Where a student is refused a visa the obligations on a provider to pay the refund within four weeks are clear, and we will generally inform the regulator where payment is not forthcoming after our involvement, or where there are repeated failures by a provider.
Investigation of complaints relating to course withdrawals and cancellations generally require a consideration of the existence and clarity of refund provision in enrolment agreements. Often it is the case that students withdraw from courses without proper consideration of their contractual obligations and there is little to be done about their financial loss. However, with changes to the ESOS Act on 1 July 2012, the amount of money that a provider may take upfront is limited and this should help to address this issue to some extent.
Transfers to new providers
A large number of the complaints received and investigated by the Overseas Students Ombudsman are about registered providers not releasing overseas students for transfer to another registered provider if the student has not completed the first six months of their principal course. A student’s principal course is the highest level course, and when a student has a package of courses with a provider, this could mean that they need to stay with the one provider for two or three years before they can be released.
If an overseas student wants to be released before studying for six months of the principal course, the education provider is required to assess the request. If they refuse to issue a letter of release to the student, they must give the student written reasons for refusing the request. In respect of these decisions, Standard 7 of the National Code states:
It is expected that the student’s request will be granted where the transfer will not be to the student’s detriment.
This obliges providers to release students unless they have reason to suspect that the transfer to a particular provider will disadvantage the student. We understand that many providers put considerable investment into sourcing students from overseas, and that allowing them to transfer to another provider is both bad for business and a disincentive to such investment. Nonetheless, students must be allowed sufficient flexibility to enable them to meet their often changing needs.
It is not sufficient for providers to cite detriment to their business as a basis for denying transfers. The detriment must be to the student, and it is often the case that we overturn decisions on appeal on this basis.
Student visa attendance requirements
Registered providers must report students who have breached attendance requirements to DIAC, under s 19 of the ESOS Act. Standard 11 of the National Code requires providers to record the attendance of each student and regularly assess their attendance. If a student is absent for more than five consecutive days without approval, or is at risk of not attending at least 80% of the course contact hours, the provider must contact and counsel that student. Before reporting students providers are required to provide an internal and external appeal opportunity. The provider is required to inform the student of their appeal rights where there is an adverse decision. In many cases we investigated we found the decision of the provider to report the student to be correct. However, there were also cases where providers failed to adequately monitor students or notify and counsel them about the consequences of their actions. Students must take responsibility for their own attendance, but where providers have failed to meet their obligations under the National Code, and we believe that failure was a significant factor in the student not meeting their attendance requirements, we will generally recommend that the student not be reported.
Cross agency issues
Both DIISRTE and DIAC have significant roles in relation to the overseas student sector. Their policies directly affect both providers and students. As Commonwealth and Overseas Students Ombudsman, we have the capacity to investigate complaints about both these departments and the providers affected by their actions. We are also in a good position to liaise with and transfer complaints, where appropriate, to better provide resolution.
In total, 23 complaints were transferred to other Commonwealth and state agencies in 2011–12 where we considered the action could be more effectively dealt with by that agency, including to the Australian Skills Quality Authority (17), the Australian Competition and Consumer Commission (1), the Australian Human Rights Commission (1) and the Western Australia Training and Accreditation Council (4).
During 2011–12 we made the following submissions:
- House of Representatives Standing Committee on Education and Employment inquiry into the Education Services for Overseas Students Legislation Amendment (Tuition Protection Service and Other Measures) Bill 2011, the Education Services for Overseas Students (TPS Levies) Bill 2011, the Education Services for Overseas Students (Registration Charges) Amendment Bill 2011 and the Higher Education Support Amendment Bill (No. 2) 2011. This submission referred to the first of these bills, and made general observations arising from our experiences handling complaints as the Overseas Students Ombudsman.
- The House of Representatives Standing Committee on Education and Employment held an international education roundtable on 3 April 2012, at which the Overseas Students Ombudsman made a verbal submission and participated in discussions.
- DIAC Review of the Student Visa Assessment Level Framework—This submission discussed the role of the Commonwealth Ombudsman as the Overseas Students Ombudsman and the Immigration Ombudsman, as well as addressing selected questions contained in the Review of the Student Visa Assessment Level Framework Discussion Paper of January 2012.
Stakeholder engagement and outreach
The Overseas Students Ombudsman has engaged actively following the launch of the role, meeting with and presenting to state ombudsmen, regulators, provider peak bodies and student support organisations. This consultation has helped to clarify the scope of the role and its intersection with other complaint handling and support bodies and ultimately to ensure that overseas students studying with private education providers are treated fairly.
Individual advice is given to providers regarding better complaint handling as part of our contact with them while investigating complaints. Providers are also referred to our Better practice complaints guide for private education providers on our website: www.oso.gov. au/docs/better_practice_complaint_handling_for_education_providers.pdf
The following engagement and outreach to students and providers (focusing on improving complaint handling) was undertaken:
- Council of International Students Australia (CISA) Conference and launch of the Overseas Students Ombudsman, 12–13 July 2011, Melbourne, Victoria
- Australian Council for Private Education and Training (ACPET) Conference, 26 August 2011, Brisbane, Queensland
- TAFE Directors Australia Conference, 6 September 2011, Sydney, New South Wales
- English Australia Conference, 23-24 September 2011, Adelaide, South Australia
- Council of International Students Western Australia (CISWA), 6 October 2011, Perth, Western Australia
- Federation of Ethnic Communities' Councils of Australia (FECCA), 17 November 2011, Adelaide, South Australia
- International Education Australia Conference, 2 December 2011, Hobart, Tasmania
- NSW Ombudsman Complaint Handling Forum, 17 February 2012, Sydney, New South Wales.
Priorities for the year ahead include continued liaison with industry stakeholders and education providers to help improve complaint handling, and to educate students to ensure that our role is understood and accessible.
