Chapter 5

Agencies overview

  1. Agencies overview
  2. Commonwealth Ombudsman
  3. Australian Customs and Border Protection Service
  4. Centrelink
  5. Child Support Agency
  6. Comcare
  7. Department of Education, Employment and Workplace Relations
  8. Department of Climate Change and Energy Efficiency and Department of Sustainability, Environment, Water, Population and Communities
  9. Department of Families, Housing, Community Services and Indigenous Affairs
  10. Department of Health and Ageing
  11. Fair Work Ombudsman
  12. Medicare Australia
  13. Monitoring and Inspections
  14. Freedom of Information
  15. Indigenous programs – Closing the Gap in the Northern Territory
  16. Feature – Improving agencies’ use of Indigenous Interpreters
  17. Defence Force Ombudsman
  18. Department of Defence and the Australian Defence Force
  19. Department of Veterans’ Affairs
  20. Defence Housing Australia and Toll Transitions
  21. Feature – Defence Portfolio Agencies Forum
  22. Immigration Ombudsman
  23. Department of Immigration and Citizenship
  24. Feature – Immigration Detention – visits program
  25. Law Enforcement Ombudsman
  26. Law Enforcement
  27. Australian Federal Police
  28. Australian Crime Commission (ACC)
  29. Attorney-General’s Department
  30. Australian Commission for Law Enforcement Integrity (ACLEI)
  31. CrimTrac
  32. AUSTRAC
  33. Feature – Australian Federal Police/Ombudsman Forum
  34. Overseas Students Ombudsman
  35. Overseas Students
  36. Feature – Safety net for overseas students
  37. Postal Industry Ombudsman
  38. Postal Industry
  39. Feature – Role of the Postal Industry Ombudsman
  40. Taxation Ombudsman
  41. Role
  42. Australian Tax Office
  43. Australian Prudential and Regulation Authority
  44. Australian Securities and Investments Commission
  45. Tax Practitioners Board
  46. Insolvency and Trustee Service Australia
  47. Feature – Tax Institute National Convention

Agencies overview

Most of the approaches and complaints received by the Ombudsman’s office within its jurisdiction related to the following individual Australian Government agencies:

  1. Centrelink (4954)
  2. Australia Post (3123)
  3. Australian Taxation Office (2589)
  4. Department of Immigration and Citizenship (2137)
  5. Child Support Agency (2121)
  6. ACT Government (742)1
  7. Defence agencies (638)
  8. Department of Education, Employment and Workplace Relations (481)
  9. Australian Federal Police (207)

The Overseas Students Ombudsman jurisdiction received 161 complaints and approaches. A further 2734 complaints and approaches were received about other Australian Government agencies.

Figure 5.1 represents the above figures in percentage terms.

This chapter assesses our work with agencies in handling complaints and dealing with broader issues during 2010–11. It also discusses the monitoring and inspection work we undertake and complaints arising from the way agencies deal with freedom of information requests.

The chapter is divided into seven sections dealing with the Ombudsman’s jurisdictions at the Commonwealth level.

These jurisdictions are:

More detailed information by portfolio and agency is provided in Appendix 3— Statistics .

Figure 5.1: Proportion of approaches and complaints received within jurisdiction 2010–11

Figure 5.1: Proportion of approaches and complaints received within jurisdiction 2010-11

  1. Figures that relate to the ACT Ombudsman jurisdiction have been included in this annual report to provide an indication of workflow. A separate ACT Ombudsman Annual Report has also been prepared for the ACT Parliament.

Commonwealth Ombudsmen

Australian Customs and Border Protection Service

Overview

The Australian Customs and Border Protection Service (Customs and Border Protection) regulates the security and integrity of Australia’s borders.

The Commonwealth Ombudsman received 107 approaches and complaints about Customs and Border Protection this financial year. This was a slight increase on the 2009–10 financial year, in which we received 99 complaints. There was a decrease in passenger processing complaints from the previous year.

As well as investigating individual complaints, we also published an own motion report into the use of coercive powers in passenger processing, and scrutinised the implementation of new passenger screening arrangements.

Figure 5.2: Customs and Border Protection approach and complaint trends 2004–5 to 2010–11

Figure 5.2: Customs and Border Protection approach and complaint trends 2004-5 to 2010-11

Complaint themes

Our office receives complaints on a diverse range of issues about Customs and Border Protection. The most common themes this year were the importation of goods (relating to seizure decisions in particular), complaint handling issues and the exercise of powers relating to the processing of international air passengers.

We have noted significant media interest in the proposed introduction of new screening technologies and processes affecting international air passengers. We expect this to be an area of continued public interest and possible complaint to our office, and will monitor this in the year ahead.

Customs and Border Protection has a robust complaints system and undertook to review that system for airports in particular, following the identification of some areas for improvement during our investigation of a complaint finalised early this year. These areas included the inadequate provision of information at airports about how to make a complaint, limited requirements to document complaints in the airport environment and a lack of clear procedures specific to handling complaints at airports. Given the significant powers exercised by the agency in the busy and often pressured environment of an airport, it is important that complaints are encouraged and properly handled.

Reports or submissions released

In December 2010 the Commonwealth Ombudsman released an own motion report on the administration of coercive powers in passenger processing. The report was well received by Customs and Border Protection and most of the recommendations made were accepted. The purpose of the report was to provide external scrutiny of the use of strong coercive powers (for example to question, examine baggage, copy documents and retain possessions for further examination) and to ensure proper checks and balances are in place.

Our recommendations were substantially implemented by the end of the financial year. The outcomes of that process can be seen in improvements to internal training, policies and procedures used by officers exercising strong coercive powers in the processing of international air passengers. We will continue to monitor complaints and liaise with Customs and Border Protection to assess the outcomes of the own motion report and any further areas for improvement.

Systemic issues

Our investigation into the exercise of Customs and Border Protection’s coercive powers (Australian Customs and Border Protection Service: Administration of coercive powers in passenger processing – December 2010) identified issues with the information provided to people whose possessions are retained by Customs to check whether they are prohibited. Typically complaints have related to the retention of mobile phones, laptops and other electronic storage devices, which require forensic examination by Customs before a seizure decision can be made. Changes are currently being implemented by Customs and Border Protection to ensure adequate information is provided to the person and that items are returned as quickly as possible (if the item is not seized). Complaints to our office since the own motion investigation suggest this is no longer a prevalent issue – we will continue to monitor the situation to determine whether further action is required.

Cross-agency issues

Legal processes involving the movement of people and goods across the border are complex and involve multiple government agencies. Staff of the Ombudsman’s office visited Christmas Island this year, where Commonwealth Government agencies involved in the interception, transfer and processing of asylum seekers include Customs and Border Protection and the multi-agency authority Border Protection Command (comprising officers from both Customs and Border Protection and the Department of Defence), the Department of Immigration and Citizenship and the Australian Federal Police.

A complaint to our office highlighted the impact of this complexity on the simple receipting of property. A complainant’s wallet, which it is alleged had contained currency, was handled by officers from a number of agencies at various levels of responsibility before the complainant realised the money was missing. This multiple handling made it difficult to ascertain what had happened to the wallet.

Cross-agency issues also arise at airports, where the Department of Immigration and Citizenship, the Australian Quarantine and Inspection Service, the Australian Federal Police, and Customs and Border Protection all operate. Similar issues occur with the processing of inbound international mail, where Australia Post and Customs and Border Protection functions cross over.

Feedback from agencies indicates that they have taken steps to ensure people understand what each agency is responsible for. It is critical that the public understand how to make complaints about Government services, including in multi-agency environments.

Update from last year

In the 2009–10 annual report we referred to our own motion report (see previous section), which has now been released and the recommendations largely implemented.

Stakeholder engagement, outreach and education activities

This year we engaged in numerous liaison activities, for example with Border Protection Command regarding its role in the interception and transfer of asylum seekers on Christmas Island. Recent liaison activities have concerned the new airport screening processes relating to internal examination of travellers suspected of internally concealing prohibited substances. We have developed our role as a resource for Customs and Border Protection in the introduction of new processes to support change in the airport environment, and presented to the Enforcement & Investigations Division on our role.

Looking ahead

Passenger screening will be a priority for our office in the year ahead. In particular we will liaise with Customs and Border Protection regarding the trial of new screening technology and the development of related policies and procedures. We will monitor passenger complaints and broader feedback on this topic and assess the need for further scrutiny by our office as 2011–12 progresses.

We will be monitoring the way that Customs and Border Protection deals with and responds to complaints, and assess the need for further action in this area. A priority will be whether responses to complaints are appropriate, in terms of the remedies offered, level of explanation provided and plain language expression used.

We will continue to:

Overview

In 2010–11 the Ombudsman’s office received 4954 approaches and complaints about Centrelink compared to 5199 in 2009–10. This represents a 4.7% decrease over the previous year and is the lowest number in 11 years. The figure also includes 50 approaches relating to ‘Closing the Gap in the Northern Territory’ initiatives. Centrelink remains the agency about which the Ombudsman receives the highest number of complaints. This outcome is not unexpected given the volume, complexity and diversity of Centrelink’s workload. Figure 5.3 shows the trend in approaches and complaints over the past seven years.

During 2010–11 the office investigated 1098, or approximately 22.4%, of the 4910 approaches closed during the period. Consistent with previous years, the payments most commonly complained about in 2010–11 were Disability Support Pension, Newstart Allowance, Age Pension, Family Tax Benefit and Youth Allowance. The most common complaint reasons were problems with claims for payment, debt raising and recovery, delays, and suspension or cancellation of payments.

Centrelink’s programs impact upon some of the most vulnerable members of the Australian community, so the need for Centrelink to be accessible, transparent and accountable in the delivery of payments and services has been a particular focus for the Ombudsman this year. The case study below provides an example of the types of difficulties vulnerable customers can experience and how greater flexibility on the part of Centrelink can ensure a better outcome.

Figure 5.3: Centrelink approach and complaint trends 2004–5 to 2010–11

Figure 5.3: Centrelink approach and complaint trends 2004-5 to 2010-11

Debt raising

We received a complaint from Mrs A on behalf of her son Mr A, that Centrelink had raised a debt against him for overpayment of Youth Allowance. Mrs A told us that Mr A had a medical condition which made it difficult for him to communicate with Centrelink without assistance. She said that the condition had prevented Mr A from continuing with his studies and had resulted in the debt being raised against him. Mrs A stated she had contacted Centrelink when Mr A ceased studying but Centrelink did not cancel his Youth Allowance.

We asked Centrelink to reconsider the decision to raise the debt and asked the Authorised Review Officer to consider if all or part of the debt could be waived in special circumstances. We highlighted Mr A’s likely eligibility for another payment instead of Youth Allowance during the debt period, his lack of awareness of the overpayment, the difficulties he had managing his affairs and Centrelink’s error in failing to cancel the Youth Allowance payment. The Authorised Review Officer acted quickly to waive recovery of the debt in full and initiated a compensation claim under the Compensation for Detriment caused by Deficient Administration scheme for a possible underpayment of a more favourable benefit.

Complaint themes

Quality of advice

The Ombudsman’s office has received many complaints from members of the public who complain that Centrelink has not provided them with correct and complete advice about their possible entitlement to social security programs and payments.

The social security program is complex and in navigating the system, members of the public rely on Centrelink staff to provide accurate and timely advice about their entitlements to social security at various times of life. The following case study highlights the importance of staff awareness and training about the social security system as well as the consequences of not providing a customer with complete advice about their entitlements.

Providing complex information to customers

Mr B complained to this office that his wife, Mrs B, had not been informed of the pension bonus scheme (PBS) when she asked Centrelink for information about the age pension in 2004. As a result, Mrs B claimed the age pension and between 2004 and 2007 received less than she would have if she had registered for the Pension Bonus Scheme. Centrelink then declined to pay compensation to Mrs B under the Compensation for Detriment caused by Deficient Administration (CDDA) scheme. This office investigated and identified that Mrs B had been incorrectly permitted to lodge an abridged version of the Age Pension claim form, which did not include information about the Pension Bonus Scheme. We recommended to Centrelink that the CDDA decision be reconsidered as proper procedures had not been followed. The CDDA reconsideration resulted in compensation being paid to Mrs B.

System issues

Over the years, the Ombudsman’s office has received complaints that involve ‘computer system errors’ and/ or ‘technical glitches’ that have impacted on a customer’s payment. The complaints have demonstrated the frustration and delays customers experience in having such problems rectified. In some cases, the Ombudsman’s office has observed that Centrelink has put in place manual work-arounds until system reforms can be carried out. This can result in the potential for error, accidents and omissions which can be difficult for both Centrelink and the customer to identify.

Computer system errors

Mrs C approached this office as her husband, Mr C, was having difficulty reporting his fortnightly employment income to Centrelink in relation to his Newstart allowance and Mrs C’s Age Pension. Centrelink required Mr C to contact them by telephone or in person to report even though his preferred method of reporting was online. Due to a systems problem, the calculation of the Age Pension rate paid to Mrs C to reflect the work bonus rules needed to be done manually by a Centrelink officer. Following investigation by this office Centrelink implemented a manual system in which two Centrelink officers were notified by reminder email to manually process the income information each fortnight and Mr C was able to resume reporting the information online. We remained concerned that this arrangement was open to human error and that other Centrelink customers may be in a similar situation.

Following further investigation we were informed by Centrelink that the problem arose from an error in its pension computer system. Centrelink identified approximately 1,800 affected customers and, in May 2011, it identified that around 800 had been underpaid. In June 2011 Centrelink implemented a system fix and paid arrears to approximately 800 customers whose entitlements had been under-paid.

Internal Centrelink reviews

Complaints about Centrelink review processes are regularly received by the office. As discussed below, an own motion investigation and report was released on this issue earlier this year and Centrelink is trialling a new internal review framework which aims to address some of the issues raised in the report such as timely access to review.

Debt raising and recovery

Debt has continued to be a common issue of complaint to our office in 2010–11. In particular, we have received a number of complaints from customers who believe that Centrelink has raised a debt against them on the basis of incorrect information and without giving them an opportunity to correct the information. We have also received many complaints about Centrelink’s debt recovery methods, including automatic referrals to private collection agents and initiation of garnishees1 and legal action even while a repayment arrangement is being adhered to. These issues may be explored in more detail in 2011–12.

Systemic issues

Systemic issues this year included the following matters:

Australian Government Disaster Recovery Payment

Earlier this year, the Australian Government activated the Australian Government Disaster Recovery Payment (AGDRP) in relation to the Queensland, New South Wales, Victorian and Western Australian floods, Cyclone Yasi and Western Australia fires. This resulted in an increase in AGDRP applications to Centrelink and a modest increase in complaints to this office about Centrelink in the three months following the disasters. In the main, we were able to refer complainants back to Centrelink to obtain information about seeking review of a decision to refuse a claim for the AGDRP.

Our office also received a number of complaints about delays in processing AGDRP claims for Cyclone Yasi, which Centrelink advised us occurred as a result of the need for it to seek policy clarification from the Attorney-General’s Department (AGD), as the policy department, about one of the eligibility criteria. We intend to discuss these delays with the department shortly, and will also be seeking further information from it about the AGDRP policy as it relates to claims from ‘non principal carers’ who had a child in their care at the time of the disaster.

Implementation of tribunal decisions

The Ombudsman’s office continues to have concerns about Centrelink’s processes for scrutinising and responding to tribunal decisions that have broader implications for the policies and procedures as instructed by the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) and the Department of Education, Employment and Workplace Relations (DEEWR).

