CHAPTER 6 | Promoting good administration

A key objective of the Ombudsman’s officeis to foster good public administration that is accountable, lawful, fair, transparent and responsive. One way this is done is bylooking at complaints to see if they raiseissues that are systemic, either withinan agency or across a number of agencies. Another way is by drawing on theoffice’s lengthy experience in handlingcomplaints across all areas of government administration, to identify particular issues that may arise, or have arisen, in public administration and to promote improvements.

This chapter outlines some of the mechanisms we use, such as submissions to parliamentary committee inquiries, publication of own motion investigation reports, and cooperation with other oversight and complaint-handling organisations.

Submissions, reviews and research

Parliamentary committees and submissions

During 2007–08 we made three submissions to parliamentary committee inquiries:

• the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity inquiry into law enforcement integrity models
• the Joint Standing Committee on Foreign Affairs, Defence and Trade inquiry into RAAF F–111 deseal/reseal workers and theirfamilies
• the House Standing Committee on Family, Community, Housing and Youth inquiry into better support for carers.

The Ombudsman, Deputy Ombudsman and other staff also appeared before the Senate Standing Committee on Foreign Affairs, Defence and Trade in relation to its review of reforms to Australia’s military justice system.

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Other submissions

We also make submissions to other inquiries and to reviews, such as where agencies are looking at the implications of potential major changes in the areas they administer. This is in addition to our ongoing dialogue with some agencies about their policy and administrative changes, described in more detail in Chapter 7—Looking at the agencies.

During the year we made submissions to:

• the independent Citizenship Test Review Committee appointed by the Minister for Immigration and Citizenship to examine the operation and effectiveness of the citizenship test
• the external reference group reviewing the statutory self-regulation of the migration advice profession
• the Department of Defence for the review of the Defence Inquiries Regulations 1985
• Treasury in relation to the Exposure Draft Tax Agent Services Bill, Related Regulations and Explanatory Material; andTreasury in relation to the discussion paper on a review of discretions in income tax laws.

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Legislative review

In March 2008 the Attorney-General appointed the Ombudsman to be a member of a committee to review the Legislative Instruments Act 2003 (Cth). The other members of the committee are Mr Ian Govey and Mr Tony Blunn AO.

The Act established a comprehensive regime for the making, registration, publication, parliamentary scrutiny and sunsetting of Commonwealth legislative instruments. The review is required under s59 of the Act.

The committee has released an issues paper and met with a number of stakeholders at public meetings in Canberra and Sydney. The committee must report to the Attorney-General before 31March 2009.

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Administrative Review Council

The Ombudsman is an ex officio member of the Administrative Review Council, established by the Administrative Appeals Tribunal Act 1975 (Cth). The council provides advice to the Government on administrative law issues and reform. During the year the Ombudsman was a member of the council’s sub-committee responsible for a report on coercive information-gathering powers of government agencies, tabled in Parliament in June 2008. He was also a member of the sub-committees responsible for a review of administrative decisions in areas of complex and specific business regulation, and for the development of a series of Best Practice Guides to Decision Making (launched in August 2007). The work of the council is covered more fully in its annual report.

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Whistleblowing project

In our last three annual reports we described how the Ombudsman’s office has been playing a major role in a three-year collaborative project partly funded by the Australian Research Council Whistling while they work: internal witness management in the Australian Public Sector. The work, being led by Griffith University, has included workshops, three large surveys, and release of an issues paper. The data collection phase of the project has been completed and a formal report from the project is to be released in September 2008. The project will identify and promote current best practice in workplace responses to public interest disclosures, and should provide a useful resource in framing or reviewing any relatedlegislation.