We will continue to identify and act on opportunities to streamline referral and transfer of complaints and to make the appeals process more efficient.
Our law enforcements inspections role and follow-up agency engagement and feedback provide an integrated five stage approach to independent oversight.
The independent oversight process
The purpose of an independent oversight mechanism is to increase accountability and transparency of law enforcement agencies’ use of covert and intrusive powers. As an oversight mechanism, the Ombudsman is required by law to inspect the records of certain agencies in relation to their use of covert and intrusive powers, which include:
- telecommunications interceptions by the Australian Federal Police (AFP), the Australian Crime Commission (ACC) and the Australian Commission for Law Enforcement Integrity (ACLEI)
- access to stored communications by Commonwealth agencies, including the AFP, the ACC, the Australian Customs and Border Protection Service, and state and territory law enforcement agencies
- use of surveillance devices by the AFP, ACC, and ACLEI, and state and territory law enforcement agencies under the Commonwealth legislation
- controlled operations conducted by the AFP, ACC and ACLEI.
From 1 June 2012, we gained a new oversight function regarding Fair Work Building and Construction’s use of coercive examination powers.
When law enforcement agencies exercise their powers, they are required to keep records of their related activities, including any use or communication of information obtained through such activities. We then inspect these records to determine agencies’ compliance with their legislative obligations.
In 2011–12 we conducted 33 inspections, at both Commonwealth and state and territory levels. As well as inspecting agencies’ records to make a compliance assessment, we aimed to assist agencies to improve their processes to comply with the various legislative provisions. This included liaising with agencies outside of inspections and communicating shared issues to relevant stakeholders, as well as providing advice on best practice.
For example, in conducting our inspections of stored communication access records, we highlighted the importance of, and encouraged agencies to have in place, procedures that ensure that they are only dealing with lawfully accessed stored communications. These procedures involve monitoring all stored communications received by carriers to check that the accessed stored communications are those permitted by the warrant. The procedures should also include quarantining (that is, not using for investigation purposes) any stored communications where there is any doubt about their lawfulness or where there is insufficient information to determine their lawfulness.
In addition to reporting to the agencies on our inspection findings, we are required to inform the Commonwealth Attorney-General’s Department (AGD) of our inspection findings, and report regularly to the Attorney-General and the Minister for Home Affairs. These findings may also form the basis of our annual briefings to relevant Parliamentary Joint Committees.
In addition, we provide feedback to the AGD, the Department responsible for administering the regimes we inspect, on:
- how law enforcement agencies apply different regimes
- provisions of relevant Acts that work well
- high-level systemic problems and issues.
For example, we have previously highlighted to the AGD a systemic issue regarding the stored communications access regime, where agencies were unable to determine the date a carrier or service provider executed the warrant on their behalf. As the period a stored communications warrant remains in force is limited, it is necessary for agencies to know the date it was executed so they can assure themselves that they are dealing with lawfully obtained information. During 2011–12, we worked with the AGD on developing a mechanism for agencies to obtain this information. We are now monitoring agency use of this mechanism.
As well as meeting our statutory reporting requirements, we aim to provide useful information gained from our inspection functions to key stakeholders. For example, during 2011–12, we made a submission to the Joint Select Committee on Cyber‑Safety, in relation to their inquiry into the Cybercrime Legislation Amendment Bill 2011. We also made a submission relating to our oversight role to the Senate Standing Committee on Education, Employment and Workplace Relations inquiry regarding the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011.
In addition, we have provided advice to AGD on proposed reforms to the Telecommunications (Interception and Access) Act 1979 (the TIA Act), to improve the regimes under the TIA Act, based on our knowledge and experience gained from our inspection activities. These reforms have also been considered by the Parliamentary Joint Committee on Intelligence and Security.
Improving our business practice in 2011–12
A key focus in 2011–12 for our inspection role was to improve the timeliness of how we communicate compliance issues to agencies, to assist them to better comply with legislation and to improve our working relationships with agency stakeholders. Timeliness can be an issue because we only inspect some agencies once a year. If we identify an issue at the start of the year and wait until the end of that year to inform an agency that we inspect, a substantial period of time would have elapsed before the agency could address the issue.
In 2011–12, we increased our proactive and ongoing engagement with law enforcement agencies throughout the whole year, not just during inspections. This included meeting outside of an inspection period, discussing compliance issues as they arose, highlighting ‘best practices’ and making suggestions for improvement. For example, we met with some agencies to discuss the policies and procedures that provide guidance to their staff on how to lawfully use their covert and intrusive powers. During these discussions we highlighted both good practices as well as any gaps in their processes that may pose potential compliance risks.
Similarly, this past year we have met with the AGD and other agencies to resolve key issues in a timely manner.
Keeping the public and decision makers informed
In addition to the submissions we made to parliamentary inquiries, during 2011–12 we published four reports and submitted 18 reports to the Attorney- General and the Minister for Home Affairs. Our published reports are a key element in enhancing accountability and transparency of law enforcement agencies’ use of covert and intrusive powers.
Our published reports generally provide an outline of our inspection methodology and criteria, our findings against each criterion, and any agency responses to our findings. In 2011–12, the Ombudsman released the following reports:
- September 2011—Biannual report to the Attorney-General on the results of inspections of records under section 55 of the Surveillance Devices Act 2004
- January 2012—Annual Report on the Commonwealth Ombudsman’s activities in monitoring controlled operations conducted by the Australian Crime Commission and the Australian Federal Police in 2010–11
- March 2012—Biannual report to the Attorney-General on the results of inspections of records under section 55 of the Surveillance Devices Act 2004
- April 2012—Report to the Department of Agriculture, Fisheries and Forestry (DAFF) on our own motion investigation of the compliance and investigations activities of DAFF Biosecurity Program.