This issue arose in the Ombudsman’s report Review rights for Income Managed people in the Northern Territory (10|2010) where our investigation of a complaint identified a Social Security Appeals Tribunal decision on the Tribunal’s lack of jurisdiction to consider reviews about Income Management exemptions. The Tribunal’s decision went unnoticed by FaHCSIA and Centrelink, but should have prompted the two agencies to assess the decision and consider the need for appeal, legislative amendment or a change to administrative processes. The specific issue of this report became redundant when the new Income Management arrangements were rolled out in mid-2010, but we are continuing to follow up on the broader issue of timely analysis and action in response to significant Tribunal decisions.

The Ombudsman’s office has observed other complaints where the Administrative Appeals Tribunal has made decisions that impact upon the interpretation and administration of social security law and have implications for other customers. However, Centrelink and the policy departments do not always appear to have responded promptly to clarify policy guidelines, creating an ongoing inconsistency between how Centrelink and the tribunal interpret the law. Our office is currently pursuing with Centrelink, FaHCSIA and DEEWR the decision-making processes around the review of tribunal decisions, particularly where they relate to key definitions in the law.

Customers in crisis

In recent years the Ombudsman’s office has received complaints from people in crisis who have been advised by Centrelink that they are not eligible for financial assistance. In many of these complaints the advice provided by Centrelink has been correct and the customers do not meet the legislative or policy requirements to receive a crisis, urgent or advance payment. However, our investigation of these complaints has led us to query whether the current arrangements for providing crisis or emergency payments are too narrow and unreasonably prevent some needy customers from accessing support. Some of these issues were raised in our submission to the Australian Law Reform Commission’s inquiry into the treatment of family violence in Commonwealth laws. This issue may be further explored in 2011–12.

Cross-agency issues

Many complaints to the Ombudsman require us to make enquiries of more than one agency. This is often the case where one agency is responsible for delivering a product or service, while another has responsibility for the relevant policy or law. As the largest government service delivery agency and portal for a variety of government payments and services, this is often a factor in Centrelink complaints.

Child care payments – Centrelink and DEEWR

The intersection between Centrelink and the Department of Education, Employment and Workplace Relations (DEEWR) in the delivery of child care payments has been a source of complaints to our office over a number of years. In August 2010, a ‘contact once’ model was implemented to simplify complaint handling about child care issues by placing a responsibility on the agency with which the customer makes contact to liaise with the other agency to resolve the problem and provide a response directly to the customer. Although this has improved the resolution of complaints between Centrelink and DEEWR some problems still remain as highlighted in the example below.

Reasonable maintenance action data transfer – Centrelink and CSA

Over the past twelve months our office has been working with Centrelink and the CSA to investigate their respective roles in administering the ‘reasonable maintenance action test’ for Family Tax Benefit. Specifically, we have been trying to find out why some customers have incurred substantial Family Tax Benefit debts as a result of Centrelink finding out some years later, via an electronic data transfer from the CSA, that the customer has not had a child in their care for a period. Centrelink’s processes rely upon the transfer of computer data as the basis for making a complex decision about whether a person has taken reasonable maintenance action. We do not consider that this is an appropriate use of computer-assisted decision making.

This is also discussed in the Child Support Agency overview on page 55, and will continue to be an area of focus for our office over the coming year.

Cross-agency issues

In November 2010 Mr D claimed Child Care Benefit to enable him to receive Child Care Rebate through Centrelink in relation to his son’s child care attendance. Centrelink told Mr D that due to a computer system problem his child care provider had been unable to submit child care usage details via the DEEWR Child Care Management System, which in turn prevented payment of the rebate by Centrelink. Mr D complained to this office after making numerous complaints to Centrelink.

This office investigated the complaint with Centrelink and DEEWR. Centrelink provided us with email correspondence between itself and DEEWR which indicated DEEWR was not responding to Centrelink about the issue. DEEWR advised this office that it had made an error in trying to obtain child care attendance figures from the wrong child care provider and had also attempted to apply approval for the incorrect dates. As a result DEEWR was able to correct the errors and Centrelink paid Mr D Child Care Rebate in April 2011.

We are continuing to follow up with Centrelink and DEEWR to ensure customer complaints that involve multiple government agencies are able to be easily resolved.

Reports released

The Ombudsman released the following reports in 2010–11 relating to Centrelink:

Update from last year

Transfer to age pension

In our last annual report, we discussed a complaint that highlighted a systemic problem with the way that some customers were transferred to Age Pension when they reached Age Pension age. At that time we had sought information from Centrelink about its processes for assessing the claims of affected customers and determining whether they were entitled to backdated payments. We have since been advised that the 1,800 affected customers were contacted by Centrelink and, where appropriate, arrears of Age Pension were paid to the date they first became eligible for an increased rate of payment.

Review of circumstances leading to a fraud conviction

In May 2010 the Ombudsman’s office released an investigation report into the handling of a fraud matter by Centrelink and the Commonwealth Director of Public Prosecutions. That report recommended that both agencies revisit their handling of the case and provide advice to the customer about appealing the recorded fraud conviction. In 2010–11 our office was advised that, following an appeal by the customer, the conviction was set aside and a verdict of acquittal recorded. The Director also provided an assurance to the customer that it did not intend to further pursue the matter.

Stakeholder engagement, outreach and education activities

The office has increased its outreach and community engagement in an effort to be more accessible and to gain a better understanding of the issues faced by the people in the community. Community roundtables focused on social welfare issues were conducted with non-government organisations in capital cities last year. More recently roundtables have been held in Brisbane, Canberra and Melbourne.

Further information about the office’s involvement in stakeholder engagement and outreach can be found in Chapter 7— Engagement .

Looking ahead

Department of Human Services – Service Delivery Reform

As the Department of Human Services continues to progress its Service Delivery Reform agenda, our office will be closely observing the impact of any changes on Centrelink customers. We are particularly interested in the issues of accessibility, information sharing and the standardisation of procedures and policies across the portfolio. We will be seeking regular updates on the work in these areas, and will participate in working groups and consultative forums where appropriate.

Changes to payments and services

The 2011–12 Federal Budget flagged a number of substantial changes to some payments and services delivered by Centrelink. Of particular interest to our office are the changes to eligibility requirements for Disability Support Pension, and the rolling out of Income Management and increased compliance activity initiatives in target areas. We will continue to seek updates from Centrelink as it implements these reforms, and highlight relevant issues of concern that may arise from complaints to our office.

Debt raising and recovery

Over a number of years the Ombudsman has received complaints about Centrelink’s practices in raising and recovery of social security and family assistance debts.

As mentioned in the ‘Complaint Themes’ section, particular areas of focus have included procedural fairness in decision making, the quality of information provided to customers about the reasons for a debt, and the willingness of staff to adapt debt recovery arrangements to the customer’s circumstances.

This will be a continued area of attention in the coming year.

Income management decision making

Our office is currently conducting an audit of Centrelink’s decisions to apply Income Management (IM) to a person because they are assessed as being a Vulnerable Welfare Payment Recipient, and its decisions not to exempt a person because Centrelink has determined there are indicators of Financial Vulnerability. The Ombudsman will release a public report in 2011–12 regarding the results of this audit.

Child Support Agency

Overview

The Child Support Agency (the Agency) is part of the Commonwealth Department of Human Services1, and is responsible for the assessment and transfer of child support payments between separated parents.

Complaints about the Agency still make up a considerable proportion of the Commonwealth Ombudsman’s workload. However, the actual number of complaints received by our office has dropped slightly (2,121 complaints in 2010–11 compared to 2,280 in 2009–10). This continues a downward trend since 2008–09, when we received 2,471 complaints about the Agency – a ‘spike’ largely attributable to the Agency’s implementation of a new child support formula. Interestingly, the Agency also fell from third to fifth most complained about agency in 2010–11, although this is attributable to more complaints about other Commonwealth agencies, rather than fewer complaints about the Agency.

We investigated approximately 28% of the complaints that we finalised in 2010–11. The other 72% either raised issues that we considered did not warrant investigation, or which the complainant could readily or more appropriately pursue through other avenues. Those other avenues include using the Agency’s internal complaints or objection process; appealing to the Social Security Appeals Tribunal; or applying to a court. Whenever we decline to investigate a person’s complaint about the Agency, we explain our reasons for doing so, and provide information about the other ways the person can address their complaint issue. We also record information about the issues raised by each complaint to assist us in monitoring trends in the Agency’s administration.

There have been some significant policy and service delivery changes affecting the Agency this year. As we discuss below, those changes have generally improved aspects of the Child Support Scheme, but there have been some teething problems.

Figure 5.4: Child Support Agency approach and complaint trends 2004–5 to 2010–11

Figure 5.4: Child Support Agency approach and complaint trends 2004-5 to 2010-11

Complaint themes

Which Child Support Agency customers complain to the Ombudsman?

The Agency’s customers fall into two quite distinct groups: people (usually parents) who are entitled to receive child support payments (‘payees’); and those parents who are liable to pay child support (‘payers’). From 1 July 2010, we started recording whether our complainants were payees or payers. We hoped this data would help us to better analyse the underlying causes of Agency complaints. In 2010–11, slightly more than two-thirds of the people who complained to us about the Agency were payers. At this stage we do not possess data to indicate the reasons for this discrepancy so it is not clear to us whether this means that payers are generally less satisfied with the Agency’s administration than payees. We will however be doing more to ensure that all Agency customers are aware of the Ombudsman’s services and their right to complain to us if they are dissatisfied with the Agency’s administration.

Right to know

Mr E is entitled to receive child support from his former wife, Ms F. Mr E complained to us about the Agency’s failure to keep him informed of its attempts to collect arrears of child support from Ms F. However, Ms F had recently left her job and this had made it more difficult for the Agency to collect child support. Mr E told the Agency that Ms F intended travelling overseas in the near future and had asked it to consider making a Departure Prohibition Order (DPO) to prevent her leaving Australia without paying her child support debt. The Agency refused to tell him whether it had done so.

When we contacted the Agency office administering Mr E’s case, it advised us that the Privacy Act 1988 prevented it from telling Mr E any personal information about Ms F. The Agency believed that this meant that it could not tell Mr E whether it had issued a DPO against Ms F. We wrote to the Agency’s national office and expressed our view that Parliament actually included a specific provision in the child support legislation to allow the Agency to provide reports to a payee about collection actions, and this meant that the Agency could disclose limited amounts of personal information to keep the payee informed. The Agency agreed, clarified the position for its staff and apologised to Mr E.

Debt enforcement

A perennial issue in complaints from Agency payees is that they are unhappy with the Agency’s action to collect child support from the payer. These complainants frequently also say that the Agency has failed to provide any meaningful report about the efforts that it has made, or will make in the future. Often the Agency will tell the payee that it is not allowed to provide this sort of information to them because it would breach the payer’s privacy. However, as the following case study shows, this is not strictly true. We believe the Agency needs to recognise that it is important to be accountable to the payee for the actions that it takes in its efforts to collect child support for them.

We have also advised the Agency of our concern that its usual procedures for gathering information to assist it to collect child support do not currently include requiring the debtor to attend an interview to answer questions about their finances. We consider including an interview would be a cost effective measure that would complement the other inquiries that the Agency makes via third parties, particularly in cases where the debtor’s lifestyle is not consistent with his or her known income or assets.

Overseas cases

The Agency can make (or continue) a child support assessment in a case where the payer or payee lives overseas. It can also register and collect spousal or child maintenance payable under a court order or administrative assessment made in a `reciprocating jurisdiction’. We have noticed, however, that the Agency’s administration of some of these cases can be hampered by a failure to set reasonable customer expectations, communication problems, delays, or general lack of responsiveness. The following case study illustrates all of these themes.

So far away

Mrs G lives in the UK, where she obtained a court order for child and spousal maintenance from Mr H, who lives in Australia. The UK authorities sent the order to the Agency in Australia for registration and collection. Mrs G complained to us that the Agency had only registered the child maintenance component of the order. Mrs G sent the Agency a series of emails about this problem over a six month period, but the Agency had not responded to many of them. She felt the Agency was ignoring her and she had no faith that it would address her concerns.

When we contacted the Agency we found that it was confused about the wording of Mrs G’s order. It had acted promptly to register the part of the order about child maintenance, but although it could legally collect spousal maintenance, it did not understand the wording of the order about the period over which those payments were to be made. The Agency had written to the UK authorities for clarification, but it had not received a response, or followed this up. The Agency also advised us that it may have made a mistake when it worked out how much child maintenance Mr H had to pay under the order. The Agency had also not answered Mr H’s queries about his debt to the Agency, which he disputed.

We persuaded the Agency to deal with all of Mrs G and Mr H’s concerns as objections to the details entered into the child support register. This meant that a single Agency officer reconsidered all the information, made a decision about the correct amounts of child and spousal maintenance payable under the UK order, amended the Agency’s records accordingly and provided written decisions to Mr H and Mrs G. This resolved the impasse and gave them the option of appealing to the Social Security Appeals Tribunal if they disagree with the Agency’s decisions.

Systemic issues

Garnishee notices to collect child support debts

The Agency can serve an administrative garnishee notice upon a person who holds, or is likely to hold in the future, money on account of a child support debtor2. A person who fails to comply with the notice may be subject to penalties, which might include being required to pay the debt out of their own funds. This can be a very effective way for the Agency to collect child support from a reluctant payer. However, it is important that the Agency monitor whether the third party actually complies with the notice.

My boss stole my money!

Mr J complained to us that the Agency was chasing him to pay around $8,000 in child support arrears. He said he had paid off this debt years ago, through deductions from his contract payments. Mr J said the Agency should get the money from Mr J’s former employer, who had gone into liquidation.

We investigated Mr J’s complaint and found that the Agency instructed Mr J’s employer to deduct 30% from every payment they made to Mr J, and send that money to the Agency. The employer made the deductions, but failed to transfer all the money to the Agency. When the Agency’s efforts to encourage the employer to comply did not succeed, it failed to refer the employer’s case for prosecution. Even more worryingly, it decided to leave the arrangement in place, so more deductions were made from Mr J’s payments. When the Agency learned that the employer had gone into liquidation, it told Mr J that this was now a matter between Mr J and his former employer.

During our investigation, the Agency accepted that it had failed to take decisive and appropriate action in Mr J’s case and that this had caused Mr J to lose a substantial sum of money. It offered Mr J compensation equivalent to the sum that his employer had retained. The Agency proposed to Mr J that it would apply that compensation to his child support debt, and that this money would then be transferred to his former partner for the support of their children.

The Agency has advised us that it is planning a range of procedural and computer system improvements, plus staff training, to address the systemic problems exposed by Mr J’s complaint. It is also in discussion with its policy department (of Families, Housing, Community Services and Indigenous Affairs) about the possibility of legislative changes to ensure that the Commonwealth, rather than Agency customers, bear the financial risk in cases like Mr J’s.

In another case, the Agency failed to withdraw a garnishee notice after the person’s child support debt had been paid off. The officers who refunded the overpaid money to the payer failed to make sure that the employer was instructed not to make further deductions, so they continued to deduct and send money to the Agency. We intend working with the Agency in the coming year to highlight areas where it can improve its administration of garnishee notices.

Child Support Overpayments

We have received a small but steady stream of complaints from both payers and payees since at least 2007 about the Agency’s approach to overpaid child support. The payees’ issues include the Agency’s failure to clearly explain the reason for the overpayment and how it was calculated, the perceived unfairness of requiring them to repay a debt received in good faith, that their child support payments were stopped without warning when the Agency decided they had been overpaid, and the Agency’s refusal to allow them to repay the overpayment by withholdings from future child support payments. The payer complaint issues include the Agency’s refusal to refund the overpaid amount until it has been recovered from the payee, to recover it fast enough, or its failure to recover the overpayment at all.