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Immigration detention project

In 2007–08 the office commenced as a partner in another three-year collaborative project with Griffith University that has received Australian Research Council funding—Dilemmas in non-citizen detention and removal: an international comparative study. This project aims to map the nature and scope of non-citizen detention and removal in Australia, undertake a comparative analysis of strategies used in other countries, and develop policy proposals for an improved system. The project has a particular focus on people for whom the removal process is prolonged or problematic, such as where there is difficulty in determining their identity or obtaining traveldocumentation, or where there are concerns about their human rights or health if they are removed.

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Human rights in closed environments

We will also collaborate on a three-year project led by Monash University that has received Australian Research Council funding—Applying human rights legislation in closed environments: a strategic framework for managing compliance. Theproject, starting in 2008–09, will examine the application of human rights inenvironments such as prisons and immigration detention centres. The other partners and collaborating organisations in this project are the Victorian Ombudsman, the Victorian Equal Opportunity and Human Rights Commission, the Victorian Office of the Public Advocate, the Victorian Office of Police Integrity and the Western Australian Office of the Inspector of Custodial Services.

Cooperation with other Australian Government integrity agencies

The Ombudsman’s office is one part of an ‘integrity’ group in government, comprised of a number of independent statutory agencies that discharge a ‘watchdog’ role inrelation to the public sector. Some of these agencies have a role similar to the Ombudsman of receiving and investigating complaints from the public, initiating enquiries into systemic issues in government administration, or auditing compliance by agencies with legislative requirements.

‘The Ombudsman’s office is one partof an ‘integrity’ group in government …’

Given our similar objectives of oversighting and improving government administration, we continue to look for ways to work cooperatively with these agencies, to complement each other’s work and to avoid unnecessary duplication of effort.

For example, during the year:

• the Ombudsman and the Inspector-General of Intelligence and Security met periodically to discuss common issues that arose in the handling of complaints about Australian Government agencies
• we met periodically with the Australian Commission for Law Enforcement Integrity to exchange information on corruption cases and clarify our respective responsibilities on cases of poor administration, misconduct and corruption where it may be difficult to define the boundaries
• we met with the Australian National Audit Office to discuss their draft work program and how it may relate to work we have underway or planned
• one of the office’s staff was delegated powers under the Privacy Act 1988 (Cth) by the Privacy Commissioner and completed an investigation—this was an example of close cooperation between our offices, and also an opportunity for the staff member to learn about different approaches to investigation.

Cooperation with other australian government complaint-handling bodies

We cooperate with a range of other Australian Government organisations which have complaint handling as part or all of their focus. In some cases our jurisdictions overlap, and we seek to ensure that our work complements, rather than duplicates, each other’s.

Aged Care Commissioner

The Aged Care Complaints Investigation Scheme, established under the Aged Care Act 1997 (Cth), investigates complaints about aged care services that are subsidised by the Australian Government. The Scheme is managed by the Office of Aged Care Quality and Compliance in the Department of Health and Ageing.

The Aged Care Commissioner is an independent statutory appointment. The Commissioner can review the way in which complaints are handled under the Scheme, either in general or in specific complaints. The Commissioner can also investigate complaints about the Aged Care Standards and Accreditation Agency Ltd.

In October 2007 the Ombudsman and the Commissioner, MsRhonda Parker, signed a memorandum of understanding on the handling of complaints. The memorandum aims to ensure that complaints are dealt with by the most appropriate body, there is no duplication of effort, and we share general information that is relevant to both our organisations. The Ombudsman also launched the Commissioner’s website.

CASA Industry Complaints Commissioner

The role of the Civil Aviation Safety Authority’s (CASA) Industry Complaints Commissioner is to be the central coordinating point for all complaints about CASA, to ensure that they are examined andresponded to expeditiously. The Commissioner can recommend changes toCASA’s processes and procedures to prevent the recurrence of problems that giverise to complaints.

During the year the Ombudsman and other officers met with the Commissioner, MrMichael Hart, to discuss effective cooperation in the management of complaints about CASA.

