The Commonwealth Ombudsman, Prof. John McMillan, has tabled his twenty-eighth annual report in Parliament.

The report documents the large number of complaints against Australian Government agencies handled by the Ombudsman in 2003-04:

Prof McMillan noted that the report captured the valuable and essential role of the Ombudsman. ‘The Commonwealth Ombudsman deals with problems and complaints against government arising across Australia and across all portfolios of government. This offers a unique perspective on difficulties that people commonly encounter in dealing with government. The office is well-placed to identify systemic problem areas in government generally and in the administration of particular programs.’

Problem areas in government decision making

A feature of this year’s annual report is a discussion of systemic problem areas identified by the Ombudsman in the course of complaint handling and investigation in 2003-04. These are discussed in Chapter 7 of the report at pp 84-90, and include:

Record Keeping

General problems with record keeping identified during the year included ineffective agency systems for registering correspondence and papers, repeated requests by agencies for information already provided, and the quality of agency documents. Numerous complaints were received during the year about agencies making continual requests for information already provided, missing or lost documents and inadequate filing practices.

‘The written record is central to explaining or justifying a government decision’, Prof McMillan said. ‘We appreciate the reasons often given by agencies for not keeping elaborate records, particularly of oral advice. Yet the realities of administrative practice should not lead agencies to ignore that deficient record keeping is a continuing source of complaints.’

Giving advice

Complaints about the accuracy and quality of agency advice are a recurring theme in the Ombudsman’s annual report. Typical complaints received by the Ombudsman alleged incorrect advice about how the assets test affects Centrelink benefits, visa requirements, the tax treatment of eligible termination payments, and calculation of child support liability.

‘People rely on government for accurate advice, and the receipt of substantial benefits can hinge on the accuracy of advice given’, said Prof McMillan.

‘Dealing with complaints about incorrect advice is challenging for the agencies and for the Ombudsman’s office. Disputes about the accuracy of advice will never go away, but they can be minimised. In 2004-05 the Ombudsman’s office will look closely at practical strategies for clarifying and recording agency advice.’

Dealing with the exceptional

Legislation is increasingly complex and tightly written. The Ombudsman receives many complaints each year from people who have fallen through the cracks of government schemes in unexpected ways.

‘It is important for legislation to anticipate the exception’, said Prof McMillan. ‘One way of doing this is to include in the legislation a safety net discretion or hardship provision. Legislation should enable agencies to respond in a flexible way to cases of hardship or unforeseen difficulty’.

An example is complaints received by the Ombudsman about the operation of the migration legislation. The highly specific rules about visa eligibility can mean that a person, for reasons beyond their control, cannot meet the time limit for renewing a visa to stay in Australia. The person may have no practical option other than to leave the country to lodge a fresh visa application.

Schemes established by executive action

Many government schemes and programs are established by executive rather than legislative action. An example noted in the Ombudsman’s annual report is the GEERS scheme administered by the Department of Employment and Workplace Relations, for payment of redundancy benefits. Prof McMillan noted that ‘Executive schemes have the advantage of being flexible and easily changed, but this flexibility can deprive members of the public of important rights. In one case we investigated an executive scheme was changed without any transitional provision for cases already in the pipeline. It is unlikely that such a point would be overlooked in a scheme based in legislation. Another difficulty is that changes made by executive fiat are sometimes difficult to trace, and different sections in an agency apply different versions of the rules.’

Agency Overview

Australia Post (pp 32-3)

In 2003–04 the Ombudsman received 1,079 complaints about Australia Post, dealing mostly with domestic, international or parcel post mail deliveries. Prof McMillan pointed out that the number of complaints received each year constitutes only a small percentage of the total postal transactions – as many as 50 million a day leading up to Christmas. Most of the problems and complaints that arise are dealt with by Australia Post’s Customer Complaints Centres.

‘Our impression is that Australia Post’s complaint handling is well managed, and in some cases the responses to individual complaints exceeded what we consider was required under their service obligations’, said Prof McMillan. ‘However, no system is perfect, and there were occasions on which we thought Australia Post might have handled a complaint differently or better.’