We acknowledge that child support overpayments are a difficult problem, requiring the Agency to carefully balance the interests of both parents, the children and the Commonwealth. The Agency has advised us that it is well advanced in developing a new approach to recovering overpayments. It has undertaken to provide us with a briefing about that new approach in advance of implementing it. We will be carefully monitoring complaints about child support overpayments in future to see whether the new approach is an improvement.

Cross-agency issues

The Agency needs to work closely with a range of other Commonwealth agencies to administer the Child Support Scheme. Most notably, the Agency routinely has interactions with the Australian Taxation Office (ATO) and Centrelink, as set out below, the Agency:

Many of these interactions are automated, but problems with those automated processes can prove difficult to resolve.

Centrelink / Child Support Agency

We have also been working closely with Centrelink and the Agency for more than a year on a project about their interaction to administer the ‘reasonable maintenance action test’ for family tax benefit. We have been trying to find out the underlying reasons for certain mutual customers acquiring large family tax benefit debts when Centrelink belatedly discovers that the Agency has not for some time had a current child support case for one of the children in their care.

Social Security Appeals Tribunal/Child Support Agency

The Agency also needs to work with the Social Security Appeals Tribunal (the Tribunal), which has jurisdiction to review the Agency’s objection decisions. The Agency is responsible for copying and sending the relevant documents from its file to the Tribunal and to the parties to a review. The Agency must also implement the Tribunal’s decision if the Tribunal changes the Agency’s decision.

We have received two complaints alleging an error in the Agency’s implementation of the Tribunal’s decision, or alternatively an error in the Tribunal’s decision. We have had some success in resolving these complaints by investigating them with the Agency. However, we decided that it would not be efficient to contact the Tribunal to seek to clarify the intended effect of its decisions, because of the difficulties we experienced in investigating another unrelated complaint.

The Principal Member of the Tribunal has discontinued her predecessor’s arrangements which allowed us to contact the relevant Tribunal registry to clarify a complaint, or conduct simple investigations. She has also asserted that the Ombudsman has no power to investigate decisions made by Tribunal Members in relation to a review. This is something we will seek to resolve in the future through continued contact with the Tribunal and seeking the advice of the responsible policy Department, about the intent of the relevant legislation.

Reports or submissions released

The Ombudsman made the following reports and submissions about the Agency in 2010–11:

Update from last year

In our 2009–10 report we mentioned changes to the child support legislation that would commence from 1 July 2010 about ‘care percentage’ decisions and income estimates.

The amended legislation about ‘care percentage’ decisions was part of a broader service delivery reform that aligned the rules applied by the Child Support Agency and Centrelink for working out a care percentage, and enables either agency to make a decision that applies across both agencies. Centrelink and the Agency have provided us with regular briefings about the implementation of the alignment of care initiative. We have investigated a small number of complaints about delays or failures in the automated transfer of care percentage data between the two agencies. We will continue to monitor this issue.

In 2010–11 we have not seen any increase in complaints about the Agency’s administration of income estimates under the new rules. At the same time, we are receiving fewer complaints about delays in the Agency’s reconciliation of old income estimates.

Stakeholder engagement, outreach and education activities

We maintain a close working relationship with the Agency, meeting regularly with senior staff, and participating in a range of stakeholder groups and working parties convened by the Agency and its policy department FaHCSIA. These include: the Child Support National Stakeholder Engagement Group; various State Stakeholder Engagement Groups; and the NSW Legal Liaison Group. We keep in contact with many of the community groups involved in those meetings between sessions.

We participated in the Agency’s Domestic Violence working party, and an Agency stakeholder consultation on its project to simplify child support assessment notices; we provided feedback on the Agency’s proposed new account statements for payers; and we met with a consultant conducting a review of the Agency’s privacy practices.

We held successful community round table meetings in Sydney and Adelaide in late 2010 to talk about the Ombudsman’s work in relation to the Agency. We also gave a presentation at a conference of the NSW Women’s Refuge Movement about the assistance that the Ombudsman can provide to people having problems with Centrelink or the Agency regarding homelessness, family breakdown or family violence.

In June 2011, we conducted outreach to the Central Coast of New South Wales, where we had talks with the electorate staff of a Federal MP, a community legal centre specialising in domestic violence and a non-government agency that provides free meals, support and referrals to homeless people.

Our regular and open communication with stakeholders has enriched our understanding of the experiences of those who deal with the Agency and alerted us to issues that are not readily apparent from the complaints we receive. We have also been able to put some of our contacts in touch with each other so they can share information and strategies for dealing with child support matters.

DNA tests for single mothers

In late 2010, we attended a child support stakeholder meeting where a community legal centre staff member told us the centre was unable to get Legal Aid funding for DNA tests for single mothers wanting to claim child support. Not only did this mean that these women could not receive child support, they were also at risk of Centrelink deciding they were not ‘taking reasonable maintenance action’ and cutting their Family Tax Benefit payments. Knowing such funding is available in other States, we arranged for one of our contacts in a Legal Aid office (in a State that provides funding for the purpose) to contact the community legal centre. The centre has now secured Legal Aid funding for DNA tests.

Looking ahead

Although we encourage and in many cases expect Agency customers to use the Agency’s complaints service to resolve their problems, we are concerned that some people approach our office first, or do not wish to approach the Agency at all. We are also not confident that the people we advise to complain to the Agency first actually act on our advice. We intend developing a process, in consultation with the Agency, to directly transfer some complaints to its complaints service for resolution. This will occur only with the complainant’s consent. The person will be invited to come back to us if they remain dissatisfied with the Agency’s response.

In the coming year, the Agency’s customers will see further changes as the Department of Human Services reforms service delivery by integrating Centrelink, Medicare and Child Support into the one agency. We intend to monitor the Agency’s processes as it becomes part of the integrated department and will seek to influence and improve the service delivery model, particularly for vulnerable customers. We are especially keen to ensure that the Department of Human Services minimises the barriers to people using its complaints and internal and external review processes, reducing the need for them to approach the Commonwealth Ombudsman.

Comcare

Overview

In 2010–11 we received 64 approaches and complaints about Comcare, compared to 72 during 2009–10. Although this is not a significant change in the number of complaints received, it continues a downward trend in complaint numbers over the last three years.

Figure 5.5: Agency approach and complaint trends 2004–5 to 2010–11

Figure 5.5: Agency approach and complaint trends 2004-5 to 2010-11

Complaint themes

In 2010–11 we investigated 16 complaints, compared to 31 complaints in the previous period. Key complaint themes continue, as in previous years, to concern the rejection of claims for compensation, delays in the assessment of claims, and overall treatment of clients by Comcare and claim managers.

Comcare’s improved internal complaint-handling procedures may have assisted in reducing the number of complaints needing to be investigated by our office. Of note is that the number of remedies recorded by our office to ‘expedite action’ has halved, suggesting greater effort by Comcare to deal with timeliness issues.

Systemic issues

While the Ombudsman can investigate those complaints mentioned in the previous section, we cannot overturn individual decisions made by Comcare. If a complainant is unhappy with a decision, there is a formal two-tier review process available. The first step involves an internal Comcare review by someone not involved in the original decision. If still unhappy, the complainant can appeal to the Administrative Appeals Tribunal.

Although cases are often settled at the Administrative Appeals Tribunal pre-hearing, it can be a lengthy process to get to that point and some complainants question whether it is necessary for matters to have progressed that far before getting a more favourable decision.

Cross-agency issues

There were no significant issues identified.

Reports released

There were no reports issued this financial year.

Update from last year

As stated in last year’s annual report, Comcare provided an undertaking in response to Comcare and Department of Finance and Deregulation: Discretionary Payments of Compensation (Report 04/2010) that it would work to develop a compensation scheme similar to the Compensation for Detriment caused by Defective Administration (CDDA) scheme. Progress has been made. In June 2011 Comcare told this office that it is continuing its consultation with the Department of Education, Employment and Workplace Relations and the Department of Finance and Deregulation in relation to the option of establishing a scheme, similar in nature to the CDDA scheme, within the Safety, Rehabilitation and Compensation Act 1988 .

The recommendations of Report 04/2010 were considered by the Finance and Public Administration Legislation Committee, which examined the lack of a proper compensation scheme for claimants who have been disadvantaged as a result of administrative errors by Government agencies not included under the CDDA Scheme. It recommended that the limit for payment in special circumstances provided for by the Public Service Act 1999 and the Parliamentary Service Act 1999 be increased from $100,000 to $250,000, thereby expanding an avenue for compensating some claimants affected by defective administration.

While we welcome the above recommendation, unfortunately it will not fully address the current inequities in compensation across different agency types. It is our position that people should have a mechanism to claim compensation where they have suffered a financial loss due to the defective actions or decisions of all agencies and contracted service providers that deliver services on behalf of the Australian Government. For this reason we welcome the Committee’s recommendation that Comcare, the Department of Education Employment and Workplace Relations and the Department of Finance and Deregulation conclude their consultation in relation to creating a CDDA-type scheme, as a matter of priority. This will be a step towards achieving the goal of more equitable access to compensation across the whole of the public sector.

Stakeholder engagement, outreach and education activities

Our office has developed an effective working relationship with Comcare that has assisted in the effective resolution of complaints. We generally meet quarterly with Comcare’s key contact area to discuss any issues arising out of complaints.

Looking ahead

In response to concerns by complainants about the review process we intend to work with Comcare to identify administrative changes that could be made to the review process that might improve claimant experience. With the assistance of Comcare, the initial step would involve monitoring the type and volume of pre-hearing settlements at the Administrative Appeals Tribunal. If this confirms the experience of complainants, steps will be taken to identify barriers to reaching the correct or preferable decision more quickly. This process would also involve working with the Tribunal.

The following case study is an example of how our office was able to assist complainants.

Delay in review

Ms M complained about the time taken by Comcare to complete a review of a decision that she requested in March 2010. Our investigation found that one of the requests for review had initially been overlooked. No action was taken to progress it until after we became involved.

Comcare finalised the review on 30 July 2010 and apologised to the complainant for the delay. Our office recorded administrative deficiency on the grounds of unreasonable delay, which Comcare accepted.

Department of Education, Employment and Workplace Relations

Overview

In 2010–11 we received 481 complaints about the Department of Education, Employment and Workplace Relations (DEEWR, or the department), compared to 479 complaints in 2009–10 and 571 in 2008–09. The number of complaints investigated, as a proportion of complaints received, has reduced. This reflects the impact centralisation of DEEWR investigations by the office has had on complaints investigated. Such centralisation has enabled a greater level of specialisation and knowledge of the issues and thereby a greater capacity to assist complainants without having to undertake an investigation.

Figure 5.6: DEEWR approach and complaint trends 2004–5 to 2010–11

Figure 5.6: DEEWR approach and complaint trends 2004-5 to 2010-11

Complaint themes

The main issues raised with our office this year were in relation to:

There has been an overall reduction in the number of complaints about Trades Recognition Australia and the General Employee Entitlements and Redundancy Scheme since 2009–10. In relation to the reduction in complaints about Trades Recognition Australia, this is a trend that was noted in our last annual report and appears to be due to the implementation of the Job Ready Program in January 2010. That program provides greater clarity about the steps required by international graduates to demonstrate their job readiness before applying for permanent residency.

Systemic issues

The key systemic issues identified during 2010–11 were:

Cross-agency issues

The intersection between the department and Centrelink in the delivery of child care assistance programs such as Jobs, Education and Training Child Care Fee Assistance has been a source of complaints.

Please see the Overseas Students Ombudsman section on page 123 for information on the department’s role in that jurisdiction.

Reports released

Falling through the cracks

The report Falling through the cracks—Centrelink, DEEWR and FaHCSIA: Engaging with customers with a mental illness in the social security system (Report 13|2010) was published in October 2010. The report made a range of recommendations designed to improve engagement with and services to customers with mental health issues and disabilities. As the agency with responsibility for elements of social security policy and for Job Services Australia and Disability Employment Services providers, many of the recommendations required action on the part of DEEWR.

Subsequent to the report, DEEWR has participated in the Interagency Working Group, which was established to progress the Ombudsman’s recommendations, particularly in relation to training needs for Centrelink and Job Services Australia and Disability Employment Services staff and updating policy guidelines for payments and service delivery. Additionally, in the 2011–12 Budget, as a part of the National Mental Health Reform package, DEEWR secured $2.4 million in additional funding over the next five years to increase economic and social participation for people with mental illness.

Further information about Centrelink’s response to the report can be found at page 52 of the Centrelink overview.

Administration of the National School Chaplaincy Program

During 2010–11 our office conducted an own motion investigation into DEEWR’s administration of the National School Chaplaincy Program, in response to a report released by the Northern Territory (NT) Ombudsman following her office’s investigation of complaints about the program. The NT Ombudsman’s Report identified issues with the department’s administration of the Chaplaincy Program, which she was unable to investigate due to lack of jurisdiction. These matters were referred to our office for consideration, leading to the decision to initiate the investigation. On 26 July 2011 a report was published by our office, Administration of the National School Chaplaincy Program (Report No 06|2011). The department broadly agreed with the eight recommendations contained in the report.

The department has recently reviewed the Chaplaincy Program and the Government is currently considering the findings of that review. The department is currently reviewing its administrative arrangements, including the Program Guidelines, in preparation for the expansion of the program in 2012. We will be monitoring the action taken by the department in response to our recommendation in the year ahead.

Update from last year

Our office meets with the department quarterly to discuss systemic issues and to follow up on recommendations arising from formal reports and complaints where administrative deficiency has been recorded.

Stakeholder engagement, outreach and education activities

Our stakeholder engagement included:

Looking ahead

Despite the implementation of the ‘Contact Once’ complaint model by the department and Centrelink in August 2010, the administration of child care assistance subsidies and complaint handling relating to those subsidies remains of concern to our office as complaints continue to be received. The identification of the cause(s) of problems with the administration of the subsidies, as well as the effectiveness of complaint handling in this area, will be the subject of further scrutiny by our office during 2011–12. This is likely to also involve engagement with Centrelink as the subsidies are jointly administered by the department and Centrelink.

Our office also intends to work further with the department to improve its complaint handling about Job Services Australia and Disability Employment Service providers, as this remains the main subject of complaints about the department.

Case studies

The following cases highlight good outcomes achieved through investigation and communication with agencies, on behalf of complainants.

Lost emails

Mr N complained to DEEWR by email about a Job Services Australia provider. He was dissatisfied that his complaint was dealt with by the provider rather than the department.

On investigation, the department advised that it had no record of the email complaint that Mr N had submitted, despite the provider having been notified by the department at the time that a complaint had been lodged. In response to our investigation the department conducted further searches and located Mr N’s email. The department advised that staffing changes and absences had resulted in the email being incorrectly classed as having been ‘actioned’.

The department apologised to Mr N for failing to respond to his complaint. It also took steps to try to prevent similar oversights from occurring in the future, including increasing staffing levels and implementing a strategy to manage risks associated with staff absences.

Following correct procedure

Mr O complained to the department about an incident that occurred at the office of his Job Services Australia provider in which the police were called to intervene. Mr O did not consider that the department had properly assessed his complaint.

