|
|
||||||
|
|||||||||
|
|||||||||
|
|||||||||
|
|||||||||
Contents Chapter
7 Looking
at the agenciesOther agencies |
|
||||||||||||||||||||||||||||||||||||||
|
|
|
CHAPTER
7
|
||||||||||||||||||||||||||||||||||||
| other agencies |
Other agencies menu: Australian Customs Service | Australian Film Commission | Australian Securities and Investments Commission | Department of Families, Community Services and Indigenous Affairs | Department of Foreign Affairs and Trade | Insolvency and Trustee Service Australia | Telstra Corporation
Each year we receive approaches and complaints about more than 100 Australian Government departments and agencies. There are a number of agencies about which we generally receive 50 to 200 approaches and complaints each year. These agencies are shown in Table 7.5.
|
While we may receive only a small number of complaints about some agencies, they can sometimes highlight important issues in public administration. This section gives an example of the range of complaints with which we dealt. It also outlines some complaints which raised broader issues of public administration.
In 2006–07 we received 123 approaches and complaints about the Australian Customs Service, compared to 121 in 2005–06. As with last year, the primary source of complaints about Customs were issues associated with passenger processing. Complaints tended to relate to baggage inspections, routine questioning by Customs officers, the imposition of duty and/or the seizure of prohibited goods.
The case study Damaged souvenir shows how we were able to help resolve a complainant’s concerns in relation to baggage inspection.
damaged souvenir |
CASE STUDY |
When Mr P arrived home from a trip to Asia, he noticed that a wooden souvenir he brought back had been damaged. Mr P was concerned that the damage may have occurred during a routine baggage inspection by a Customs officer at Melbourne Airport. Following an investigation of Mr P’s complaint, Customs was able to provide our office with CCTV footage of the actual inspection. The footage showed that the item had not been mishandled or damaged by the Customs officer. To further alleviate Mr P’s concerns, our office was able to facilitate a private viewing of the footage for Mr P at Customs House. |
|
Our office also continued to receive complaints about passenger duty free concessions. Some complainants argued that the current concessions have not been adequately publicised since their implementation in 2005. Other complainants suggested that the current by-laws relating to the concessions are inflexible, in that they do not allow for the partial disposal of amounts that exceed the duty free limits.
In most instances, our office was able to provide these complainants with a better explanation of how the concessions are now applied, and to confirm whether Customs had applied the by-laws correctly in respect of their particular goods. We will continue to monitor how Customs publicises the concessions and responds to these types of complaints.
During the year, our office also engaged in a number of visits to Customs’ sites, including Passenger Processing and Container Examination facilities. Through an improved understanding of how Customs manages its operations, our office will be better equipped to deal with complaints about Customs and its associated processes.
There are a number of agencies about which we usually receive very few, if any, complaints. However, the complaints we receive can sometimes illustrate broader issues of public administration. One such matter arose involving the Australian Film Commission (AFC).
In May 2007 the Ombudsman released a report Australian Film Commission: Investigation into the assessment of film funding applications (Report No 2/2007). After dealing with a complaint from a person that he had not been given an adequate explanation as to why his application for film funding was rejected, we identified some broader procedural and policy issues which appeared to warrant further examination. The report of the investigation recommended the AFC review its policy and procedures for the assessment of funding applications. The recommendations proposed that the AFC should:
While the subject matter of this report (film funding) was agency-specific, similar principles are applicable across all areas where applications are subject to a competitive assessment process. The Ombudsman’s report drew attention to earlier reports of the Administrative Review Council and the ANAO that dealt with the administration of grants and funding applications. The number of complaints in such grant funding areas can be low, yet single complaints can identify important issues that need careful attention. This is important in meeting the community expectation that the management of competitive grant processes by Australian Government agencies will be accountable, transparent and grounded in objective and rational decision making processes.
‘... single complaints can identify important issues that need careful attention.’
The Australian Securities and Investments Commission (ASIC) has responsibilities in the areas of company registration and regulation of the corporate sector. We received 192 approaches and complaints about ASIC in 2006–07, compared to 188 in 2005–06.
The most common theme of these complaints continued to be about late fees imposed on companies. Many of these complaints were dealt with by explaining to the complainant the way in which the late fee system works. Where a deadline for filing a document or paying a fee is missed, a late fee is applied automatically by operation of the relevant legislation. The company concerned can apply for the fee to be waived.
Usually ASIC will only waive the fee where the circumstances that led to it being imposed were beyond the control of the company, its officers or agents. We have accepted that it is reasonable for ASIC to apply this policy.
We considered a number of complaints that ASIC had not sent electronic company statements in advance of a company’s annual review date, causing the company to fail to pay its annual review fee on time. In the complaints that we investigated, we did not find grounds to be critical of ASIC.