Currently, the TIA Act does not permit us to publish reports on our telecommunications interception and stored communications access inspections. Instead we provide information to the AGD for inclusion in the Attorney‑General’s annual report to Parliament.
CASE STUDY : working with agencies to resolve compliance issues
In May 2010, during an inspection of the Australian Crime Commission’s (ACC) controlled operations records under Part IAB of the Crimes Act 1914 (the Crimes Act), we identified the then practice of the ACC to internally issue consecutive authorities to continue a controlled operation, without seeking external approval from the Administrative Appeals Tribunal (AAT) to extend the controlled operation. Under the Crimes Act, the maximum duration of an authority to conduct a controlled operation is three months, unless varied by a member of the AAT to extend the authority for a further period of up to three months. Rather than seek AAT approval to extend existing controlled operations authorities, the ACC issued new authorities every three months for the same controlled operation.
Although we noted that this practice was not unlawful, and we accepted the ACC’s view that its processes of internally applying for, and issuing, authorities demonstrated good internal governance, we did not consider it a substitute for external approval by the AAT to extend ongoing operations. In our view, the AAT’s approval should be sought in all instances where operations extend beyond three months.
As we were concerned with the ACC’s practice of issuing consecutive authorities, we brought this issue to the attention of the ACC. We subsequently raised it with the Parliamentary Joint Committee on Law Enforcement and the Minister of Home Affairs in our published controlled operations annual reports.
In response to our concerns, the ACC agreed to adopt the practice of seeking AAT approval to extend an authority where legally possible from March 2011. However, there was a divergence of view between the ACC and our office about when it was ‘legally possible’ to seek AAT approval. Consequently, the ACC sought advice from the Attorney‑General’s Department (AGD) on this matter. In January 2012, the AGD provided guidance on when it would be legally permissible for an agency to seek a variation of a controlled operations authority and when agencies would need to obtain a new authority to conduct the controlled operation.
This guidance supported our view and resulted in the ACC amending its procedures, with the effect that all requests to extend the period of effect of an authority beyond three months are now made to the AAT. The ACC sought our input on the development of its new procedures, on which we provided comments. We also noted that we will assess the ACC’s amended procedures on a case-by-case basis.
At our most recent inspection, we noted the measures that the ACC has taken to ensure external approval is sought to extend ongoing operations and its positive attitude towards compliance.
Immigration detention oversight
In 2011–12 there was a substantial increase in the office’s workload associated with the oversight of immigration detention. The number of irregular maritime arrival people increased significantly and there were record numbers of people in immigration detention. This was despite the government’s policy from November 2011 to grant Bridging Visas and release people into the community after initial processing. The average period of detention decreased significantly during 2011–12 due to this policy, although there remained a large number of people in detention for longer than three months.
Due to the large number of people in immigration detention, the number and location of detention facilities in operation and limited resources to undertake oversight activities, the office takes an integrated approach to our Immigration Ombudsman function.
We aim to visit each facility in the immigration detention network at lease twice each year.
The inspections visit program is at the core of our oversight function. We aim to visit each facility in the immigration detention network at least twice each year. This provides an opportunity to conduct complaint clinics and information sessions, interview people detained for more than two years (who are the subject of our statutory reports), inspect the detention facilities, and discuss operations with DIAC and the service providers. Visits can be either announced or unannounced and feedback is provided to DIAC following each visit.
The Ombudsman has a statutory role to report to the Minister for Immigration and Citizenship on the appropriateness of the detention arrangements for each person held in immigration detention for two years and at subsequent six‑monthly intervals. Over the past few years the office has also undertaken a non-statutory review of the detention arrangements of people detained for six, 12 and 18 months and reported to the Secretary of DIAC. It was not possible to continue a practice of reporting on individuals detained for such periods during the past year due to the large numbers of people in detention. The Office and DIAC have agreed a revised approach to systemic analysis of people remaining in detention at these intervals, which is discussed further 7 below.
The office also has oversight of the processes for assessing the refugee protection claims of the irregular maritime arrival people.
Immigration detention inspections program
|IMMIGRATION DETENTION FACILITY||LOCATION||TIMING|
|Adelaide Immigration Transit Accommodation||Adelaide SA||May-11
|Berrimah House Immigration Residential Housing||Darwin NT||Jul-11
|Brisbane Immigration Transit Accommodation||Brisbane QLD||Nov-11
|Construction Camp Alternative Place of Detention||Christmas Island||Dec-11
|Curtin Immigration Detention Centre||Derby WA||Sep-11
|Darwin Airport Lodge Alternative Place of Detention||Darwin NT||Jul-11
|Inverbrackie Alternative Place of Detention||Woodside SA||Nov-11
|Leonora Alternative Place of Detention||Leonora WA||Apr-12|
|Maribyrnong Immigration Detention Centre||Melbourne VIC||Nov-11
|Melbourne Immigration Transit Accommodation||Melbourne VIC||Nov-11
|Northern Immigration Detention Centre||Darwin NT||Jul-11
|North West Point Immigration Detention Centre||Christmas Island||Dec-11
|Perth Immigration Detention Centre
Perth Immigration Residential Housing
|Port Augusta Immigration Residential Housing||Port Augusta SA||Nov-11
|Scherger Immigration Detention Centre||Weipa QLD||Nov-11
|Sydney Immigration Residential Housing||Sydney NSW||Jul-11
|Villawood Immigration Detention Centre||Sydney NSW||Jul-11
We provide post-visit reports to DIAC detailing our observations of detention facilities arising from the visit program and DIAC responds to the issues and suggestions outlined in these reports.
We observed positive changes and improvements in the management of immigration detention facilities over the course of the year. Although the numbers of people in detention remain high, we observed less tension and improved atmosphere. In part, this appears to be due to the change in Government policy enabling Bridging Visas to be issued to detainees pending the outcome of their protection obligation determination process and the subsequent decrease in the average time detained. In particular we noted:
- a decrease in complaints from detainees
- a decrease in group and individual unrest and self-harm incidents across the network
- greater provision of activities and excursions in remote locations, particularly Christmas Island
- increasing levels of communityengagement in most detention facilities.