Our investigation found that the department had conducted a thorough investigation of the incident and correctly referred Mr O to the relevant law enforcement authorities. However, the investigation also found that the provider failed to prepare an incident report about its decision to call the police, in accordance with the department’s procedures. Our office expressed concern about the provider’s failure to follow correct procedure. In response, the department advised it has taken steps to remind Job Services Australia providers of their obligations and the need to properly record and report incidents.

Improved communication

Ms P complained to our office about non-payment of Child Care Rebate for 2009–10. She advised that this had occurred despite advising her child care centre that her daughter had returned to her care. Despite attempts to resolve this issue directly with the child care centre, Centrelink and the department over a number of months, the payment issue was not resolved.

On investigation by our office it became apparent that Centrelink, the department and the child care centre needed to take further action to resolve Ms P’s complaint. In response to our investigation the department negotiated with the child care centre to facilitate resubmission of child care attendance information by the child care centre. This enabled the rebate to be paid to Ms P.

This case was a good example of the department working with a child care provider to achieve a reasonable outcome where each party (the parent and the provider) had different views on the matter and there had been no obvious error by any of the parties.

Department of Climate Change and Energy Efficiency and Department of Sustainability, Environment, Water, Population and Communities

Overview

During 2010–2011 we received 305 approaches and complaints about the Department of Climate Change and Energy Efficiency (DCCEE), and 32 approaches and complaints about the Department of Sustainability, Environment, Water, Population and Communities (DSEWPC, which was formerly the Department of Environment, Water, Heritage and the Arts – DEWHA).

This was a 30% decrease from the 494 approaches and complaints that we received about these two Departments in 2009–10. This decrease reflects the ending of a number of the Australian Government’s energy efficiency programs that were a significant source of complaints in 2009–10, particularly the Home Insulation Program and the Green Loans Program. In March 2010, responsibility for administering all energy efficiency programs transferred from the then Department of Environment, Water, Heritage and the Arts (now Department of Sustainability, Environment, Water, Population and Communities) to the Department of Climate Change and Energy Efficiency.

Figure 5.7: Approach and complaint trends DCCEE and DEWHA 2004–5 to 2010–11

Figure 5.7: Approach and complaint trends DCCEE and DEWHA 2004-5 to 2010-11

Complaint themes

The main issues that people complained to our office about concerned:

Solar Panel Rebates

As we reported last year, on 9 June 2009, the Minister for the Environment announced that the Australian Government would only accept applications for the $8,000 solar panel rebate that were sent before midnight on 9 June 2009. We received many complaints about lost solar panel rebate applications. DCCEE confirmed that over 1200 applications had been reported lost. In May 2010 the Department wrote to all applicants who claimed to have submitted applications before the 9 June 2009 closure of the program, inviting them to resubmit their applications, together with supporting evidence to show that they had applied before the 9 June 2009 cut-off. Where applicants had not kept a copy of their original application, they were offered the opportunity to submit a duplicate application together with a statutory declaration to that effect. Applicants had until 4 June 2010 to resubmit their application.

Many people took up the Department’s offer and resubmitted their applications within the required timeframe. The review of these applications took some time and many applicants were not notified of the Department’s decision on their resubmitted application until November 2010. In the meantime we received many complaints about the Department’s delay in making its decision on the resubmitted applications.

In our view, DCCEE’s delay was regrettable, particularly given the short time frame that it had allowed for applications to be resubmitted and we expressed our concern to the Department.

Compensation for the Green Loans program’s cancellation

The Green Loans program was intended to assist energy efficiency initiatives in Australian homes by providing free home sustainability assessments. The assessments were voluntary and provided householders with advice on what they could do to save energy and water in their homes. However, in February 2010 as a result of well-publicised problems with the program’s delivery, the Government capped the number of home sustainability assessors at 5000, and the Department suspended issuing contracts to new assessors. In July 2010 the Government announced that the Green Loans program would be replaced by the new Green Start program. However, on 21 December 2010, the Government announced that the Green Start program would not proceed, and that the Green Loans program would continue until 28 February 2011 and then close.

The decisions to suspend issuing new contracts, and eventually to close the home sustainability assessment scheme affected thousands of home sustainability assessors who had not been able to obtain contracts with the Australian Government. Each had invested time and money on training, insurance and registration, but had never been able to obtain any work under the scheme. Those business establishment costs were essentially lost. Some assessors claimed compensation for these losses from DCCEE under the Scheme for Compensation for Detriment caused by Defective Administration (CDDA Scheme).

In recognition of the impact of its decisions on uncontracted assessors, the Government introduced a new Financial Assistance Scheme (FAS) designed to provide some compensation for uncontracted assessors. DCCEE then wrote to the assessors who had made CDDA claims and told them that it would not proceed with considering those claims, and invited them to lodge FAS claims instead.

We received a number of complaints from uncontracted assessors about the Department’s decision to discontinue their CDDA claims.

In our view, it was a positive step for the Government to introduce the FAS to provide compensation for uncontracted assessors, because FAS claims were likely to be much simpler and more straightforward to establish than CDDA claims.

As we explained to complainants, under the FAS, unlike the CDDA Scheme, claimants did not need to show either that there had been any ‘defective administration’, nor that it caused their losses. It was sufficient for claimants to show that they were an uncontracted assessor, and that they did in fact incur the kinds of business establishment costs covered by the FAS.

To establish a claim under the CDDA scheme, in contrast, claimants need to show both that there was ‘defective administration’ by an Australian Government agency, and that the defective administration directly caused their losses. In our view, in practice, both requirements were likely to be significant hurdles for uncontracted assessors. In particular, while there were undoubted failures in the governance of the Green Loans program, those kinds of governance failures did not fit easily into the CDDA Scheme’s definition of defective administration.

On the other hand, we were conscious that there might be exceptional cases where uncontracted assessors had experienced specific administrative failures, such as receiving incorrect advice from the Department, that would clearly fall within the definition of ‘defective administration’ in the CDDA Scheme. If that defective administration directly caused loss not covered by the FAS, then in our view, compensation under the CDDA Scheme should still be payable, notwithstanding the FAS.

We put this view to the Department before the FAS Guidelines were finalised, and the Department made some amendments to the Guidelines as a result. The Department explained to us that the changes were intended to ensure that the introduction of the FAS would not prevent it from considering any CDDA claims in exceptional cases.

In light of this, we invited complainants to tell us if they considered that their case was one of these exceptional ones. To date no-one has pursued their complaint with us on this basis.

Insulation Industry Assistance Package

As with the Green Loans programs, because of well-publicised problems the Government announced the closure of the Home Insulation Program in February 2010. This left insulation installers, manufacturers, importers and distributors with few prospects for their employees, and with many hundreds of thousands of dollars tied up in unwanted stock. The Insulation Industry Assistance Package (IIAP) was designed to assist these businesses by partially reimbursing them for the value of the insulation stock they were holding when the Home Insulation Program closed.

We received a number of complaints from businesses in relation to decisions about their eligibility for assistance under the IIAP. Some had their applications rejected in the first place. Others have received IIAP payments of as much as $100,000, only to have the Department subsequently determine that they were ineligible and demand the return of the grant.

One IIAP eligibility criterion for insulation installers, intended to ensure that only installers who were still active when the Home Insulation Program was cancelled would be eligible, was that the applicant must have undertaken 10 or more installations between 1 December 2009 and 12 February 2010 (the ‘active installer’ test).

We received complaints from several installers who appeared to fall within the intent of the IIAP, in the sense that they were still active in the installation industry when the program closed, but who for various reasons had not made the required number of installations in the relevant period. We pointed out to the Department that the IIAP Guidelines stated:

In cases where these Guidelines do not deal with the particular circumstances of an applicant and the Program Delegate is satisfied that those circumstances are exceptional and favour an assistance payment, the Program Delegate may give directions to permit the approval of the application.

After our intervention, the Department agreed to reconsider several applications in light of that provision.

Another group of complaints was from businesses that had at some point registered with the Department as installers, but had then shifted their activities away from installing insulation, and instead had concentrated on importing and/or distributing insulation. As these businesses were no longer active as installers when the Home Insulation Program was cancelled, they could not meet the ‘active installer’ test. They therefore applied as importers or distributors.

A key requirement for the IIAP, which reflected the concerns about ‘dodgy’ installers that had contributed to the Home Insulation Program being cancelled, was that the applicant could not be either the subject of a serious non-compliance investigation, or linked to a serious safety issue (the ‘no dodgy installers’ requirement).

The Department wanted to make sure that businesses that had been installers at any point would not avoid the ‘no dodgy installers’ requirement because they had shifted their activities from installing to importing or distributing insulation. However, under the Guidelines, this requirement only applied to insulation installers – not importers or distributors.

The Department therefore adopted an approach of ‘once an installer, always an installer’ when assessing all IIAP applications. It applied the ‘installer’ criteria to all businesses that had ever been registered as installers, even if they were no longer active as installers, and were applying only as importers and/or distributors.

The problem was that, even if these businesses met the ‘no dodgy installers’ requirement, they could not meet the ‘active installer’ test, and therefore were not eligible for the IIAP even though they had not done anything wrong.

In our view, the ‘no dodgy installers’ requirement itself is not unreasonable, given the safety and fraud issues that emerged in the Home Insulation Program. The Department’s desire to apply that requirement to any applicant who conducted installations at any time under the Home Insulation Program is understandable.

However, we are concerned that an overly rigid approach to applying the Guidelines might have led to unfair and unintended consequences for businesses that shifted their activities. In our view, the ‘exceptional circumstances’ provision referred to above provides sufficient flexibility for the Department to require ex-installer applicants to meet the ‘no dodgy installers’ requirement, but without them also having to meet the ‘active installer’ test. We are continuing to liaise with the Department on this issue.

Systemic issues

Complaints to us over the last year highlighted issues about the lack of integration between DCCEE’s contracted call centres, and the Department’s line areas responsible for delivering programs. In particular, the call centres were not able to access information about whether or not the Department had received the caller’s application for a particular rebate, or where the application was in the queue.

We have frequently raised this issue with DCCEE, and DEWHA before it, over the past several years. As the case study below demonstrates, this lack of integration can lead not only to delays and frustrations for callers, but to people missing out on rebates they might otherwise be entitled to.

Maintaining accurate records

Mr Q wrote to his local Member of Parliament on 26 November 2009 and to the then Prime Minister the Hon Kevin Rudd MP seeking their assistance to expedite payment of his Home Insulation Program rebate. DCCEE received this correspondence on 19 March 2010. It wrote to Mr Q on 22 July 2010 and advised him that he was not eligible for the rebate because the Department had not received his application within 6 months of the installation date, as required by the Program Guidelines. Mr Q then complained to our office.

Our investigation established that Mr Q had in fact contacted the Energy Efficient Homes call centre on four occasions: 10 and 20 August, 27 October and 26 November 2009. These calls should have alerted the Department to the fact that Mr Q’s application had not been received, and the Department should have advised Mr Q to re-send his application.

Our investigation also established that the Department had not properly checked the call centre records when it was preparing its response to the Ministerial correspondence.

In response, the Department immediately sought to remedy its errors. A senior officer telephoned Mr Q to apologise, and to invite him to submit a replacement application. The Department sent the application form to Mr Q on 15 September 2010, and when Mr Q returned the forms they were processed and he was reimbursed immediately.

We have received many other complaints from people whose applications for various rebates had gone missing, and who had followed up with the Department before the due date for them to apply had passed. In cases where our investigation established that the Department failed to give clear and timely advice to callers about their application not being received, and that they needed to resubmit before the relevant cut-off date, we have recommended that the Department accept late submissions. The Department generally has accepted our recommendations in these cases.

The Department has also recently engaged a new call centre provider, and initial indications are that there are fewer problems arising from a lack of integration between it and the Department. We will continue to closely monitor this issue.

Update from last year

In our last annual report, we reported that we had finalised an own motion investigation into DEWHA’s complaint-handling policies and processes without publishing a report because of the transfer of DEWHA’s energy efficiency programs to DCCEE in March 2010, and because DEWHA had already committed to bringing its complaints policy into line with our Better practice guide to complaint handling .

We continued to liaise with DSEWPAC (as DEWHA became), and were pleased to see the introduction of a new whole-of-Department complaints policy in November 2010.

Last year we also reported that we had worked closely with DCCEE to help it establish new complaint-handling processes specifically for the energy efficiency programs that were transferred to it in March 2010. We said we would continue to work with the Department as it also develops a whole-of-Department complaint-handling system that reflects our better practice guide.

The Department is continuing to develop the DCCEE Complaints Management and Review Framework to guide complaints. It has established an Internal Review Section, and published its Service Charter in March 2011. A departmental working group is working on the final draft of its Complaints Reporting Framework and Reporting Requirements.

We will continue to work with the Department through this process, and expect to be able to report that a whole-of-Department complaint-handling process is in place in our next annual report.

Looking ahead

DCCEE is the lead agency responsible for developing and implementing the Australian Government’s Climate Change Plan. The Government’s plan does not include the type of large scale, demand-driven rebate programs, such as the Home Insulation and Green Loans programs, which drove the significant increase in complaints this office has received over the last two years.

However, the Plan does envisage establishing at least five new agencies, such as the Clean Energy Regulator and Climate Change Authority, which will be within our jurisdiction. We will be proactive in seeking to ensure that such agencies have appropriate review and complaint-handling mechanisms in place from the start.

Department of Families, Housing, Community Services and Indigenous Affairs

Overview

The responsibilities of the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA, or the department) include the design, management and delivery of services to some of Australia’s most vulnerable and marginalised people. Not only does it have policy responsibility for the majority of Australia’s social security system, it oversees and is engaged in, program delivery to Indigenous Australians in remote communities throughout the Northern Territory and in locations in South Australia, Western Australia, New South Wales and Queensland.

The majority of complaints about the department or its programs concern Indigenous programs in the Northern Territory – in the 2010–11 financial year, 89 of the 131 complaints about the department arose out of the Northern Territory. Further details about those complaints and the issues arising from them can be viewed in the Indigenous section (pages 97–94).

Outside of the Northern Territory, the department’s role tends to be that of a policy and funding agency rather than a service delivery agency. This limits the amount of direct contact that this agency has with the community, and thus the number of complaints made about it. Nonetheless, funding agencies such as FaHCSIA retain a responsibility to ensure that the funded entities provide services that meet the policy objectives behind the funding. This is an area of increasing interest to this office and has been at the heart of a number of reports concerning the department which have been published this year (detailed below).

Figure 5.8: FAHCSIA approach and complaint trends 2004–5 to 2010–11

Figure 5.8: FAHCSIA approach and complaint trends 2004-5 to 2010-11

Complaint themes

Of the 42 complaints that did not concern Indigenous programs in the Northern Territory, the key areas of complaint were:

The following case study is typical of the complaints we receive from funded bodies as they negotiate with FaHCSIA about funding or address issues arising from audits. This office has been critical of the actions of funding agencies, see for example our report titled Administration of funding agreements with regional and remote indigenous organisations (Report 16|2010), released in December 2010. However, in this case, we were satisfied that the Department had acted appropriately.

FaHCSIA’s funding decisions and process

An organisation funded by FaHCSIA complained that it had been without funding for two months. Our investigation showed that the Department had carried out an audit of the organisation in response to concerns about financial management. The audit, which identified some financial viability issues, led to negotiations for a revised funding agreement.

There was evidence that the Department had spent considerable time and effort in dealing with this organisation in helping it provide up-to-date financial statements. As those statements were not prepared in time, the department was unable to assess the viability of continuing funding until the old funding agreement was nearing its end. The Department quickly prepared a new funding agreement that took into account the issues raised through the audit process. Understandably, the organisation then took time to analyse and sign the new agreement, during which time it did not have an agreement and was unfunded. As soon as the new agreement was signed, funding re-commenced.