Legislation introduced into the Parliament in 2005 will confer the role of Postal Industry Ombudsman on the Commonwealth Ombudsman. This jurisdiction will extend to private sector postal operators that register to participate in the Postal Industry Ombudsman scheme. This scheme will be unique in conferring jurisdiction on a single ombudsman to handle both public and private sector complaints.

Centrelink (pp 38-41)

Centrelink decisions account for 46% of all complaints received by the Commonwealth Ombudsman. In 2003–04 the largest category of complaints about a single issue related to debt recovery. ‘There is no doubt that Centrelink has a legitimate basis to undertake debt recovery activity’, Prof McMillan noted. ‘The Ombudsman’s focus is therefore on whether Centrelink debt recovery policies and procedures are authorised by legislation and have regard to the position or special needs of Centrelink customers and are not heavy handed. The thrust of some complaints to the office was that Centrelink debt recovery practices are too outcome driven without full regard to the wider social purpose that Centrelink serves.’

Child Support Agency (pp 42-45)

In 2003–04, the Ombudsman received 1,951 complaints about the CSA, down 20% on the previous year. The reduction was due primarily to the bedding down of the CSA’s new computer system and to improved complaint resolution processes that effectively address concerns raised by parents.

A prominent theme in CSA complaints was that parents who were liable to make a child support payment could suddenly be told of an unexpected and sizeable child support debt. One reason is that parents sometimes do not fully understand the child support scheme. Administrative shortcomings in the administration of the child support scheme are another reason – notably CSA errors in income assessment and recording information.

Complaints to the Ombudsman also highlighted the reliance placed by many parents on the CSA for sound and accurate advice about their child support liability.

Defence (pp 46-48)

The Ombudsman performs a special role as Defence Force Ombudsman, handling complaints relating to employment related matters for serving and former members of the Australian Defence Forces. The most common causes of complaint from Defence personnel related to discharge matters, pay and allowances, dissatisfaction with Redress of Grievance (ROG) processes, discrimination and harassment and posting decisions.

Prof McMillan noted that ‘The ROG process is of particular concern. During the year in a submission to the Senate Inquiry into the Effectiveness of Australia’s Military Justice System I was critical of the time taken to finalise ROG investigations. Other matters highlighted in my submission were the adequacy of ADF investigative practices, and an unnecessary tendency to obtain legal advice on issues raised in Ombudsman investigations. We are currently conducting an inquiry jointly with the ADF into the causes of delay in grievance handling in the ADF.’

Immigration (pp 49-53)

Immigration issues continued to be a significant source of complaints to the Ombudsman during the year. The bulk of complaints to the Ombudsman fall into three distinct areas: migration issues; immigration detention centres; and other issues such as citizenship processes.

The most common concerns about migration issues were decisions made by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) on permanent visa applications for overseas family members or spouses, and temporary visa applications for students and tourists. Complaints from detainees in immigration detention facilities most commonly involved access to medical services, property allegedly lost or stolen, and allegations of assault.

‘Complaints received about immigration matters are often complex and can take some time to resolve,’ said Prof McMillan. He noted that DIMIA had responded by developing new complaint- handling guidelines, and foreshadowed that this would be reflected in reduced complaints to the Ombudsman.

Law Enforcement (pp 54-63)

Prof McMillan observed that ‘Law enforcement is an increasingly complex jurisdiction. The Ombudsman is now more actively engaged in performing a complaint and oversight role to take account of changes in law enforcement activity. The right to complain to the Ombudsman has been preserved in the legislation conferring additional powers on law enforcement agencies to combat terrorism. The Ombudsman will also have a role in the proposed legislation to establish a national framework for use of surveillance devices.’

The Ombudsman’s annual report deals also with special investigations into law enforcement matters conducted in 2003-04. One investigation was into certain aspects of the AFP’s administration of the National Witness Protection Program that had come under criticism in a matter before a court. The Ombudsman concluded that some ill-advised action had been taken, but the actions were taken in good faith and were not designed to mislead the court. The Ombudsman recommended several procedural changes to accommodate the needs of a court without compromising a witness’s assumed identity.