During our inspections we observed some issues of concern within the detention network including:
- inconsistent practices and procedures applied across the network relating to issues such as:
- access to mobile telephones
- property management processes and procedures
- management of detainee expectations on movement into the community
- management of the Individual Allowance Program
- education available to minors ranging from attendance at both primary and secondary schools in some states to limited in-centre schooling in other states
- rollout of training on the Psychological Support Program.
- limited access to community activities and visitors in remote localities, especially at Scherger and Christmas Island
- limited recreational and educational activities and excursions across the detention network which were a source of ongoing frustration for detainees
- low levels of accuracy, competency and qualifications of interpreters, especially among language groups not well established in the Australian community
- the use of unqualified staff to teach English as a second language in remote or isolated detention facilities
- issues surrounding the development and use of Support and Management Units at North West Point Immigration Detention Centre.
The Ombudsman is required under s 486O of the Migration Act 1958 to review the circumstances of the detention of people held in immigration detention for two years, and every six months thereafter. The Ombudsman reports to the Minister for Immigration and Citizenship on the appropriateness of the person’s detention arrangements and a de-identified version of the report is tabled in Parliament along with the Minister’s response to each report.
In 2008 it was agreed that the Ombudsman would review and report to the Secretary of DIAC on the detention arrangements for people who had been in detention for six months and then at 12 and 18 months if the person was still in detention. At the time this process was implemented there were approximately 400 people in immigration detention. Over the past year we have focused our detention review on the statutory requirements due to the high number of people detained for more than two years.
Detention reviews can provide a valuable insight into systemic issues in immigration detention and refugee claims processing. The office and DIAC have agreed a new process to start from July 2012 whereby the Ombudsman will receive copies of all DIAC senior officer reviews in relation to persons in detention at six, 12 and 18 months. The office will not report on an individual’s detention unless these reviews indicate that a report is warranted. However, there will be a focus on identifying systemic issues identified in the reviews that may be indicative of wider issues or problems in the detention network.
Two-year review reports
In 2011–12, there was a large increase in the number of two-year detention reports received from DIAC (as required by s 486N of the Migration Act 1958). The office received 683 reports in 2011– 12 compared with 60 detention reports in the previous year. Many of the people subject to these reports were released on Bridging Visas or moved to community detention by the time we were ready to interview them and complete our report to the Minister.
The Ombudsman provided 130 reports to the minister for tabling in Parliament, compared to 41 reports in the previous year.
The increase in the number of reports received has placed considerable strain on the ability of the office to report to the Minister in a timely manner. Steps are being taken to address this, including focusing resources on more complex reports and those who are still held in restrictive detention, and considering more streamlined reporting on less complex cases.
Of the reports received from DIAC in 2011–12, 116 were reports for people who have been in detention for 30 months or longer. Twenty-nine of these are for people who have been found to be owed protection but have received an adverse security clearance from the Australian Security Intelligence Organisation. The office is concerned that there does not appear to be any resolution to their status in the foreseeable future. It is noted that in many cases they have been transferred to a less restrictive form of detention in immigration residential housing. The office has recommended that the government give priority to finding a solution that reconciles the management of any security threat with its duty of care to immigration detainees, including considering alternative avenues for managing any security threat.
Other trends and issues raised in the two-year reports include:
- deteriorations in mental health of some individuals, particularly those people held in immigration detention facilities for prolonged periods, and the importance of DIAC and its service providers working together to ensure duty of care to detainees is met
- delays in processing refugee protection claims and the length of detention, noting this is less of an issue now that people are granted Bridging Visas pending Protection Visa decisions
- quality of IMA asylum seeker decision-making, both at the primary and review stages
- an increasing number of boat crew who are either awaiting trial or have been convicted and sentenced for people smuggling offences and remain in detention for lengthy periods
- a number of people whose visas have been cancelled under s 501 and for whom Australia may have non-refoulement obligations who are subject to prolonged and possibly indefinite detention.
Department of Immigration and Citizenship: Detention arrangements— The transfer of 22 detainees from Villawood Immigration Detention Centre to the Metropolitan Remand and Reception Centre Silverwater (released in April 2012).
The Ombudsman issued a report under s 15 of the Ombudsman Act 1976 and made a number of recommendations to DIAC to ensure that effective procedures are in place for those occasions where detainees are transferred from an immigration detention facility to a correctional facility and that proper records are kept at each stage of the transfer. (More detail on this report can be found in Chapter 6.)
DIAC accepted the recommendations and advised this office that its procedures relating to the transfer of detainees from detention to correctional facilities will be rewritten in 2012.
Own motion investigation into suicide and self-harm in the immigration detention network
The office announced in July 2011 that it would undertake an own motion investigation to examine the incidence and nature of suicide and self-harm in the immigration detention network. The investigation is still underway with a report expected before the end of the year.
Collaborative and consultative approach to immigration detention oversight
We held regular liaison and engagement meetings with DIAC’s Ombudsman and Human Rights Coordination Section to discuss complaint issues. DIAC also conducted a series of briefings on matters of interest to the office.
An important development was the introduction in April 2012 of quarterly meetings with DIAC and its service providers. These meetings provide the opportunity for the office to provide feedback to DIAC and service providers on systemic issues we identify through the range of oversight activities we undertake. It also enables DIAC to update the office on issues and developments in the detention network, including changes in operational policies and practices.
Quarterly liaison meetings were held with the Australian Red Cross, the Australian Human Rights Commission and the United Nations High Commissioner for Refugees. These informal meetings enable sharing of information and on areas of mutual interest and concern in relation to immigration detention.