We decided that we could not be critical of the actions taken by the Department as it had taken reasonable steps to assist the organisation through this process, and the unfunded period was an unavoidable consequence of earlier delays caused by factors external to the department. We provided the complainant with an independent review of the Department’s actions and a clear explanation of the reasons for our view.

Systemic issues

One of the hallmarks of good government administration is a coordinated and responsive complaint handling system. However, it is often the case that people approach this office because they are not satisfied with the way their complaint to FaHCSIA has been handled. While we continue to get a moderate number of complaints about the Department’s complaint handling outside of the NT, the Department is working to improve its own responses to complaints, including improving internal guidance on complaint handling. The Department’s recognition of the need for improvement and increased interest in this area was evident at the Department’s complaint-handling workshops, held in early 2011. We presented at the Canberra and Adelaide workshops and the Ombudsman spoke to FaHCSIA officers in February 2011. During those presentations, we reinforced the value of complaints, and the importance of encouraging a culture that is receptive to complaints and feedback. We look forward to assisting the Department in this process.

Complaints during this financial year highlighted the need for greater awareness of, and responsiveness to, tribunal decisions. The implications of this problem were evident in the report Review rights for Income Managed people in the Northern Territory (Report 10|2010), published in late 2010. Other complaints to this office, such as the one on the next page, reinforce the need for policy agencies to have mechanisms in place that ensure they are duly informed of any significant tribunal decisions, engage with the broader implications of such decisions and give proper instructions to service agencies, such as Centrelink, so that decisions and policy and guideline changes are efficiently carried out. We will continue to engage with FaHCSIA and other policy agencies on this issue.

Implementation of a Social Security Appeals Tribunal decision

The Social Security Appeals Tribunal made a decision in February 2010 that highlighted an inconsistency between the legislation and FaHCSIA’s instructions to Centrelink on how to assess pension claims under an international agreement. While the procedure in place at the time required Centrelink to inform FaHCSIA if there was a problem with those instructions, this Tribunal decision was not brought to FaHCSIA’s attention. FaHCSIA did not become aware of this Tribunal decision until, in the course of our investigation, we contacted it about this matter in November 2010. The instructions about the international agreement were then changed to reflect the Tribunal’s decision. FaHCSIA is taking steps to avoid a repeat of this and similar problems. Firstly, it is reviewing and consolidating the procedure that Centrelink is required to follow when deciding which Social Security Appeals Tribunal decisions it should alert FaHCSIA to so that significant decisions are referred. Secondly, FaHCSIA’s legal section is putting procedures in place aimed at ensuring prompt consideration of the implications of such decisions and the development of strategic responses to them.

Cross-agency issues

As the above case study illustrates, complaints about FaHCSIA often intersect with the work of Centrelink. During our investigation into service delivery to customers dealing with mental health issues, we looked at Centrelink, the Department of Education, Employment and Workplace Relations (DEEWR) and FaHCSIA. The report of those investigations ( Falling through the cracks ) explored the complexity and gaps that can arise in multi-agency service delivery. Further information about that report is below and contained in the Centrelink section of this Annual Report.

The provision of services under the Disability Employment Services program can also often involve FaHCSIA, DEEWR and Centrelink. When complainants come to us it is not uncommon to find that they have had dealings with all three agencies but remain confused about which agency can look at the various aspects of their complaint. When complaints of this type come to our attention we work with the complainant to identify the remedy they wish to achieve and to assist them in determining which agency they should progress their problem with.

Reports released

FaHCSIA was one of three agencies investigated in a report concerning service delivery to customers suffering from a mental illness. The report is titled Falling through the cracks—Centrelink, DEEWR and FaHSCIA: Engaging with customers with a mental illness in the social security system (Report 13|2010). The report made a range of recommendations designed to improve engagement with, and services to, customers with mental health issues and disabilities.

FaHCSIA was one of two agencies investigated as a result of a complaint about the Income Management regime in the Northern Territory. The report is titled Department of Families, Housing, Community Services and Indigenous Affairs and Centrelink: Review rights for Income managed people in the Northern Territory (Report 10|2010). It highlighted a significant failure in the provision of review rights to people affected by the former income management regime. This report also led to the changes referred to in the case study above about the implementation of a Social Security Appeals Tribunal decision. Further information about that report is included in the Indigenous section of this Annual Report.

FaHCSIA was included in a report titled Talking in Language: Indigenous language interpreters and government communication (Report 05|2011). Importantly, FaHCSIA is responsible for the establishment of a national framework on the supply and use of Indigenous language interpreters. It was responsive to this report and provided a briefing to this office, and other agencies involved in the report, at a workshop about Indigenous language interpreting that was hosted by this office in late June 2011. There is further information about that report in the Indigenous section of the Annual Report.

Update from last year

Last year we reported that we were working on reports about the use of Indigenous language interpreters and income management review rights. Both of those reports have been released as detailed above and we continue to monitor and engage with the Department as it implements the recommendations.

Stakeholder engagement, outreach and education activities

As noted earlier, we held a workshop on the problems facing agencies as they seek to better utilise Indigenous language interpreters. The workshop enabled agencies to explain what they are doing to address these problems and to share their knowledge about the challenges and opportunities that exist in this area. FaHCSIA was a primary contributor to that workshop and will continue to play a central role as it seeks to increase the recruitment and retention of Indigenous language interpreters, and encourage agencies to properly use interpreters.

We have been holding round table meetings about social welfare issues with community stakeholders across the country. These meetings often raise issues that touch upon the department’s responsibilities for social security policy. Our work in the NT also includes regular engagement with stakeholders involved in Indigenous housing issues, income management policy and other Northern Territory Emergency Response initiatives that come within the department’s areas of responsibility. We value the insights these stakeholders provide and benefit from their first-hand experience of how the Department’s policies work in practice.

Looking ahead

The Ombudsman’s office and the Department have taken steps towards a protocol governing the relationship between our two agencies and to assist with communication and the investigation of complaints about Indigenous programs in the Northern Territory. It is hoped that the protocol will assist this office and the department to achieve practical remedies more quickly for individual complainants and to facilitate root cause analysis as necessary.

In the interim, we continue to engage with FaHCSIA at all levels and meet with specific areas as issues arise. A key theme for our continuing engagement is the extent to which the Department as a funding and policy agency is responsible for the provision of outcomes in an increasingly devolved delivery environment.

Department of Health and Ageing

Overview

The Ombudsman received 120 approaches and complaints about the Department of Health and Ageing (DoHA) in 2010–11. It finalised 113, of which 19 were investigated.

As noted in the 2009–10 Annual Report, most complaints received by the Ombudsman concerned the Department’s handling of complaints about aged care.

Figure 5.9: DoHA approach and complaint trends 2004–5 to 2010–11

Figure 5.9: DoHA approach and complaint trends 2004-5 to 2010-11

Aged Care

A common theme in these complaints is access to the Aged Care Commissioner, with many complainants missing the 14-day time limit in which to lodge an appeal against a decision of DoHA’s aged care Complaints Investigation Scheme (CIS). In some cases the Aged Care Commissioner’s office has been able to accommodate the complainant by considering the issues raised as complaints about CIS’s processes, rather than as an appeal about their decisions. There is no time limit for complaints about process.

However, this approach cannot apply in all cases and the outcomes are different from those available where an appeal against a decision has been accepted. We understand that DoHA has implemented the Walton Review recommendation to extend the time limit to appeal from 14 to 28 days from 1 September 2011.

Other complaints this year have highlighted complexities in the aged care system.

Aged care complaints

Mrs S had been residing in an aged care facility for respite care and indicated to her family that she would like to stay in the facility. An assessment was carried out by an Aged Care Assessment Team for the purposes of admission which indicated that Mrs S’s care needs were on the border of low to high care and, taking into account her degenerating eyesight, she should be assessed as requiring high care. On entry, the facility advised Mrs S’s family that she actually only required low care and would be entered as such. At the time the accommodation agreement was signed the family were unaware that the financial arrangements were different for low and high care and that accommodation bonds were not charged for high care residents.

Later the family queried how the facility could decide that Mrs S required low care when the Assessment Team had assessed her as having high care needs. The Aged Care Commissioner and DoHA each had different views on the law, with DoHA ultimately deciding that the law simply specified that a bond was not payable if the person required high care at the time of entry to the facility. DoHA decided that whether the person required high care was a question of fact to be decided on all of the available evidence at the time including, but not limited to, the Assessment Team assessment and contemporaneous care notes held by the facility. Following a request from the Ombudsman, DoHA also agreed to take into account any additional evidence the family provided.

The complaint also raised concerns that the requirement was not well understood by participants and advisors in the aged care sector. In response, DoHA amended its fact sheets to provide additional information.

The Ombudsman made submissions in this period to the Productivity Commission’s Inquiry Caring for Older Australians , and in response to DoHA’s discussion paper Aged Care Complaints Scheme: Proposed Complaints Management Framework .

The Ombudsman will continue to monitor the progress of reform in aged care complaint handling.

Continence Aids Payment Scheme program transfers

In mid-2010 the Ombudsman received a number of complaints about the replacement of the Continence Aids Assistance Scheme (CAAS) with the Continence Aids Payment Scheme (CAPS) to be administered by Medicare Australia (Medicare) on behalf of DoHA. These complaints concerned delays in processing registrations for CAPS and problems experienced by carers in meeting the requirements to allow them to act as nominee for a person whose disability prevented them acting on their own behalf. Our office found it necessary to correspond with both Medicare and DoHA to resolve these complaints.

Continence Aids Payment Scheme

Mrs T completed the form for transfer from the CAAS to the CAPS program on behalf of her adult son in April 2010. The form contained a section for completion by a person’s ‘legal representative or parent’ and Mrs T indicated that she was her son’s guardian and mother. In May her son received a letter from Medicare advising him to provide a certified copy of his legal representative‘s authority to act on his behalf. Mrs T complained that she was already her son’s correspondence nominee for Centrelink purposes and that she did not think it reasonable that she had to obtain a formal guardianship order to manage $470 per year for continence aids.

We contacted Medicare which advised us that this was a policy issue and referred us to DoHA. DoHA advised us that it was the intention of the scheme that people who were already correspondence and payment nominees for Centrelink purposes would be accepted as nominees for the CAPS program. However, neither the form, which included both DoHA and Medicare branding, nor the letter from Medicare had indicated this.

Mrs T provided confirmation of her status as a nominee with Centrelink in June 2010 and the payment was processed in August 2010. The information on the CAPS application form has been amended to include a Centrelink nominee as one of the options for valid legal representation to act on behalf of another party.

Therapeutic Goods Administration

In last year’s annual report, we noted that complaints to the Ombudsman had demonstrated that there was room for improvement in the way the Therapeutic Goods Administration communicated with the public about its work. To this end the Ombudsman made a submission to DoHA’s Review to improve the transparency of the Therapeutic Goods Administration , which reported in June 2011.

Fair Work Ombudsman

Overview

The Office of the Fair Work Ombudsman (Fair Work Ombudsman) is a statutory office created by the Fair Work Act 2009 . Operating independently of Government, its functions include promoting harmonious, productive and cooperative workplace relations and ensuring compliance with Commonwealth workplace laws.

In 2010–11 we received 79 approaches and complaints about the Fair Work Ombudsman. This is 26 more than the 53 received in the previous financial year.

The majority of complaints made to our office this year concerned decisions made by the Fair Work Ombudsman in response to claims from employees. The underlying issue with these decisions was that the Fair Work Ombudsman had determined that there had been no breach of the legislation or relevant award. The underlying reason for the increase in complaints to our office appears to relate to a lack of clear understanding about the Fair Work Ombudsman’s tiered internal review process. For example complainants often believe that they have exhausted their review rights with the FWO when they have had a process (Tier 1) review, even though they are still eligible for a Tier 2 review. The Fair Work Ombudsman has recently advised that it will be amending its decision letters to provide further information about how a review can be requested. Our office will continue to work with the Fair Work Ombudsman to try to resolve any perceived confusion by complainants about the review process.

Complaint themes

In 2010–11 we investigated only 17 complaints lodged with our office about the Fair Work Ombudsman. Of these complaints the main issues concerned timeliness of the Fair Work Ombudsman during different stages of its assessment and investigation processes.

Although timeliness was an issue for people who had either lodged a claim against an employer, or for an employer being investigated, on the whole we found that the time taken by the Fair Work Ombudsman was not unreasonable in the circumstances. We observed that both employees and employers were anxious to receive their decision as quickly as possible. However, there are many complicating elements of an investigation that can make it difficult for agencies like the Fair Work Ombudsman to provide accurate timeframes to parties at early stages in the process. We found very few instances of unreasonable delay by the Fair Work Ombudsman.

In most cases where our office did not undertake an investigation, it was because the complainants still had an avenue of review with the Fair Work Ombudsman available to them. Over the coming 12 months we intend to monitor complaints of this type to ensure the Fair Work Ombudsman is adequately communicating information about review rights to claimants.

Cross-agency issues

The Overseas Students Ombudsman and the Fair Work Ombudsman have agreed on an approach to transferring any complaints from overseas students which could more effectively or conveniently be dealt with by the Fair Work Ombudsman. The Overseas Students Ombudsman is required under legislation to transfer complaints in those circumstances, and the agreement is intended to facilitate that process. To date no transfer of a complaint has been made.

Reports released

During 2010–11 we met with the Fair Work Ombudsman and were provided with an update on its implementation of the recommendations made in our own motion investigation report Fair Work Ombudsman: Exercise of coercive information-gathering powers (Report 09|2010). That report focused on the policies and procedures used by the Fair Work Ombudsman when exercising those powers in its investigations. The Fair Work Ombudsman responded positively to the report and acknowledged that the working relationship between our agencies had matured as a result of the own motion process. On its website the Fair Work Ombudsman acknowledged that our office’s involvement as the Tier 3 step in the Fair Work Ombudsman’s file review process is an important part of its quality review processes and strengthens the standing of its investigations. The Fair Work Ombudsman has advised that it referred to our report in a recent review of its Operations Manual.

Update from last year

Since the release of the report mentioned above, the Fair Work Ombudsman has made a number of improvements to its practices to take into account the best practice principles contained in the Administrative Review Council’s report The Coercive Information-Gathering Powers of Government Agencies” (Report 04|2008).

Looking ahead

Our office will continue to monitor how the Fair Work Ombudsman’s internal review mechanism is communicated to complainants.

Medicare Australia

Overview

In 2010–11 the Ombudsman received 177 approaches and complaints about Medicare Australia (Medicare). It finalised 184 of which 30 were investigated. This is a similar complaint pattern to previous years.

Complaints about Medicare are diverse and include complaints about enrolments, entitlements, administration of the Medicare levy exemption and newer programs such as the Continence Aids Payment Scheme (see case study about this program in the Department of Health and Ageing overview on page 76).

However, a number of complaints concerned access to allied health services under the Medicare Better Access initiative. Some of these complaints concerned the quality of advice about entitlements, while others arose from the requirement that certain Medicare services be claimed as a prerequisite before claiming allied health care items under a Mental Health Care Plan. The latter type of complaints reflect the complexity of the program, which requires patients to know when the care plan has been lodged or that another prerequisite item has been recorded before making their claim. Issues about the recording of verbal advice about entitlements under care plans were reported on in our 2009–10 Annual Report (page 81).