Inspector-General of the Australian DefenceForce

The Inspector–General of the Australian Defence Force (IGADF) is a statutory appointment under the Defence Act 1903 (Cth). The IGADF provides general oversight of the health and effectiveness of the ADF military justice system, and is independent of the normal chain of command.

We have had a long cooperative working relationship with the IGADF, MrGeoff Earley, both in dealing with matters related to our Defence Force Ombudsman role, and in working with regional partners to assist in the development of complaint-handling processes. For example, in the section International cooperation and regional support later in this chapter, we describe how we worked with the IGADF, the AFP, and partners in Papua New Guinea, on complaint-handling processes.

Office of the Workplace Ombudsman

The Office of the Workplace Ombudsman is an independent statutory authority established under the Workplace Relations Act 1996 (Cth). The Workplace Ombudsman is responsible for ensuring compliance with federal workplace relations law. During the year we had a number of discussions with the Workplace Ombudsman, MrNicholas Wilson, and his staff about our working relationships.

Own motion and major investigations

The Ombudsman can conduct an investigation in response to a complaint to the office or on his own motion. During 2008–09 we released 14 reports publicly on own motion or major investigations:

• August 2007—Lessons for public administration: Ombudsman investigation of referred immigration cases (Report No11/2007)
• August 2007—Commonwealth courts and tribunals: complaint-handling processes and the Ombudsman’s jurisdiction (Report No 12/2007)
• October 2007—Department of Industry, Tourism and Resources: failure to provide adequate reasons for a decision refusing an R&D Start Grant application (Report No13/2007)
• October 2007—Marriage-like relationships: policy guidelines for assessment under social security law (Report No 14/2007)
• December 2007—Department of Immigration and Citizenship: notification of decisions and review rights for unsuccessful visa applications (Report No15/2007)
• December 2007—Application of penalties under Welfare to Work (Report No16/2007)
• December 2007—Australia Post: investigation of a complaint about a Postal Delivery Officer (Report No 17/2007)
• December 2007—Comcare: identifying the rehabilitation authority of a former Australian Government employee (Report No 18/2007)
• February 2008—Centrelink: payment of independent rate of youth allowance to a young person (Report No 1/2008)
• April 2008—Department of Immigration and Citizenship: administration of detention debt waiver and write-off (Report No2/2008)
• April 2008—Department of Defence: allegations concerning the HMAS Westralia fire (Report No 3/2008)
• April 2008—Damage caused to inbound international postal items: the roles of Australia Post, Australian Customs Service and Australian Quarantine and Inspection Service (Report No 4/2008)
• June 2008—Implementation of Job Capacity Assessments for the purposes of Welfare to Work initiatives: examination of administration of current work capacity assessment mechanisms (Report No5/2008)
• June 2008—Department of Immigration and Citizenship: timeliness of decision making under the Freedom of Information Act 1982 (Report No 6/2008).

Further details on most of these reports are provided in Chapter 7—Looking at the agencies and Chapter 9—Lessons and insights for government, and all are available on our website at www.ombudsman.gov.au.

Chapter 7 describes a number of other own motion investigations we intend to commence or finalise in 2008–09.

International cooperation and regional support

Over the last year, the continued support of the Australian Agency for International Development (AusAID) has enabled the office to work closely with Ombudsmen in the Pacific, Papua New Guinea (PNG) and Indonesia as they seek to respond to new challenges and opportunities in public administration in their countries. During the year AusAID arranged for our programs to be reviewed. They found that our activities are having increasing impact on good governance in a number of areas.

Placements, joint analyses and ongoing dialogue provided many opportunities to share skills and build competencies among our own staff and our international partners.The following highlights stand out from a busy twelve months.

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Papua New Guinea Twinning Program

The Twinning Program with the Ombudsman Commission of Papua New Guinea (OCPNG) commenced in 2004–05. During the past year a direct outcome of our joint work has been significant improvements in the relationship between key PNG law and justice sector agencies.