Ad hoc meetings were held throughout the year with a number of advocacy groups on immigration detention‑related matters, including the Asylum Seeker Resource Centre, RISE and Amnesty International.
The Ombudsman also consulted with a range of government and non‑government stakeholders to inform the own motion investigation into suicide and self-harm in the detention network and held roundtable meetings in a number of capital cities.
Future issues in immigration oversight
A challenge for the year ahead will continue to be the review and oversight of systemic issues and individual cases within the immigration detention framework, given the high number of statutory reviews we are required to do for those people detained for two years or more, and the number of immigration detention facilities in the network. We will continue to examine the circumstances of prolonged detention and advise DIAC on systemic issues arising from our oversight activities. The government’s decision in August 2012 to reinstate offshore processing may affect this office’s role in oversighting the processing of protection claims for irregular maritime arrivals and immigration detention.
The office will also be engaging with other stakeholders as the government considers the ratification and implementation of the Optional Protocol to the Convention Against Torture (OPCAT).
International-Commitments and Achievements
Consolidating the Pacific Ombudsman Alliance into a strong peer support network
Our office provides secretariat support to the Pacific Ombudsman Alliance (POA), a regional network for Ombudsmen and allied institutions throughout the Pacific. The POA provides technical support and policy advice to members, including capacity development activities to enhance the efficiency and effectiveness of offices. POA also supports activities that are designed to raise awareness among the public and government stakeholders about the importance of accountability institutions and effective complaint handling.
The POA is funded by the Australian Agency for International Development and governed by an engaged and active board comprised of Ombudsmen from the Cook Islands, New Zealand, Papua New Guinea and Australia, and a senior government representative from Niue.
At the June 2011 annual members’ meeting, POA members agreed to develop strategic action plans for each of their offices. As part of the strategic planning process, the POA secretariat has worked with members to conduct studies of their offices. These studies identify key policies, processes and practices that exist within each office and provide an indication of where there is opportunity for improvement over the short and long-term. These studies will then be consolidated with other planning information and used to prepare a strategic plan that captures each office’s vision. These plans will form the basis for a five-year plan for POA.
The POA emphasises the value of cooperation between member offices and the benefits of strong inter-agency cooperation between officers at all levels within our member organisations. In November 2011 the POA brought together 14 officers from across the Pacific for the Australian Public Sector Anti-Corruption Conference (APSACC). APSACC provided an opportunity for our attendees to understand contemporary trends, future directions and emerging issues for good governance and public sector integrity. Prior to the conference, the POA convened a one-day workshop for attendees to share experiences, discuss issues unique to the Pacific and learn from the successes and challenges of their Pacific colleagues.
As part of our focus on regional cooperation, the POA has supported regional sub-committees for members whose offices share similar mandates or geo-political issues. In 2011 the POA supported the establishment of a Leadership Code Sub-Committee for Ombudsmen offices responsible for administration and enforcement of Leadership Codes in Papua New Guinea, Solomon Islands and Vanuatu. A Smaller Islands States Sub-Committee was also established for members from Kiribati, Nauru, Niue, Tuvalu and the Federated States of Micronesia who do not have Ombudsmen offices. These subcommittees provide a mechanism for officers within participating organisations to access regional knowledge and resources and develop culturally appropriate tools to assist them to tackle common issues.
RAMSI exit strategy
Our office has worked with the Office of the Solomon Islands Ombudsman (OOSI) for many years as part of the POA. In 2011, we entered into a more intensive institutional partnership arrangement currently funded by the Regional Assistance Mission to the Solomon Islands (RAMSI). As RAMSI stages its exit from the Solomon Islands in 2013, our office will play a part in the ongoing Australian development assistance through the Accountability Program. The goal of this program is to contribute to improved government accountability in the Solomon Islands, through increasing the efficiency and effectiveness of the core accountability institutions, including the OOSI.
The first activity under this program was an organisational assessment, conducted by this office’s International Team, and an assessment of the OOSI’s information and communications framework, conducted by John Harper, Director IT, Commonwealth Ombudsman’s office. Both of these activities identified strengths and weaknesses in OOSI’s structure that will form the focus of further partnership activities.
Andrew Brown, Queensland Deputy Ombudsman, was also part of this delegation to OOSI. Our International Program is greatly enhanced by being able to call on the expertise and varying experiences of other Australian ombudsmen. We hope that the Queensland Ombudsman will be part of our partnership with OOSI into the future. Our program will also link OOSI into the activities of the POA.
In May 2012 the Solomon Islands Ombudsman and his two most senior staff members travelled to Canberra and Brisbane to further explore case management theory and practice. One of the biggest challenges for OOSI is storing information about individual complaints in a way that is both secure and allows for monitoring the progress of individual complaints. Working on this issue will be an immediate priority of our institutional partnership.
In August 2012, our two offices signed a Memorandum of Understanding as a formal expression of our commitment to the partnership, and the principles that will govern how we work together.
Our program with the Defensoria del Pueblo in Peru has taken our office into a new area of work focusing on disputes in relation to resource extraction and land use. The ongoing social conflict in Peru has highlighted the need to explore new models of regulation, which balance economic development needs with governance, social and environmental concerns.
Peru has identified weak state institutions as one of the drivers of ongoing conflict. Our program, which is still at the scoping stage, examines examples of regulatory organisations in both Australia and Peru, and the ways that effective complaint mechanisms may improve the development outcomes for local people of resource extraction. We promote the use of complaints as a way of engaging with populations, and as a source of information to strengthen and reform organisations.
The Defensoria del Pueblo runs an active outreach program to Peru’s diverse community. The delegation was able to participate in a number of activities designed to highlight the work of the Defensoria to the Afro-Peruvian community of Lima.