Figure 5.10: Medicare approach and complaint trends 2004–5 to 2010–11

Figure 5.10: Medicare approach and complaint trends 2004-5 to 2010-11

Confusion about Medical Health Care Plans

Mrs U visited her doctor for a Mental Health Care Plan to enable her child to receive a number of services from a clinical psychologist under the Better Access Intiative. The doctor’s surgery advised that the care plan would not be lodged with Medicare straight away and that this needed to be done before the appointments with the psychologist were covered by the plan. Some days later Mrs U’s child attended a psychologist after which Mrs U took her account to a Medicare office and the claim was paid. Mrs U assumed that the care plan was in place and proceeded to make a further appointment for her child. However on the next occasion Medicare advised that the claim could not be paid because the care plan was not in place and none of the other prerequisites for payment applied. Mrs U complained that she had relied on the fact that the previous claim had been paid when she made the second appointment and would have waited if she had known the care plan was still not in place.

On investigation, we found that the Medicare computer system had identified an old unrelated item in Mrs U’s claims history and had allowed the initial claim on the basis that a prerequisite item had been claimed. The error had been picked up in a routine post payment check. Medicare advised that options to prevent customers experiencing this type of inconvenience had been discussed with the Department of Health and Ageing. The Department concluded that significant costly systems changes, that were disproportionate to the extent of the problem, would be necessary to prevent claims being allowed and that the steps that had been taken to educate medical practitioners to advise patients were adequate. This left it up to customers to check with their doctors that their care plan has been lodged before receiving a service under the plan. However, Medicare resolved Mrs U’s complaint on an individual basis.

Monitoring and Inspections

Overview

The Ombudsman is required by law to inspect the records of certain agencies in relation to their use of covert and coercive powers. We do this to determine compliance with legislative requirements governing the use of these powers. We also aim to help agencies improve their processes to comply with the various statutes.

The covert and coercive powers include:

Definitions

Telecommunications interceptions are the recording of telephone conversations or other transmissions passing over a telecommunications network. Interceptions occur under warrant for the purposes of obtaining information relevant to an investigation.

Stored communications typically refer to emails and text messages, but may include images or video, which are electronically stored by a telecommunications carrier or internet service provider. For instance, an SMS message is stored by a carrier and sent when the intended recipient is able to take the message. Stored communications access occurs under warrant for the purposes of obtaining information relevant to an investigation.

Surveillance devices are typically listening devices, cameras and tracking devices that are used to gather information relating to criminal investigations and the location and safe recovery of children. The use of these devices will, in most circumstances, require the issue of a warrant.

A controlled operation is a covert operation carried out by law enforcement officers under the Crimes Act 1914  (Cth) for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious offence. The operation may result in law enforcement officers engaging in conduct that would otherwise constitute an offence.

In addition, we undertook the function, recommended by the Senate Rural and Regional Affairs and Transport Legislation Committee in 2006 and agreed by the Department of Agriculture, Fisheries and Forestry, of reviewing investigations carried out by the Compliance Branch of the department’s Biosecurity Services Group.

We also inform the Commonwealth Attorney-General’s Department of our inspection findings, and report regularly to the Attorney-General and the Minister for Home Affairs. These findings form the basis of our annual briefing to the Parliamentary Joint Committee on Law Enforcement.

In 2010–11, we undertook 37 inspections across 17 different agencies, at both the Commonwealth and the state and territory level.

Influencing positive change

Our inspections provide external scrutiny of, and hold agencies accountable for, the use of covert powers and how they deal with sensitive information. Our main focus in this area of our work is to improve agencies’ compliance with the relevant legislative provisions. As a result, a large part of our work is raising awareness of actual and potential compliance issues among the agencies we inspect, and with the relevant policy makers within government. By promoting positive change in this way, we believe that agencies are more likely to collaborate with us to achieve positive results.

Another way in which we promote positive change is to ensure that our own inspection processes are open and transparent to the agencies, the responsible Ministers and to Parliamentary Committees. For example, before conducting inspections we write to agencies outlining our inspection process, the criteria we use to assess compliance, the documents we require access to and the reasons for requesting these documents. We also welcome discussions with agencies outside the formal inspection process on administrative processes that may lead to improved compliance with legislation.

In 2010–11 we saw improved compliance across all regimes and generally in all the agencies we inspected.

Reports released

The Ombudsman released the following inspection reports in 2010–11:

Stakeholder engagement

Working with agencies

Throughout 2010–11, we worked closely with agencies outside our formal inspection processes to promote our oversight role and help them improve compliance. We particularly valued our interaction with the Queensland Crime and Misconduct Commission, the Australian Federal Police and the Australian Crime Commission, who demonstrated their willingness to engage with us to improve compliance and were receptive to our recommendations.

During the year, we met with new staff at the Queensland Crime and Misconduct Commission, the Queensland Police, Tasmania Police, the Australian Customs and Border Protection Service and the Australian Federal Police to explain our oversight functions and inspection procedures.

We also helped agencies such as the Australian Federal Police to set up new policies and procedures following amendments to legislation affecting their exercise of covert and coercive powers.

Working with the Commonwealth Government

Over the past financial year, we have strengthened our collaborative working relationships with the Attorney-General’s Department and the Department of the Prime Minister and Cabinet.

Because we work closely with several state and federal law enforcement agencies, we are in a position to provide detailed feedback to both departments on:

This assists us in providing input into the legislative process, especially on issues we have identified during inspections.

Informing the public

In addition to our legislative obligation to report to the Commonwealth Attorney-General and the Minister for Home Affairs on our inspection findings, we believe that where appropriate, we should also inform the Australian public of the results of our activities. In 2010–11, for example, we issued media releases on:

A day in the life of an inspections officer

Bleary-eyed at the Canberra airport lounge, waiting to board the 7am flight, the Ombudsman inspector prepares for the three days ahead on inspection.

After arriving at the agency concerned, informal discussions begin with the agency representatives. They provide updates on legislative amendments, agency policy and procedural changes, and issues from the previous inspection. During this interview, the agency representative self-discloses an issue which may impact the Ombudsman inspector’s findings – she notes the issue and thanks the agency for its forthcoming attitude. She is appreciative of both the representative’s understanding of the Ombudsman’s role and their willingness to engage with her. Both parties share the same aim – a high level of compliance within the agency.

After the opening interview, she commences the inspection of agency records. She is well prepared for the inspection:

Her days in the agency office run smoothly. This is partly due to all the preparation work prior to the inspection: her team had issued a notification letter to the agency head, outlining the inspection process and date, the criteria and methodology used to assess compliance, and a list of documents and sources of evidence required to be provided. This ensured that the agency was aware of the inspection scope, so they understood what would and would not be inspected. In doing their part, the agency provided easy access to all the requested documents and sources. The inspections officer often engages with officers in the operational and compliance areas, who provide further information and details. They answer questions and clarify issues, all of which help the inspections officer to conduct her assessment.

On her third and final day, she finalises the inspection with an exit interview with the agency representative. This time, she summarises the inspection process and discusses her preliminary findings against the audit criteria. She outlines her findings in relation to the agency’s good practices and notes the areas that could be improved. She welcomes any clarification and further information the representative offers.

On returning to Canberra, the next stage begins. She collates her findings and outcomes from her discussions and begins to draft an agency report. She also emails the agency for a little more information, so the report is accurate and fair. Once completed, the agency is provided with the opportunity to make comments on the report. On this occasion, the agency and the Ombudsman’s Office have taken different positions on an issue, so a meeting is arranged to reach an agreement. Outcomes from the meeting are included in the finalised report, which is again sent to the agency.

Although the report has been finalised, the process is not yet over. In meeting the Ombudsman’s legislative obligations, she then prepares a report on the results of this inspection to the Minister. Also, in recognition of the agency’s improvement in legislative compliance, the Ombudsman releases a public statement on the office’s general findings.

Looking ahead

As a major focus in future years, we will seek to enhance engagement with all our stakeholders. The Federal and State law enforcement agencies have been responsive to our reports by implementing improvements to deal with issues we have raised. We will seek to build further on this foundation by encouraging even greater mutual co-operation with the aim of improving transparency of administration in applying coercive powers.

We will also seek to extend our inter-agency co-operation to include the Attorney-General’s Department, whose advice is essential to us in developing a consistent approach to interpreting the legislation under which law enforcement agencies operate.

Freedom of Information

The Australian Information Commissioner Act 2010 commenced on 1 November 2010. That Act created offices of the Australian Information Commissioner (OAIC) and the Freedom of Information Commissioner who, together with the existing Privacy Commissioner, are responsible for information management, access and related matters in the Commonwealth.

The Commonwealth Ombudsman entered into a Memorandum of Understanding with the OAIC and agreed that investigating actions taken by Australian Government agencies under the Freedom of Information Act 1982 (FOI Act) would be the primary responsibility of the OAIC from 1 November 2010. However, the transitional provisions in the new FOI Act mean that complaints about the handling of FOI requests made before 1 November 2010 remain the responsibility of the Commonwealth Ombudsman.

In 2010–11 we received 146 complaints about FOI requests handled by agencies. During the year we finalised 177 complaints about 180 issues. These related to a range of issues including agency delay, lack of explanation for exemptions claimed, and issues concerning processing fees and charges. Of these, 104 were about access to personal documents and 76 about access to general documents. We recommended the remedies for complainants, including expedited processing of delayed FOI requests together with an apology to the applicant and better explanation of reasons for exemptions claimed or for fees and charges levied.

Indigenous programs – Closing the Gap in the Northern Territory

Overview

The Government has continued its significant investment in and program of reform for Indigenous programs in the Northern Territory (NT). Indigenous Australians in the NT are increasingly exposed to and impacted by a variety of government programs, services and policies. These include the continuation of the measures under the Northern Territory Emergency Response; Closing the Gap in the NT programs; National Partnership Agreements;1 significant investment and reform in relation to remote Indigenous housing; and changes to Income Management and other government programs such as employment services.

The office’s dedicated Indigenous Unit, which provides oversight of Indigenous programs in the NT, has continued to visit Indigenous communities, investigate complaints, raise systemic issues and achieve remedies for individuals during this financial year. This year, the team has received 209 complaints relating to Indigenous programs in the NT. Seventy-three per cent of these were received during outreach to 15 remote Indigenous communities and several town camps. Resource constraints, an increased focus on systemic issues and an effort to finalise longstanding complaint investigations meant a reduced capacity for outreach activities toward the second half of the financial year.

Complaint themes again highlight the need for governments to work better together to achieve large scale objectives, and for agencies to be more accessible to people impacted by their policies, programs or services. There is also room for improvement in how government communicates, engages and consults with Indigenous Australians. As outlined below, this office, in working with the agencies, has made some headway in relation to these areas.

Increasingly, complaints, feedback and our observations highlight the complexities associated with the three levels of government working together to achieve objectives such as those in place under the National Partnership Agreement on Remote Indigenous Housing in the NT, and the Alice Springs Transformation Plan. This office is uniquely positioned to ensure that under such arrangements governments remain focused on delivering citizen-centric and seamless services and programs. A number of complaints investigated by this office this year have identified areas for improvement.

Complaint themes

With the range and complexity of Indigenous programs and significant government investment in the NT, an independent and robust complaints and oversight function is critical. In performing this role, we are in a unique position to provide early warning of problems to government, build community confidence in the accountability of government programs in the NT and work with a range of stakeholders to improve government services and programs delivered to Indigenous Australians in the NT.

Failure to use interpreters led to misunderstanding and confusion

A community worker discussed some concerns with this office during outreach to an Aboriginal community and subsequently supported those affected to make a complaint to the Ombudsman’s office. The complaint concerned residents’ confusion about the Government’s housing plans for their community. Government officials had visited the community to discuss plans for Strategic Indigenous Housing and Infrastructure Program including transition accommodation arrangements for people while their houses were being refurbished. Residents did not fully understand the information that had been told to them and were worried that they might lose their houses if they moved out of them while they were being refurbished.

An investigation by this office identified that the information session provided by government had not been delivered with the use of an Indigenous interpreter. As a result, the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) responded positively by revisiting the community and delivering the information session with the use of an interpreter. The complainants were happy with this outcome and reported that they now understood the arrangements, and their concerns about losing their houses were alleviated.

Improved treatment of BasicsCard customers by a merchant

Ms V complained to our office on behalf of other customers in her community who use the BasicsCard, which is a reusable, PIN-protected EFTPOS card that allows people to spend income-managed money at approved stores and businesses.

She reported that BasicsCard holders often suffer poor treatment by a staff member at the local store. She reported that if people do not have sufficient balances on their cards to purchase their goods, the staff member gets angry at the customer, demands that they leave the store and does not allow them to use other payment methods. Ms V reported that customers are highly embarrassed because the staff member yells at them in front of others. This has resulted in some BasicsCard customers travelling to stores elsewhere to avoid this poor treatment, and having to pay the costs involved in doing so.

After being alerted to this matter, Centrelink took a proactive and problem-solving approach to the matter. This was particularly encouraging given the specific issue did not breach requirements of the merchant terms and conditions managed by Centrelink. Centrelink arranged for senior officers to visit the merchant to discuss the concerns. Centrelink advised that it has an expectation that a merchant will treat customers with courtesy and respect and that in order for a merchant to remain approved for BasicsCard, the merchant would need to continue to support the primary outcome of the BasicsCard.

When Centrelink discussed this matter with the store manager, the store manager was very apologetic and was able to identify the staff member as they had previously been counselled for similar behaviour. The store manager undertook to address the issue straight away. Ms V reported that the staff member no longer works at the store and her community now feel comfortable with shopping there.

In response to this matter, Centrelink advised that it is discussing with FaHCSIA the need for an additional clause in the terms and conditions to address this scenario and the additional requirement for merchant compliance.

The main source of complaints this year again concerned housing reforms in the NT. Since last year’s report, a new remote housing system has been rolled out; the Strategic Indigenous Housing and Infrastructure Program has progressed and completed work in 36 communities with work in a further 16 communities underway;2 and the NT government has entered Service Level Agreements with the shires clarifying property and tenancy management arrangements and repairs and maintenance processes. During this time, we have also clarified our focus in relation to housing complaints and have continued to refine our understanding of the issues.

It is the office’s view that Australian Government agencies who provide funds or policy direction to State and Territory governments should be accountable for the outcomes on the ground. Further to this, when it comes to housing reforms in the NT, our approach with FaHCSIA has been grounded in its responsibility as the landlord for community housing in 53 communities.

Under the statutory five-year leases that the Australian Government compulsorily acquired over communities at the commencement of the Northern Territory Emergency Response, the Commonwealth stands in the place of the landlord and has control over all land and fixed assets, including community housing. FaHCSIA manages those leases and has entered into a service level agreement with the NT Government’s Department of Housing, Local Government and Regional Services (Territory Housing) authorising Territory Housing to manage housing on its behalf. Territory Housing remits rent for housing to FaHCSIA, which in return pays a management fee to Territory Housing. Territory Housing has further devolved service delivery to local shires including housing repairs and maintenance.

We have had a consistent flow of complaints in relation to housing reforms in the NT, which generally relate to:

As a result of our investigation into many of these complaints, FaHCSIA has assisted to address issues for individuals. However, we are continuing to work with FaHCSIA in relation to the systemic nature of these issues and the impact of housing reforms for people on the ground. Welfare rights, legal and advocacy services in the NT have also assisted us to identify issues and case examples, strengthening the quality of feedback and recommendations to agencies. The Ombudsman will release a report in the next financial year drawing on these housing issues to make recommendations aimed at improving government administration in this area.