Another special investigation conducted by the Ombudsman during the year was into the internal handling of allegations of police corruption. Prof McMillan noted that ‘Corrupt activity was not revealed in these investigations, but they highlighted the special role the Ombudsman can play when police corruption is alleged or suspected. External oversight is important in bolstering public confidence that allegations have been properly investigated.’

Around 70% of all AFP complaints about law enforcement matters related to ACT policing, and were of a relatively minor nature, such as alleged incivility or rudeness of police officers.

Taxation (pp 34-37)

The Ombudsman’s report shows a steady reduction in complaints about the ATO since 2000–01. This reduction is primarily due to the declining number of complaints related to mass-marketed schemes and the bedding down of the new tax system. One of the common areas of complaint was ATO debt recovery action. While acknowledging the legal and practical necessity for tax debt recovery action, the Ombudsman’s office paid special attention to whether the human element was considered in debt recovery matters.

Fostering good public administration

An important role of the Ombudsman is to foster good public administration. The Annual Report provides details of four own motion (or own initiative) investigation reports released during the year (p.24). These related to the Australian Taxation Office (ATO), the Department of Employment and Workplace Relations, the Child Support Agency (p.95) and the Australian Crime Commission (p.62).

Full text of the Commonwealth Ombudsman’s Annual Report is available at www.ombudsman.gov.au.

Date of release: 1 November 2004

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      The Commonwealth Ombudsman, Prof. John McMillan, has tabled his twenty-eighth annual report in Parliament.

      The report documents the large number of complaints against Australian Government agencies handled by the Ombudsman in 2003-04:

      • The Ombudsman received 17,496 complaints about Australian Government agencies in 2003-04, and a further 9,036 other inquiries and contacts
      • The bulk of complaints (78%) were against five agencies with a service delivery or client contact function – Centrelink, the Child Support Agency, the Australian Taxation Office, Australia Post and the Department of Immigration
      • 0f 5,910 complaint issues investigated by the Ombudsman in 2003-04, agency defect or deficiency was recorded in 20% of cases. The main defects were procedural in nature, such as delays in decision-making, bad record keeping, inadequate explanation of decisions, and confusing advice
      • There was a 12% decrease in the number of complaints received in 2003-04 as compared to the previous year; this was matched by a corresponding increase in the complexity of many complaints, due in part to a growing complexity in government schemes.

      Prof McMillan noted that the report captured the valuable and essential role of the Ombudsman. ‘The Commonwealth Ombudsman deals with problems and complaints against government arising across Australia and across all portfolios of government. This offers a unique perspective on difficulties that people commonly encounter in dealing with government. The office is well-placed to identify systemic problem areas in government generally and in the administration of particular programs.’

      Problem areas in government decision making

      A feature of this year’s annual report is a discussion of systemic problem areas identified by the Ombudsman in the course of complaint handling and investigation in 2003-04. These are discussed in Chapter 7 of the report at pp 84-90, and include:

      Record Keeping

      General problems with record keeping identified during the year included ineffective agency systems for registering correspondence and papers, repeated requests by agencies for information already provided, and the quality of agency documents. Numerous complaints were received during the year about agencies making continual requests for information already provided, missing or lost documents and inadequate filing practices.

      ‘The written record is central to explaining or justifying a government decision’, Prof McMillan said. ‘We appreciate the reasons often given by agencies for not keeping elaborate records, particularly of oral advice. Yet the realities of administrative practice should not lead agencies to ignore that deficient record keeping is a continuing source of complaints.’

      Giving advice

      Complaints about the accuracy and quality of agency advice are a recurring theme in the Ombudsman’s annual report. Typical complaints received by the Ombudsman alleged incorrect advice about how the assets test affects Centrelink benefits, visa requirements, the tax treatment of eligible termination payments, and calculation of child support liability.