Assisting the new Indonesian Ombudsmen
Our strong relationship with the Ombudsmen of the Republic of Indonesia (ORI) continues as ORI grows into one of the key accountability agencies in Indonesia. As a way of reaching all of Indonesia’s widespread and diverse population, ORI is undertaking a program of opening offices in each of the 33 provinces. It is anticipated that this program will be completed by December 2013. A delegation from the Commonwealth, NSW and West Australian Ombudsman offices visited the newly opened office in Bandung, West Java as well as the established regional office in Yogyakarta in July 2011. The delegation discussed the different training and other support needs of a growing organisation and some of the difficulties in maintaining organisational coherence across a number of regional offices.
Many of the key public sector services provided to the Indonesian people are delivered at the provincial level. A meeting of provincial government offices was hosted by ORI in December 2011 and attended by Vice President Boediono. This meeting was designed to highlight the importance of Ombudsmen to improving public sector services and to drive public sector reform. We gave a presentation on the Australian experience of 30 years of ombudsman services and were able to demonstrate the value of using the information derived from complaints.
ORI has identified the need for effective complaint handling mechanisms throughout the public sector in Indonesia as a way for the public to provide the supervision and feedback necessary to drive public sector reform. Our office supports this initiative with training and mentoring programs. This is a key priority for our future work together.
Ombudsman Oversights of Northern Territory Emergency Response
The Commonwealth Ombudsman received funding in 2007 to provide independent oversight and a complaints mechanism in relation to the Australian Government’s Northern Territory Emergency Response (NTER) and Closing the Gap initiatives in the NT. A dedicated team, the Indigenous Unit, was established to undertake this role.
The team focused on communities affected by the NTER and other Indigenous programs and dealt with complaints, provided information about the role of the Ombudsman, and obtained feedback about the effects of the programs and services at a local and individual level. The team has worked closely with agencies to share this feedback, negotiate remedies and outcomes for complainants and improve the administration of programs affecting Indigenous people in the NT.
The NTER finished at the end of this financial year, but several NTER programs will continue under the government’s Stronger Futures in the NT initiative. The Ombudsman’s office did not receive funding to continue to provide independent oversight and a complaints mechanism for Indigenous people in the NT affected by Stronger Futures programs. However, the office remains committed to making complaints services accessible to Indigenous Australians and to working with agencies to identify and improve government administration in this area.
Five years of oversight
Since 2007, members of the Indigenous Unit have visited the 73 prescribed communities and town camps in the NT at least once and taken in excess of 1500 complaints. Investigation of these complaints has identified problem areas that ombudsman staff have worked with agencies to address. This has included finding remedies for individuals, such as better explanations of decisions, review or reconsideration by agencies of decisions or actions, or more timely consideration or resolution by agencies of matters where there has been delay (for relevant case studies see Chapter 5).
Ombudsman investigations have helped to identify broader or systemic problems, including issues that cross multiple agencies or levels of government. The following case studies are representative of the many complaints the Indigenous Unit has brought to the attention of agencies to assist them to find adequate solutions to bigger or persistent problems.
CASE STUDY : Improving agencies’ awareness and approach to the use of Indigenous interpreters
A member of a remote Indigenous community complained in 2009 that residents had been asked to sign tenancy agreements for their public houses without the agreements having been explained or interpreters used. The community did not understand the purpose and effect of the documents.
Although the Commonwealth had a statutory lease over this community (that put it in the position of land owner), tenancy management had been devolved to a NT department—Territory Housing— which, in turn, funded a shire to deliver tenancy services.
The investigation established that the shire had developed its own tenancy-related documentation that it had explained to the community, without interpreters, at group meetings. The shire was instructed by Territory Housing to stop using the documents, and a new process using interpreters was developed.
Case studies: Strengthening agencies’ income management (IM) and housing services
Mr AJ’s story
Centrelink arranged for Mr AJ to receive regular unrestricted cash payments from his income managed funds as a result of an Ombudsman investigation.
Mr AJ complained to the Indigenous Unit in January 2012 that IM was causing him financial difficulties. He said that he had applied for an IM exemption, but was not successful. Mr AJ explained that he lives on the property of a mining company and that he has limited expenses—he does not pay for rent, phone or electricity. As a result, Mr AJ said he was having difficulty using all his income-managed funds to pay for priority goods and was not able to resolve this difficulty with Centrelink.
Mr AJ did not qualify for an IM exemption. However, Ombudsman staff determined, after discussing the matter with Mr AJ, that a core issue for him was that he was able to meet all of his priority needs with only part of his income-managed funds. This meant that a portion of funds that he could not easily access or use remained in Mr AJ’s income-managed account. The office asked Centrelink if it would consider allowing Mr AJ to access unrestricted cash payments. This is an option whereby customers can access incomemanaged funds via cash payments where the customer has demonstrated that their priority needs have been met. Centrelink agreed.
Ms AK’s story
FaHCSIA advised the Ombudsman’s office that, together with Territory Housing, it had made improvements to the processes for handling requests for rent reimbursement. These included investigating the details of claims, liaising with Centrelink and ensuring applicants were informed of outcomes.
In November 2010, Ms AK complained about rent she had been charged for a house in a community over which the Commonwealth had a statutory five‑year lease. Ms AK initially believed that she and her partner had been charged two lots of rent for the same period. She had been unable to resolve the matter with the housing association that had collected the money.
Ombudsman enquiries revealed that Ms AK and her partner had paid money for a house classified as an improvised dwelling. Under the policy, tenants of improvised dwellings are entitled to reimbursement of any money paid after 1 July 2009. Consequently, the office was informed in August 2011 that Ms AK and her partner would be reimbursed the $630 due to them. In September 2011, 10 months after the issue was first raised with agencies, the money was placed into the Centrelink accounts of Ms AK and her partner.
Case studies: Assisting agencies to improve their approach to communication, consultation and engagement
Information about tenants’ obligations
In response to recommendations made by the Ombudsman, FaHCSIA and Territory Housing developed an information pack for primary tenants containing information about rent, bonds and other housing issues.