No action on repairs classified as immediate

During outreach to a remote community in the NT in December 2009, Ms W advised Ombudsman officers that she was unhappy that no action had been taken over an extended period on significant repair issues in her house. Ms W lived in her house with her partner and five children ranging in age from infancy to 15 years. Ombudsman staff were invited into her home where a number of significant repair issues were observed, some of which posed a danger to those living in the house.

Ms W advised that she had her name on the housing waitlist for an extended period. In around August 2009 she agreed to take her name off the list in exchange for repairs to be carried out on her house. However, when repairs to her bathroom had not begun a month later she asked to be placed back onto the waitlist.

We raised these issues with FaHCSIA in January 2010. Five months later we were advised that Territory Housing had not previously had a record of these repair issues, but that they had now been referred for urgent action. Two months later, as a result of persistent follow up by this office, Territory Housing inspected the house and classified the repairs as an immediate priority.

Despite continued efforts by this office to follow up on the progress of the repairs, in November 2010 work still had not commenced. Also, Ms W had provided a medical certificate asserting that accommodation issues were causing her child’s chest infection. However, this certificate was initially lost and then not acted upon by Territory Housing. Further investigation by our office led to the location of the certificate.

Ms W was eventually allocated a new house and this office continues to pursue the broader systemic problems with FAHCSIA and Territory Housing including a lack an local complaint mechanisms and responsiveness to issues, the need for adequate escalation pathways, an inability to monitor timeframes as per service delivery standards, and a need for further clarification of roles and responsibilities.

Inadequate communication and engagement is another theme threading through the majority of complaints received from Indigenous people in the NT. Further, in almost all government services to remote communities there is a critical need for a more effective local information service and for adequate complaints mechanisms. Often complaints to this office are the result of:

These issues result in people being unable to make informed decisions or gain access to services, exemptions, entitlements or information. These concerns led to the Ombudsman’s report, Talking in language: Indigenous language interpreters and government communication (Report 05|2011).

We also have jurisdiction over Land councils in the NT as they are established by the Aboriginal Land Rights Act (Northern Territory) Act 1976 and are responsible for representing the interests of Aboriginal people in relation to Aboriginal land. Land councils in the NT are responsible for a range of functions including: consulting with Aboriginal people about proposals to use Aboriginal land such as mining activities and developments; assisting Aboriginal people to pursue land claims, compensation or to resolve disputes about Aboriginal land and its use; assisting Aboriginal people to protect sacred sites; and assisting Aboriginal people to manage their land.

There are an increasing number of complaints made to the Ombudsman about land councils in the NT. As a result, the Ombudsman looks forward to working more closely with the land councils in the coming years to explore opportunities for improvement in:

A new model of income management was introduced in the NT in mid-2010 which focuses more on the circumstances of individuals and their payments rather than applying income management to a person because they live in a prescribed community (which was the old Northern Territory Emergency Response model). Since Income Management began in 2007, this office has received complaints highlighting problems with: how it was being communicated or explained; difficulties people faced in accessing balances and using their BasicsCards; confusing Income Management account statements; and transfers or retractions of Income Management funds from third parties. During this reporting period, we have received fewer complaints about the workings of Income Management and the BasicsCard. Exemptions from Income Management are an emerging issue and are the subject of an own motion investigation underway by the Ombudsman, due for release in the 2011–12 financial year.

Systemic issues

The Indigenous Unit has been in operation for almost four years. During this time there has been a strong focus on outreach to Indigenous communities, complaint investigation, engagement with a range of stakeholders, and liaison with key agencies. This has meant that there is now a good grasp of the challenges, systemic issues and broad areas for improvement in government services and programs to Indigenous communities in the NT.

As highlighted above, systemic issues arising from complaint investigations are being identified and raised with agencies. Primarily we do this through individual complaint investigations, meetings or briefings with agencies, contributing to the Closing the Gap monitoring reports released by the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) twice a year, or through reports on specific topics.

Key examples include:

Indigenous language interpreters and government communication – an own motion investigation into this issue was conducted and a report including recommendations aimed at 6 agencies was released. This was followed by a workshop with those agencies to discuss implementation of recommendations and hear valuable insights from the Northern Territory Aboriginal Interpreter Service.

Delay in payment of rent compensation for communities subject to a five year lease held by the Commonwealth – we are concerned that although money has been paid to land councils for some communities for distribution to traditional owners, in the majority of cases this money has not been passed onto those traditional owners. FaHCSIA provided a briefing to this office on this issue which outlined action being taken to address the problem and we will continue to monitor progress in this area with a focus on communication and the circumstances of further delay in the next financial year.

Inability of some remote housing tenants to pay rent – through our close engagement with stakeholders we became aware of a problem whereby remote housing customers who exited from Income Management did not have a mechanism by which they could pay their rent. We wrote to three agencies about this issue and made suggestions for managing the situation. The rent deduction scheme available to urban tenants is now in the process of being rolled out to remote tenants.

The Strategic Indigenous Housing and Infrastructure Program employment of ‘local’ Indigenous people – we identified that the monitoring and reporting data for ‘local’ Indigenous employees under the program only captured general Indigenous employment numbers rather than ‘local’ employment numbers. This was identified through complaints where people raised concerns that locals were not being employed under the program as per the government’s objective under the National Partnership Agreement on Remote Indigenous Housing. As a result, and to more accurately reflect employment numbers and information provided to the public about the program’s employment statistics, FaHCSIA and the Northern Territory Government have agreed to change the way this information is publicly reported and work together to develop an agreed definition of ‘local’ for the purposes of capturing employment data.

Inability to transfer funds to BasicsCards on weekends – we received complaints highlighting difficulties people were facing when they had no money on their BasicsCards on weekends and could not contact Centrelink to arrange transfers. In response to raising these concerns with Centrelink, we were advised that Centrelink extended its customer service for the allocation of Income Management funds onto BasicsCards to seven days a week between 8am and 5pm.

Cross-agency issues

The office is becoming increasingly concerned about the inadequate level of access that Indigenous people in remote communities have to information about government services and programs affecting them. This is compounded by the fact that agencies’ complaint mechanisms are often substandard, although some are better than others. Agencies must implement responsive, accessible and genuine complaint mechanisms that are suitable to the remote Indigenous communities receiving increasing government services, funding and programs. Those mechanisms must also be able to handle the complexities of the three tiers of government working together. An effective complaints mechanism must be built on a culture that values complaints, seeks feedback and meaningfully engages with people. There must be a genuine focus on resolving problems and complaints, achieving remedies and drawing on complaints to improve service delivery and underpin policy. Because some agencies have not developed good quality complaints mechanisms, the Indigenous Unit does not refer many of the complaints it receives to agencies in the first instance.

Often issues are only resolved or considered by agencies once complaints have been made to his office. While we appreciate agencies’ responsiveness to our complaint investigations, we encourage agencies to proactively identify issues and resolve both systemic and individual problems.

Reports released

Three reports were released this year.

Talking in language: Indigenous language interpreters and government communication (Report 05|2011)

With the increase of government investment, services and programs in the NT there has been a significant increase in government engagement with Indigenous people. Complaints to this office since the commencement of the Northern Territory Emergency Response highlighted problems with the use and accessibility of Indigenous interpreters by government agencies. As a result, the Ombudsman conducted an own motion investigation to examine six agencies’ awareness of the need to make use of Indigenous language interpreters. This investigation resulted in recommendations aimed at improving the use of Indigenous Interpreters and included broad recommendations for all agencies.

The report also identified significant challenges in recruitment, retention and use of Indigenous interpreters. In order to explore these challenges, and to allow an opportunity for agencies to share ideas and experiences in relation to Indigenous interpreters and to discuss agencies’ progress with implementing the Ombudsman’s recommendations, we facilitated a workshop with all the agencies, and with representatives from the Northern Territory Aboriginal Interpreter Service and NT Government. The involvement of all agencies and the valuable insights from the Northern Territory Aboriginal Interpreter Service resulted in a positive and constructive forum.

Administration of funding agreements with regional and remote Indigenous organisations (Report 16|2010)

A complaint investigation about one agency’s administration of a program-funding agreement was the catalyst for this report. Significant challenges exist for remote and regional Indigenous organisations operating largely from government grant programs. This report found complex grant requirements and insufficient support for the funded Indigenous organisations can increase the risk of these organisations failing even where programs are being successfully delivered.

This report outlines five principles for better administration by government agencies of funding agreements with regional and remote Indigenous organisations.

Review Rights for Income-Managed people in the Northern Territory (Report 10|2010)

A complaint investigation identified a Social Security Appeals Tribunal (SSAT) decision that it did not have jurisdiction to review a particular case. The SSAT decision had a broader application to other Income Management customers. The impact of the Tribunal’s decision went unnoticed by FaHCSIA and Centrelink. The decision should have prompted the two agencies to consider the need for appeal, legislative amendment or a change to administrative processes.

When the new Income Management model was rolled out in mid-2010, the particular issue was resolved. We are continuing to follow up on the intersection between the Tribunal and Centrelink in relation to timely analysis and action in response to significant Tribunal decisions (see Centrelink overview on page 48).

Update from last year

Last year we reported that we engaged an officer to develop an Indigenous communication and engagement strategy, including evidence based research. We have now obtained this research and will be drawing on the results to better inform our approach and share insights with other agencies.

We foreshadowed the release of three reports which were released and outlined above.

Many of last year’s complaint themes remain current and substantial progress remains to be made to address recurring problems raised with this office about housing reforms and its impacts on people. However, we are better engaged with the relevant stakeholders, having clarified and refined our approach. We have obtained a significant number of remedies for individuals who have raised housing complaints and we have narrowed our focus to a number of key issues requiring attention in our report into the housing reforms in the NT.

Stakeholder engagement, outreach and education activities

A key focus of the Indigenous Unit’s work is stakeholder engagement and outreach. There is little awareness among Indigenous people in the NT, particularly those in remote locations about the role of the Ombudsman’s office and their right to complain. We conduct outreach to Indigenous communities in the NT to ensure our complaints service is accessible and known. The majority of our complaints are received during outreach, which underlines the value of our approach. If we did not ensure our service was accessible, many Indigenous people living in remote settings would have no avenue to seek redress for problems with Government, and the valuable insights provided by the individual complaints and feedback would be lost.

We value our close engagement with stakeholders such as welfare rights, legal and advocacy services. Their input assists us to identify issues for focus and strengthens our feedback to government agencies. They are also well placed to refer individual or systemic matters to us for investigation. A good example is the then Ombudsman’s decision to conduct an own motion investigation into Centrelink’s decision making surrounding Income Management. Information we received from welfare rights agencies coupled with our own complaints and observations led to this decision. We look forward to working with stakeholders on that investigation.

Our work in our own motion investigation on the use of Indigenous interpreters involved close consultation and engagement with the Northern Territory Aboriginal Interpreter Service (NTAIS). The assistance of the NTAIS helped us to better understand the issues and complexities. The NTAIS also provided training to Indigenous Unit employees in relation to working with Indigenous interpreters. This was immensely valuable for our work in remote communities.

Looking ahead

The Indigenous Unit will continue to conduct outreach to Indigenous communities in the NT, investigate complaints and pursue systemic issues with agencies. In doing this, we will draw on our office’s research into communication and engagement with Indigenous people to continue to refine both our approach and our marketing materials. We will also explore avenues to raise people’s awareness about the Ombudsman and to assist people to access our services outside of our outreach visits.

We intend to increase our focus on assisting agencies to develop and implement accessible, robust and responsive complaint mechanisms, appropriate for people living in remote communities and which can respond to the complexities of the multi-agency, cross jurisdictional environment. We will also work with agencies to improve their communication with Indigenous communities, with a focus on ensuring that people can access the information they need to make informed decisions. Indigenous people should expect that they can access the information they need from government, that they will be given clear explanations and reasons for decisions, and that agencies will be proactive in identifying and responding to problems.

With governments increasingly working together to achieve objectives including under COAG and NPAs, there may be implications for the role of oversight agencies such as the Ombudsman. It is critical that Australian Government agencies are held to account for outcomes of Commonwealth policy or investment. We need to work with agencies and stakeholders to discuss challenges and ensure that oversight mechanisms adequately respond to the changing nature of government service delivery.

We look forward to finalising our investigation into Centrelink’s decision making in relation to Income Management and producing a report dealing with remote housing reforms in the NT.

FEATURE

Improving agencies’ use of Indigenous Interpreters

The Commonwealth Ombudsman hosted a meeting of Commonwealth agencies involved in Indigenous service delivery in the Northern Territory (NT) on 19 June 2011 as a follow-up to his April 2011 report Talking in Language: Indigenous language interpreters and government communication (Report 05|2011). While the report drew upon the Ombudsman’s work in the NT, it is applicable to service delivery to Indigenous Australians across the country.

The report emphasised that interpreters should be made available to agency staff and the customers they are servicing so that meaningful two-way communication can occur. Other key messages were the importance of agency-wide guidelines on the use of interpreters, training for agencies in working with Indigenous language interpreters, engaging with interpreter services during the design of new programs and reviewing contracts and funding agreements to ensure that third parties meet the same standards as those expected of agencies.

The meeting was an opportunity for agencies to come together and explain the steps they have taken to implement the Ombudsman’s recommendations and to discuss the challenges in improving government’s use of, and access to, Indigenous language interpreters. Agencies reported that it also provided a valuable opportunity to share ideas and resources.

More information about the Ombudsman’s report can be found at www.ombudsman.gov.au. Information about the work of the Northern Territory Aboriginal Interpreter Service, as well as tips for working with Indigenous interpreters, and interpreter bookings can be found at http://www.dhlgrs.nt.gov.au/ais or by calling (08) 8999 8353.Colleen Rosas (Director, Northern Territory Aboriginal Interpreter Service) and George Masri (Senior Assistant Ombudsman)

Colleen Rosas (Director, Northern Territory Aboriginal Interpreter Service) and George Masri (Senior Assistant Ombudsman) with the Ombudsman’s report Talking in Language: Indigenous language interpreters and government communication .

  1. A garnishee is a notice issued to a third party requiring them to deduct money held on behalf of or given to a customer and forward it to Centrelink, with or without the customer’s consent, to repay a debt.
  2. The Human Services Legislation Amendment Act 2011 integrated the services of Medicare Australia, Centrelink and CRS Australia on 1 July 2011 into the Department of Human Services. From 1 July 2011, the Child Support Program is identified as Child Support.
  3. A garnishee is a notice issued to a third party requiring it to deduct money held on behalf of or due to a customer (such as wages or bank account funds) and forward it to the Agency, with or without the customer’s consent, to repay a debt to the Agency.
  4. Including National Partnership Agreements on Remote Indigenous Housing and Remote Service Delivery
  5. Accurate as at July 2011 (sourced from NT Department of Housing, Local Government and Regional Services website)

Defence Force Ombudsman

Overview

Each year as the Commonwealth and Defence Force Ombudsman we receive, on average, between 550 and 750 approaches and complaints about Defence-related agencies. This year we received 632 approaches and complaints, compared to 579 received in 2009–2010.

Among Defence-related agencies are the Department of Defence, each arm of the Australian Defence Force (ADF), the Department of Veterans’ Affairs, Defence Housing Australia, Toll Transitions and the Australian Government Security Vetting Agency.

We can investigate complaints as either the Commonwealth Ombudsman or the Defence Force Ombudsman depending on the circumstances. Complaints that arise as a result of a person serving or having served in the ADF are normally investigated under the Defence Force Ombudsman role. These employment-related matters can include complaints about termination, promotion, postings and pay and entitlements. The Commonwealth Ombudsman normally investigates complaints from members of the public about Defence-related agencies. Complaints of this nature can include issues such as weapons range and aircraft noise, contracting matters and service delivery.