      ‘People rely on government for accurate advice, and the receipt of substantial benefits can hinge on the accuracy of advice given’, said Prof McMillan.

      ‘Dealing with complaints about incorrect advice is challenging for the agencies and for the Ombudsman’s office. Disputes about the accuracy of advice will never go away, but they can be minimised. In 2004-05 the Ombudsman’s office will look closely at practical strategies for clarifying and recording agency advice.’

      Dealing with the exceptional

      Legislation is increasingly complex and tightly written. The Ombudsman receives many complaints each year from people who have fallen through the cracks of government schemes in unexpected ways.

      ‘It is important for legislation to anticipate the exception’, said Prof McMillan. ‘One way of doing this is to include in the legislation a safety net discretion or hardship provision. Legislation should enable agencies to respond in a flexible way to cases of hardship or unforeseen difficulty’.

      An example is complaints received by the Ombudsman about the operation of the migration legislation. The highly specific rules about visa eligibility can mean that a person, for reasons beyond their control, cannot meet the time limit for renewing a visa to stay in Australia. The person may have no practical option other than to leave the country to lodge a fresh visa application.

      Schemes established by executive action

      Many government schemes and programs are established by executive rather than legislative action. An example noted in the Ombudsman’s annual report is the GEERS scheme administered by the Department of Employment and Workplace Relations, for payment of redundancy benefits. Prof McMillan noted that ‘Executive schemes have the advantage of being flexible and easily changed, but this flexibility can deprive members of the public of important rights. In one case we investigated an executive scheme was changed without any transitional provision for cases already in the pipeline. It is unlikely that such a point would be overlooked in a scheme based in legislation. Another difficulty is that changes made by executive fiat are sometimes difficult to trace, and different sections in an agency apply different versions of the rules.’

      Agency Overview

      Australia Post (pp 32-3)

      In 2003–04 the Ombudsman received 1,079 complaints about Australia Post, dealing mostly with domestic, international or parcel post mail deliveries. Prof McMillan pointed out that the number of complaints received each year constitutes only a small percentage of the total postal transactions – as many as 50 million a day leading up to Christmas. Most of the problems and complaints that arise are dealt with by Australia Post’s Customer Complaints Centres.

      ‘Our impression is that Australia Post’s complaint handling is well managed, and in some cases the responses to individual complaints exceeded what we consider was required under their service obligations’, said Prof McMillan. ‘However, no system is perfect, and there were occasions on which we thought Australia Post might have handled a complaint differently or better.’

      Legislation introduced into the Parliament in 2005 will confer the role of Postal Industry Ombudsman on the Commonwealth Ombudsman. This jurisdiction will extend to private sector postal operators that register to participate in the Postal Industry Ombudsman scheme. This scheme will be unique in conferring jurisdiction on a single ombudsman to handle both public and private sector complaints.

      Centrelink (pp 38-41)

      Centrelink decisions account for 46% of all complaints received by the Commonwealth Ombudsman. In 2003–04 the largest category of complaints about a single issue related to debt recovery. ‘There is no doubt that Centrelink has a legitimate basis to undertake debt recovery activity’, Prof McMillan noted. ‘The Ombudsman’s focus is therefore on whether Centrelink debt recovery policies and procedures are authorised by legislation and have regard to the position or special needs of Centrelink customers and are not heavy handed. The thrust of some complaints to the office was that Centrelink debt recovery practices are too outcome driven without full regard to the wider social purpose that Centrelink serves.’

      Child Support Agency (pp 42-45)

      In 2003–04, the Ombudsman received 1,951 complaints about the CSA, down 20% on the previous year. The reduction was due primarily to the bedding down of the CSA’s new computer system and to improved complaint resolution processes that effectively address concerns raised by parents.

      A prominent theme in CSA complaints was that parents who were liable to make a child support payment could suddenly be told of an unexpected and sizeable child support debt. One reason is that parents sometimes do not fully understand the child support scheme. Administrative shortcomings in the administration of the child support scheme are another reason – notably CSA errors in income assessment and recording information.