Several complaints indicated that people did not understand the new remote housing rent policy introduced by the NT Government. Tenants frequently complained that they did not know how much rent and bond they should be paying, whether other tenants should also be contributing to rent, or the respective amounts each tenant should be, or were, paying.
The office raised this matter with FaHCSIA and the NT Government through individual complaint investigations, during meetings, and in a public report on remote housing reforms in the NT. The Ombudsman recommended that relevant documents and information should be left with tenants to make them aware of, and as a reference to check, how much rent they and others in the household should be paying, the total household rent, the maximum dwelling rent, and the bond amount. Moreover, the Ombudsman recommended that this information be left with all affected tenants in a house each time a new rent assessment is conducted.
Information about health and safety issues
Following intervention by the Ombudsman’s office, FaHCSIA agreed to meet with individual complainants about concerns that their homes contained asbestos.
In March 2012, the office received five complaints from residents in two neighbouring five-year leased communities concerning asbestos warning signs that had been attached to their houses. The signs had been attached in January 2011, when high-risk asbestos was being removed from their respective communities. They indicated that asbestos was present in the house, that it could be dangerous and that damages should be reported.
The complainants were concerned that the asbestos might be affecting their health and wanted to know if any action would be taken to remove it from their homes. They were unsure where in the house the asbestos was located or what action they should take if it was damaged.
FaHCSIA advised that it had provided information about asbestos and its risks to residents at the time the signs were put up. However, more than 12 months later, residents had received no further information.
This office suggested to FaHCSIA that it consider placing signs or posters on community noticeboards to explain the asbestos warning signs and to provide residents with information about how and with whom they should raise any concerns. FaHCSIA advised that it would inform the NT Government of the suggestion. FaHCSIA also met with complainants to discuss their specific circumstances.
Case studies: Improving services in remote communities
Ms AL and Mr AM’s stories
FaHCSIA provided funding for a women’s safe house and a men’s shelter in response to two separate Ombudsman investigations in the same remote community.
Ms AL complained that there was a men’s shelter but no women’s safe house in her community. She explained that when an incident occurred in the community, the women often stayed at her house, but this was not a good solution. It placed her family at risk.
After Ombudsman staff raised the matter with FaHCSIA, it consulted the community about the need for a women’s safe house and considered other available information. FaHCSIA then agreed to provide funding to the community to establish a women’s safe house.
When the Ombudsman’s Indigenous Unit staff later returned to the community, Mr AM made a separate complaint about the men’s shelter having been converted into a women’s safe house. Mr AM understood why, and agreed, there was a need for a safe house for the women. However, he was concerned that several men had lost their employment at the men’s shelter as a result of its closure. He indicated that another shed in the community had been identified as a possible new men’s centre, but it was below the flood line and therefore not a viable option.
In response to Ombudsman enquiries, FaHCSIA advised that it would provide funding to the local shire to upgrade the shed so that it could be used as a men’s shelter. FaHCSIA also advised that it had not been aware of the flood line and agreed to make improvements to the shed so that it would not be damaged during the wet season.
Access to income-managed funds
Multiple complaints highlighted difficulties that people faced on weekends when they had no money on their BasicsCards and could not contact Centrelink to arrange a transfer. The office raised this matter with Centrelink. In response, Centrelink extended its customer service for the allocation of income managed funds to BasicsCards to seven days a week between 8:00 am and 5:00 pm.
Restored mail service
Complaints to this office highlighted that Australia Post did not deliver mail to most town camps in Alice Springs. Instead, the mail was sent to the Council office. Intermittently, people would collect their mail from the Council office, but this inadequate arrangement also resulted in mail being lost, people not collecting their mail, and people missing important appointments. In response to these complaints, FaHCSIA contacted Australia Post to explore options for mail delivery to town camps. Australia Post has since commenced services to some town camps in Alice Springs. FaHCSIA advised that services to other town camps will be progressively rolled out as infrastructure works are completed.
Income Management and housing reforms have been the key source of complaints to this office. This year, an own motion investigation into two aspects of Centrelink’s IM decision making found that the tools and guidelines used by decision makers did not adequately assist them to meet legislative requirements. Problems were also identified with the use of interpreters, record keeping, training and dealing with review and exemption requests. DHS and FaHCSIA have taken substantial action to address these problems and implement the Ombudsman’s recommendations.
The office also published a report detailing the common themes and problems identified in complaints about remote housing reforms in the NT. While there is still a lot to be done to fully implement the housing reforms, the report recommendations have been acknowledged by the agencies involved and they have advised that progress is being made to address the problems.
The Commonwealth Ombudsman was able to handle complaints about remote housing problems in the NT because FaHCSIA, on behalf of the Australian Government, administered the statutory five-year leases over community housing. Effectively, this placed the Commonwealth in the role of landlord for community housing. The leases will expire in August 2012, bringing to an end the Ombudsman’s jurisdiction to investigate most of these housing matters.
During the past five years, the Indigenous Unit has drawn on the Ombudsman’s own motion and public reporting powers to investigate and publish its findings on broad or systemic issues. These reports, listed below, are available on the Commonwealth Ombudsman website at http://www.ombudsman.gov.au/indigenous-content/.
- Improving the services of the Commonwealth Ombudsman to Australia’s Indigenous peoples
- Review of Centrelink Income Management Decisions in the Northern Territory (Report 04|2012)
- Remote Housing Reforms in the Northern Territory (Report 03|2012)
- Talking in Language: Indigenous language interpreters and government communication (Report 05|2011)
- Administration of funding agreements with regional and remote Indigenous organisations (Report 16|2010)
- Review rights for income managed people in the Northern Territory (Report 10|2010)
- Northern Territory Emergency Response (NTER): Department of Families, Housing, Community Services and Indigenous Affairs asbestos surveys: Communication issues (18|2009).