In June 2007 the OCPNG and Royal Papua New Guinea Constabulary (RPNGC) signed a Memorandum of Agreement (MOA) which established clear protocols and responsibilities for handling complaints against the RPNGC. It led to major prosecutions of three senior police staff and other joint OCPNG/RPNGC investigations of complaints against police. The success of the first year trial led to the re-signing of the MOA in June 2008 for a further three years.

This work arose directly from the placement of MrJohnHevie, an officer of the OCPNG who spent two months in Canberra working with Commonwealth Ombudsman staff on police and defence issues. Sadly, John passed away in January 2008, but the work he started continues strongly. The MOA has become a model for constructive working relationships between the OCPNG and other government agencies in PNG.

As part of the Twinning Program, our office contributed to a workshop on complaint handling for law enforcement and disciplined services in Port Moresby in September 2007. At the workshop the IGADF, the Commonwealth Ombudsman and a senior representative of the Australian Federal Police (AFP) outlined the grievance procedures for the Australian Defence Force (ADF) and AFP. They also held discussions with the PNG Defence Force (PNGDF) Commander and officers, the PNG Ombudsmen and senior staff, and the head and senior staff of the RPNGC and PNG Corrective Services, as well as other senior PNG bureaucrats.

We arranged publication and distribution of the workshop proceedings. Ombudsman staff later met with senior members of the PNGDF and OCPNG when they visited the ADF in Canberra to consider in more detail options for improving internal complaint-handling systems.

Following the success of the arrangements between the OCPNG and RPNGC, the Twinning Program will now focus more on the development of similar liaison and support arrangements between the PNGDF, the ADF, the OCPNG and the Commonwealth Ombudsman’s office toimprove complaint handling.

The strong placement program also continued during 2007–08 with two PNG officers each spending two months working with us in Australia. In addition, MrDavid Ward of our office returned to PNG at the request of the OCPNG for four months to continue to assist in implementing some recommendations of a comprehensive management review of the OCPNG.

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Indonesian Australian Ombudsmen Linkages and Strengthening Project

Our work on the Indonesian Australian Ombudsmen Linkages and Strengthening Project continued with the support of the AusAID Government Partnership Fund. The Western Australian Ombudsman and New South Wales Ombudsman are also partners in this project, to extend the breadth of expertise available to the Indonesian National Ombudsman Commission (NOC). They continued with shared placements with the NOC, with our office providing coordination support for the activities.

We also assisted the NOC to strengthen its information technology services. Two of our officers visited the NOC, helping to assess its information technology requirements for the roll-out of a new complaint management system. As the decentralisation of government services continues across Indonesia, the new web-based system will offer much stronger and more secure linkages between the NOC’s central office in Jakarta and its regional offices. This work has helped the NOC better link its information technology solutions to the business needs of a growing office, now and into the future.

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Pacific Governance Support Program

During the year we focused on supporting a Pacific Plan initiative for strengthening regional support for Pacific Ombudsmen. The plan, endorsed by all the Pacific Islands Forum leaders, promotes a new approach to the challenges faced by Pacific Island countries through strengthening regional cooperation and integration.

We worked with Ombudsmen from the Cook Islands, New South Wales, New Zealand, PNG, Tonga, Samoa, Solomon Islands and Vanuatu to develop new forms of regional cooperation that will strengthen existing Ombudsman offices. This work also addresses the needs of small island states that are currently without an Ombudsman, or ombudsman-like process for complaint handling, to improve transparency, accountability and good governance.

AusAID has provided funding support for this initiative through its Pacific Governance Support Program.

A major meeting of stakeholders was held in Auckland in November 2007 where Pacific Ombudsmen, with representatives from Kiribati, Niue, the United Nations Development Program, the Pacific Islands Forum Secretariat and AusAID, worked on the possible form for a future regional Ombudsman support mechanism.