      Complaints to the Ombudsman also highlighted the reliance placed by many parents on the CSA for sound and accurate advice about their child support liability.

      Defence (pp 46-48)

      The Ombudsman performs a special role as Defence Force Ombudsman, handling complaints relating to employment related matters for serving and former members of the Australian Defence Forces. The most common causes of complaint from Defence personnel related to discharge matters, pay and allowances, dissatisfaction with Redress of Grievance (ROG) processes, discrimination and harassment and posting decisions.

      Prof McMillan noted that ‘The ROG process is of particular concern. During the year in a submission to the Senate Inquiry into the Effectiveness of Australia’s Military Justice System I was critical of the time taken to finalise ROG investigations. Other matters highlighted in my submission were the adequacy of ADF investigative practices, and an unnecessary tendency to obtain legal advice on issues raised in Ombudsman investigations. We are currently conducting an inquiry jointly with the ADF into the causes of delay in grievance handling in the ADF.’

      Immigration (pp 49-53)

      Immigration issues continued to be a significant source of complaints to the Ombudsman during the year. The bulk of complaints to the Ombudsman fall into three distinct areas: migration issues; immigration detention centres; and other issues such as citizenship processes.

      The most common concerns about migration issues were decisions made by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) on permanent visa applications for overseas family members or spouses, and temporary visa applications for students and tourists. Complaints from detainees in immigration detention facilities most commonly involved access to medical services, property allegedly lost or stolen, and allegations of assault.

      ‘Complaints received about immigration matters are often complex and can take some time to resolve,’ said Prof McMillan. He noted that DIMIA had responded by developing new complaint- handling guidelines, and foreshadowed that this would be reflected in reduced complaints to the Ombudsman.

      Law Enforcement (pp 54-63)

      Prof McMillan observed that ‘Law enforcement is an increasingly complex jurisdiction. The Ombudsman is now more actively engaged in performing a complaint and oversight role to take account of changes in law enforcement activity. The right to complain to the Ombudsman has been preserved in the legislation conferring additional powers on law enforcement agencies to combat terrorism. The Ombudsman will also have a role in the proposed legislation to establish a national framework for use of surveillance devices.’

      The Ombudsman’s annual report deals also with special investigations into law enforcement matters conducted in 2003-04. One investigation was into certain aspects of the AFP’s administration of the National Witness Protection Program that had come under criticism in a matter before a court. The Ombudsman concluded that some ill-advised action had been taken, but the actions were taken in good faith and were not designed to mislead the court. The Ombudsman recommended several procedural changes to accommodate the needs of a court without compromising a witness’s assumed identity.

      Another special investigation conducted by the Ombudsman during the year was into the internal handling of allegations of police corruption. Prof McMillan noted that ‘Corrupt activity was not revealed in these investigations, but they highlighted the special role the Ombudsman can play when police corruption is alleged or suspected. External oversight is important in bolstering public confidence that allegations have been properly investigated.’

      Around 70% of all AFP complaints about law enforcement matters related to ACT policing, and were of a relatively minor nature, such as alleged incivility or rudeness of police officers.

      Taxation (pp 34-37)

      The Ombudsman’s report shows a steady reduction in complaints about the ATO since 2000–01. This reduction is primarily due to the declining number of complaints related to mass-marketed schemes and the bedding down of the new tax system. One of the common areas of complaint was ATO debt recovery action. While acknowledging the legal and practical necessity for tax debt recovery action, the Ombudsman’s office paid special attention to whether the human element was considered in debt recovery matters.

      Fostering good public administration

      An important role of the Ombudsman is to foster good public administration. The Annual Report provides details of four own motion (or own initiative) investigation reports released during the year (p.24). These related to the Australian Taxation Office (ATO), the Department of Employment and Workplace Relations, the Child Support Agency (p.95) and the Australian Crime Commission (p.62).

      Full text of the Commonwealth Ombudsman’s Annual Report is available at www.ombudsman.gov.au.

      Date of release: 1 November 2004