The delivery and implementation of Indigenous programs and services in the NT is a challenging and complex area for all agencies and stakeholders. Significant barriers exist for government officials working with, and delivering services and programs to, remote Indigenous communities. These include remoteness; language and literacy levels; complexity of problems/history of government neglect; a gross shortage of services; diversity of communities and needs; the array of programs and services’ reforms currently being implemented; and the number of agencies and levels of government involved.
Acknowledging these challenges and complexities, Indigenous Unit staff have consistently observed during five years of complaint investigations, outreach visits and systemic issue work that all agencies could improve and strengthen service delivery in some key areas.
Accessible and effective complaints mechanisms
It has been this office’s experience that Indigenous people living remotely in the NT have preferred to discuss complaints or problems in person. Generally, people have been confused by the raft of new government programs and services and the resulting impact on them as individuals.
Because people have generally not been aware of how services or programs should work or what their rights, entitlements or options may be, they have not been in a position to identify when a problem exists or that an error may have occurred that warrants complaint. It is therefore critical that agencies do not assume that an absence of complaints means that there are no problems or that people are satisfied with their interactions with agencies.
This office has regularly reiterated the need for agencies to ensure that their complaints services are accessible to Indigenous people, particularly those living in remote locations. This requires more than a locally based or visiting officer or a freecall 1800 line.
While most agencies report having a complaints process for people in remote Indigenous communities, feedback to this office has been that they are not aware of their right to complain or how to do so.
Indigenous Unit staff have observed that where people have raised issues with agency staff, these have not been identified as complaints requiring action or escalation. Repeatedly, action by agencies to address a person’s concern has occurred only after this office has become involved.
It is apparent that agencies delivering programs and services to remote Indigenous communities in the NT could make improvements to their complaints services, including:
- advertising locally to explain how to make a complaint to an agency
- improving communication and messaging to communities about the value and importance of complaints
- assisting local staff to better identify issues and concerns raised by people as complaints and clarifying the escalation and resolution process
- establishing more structured processes for taking people’s concerns, referring them to the complaints team, having them investigated and resolved and providing people with outcomes, remedies and reasons in a timely way
- training staff to analyse complaint themes and identify systemic or potentially bigger problems and take timely action to resolve these.
Accessible, robust and responsive complaints processes are an important tool for facilitating, encouraging and empowering Indigenous Australians in remote communities in the NT to become actively involved in the services and programs that affect them. Complaints provide agencies with a unique insight into the effect or success of their programs and services from an end-user perspective. This office will continue to work with agencies responsible for Indigenous programs and services to ensure complaints processes are accessible and responsive.
The Ombudsman has reiterated the need for policy and funding agencies to take responsibility for service delivery outcomes, not just the development of underpinning policy. Increasingly, the delivery of services is being devolved to contracted service providers, state or territory governments and other third parties. There are also more programs and services involving multiple agencies and levels of government.
Commonwealth agencies need to take greater responsibility for ensuring the effectiveness of these arrangements and achievement of policy objectives. Accordingly, they need to have adequate mechanisms to:
- monitor outcomes
- support effective integration between policymakers and those delivering services
- identify and address problems arising in the delivery of services
- clearly establish roles, responsibilities and processes at the outset
- establish quality relationships between agency staff at all levels.
The Ombudsman report into remote housing reforms in the NT discusses in detail accountability arrangements where levels of government are working together. It emphasises the need for clarity about who is responsible for what and how people can raise concerns or problems for reconsideration or redress.
Agencies need to have mechanisms in place that can deal with problems involving more than one agency or service provider and that allow them to identify and take action when parts of a process are not working, even where the failure rests with another agency or level of government. Moreover, agencies have a responsibility to ensure that these pathways are visible and understood by the people to whom the services are provided. This office has consistently observed that where agencies or levels of governments are working together, more attention on accountability arrangements and shared responsibility for outcomes is needed.
Communication and engagement
A common theme of complaints made by Indigenous people in the NT is poor communication. Problems stemming from poor communication by agencies include: inadequate reasons for decisions in letters; information being delivered once at the start of a new program or policy with little follow up or updated information over time; failure to use interpreters or provide information in language; and local agency staff not having access to the information required to address people’s queries and concerns.
Two causes of many complaints to this office are confusion and an inability to access information or assistance to resolve a concern or answer a question. Even where agencies have invested time and effort in running community information sessions and distributing visual material about new programs or services before they start, people later complain that they are confused or are unaware of why or how they have been affected. This office has advised agencies of the need for information to be delivered in a range of ways, over extended periods of time, and face-to-face with individuals as they become affected.
Further, the Ombudsman has provided extensive feedback to agencies about communication failures and opportunities for improvement. We commissioned independent research to improve Ombudsman complaint services to Indigenous communities and published it on our website (www. ombudsman.gov.au/files/improving_ the_services_of_the_commonwealth_ ombudsman_to_australias_indigenous_ peoples.pdf) with a short report detailing lessons learned through the Indigenous Unit’s outreach work in remote communities (http://www.ombudsman. gov.au/media-releases/show/207). The lessons and areas identified for improvement mainly concern communication and engagement.
An important focus of the Indigenous Unit’s outreach work has been to establish relationships with community based stakeholders, representatives and services. These groups have provided valuable insights into the issues people face and assisted those people to connect with this office to make complaints. The office intends to increase this work with stakeholders as resources will restrict future outreach visits.
The Ombudsman remains committed to ensuring complaint services are accessible to Indigenous Australians and providing independent oversight of the administration of Indigenous programs in the NT and across Australia. The office looks forward to working with agencies to further improve their internal complaint handling services for Indigenous Australians and to working with stakeholders to better understand the impact of government programs and services on Indigenous Australians.