Subsequent meetings with government and non-government stakeholders in Kiribati, Marshall Islands, Micronesia, Nauru, Niue, Palau and Tuvalu generated considerable discussion in those countries, raising the subject of complaint handling at senior levels of government. We helped develop papers on the current complaint-handling arrangements for each of these countries in preparation for a second major meeting in Vanuatu in May 2008. Representatives from every Pacific Island Forum country except Fiji attended this meeting, along with the attendees of the first meeting. The outcome was a proposal for a Pacific Island Ombudsman Regional Support Mechanism that should be completed in 2008–09.

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Other international cooperation

The Ombudsman participated in other international activities aimed at improving governance and sharing Ombudsman experience and knowledge.

In November 2007 the Ombudsman participated in a workshop hosted by the European Ombudsman. The focus of the workshop, Good Administration and the European Ombudsman, was to generate ideas and develop strategies on how the European Ombudsman can promote the principles of good administration within European Union institutions and bodies.

The Ombudsman also participated in the 5th International Conference of Information Commissioners in New Zealand in November 2007, where he gave a paper Designing an effective FOI oversight body—Ombudsman or independent commissioner? Over 170 information commissioners, public sector officials and individuals and representatives from organisations with a strong interest infreedom of information attended the four-day conference.

In May 2008 the Ombudsman attended an anti-corruption seminar in China under the China-Australia Human Rights Technical Cooperation Program. The three-day seminar, coordinated by the Human Rights and Equal Opportunity Commission and China’s Supreme People’s Procuratorate, brought together a number of Australian and Chinese public officials with a role in anti-corruption policies and practices. The Ombudsman gave two keynote presentations to the seminar—Fighting corruption while safeguarding human rights, and An introduction to Australian anti-corruption law and policy.

The office is a member of the International Ombudsman Institute (IOI), which is an international association of public sector Ombudsman offices. The members of the Australasian and Pacific Ombudsman region of the IOI held their annual meeting in Melbourne in March 2008, hosted by the Victorian Ombudsman. The Commonwealth Ombudsman presented a paper to the gathering—The expanding Ombudsman Role: What fits? What doesn’t?

Cooperation among Australian Ombudsmen

We have a close continuing working relationship with the large number of public and private sector Ombudsmen in Australia. This enables us to share insights and experiences in relation to different aspects of our roles, as well as work collaboratively on particular projects.

For example, as described in Chapter5— Challenges in complaint handling, we have been cooperating with the state and territory Ombudsman offices on a project about dealing with difficult or unreasonable conduct by complainants. In addition, we have shared information on information technology issues such as the use of our complaint management systems and our experiences with web-based complaint lodgement, and have worked collaboratively on cross-jurisdictional issues. The offices are also considering whether, under our respective legislation, we can transfer complaints directly from one office to another so that they can be dealt with in the correct jurisdiction. At present we can only advise complainants of the contact details for the relevant Ombudsman.

In August 2007, in celebration of our thirtieth anniversary, we held a major seminar Improving administration—the next 30 years: Complaint handling, investigation and good administration. Speakers at the seminar included a number of private and public sector Ombudsmen, senior staff from Commonwealth and ACT government agencies, and representatives from some advocacy organisations.

The seminar was well attended, with about 200 participants from the government, private, not-for-profit, and education sectors. The presentations at the seminar covered issues such as lessons from the public and private divide, principles of effective complaint handling, complainant perspectives and investigating corruption. Most of the presentations are available on our website, and overviews of some of the sessions are the focus of feature pages in this report.

The Ombudsman is a member of the Australian and New Zealand Ombudsman Association Inc (ANZOA). ANZOA held its inaugural conference, The role of the Ombudsman—yesterday, today and tomorrow, in April 2008. The conference discussed broad themes about Ombudsman schemes and offices; standards and providing high quality services. The Commonwealth Ombudsman presented a paper What’s in a name? Use of the term Ombudsman. Our staff also participate in various ANZOA sub-groups, looking at issues such as public relations and communications, learning and development, and information technology.