We also received some complaints about registration of company names. The relevant regulations are specific as to what company names may or may not be registered. Complaints are sometimes made to us when a person is dissatisfied with ASIC’s decision to register a company with a particular name. An example is shown in the case study Same name.
same name |
CASE STUDY |
A company complained to us that ASIC had registered a competitor with a name that was almost identical to theirs. The company believed the competitor would operate in the same geographical area and the similarity of name would confuse customers and damage the company’s business. ASIC had explained to the company that a name was available to a new company except in circumstances specified in the legislation, and none of those circumstances applied in this instance. However, ASIC had suggested that the company could seek legal advice about other ways to protect its trading reputation. We considered that ASIC’s view of the legislation was reasonable, and reiterated to the company the suggestion that it could seek legal advice about its options. |
|
We continue to receive complaints that ASIC has declined to investigate allegations made to it of breaches of the corporations legislation, or has refused to advise people what regulatory action it intends to take.
ASIC takes the view that complaints made to it are a source of information about corporate wrongdoing, which it analyses as part of its functions. ASIC considers that the legislation does not impose a responsibility on it to pursue any particular complaint, however well-founded. ASIC has advised us that it seeks to direct its resources to those matters that best meet its regulatory priorities.
Often, a person complaining to ASIC about the actions of a corporation or liquidator will have a right of action in the courts. Although people may have difficulty in affording court proceedings, this is only one matter to be considered by ASIC in deciding whether to pursue a matter on behalf of an individual.
During 2006–07 we investigated a number of the complaints made to us about ASIC declining to take regulatory action, particularly where ASIC had not given reasons for its decision to the complainant. In doing so, our aim was to consider whether the processes that had led to ASIC’s decision were sound, and whether there had been adequate communication with the complainant.
The case study Decision examined illustrates one case where there was a tension between ASIC providing an explanation while maintaining confidentiality.
decision examined |
CASE STUDY |
Ms Q complained to ASIC about a company. She considered that her complaint clearly showed that the company had breached corporations legislation, but ASIC declined to take action against it and Ms Q could not understand why. ASIC gave us further information about why it had not taken action against the company. Although we considered that its explanation was not unreasonable, ASIC advised us of its view that this explanation could not be given to Ms Q for reasons of confidentiality. We told Ms Q that our investigation had not identified any grounds for considering ASIC’s decision to be unreasonable. However, we suggested to ASIC that it might in the future consider ways in which it could balance its need to maintain confidentiality in accordance with legislative requirements, with the need to explain its decisions to complainants in the interests of good administration. |
|
Generally we receive few approaches and complaints about the Department of Families, Community Services and Indigenous Affairs (FaCSIA). One complaint we received in 2006–07 illustrates again the difficulties that can arise when a number of agencies are involved in providing services to an individual, as shown in the case study Complaint unresolved.
complaint unresolved |
CASE STUDY |
Our office received a complaint from Mr R, a jobseeker, who was dissatisfied with the way in which the Complaints Resolution and Referral Service (CRRS) was dealing with his complaint about his Disability Employment Network (DEN) provider. The CRRS is an independent organisation funded by FaCSIA to help resolve complaints about services funded under the Disability Services Act 1986. Mr R advised he had attempted to complain about this to the DEWR Customer Service Line, which referred him back to the CRRS. We approached FaCSIA about this complaint, understanding that it was responsible for contracting the CRRS to provide a complaints service about disability employment services. We were advised that a memorandum of understanding existed between DEWR and FaCSIA, stating that DEWR would handle escalated complaints about DEN providers. Although FaCSIA did not raise this complaint with DEWR, a FaCSIA contact officer agreed to act as a liaison point between this office and the CRRS in relation to the complaint. In the course of our investigation we identified that the CRRS policy and procedure document of November 2003 stated that complaints about the CRRS should be directed to the CRRS in the first instance and can then be escalated by the CRRS to the then Department of Family and Community Services. In this instance, however, Mr R’s complaint was clearly not escalated to FaCSIA. At the conclusion of our investigation we formed the view that the CRRS’s process for handling complaints was flawed, and that it had not handled Mr R’s complaint properly. DEWR and FaCSIA are renegotiating the memorandum of understanding, and seeking to strengthen the provisions on escalation of complaints to ensure greater transparency of the CRRS complaint resolution process. |
|
During 2006–07 the office received 155 approaches and complaints about the Department of Foreign Affairs and Trade (DFAT), compared to 140 in 2005–06.
The majority of complaints related to passport processing, including the cost associated with replacing lost or stolen passports, passport fees in general, the renewal requirements for passports, and delays associated with processing passport applications. Many complaints did not proceed to investigation stage because complainants had not attempted to resolve their problem with DFAT in the first instance. The case study Expired and lost shows how we were able to help one person, and assist DFAT to provide better information to future passport applicants.
expired and lost |
CASE STUDY |
Mr S’s passport had expired more than two years before he decided to apply for a new passport. He was not able to find the expired passport, and ticked ‘previous passport lost/destroyed’ on the application form. The Australia Post employee who took Mr S’s application form told him that he would have to pay a lost passport replacement fee of over $60, in addition to the $197 fee for the issue of a new passport. Mr S considered this unfair because his old passport had expired, there was nothing on the passport application form requiring him to produce the old passport, and nothing on any of the passport documentation or guidelines advising a passport holder they need to retain an expired passport. He approached DFAT’s Passport Office, which told him that the ‘lost or stolen’ fee was a policy intended to deter people from losing their passports. As a result of our investigation DFAT decided to refund the ‘lost or stolen’ fee to Mr S because his previous passport had expired. In addition, DFAT advised it would provide additional information about the need to retain expired passports on its passport website, and would review the content of passport brochures. |
|
We also received complaints about identification requirements for passports. This was a key source of complaints during 2005–06, primarily due to the introduction of new legislation that resulted in more stringent proof of identity requirements for passport applicants. As a result of one case we investigated, DFAT undertook to update information on its website in relation to the requirements for proof of place of birth.
A few complaints related to passport applications for children under the age of 18 where the child’s natural parents were separated. In some cases, parents complained that the other parent had refused permission for a passport to be issued to their child. For example, one father contacted our office regarding DFAT’s refusal to issue a passport for his 14-year-old daughter, of whom he had full custody, because the child’s mother had objected to her daughter being given a passport. We clarified some matters with DFAT, following which the father decided to appeal DFAT’s decision to not grant a passport to his daughter to the Administrative Appeals Tribunal. He also considered seeking an order from the Family Court that would allow his daughter to travel overseas.
In other cases, parents complained that a passport had been issued to their child without their consultation and consent, and as a result the child had been able to travel overseas, sometimes without their knowledge. Some of the cases involved sensitive personal issues such as domestic violence and cultural differences between the parents.
Other complaints covered a wide range of issues, including the actions of DFAT embassy and consular staff located in overseas offices. No trends of note were detected amongst this group of complaints. We received a few complaints about the quality of advice given by embassy and consular staff in relation to eligibility for visas required for travel to Australia, and the lack of assistance provided to Australian citizens who were seeking to return home from overseas urgently after an unforeseen event such as the outbreak of war or civil unrest. For example, a few complaints were about the evacuation of Australians following the outbreak of war in Lebanon in July 2006. Most of these complaints did not proceed to investigation stage because evacuation occurred relatively quickly and complainants no longer wished to pursue the matter.
We receive complaints about the administration of personal insolvency law by the Insolvency and Trustee Service Australia (ITSA). In 2006–07 we received 60 approaches and complaints about ITSA, compared to 76 in 2005–06.
Usually we ask people with a complaint about the handling of a bankruptcy, including by the Official Trustee, to complain first to the Bankruptcy Regulation branch of ITSA. If the person is not satisfied with the way their complaint is handled, we may investigate it.
We receive complaints from both bankrupts and creditors. Many complaints can be resolved by an explanation of the legal framework in which bankruptcy operates. For example, fees are charged to bankrupt estates in accordance with legislation, and while a bankrupt or creditor might be dissatisfied with the amount of fees charged, our role will usually be limited to considering whether the legislation has been followed.
The case study No notice shows the interaction between complying with legislative requirements and delivering good service.
no notice |
CASE STUDY |
A trustee in bankruptcy lodged an objection under bankruptcy legislation to Mr U being discharged from bankruptcy (in other words, to the bankruptcy being finalised). Under the legislation Mr U had 60 days to apply for this objection to be reviewed, after receiving notice of the objection. Failure to seek a review means that the bankruptcy continues. However Mr U claimed that he never received notice of the objection. ITSA advised Mr U that, as his request was out of time, it could not consider his request as valid under the legislation. We asked ITSA to consider Mr U’s argument that he did not receive the notice. ITSA acknowledged that it should have made enquiries about this, and on doing so found that Mr U had not received the notice or been advised of his rights. ITSA then exercised its discretion to review the objection, with a favourable outcome for Mr U. |
|
Following the government’s decision to fully privatise Telstra, the Ombudsman no longer deals with complaints about Telstra.
The loss of jurisdiction was triggered by a declaration by the Minister for Communications, Information Technology and the Arts on 24 November 2006 that the Australian Government no longer held a majority of shares in Telstra. Any complaints made about Telstra on or after that date are not within the Ombudsman’s jurisdiction.
In the 2006–07 reporting year we received 228 approaches and complaints about Telstra during the period it was in the Ombudsman’s jurisdiction. We closed 229 approaches and complaints, of which we investigated less than 3%. The matters investigated generally related to workers’ compensation and Telstra’s response to requests made under the Freedom of Information Act.
Most complainants were referred to the Telecommunications Industry Ombudsman (TIO), who continues to handle disputes over billing, contracts, faults and customer service.
People who wish to complain about Telstra’s response to a ‘000’ emergency number call may contact the Community and National Interests Section of the Australian Communications and Media Authority.
Top
Previous
page | Next page—Chapter
7—Looking at the agencies–Freedom of Information 
Looking
at the agencies