Figure 5.11: Approach and complaint trends 2004–5 to 2010–11 for all Defence agencies

Figure 5.11: Approach and complaint trends 2004-5 to 2010-11 for all Defence agencies

Department of Defence and the Australian Defence Force

Complaint themes

We received 229 approaches and complaints about the Department of Defence and 182 about the ADF. Significant issues arising from these complaints included:

The complaints we receive about termination and discharge are often about the procedural fairness aspects of the process. In some complaints about recruitment, pay and conditions, entitlements and debt recovery, we found that decision-making was flawed due to irrelevant considerations being taken into account or the decision maker not having the appropriate delegation.

However, when the rules were applied correctly we sometimes found that there is limited scope for resolution or remedy, apart from provision of a clearer explanation for the decision.

In investigating these complaints, it is our intention to not only identify flaws in the administrative process and so find a solution for the individual, but to also offer suggestions for improving the process in the longer term.

Systemic issues

Our office has received 34 complaints about delays associated with the Redress of Grievance (ROG) process.

The ROG process involves a member’s Commanding Officer (CO) as the first avenue of complaint. Where that officer does not resolve the member’s concerns, the member has the right to refer their complaint to their service chief. There has been a significant improvement in the management of ROGs at Unit (CO) level, particularly in the time taken to finalise ROGs about discharge.

However, once a ROG has been escalated to the service chief level the problem of delay has continued. We have worked with Defence to finalise recommendations aimed at improving the review process attached to the ROG system. We will continue to monitor the timeliness of service chief ROGs and propose to review Defence’s implementation of the recommendations in 2011–2012.

Table 5.1: Defence-related approaches and complaints received, 2004–05 to 2010–11

Agency

2004–05

2005–06

2006–07

2007–08

2008–09

2009–10

2010–11

Australian Army

190

169

145

138

141

111

103

Defence Housing Australia

28

29

36

28

43

31

32

Department of Defence

165

138

106

135

157

176

229

Department of Veterans’ Affairs

216

276

256

139

160

167

172

Royal Australian Air Force

69

80

57

48

45

39

29

Royal Australian Navy

54

54

50

59

49

43

50

Other (see breakdown for 2010–11 in Appendix 3)

12

4

20

15

14

11

17

Total

758

750

670

562

609

578

632

Unreasonable delay

In July 2009, Mr X lodged a ROG with his service chief concerning his suspension from a course. He was informed that his ROG was not likely to be allocated a case officer until after March 2010 and he complained to the Defence Force Ombudsman. Due to the likelihood of the ROG delay overtaking the remedy Mr X was seeking, and the potential for irreparable career disruption, the Defence Force Ombudsman pursued Mr X’s complaint. However, the service chief decision was not made until March 2011.

The decision-maker apologised for procedural flaws in the handling of Mr X’s suspension and the time it had taken to attend to his ROG. However due to the suspension being in force and the delay in handling Mr X’s ROG, providing him with a meaningful remedy was now more difficult.

Another area of concern that Defence has recognised as being a systemic cultural problem involves complaints about unacceptable behaviour in the ADF. The Defence Force Ombudsman welcomes the Defence reviews into aspects of Defence culture and is providing a governance and quality assurance role for the Review of Allegations of Sexual and other Abuse in Defence .

The Defence Force Ombudsman receives complaints about unacceptable behaviour in the ADF, some of which may not have been reported through the appropriate complaint channel in Defence. It is of concern that rank and the chain of command might make some members disinclined to complain or use the military justice system. The Ombudsman’s role in assessing these complaints is limited to investigating complaints about the administrative processes associated with decisions affecting members, and the Ombudsman may also choose not to investigate a complaint if the complainant has not first raised the matter with the ADF or if the ADF is still considering the matter.

In June 2011 the Defence Force Ombudsman met with the Inspector General of the ADF to provide input into the Review of the Management of Incidents and Complaints in Defence . The Ombudsman has provided comment on: the treatment of victims; transparency of processes; the application of relevant equity policies and contracted Defence staff; and the jurisdictional interface between civil and military law. The Ombudsman’s comments were informed by an analysis of complaints received about disciplinary matters, and recommended greater transparency around complainant processes, including publishing results of disciplinary and administrative action and advising the complainant about the results of the action.

Insufficient guidance

Ms Y complained about what she believed to be a lack of investigation by Defence of her sexual assault by a serving member of the ADF. She reported the assault to the hospital and was treated. After undergoing counselling for a few months Ms Y reported the matter to the police. This matter was considered by a civilian court and the ADF member was acquitted by a jury. When the member was charged for the alleged assault he had advised his commanding officer. This was reported (as required) but no further action was taken.

The commanding officer did not consider applying the relevant instruction: Management and Reporting of Sexual Offences . Advice from Defence is that this instruction does not apply because the alleged assault was not a workplace incident. While we accept this, there appears to be no clear guidance to commanding officers on how to manage situations like that of Ms Y.

Update from last year

Throughout 2010–2011 we have been actively monitoring the issue of ROG delay at service chief level. Defence’s backlog at this level reveals significant problems and trends that need to be acted on by Defence.

A new function of Defence commenced in 1 October 2010 – a central security vetting agency in the Department of Defence for Commonwealth security clearances, in addition to clearances for ADF members. Our office has received only four complaints concerning security vetting issues, two of which were investigated.

Stakeholder engagement, outreach and education activities

During the year staff from our office travelled to several military establishments and spoke with commanders, administrators and general service members about the role and function of the Defence Force Ombudsman. We have also delivered presentations to service training courses.

On 28 June 2011 the Deputy Defence Force Ombudsman presented a Defence Portfolio Agencies Forum to highlight emerging issues facing decision makers in Defence and the Department of Veterans’ Affairs. Key speakers were Professor Robin Creyke, who spoke about the framework and processes of the Administrative Appeals Tribunal; Dr Grant Lester, who presented on issues concerning persistent complainants; and Mr Geoff Earley, Inspector General of the ADF, who chaired a lively panel discussion. The Forum was well received with feedback indicating that the content was valuable and thought-provoking.

Looking ahead

The Defence Force Ombudsman has invited selected Defence members to meet twice yearly to act in an advisory capacity through a consultative forum. The forum will discuss issues and processes which may require Ombudsman intervention to assist Defence in its interactions with members, their families or the wider community. It will also provide advice to the Ombudsman to lead to a more comprehensive understanding of Defence issues and identify areas where the Ombudsman may need to make changes to its complaint-handling processes.

The Defence Force Ombudsman is committed to strengthening our relationship with Defence in order to target strategic opportunities for improvement and actively promote and encourage good complaint handling practices.

Department of Veterans’ Affairs

Complaint themes

The Department of Veterans’ Affairs (DVA) administers a wide range of services and benefits to approximately 360,000 Australians. During 2010–12 we received 172 approaches and complaints about DVA, four more than the previous year.

Complaints about DVA are often complex. Depending on the nature, time and place of a person’s service with the ADF, eligibility for benefits, rehabilitation or compensation under one or more of three pieces of legislation may be possible. An important role of our office can be to offer a better explanation for a decision or action. This is often the case in complex DVA matters.

Consequences of overpayments

DVA made overpayments to several elderly veterans’ widows as a result of income received from overseas pension funds not being included in the calculation of the DVA service pension payment.

The DVA’s overpayment guidelines provide for a waiver of debt caused by administrative error if the error is wholly DVA’s fault. The DVA considered that because the widows were partially or fully responsible for the error, the waiver provision was not applicable. DVA then commenced to recover the overpaid funds from the widows.

Our investigation into this complex issue concluded that DVA’s decision not to consider a waiver of the debts was unreasonable. In one case, the widow advised DVA about the death of her husband and provided the necessary income statement to DVA in a timely manner. Whilst the widow had omitted details of one of her overseas pensions from the income statement, DVA did not identify this mistake or a subsequent recording error until four years after its reassessment of the widow’s entitlements. We recommended that the decision not to waive the debt be reconsidered and that the guidelines be reviewed with a view to including certain circumstances where discretion should be applied.

In addition to complexity of provisions, it is common for complainants to have mental and physical health conditions which need to be considered in responding to their complaints appropriately. As a result, it often takes time to develop an accurate understanding of the matters complained of and the interaction the claimant has had with DVA prior to a complaint reaching our office. In such cases we have found DVA ready to assist by providing information to clarify its involvement with the person and to also discuss any follow-up issues that may arise. We note that DVA maintains a ‘better practice model’ in maintaining a dedicated Client Liaison Unit and case coordinators to deal with particularly complex cases and allowing claimants to have regular contact with a dedicated case officer. The Defence Force Ombudsman supports this continuing commitment by DVA to its more vulnerable clients.

In finalising some DVA complaints the only remedy that our office could provide is to better explain why the agency took a particular course of action or why the action taken was, in all the circumstances, not unreasonable.

Systemic issues

A recurring theme in complaints received by our office is that complainants do not understand the explanation provided by DVA in response to their concerns. A priority for our office is to reduce the number of complaints relating to a lack of adequate explanation to veterans and their families about DVA’s legislative and policy requirements.

Update from last year

Throughout 2010–2011 we have monitored the success of DVA’s internal complaint handling process, established in 2010, and referred complainants to the Veterans’ Services and Complaints Management Team. This supports our decision to encourage complainants to try to resolve their problem with the agency before the Defence Force Ombudsman becomes involved.

The Defence Force Ombudsman notes that DVA has been very responsive to recognising the different needs of its often vulnerable client groups and has introduced a number of new `service models’ to assist dependants of deceased ADF members; those multiple or mass casualties; who are seriously injured or wounded; and those with complex or multiple needs.

A positive resolution

Mr Z asked our office to investigate discrepancies in his pension payments, specifically that part of his pension had stopped without a reasonable explanation, and that he was dissatisfied with the lack of response from DVA on this matter.

DVA had begun to investigate Mr Z’s complaint before we commenced our formal investigation. DVA notified our office that an initial error had been made by DVA in determining Mr Z’s service pension claim, and it had arranged back pay for a total of $13,000 owed to him and his wife. DVA agreed that the matter had not been sufficiently investigated when first brought to DVA’s attention by Mr Z, and apologised for the frustration and uncertainty this may have caused Mr Z and his wife.

Stakeholder engagement, outreach and education activities

In October 2010 the Defence Force Ombudsman participated in a Forum presented by the Returned and Services League national state advocates and pension officers.The Defence Force Ombudsman also sponsored a Root Cause Analysis (RCA) workshop with the Society of Consumer Affairs Professionals (SOCAP). RCA can prevent serious high-risk problems from recurring and can help to reduce consumer enquiries and complaints to the Ombudsman. RCA is a helpful tool for agencies wanting to create a continuous improvement culture and to address systemic issues. This workshop was well attended by DVA staff.

Defence Housing Australia and Toll Transitions

Defence Housing Australia (DHA) provides housing services for ADF members. DHA also maintains properties and manages leases with members of the public who lease their houses to DHA. When an ADF member relocates on posting, DHA calculates and arranges for the payment of associated allowances and benefits.

On 1 July 2010 Toll Transitions assumed responsibility for those functions associated with an ADF member’s removal on posting and payment of allowances.

During the last period we received 32 approaches about DHA and five approaches about Toll Transitions.

Many of the complaints related to the adequacy of the policy applicable to ADF removals and allowances payable to ADF personnel. DHA is responsible for delivering a service on behalf of Defence using policy created by Defence. Such cases are not complaints about DHA or Toll Transitions’ service delivery, but are rather complaints about Defence policy. In these cases the Defence Force Ombudsman is able to comment on whether the rules are ambiguous or poorly worded, but this does not necessarily provide a satisfactory remedy for the complainant.

FEATURE

Defence Portfolio Agencies Forum

The Deputy Defence Force Ombudsman Alison Larkins held a Defence Portfolio Agencies Forum on 28 June 2011. The Forum provided an opportunity to promote discussion among senior Defence policy officers and decision-makers about administrative issues they needed to be aware of, systems they should consider implementing, and their openness to external critique.

Guest speakers were:

In speaking about the framework and processes of the AAT, Professor Creyke deconstructed several common assumptions, including that by the time a matter reaches the AAT it is often too late to remedy a bad decision.

Dr Lester analysed the spectrum of complainants and the management of unreasonable complaint behaviour, emphasising the importance of recognising and managing it. He also suggested methods of early detection and alternative management strategies.

The presentations were concluded with Mr Geoff Earley who chaired a lively panel discussion on the issues raised by the speakers. Feedback from the participants was that the content from all presenters was valuable and worthwhile.Dr Grant Lester, consultant psychiatrist at the Victorian Institute of Forensic Mental Health

Dr Grant Lester, consultant psychiatrist at the Victorian Institute of Forensic Mental Health, discusses the management of unreasonable complaint behaviour.

Immigration Ombudsman

Department of Immigration and Citizenship

Overview

In 2010–11 we focused on two streams of complaints related to the Department of Immigration and Citizenship (DIAC, or the department). One related to irregular maritime arrivals and detention issues. The second stream of complaints related to other migration programs and activities, such as General Skilled Migration. It also included complaints about citizenship decision-making and processing.

During 2010–11 we saw a continued increase in the numbers of irregular maritime arrivals on Christmas Island and their placement in detention facilities located in both remote locations and metropolitan areas on the mainland. As a consequence we expanded our inspection program and faced new challenges in providing detention reviews for individual detainees.

Despite these challenges we continued our program of inspections of immigration detention facilities, own motion investigations into systemic issues, and ongoing engagement with the department through regular meetings, briefings and consultation on proposed initiatives. This preventive approach helped to reduce the volume of complaints received about systemic issues and enabled the department to quickly implement processes to address underlying problems.

Overall, we received 2,137 approaches and complaints in 2010–11, a 34% increase from the previous year. This increase is explained by the increased number of irregular maritime arrivals who complained to the office in the course of the year, particularly as a result of our active visits program where more than 90% of detention-related complaints were made.

Of these complaints, we investigated 341, or 16% of all complaints received, and were able to facilitate remedial action by the department in 242, or 71%, of those cases we investigated.

We held regular liaison and engagement activities with the department via its Ombudsman and Human Rights Coordination Section. This included monthly meetings to reconcile complaints and complaint-handling issues as well as a series of briefings by DIAC on areas of interest to us. The latter assisted the office to better understand the context of many of the complaints we had received and to follow up on systemic issues.

The complaint trends we observed in 2010–11 were similar to those we observed in 2009–10, suggesting there is scope for us to investigate them to identify and focus on systemic or thematic issues. We are actively addressing many of these trends with the department.

We continued our program-monitoring compliance and removal inspection actions.

We completed two own motion reports in this reporting period in February 2011:

We are conducting an investigation into increasing levels of suicide and self-harm in immigration detention and will report on outcomes and recommendations of that investigation in the coming year.

Figure 5.12: DIAC approach and complaint trends, 2004–05 to 2010–11

Figure 5.12: DIAC approach and complaint trends, 2004-05 to 2010-11

Complaint themes

Monitoring of DIAC’s internal complaint-handling

Throughout 2010–11 we continued to monitor the quality of DIAC’s internal complaint handling, which is conducted by its Global Feedback Unit (GFU). This underlies our policy of encouraging complainants to try to resolve their problem with the agency before the Ombudsman becomes involved. We monitor the unit’s complaint-monitoring practices and reporting by reviewing its complaint records.

Our monitoring activities noted that generally the unit’s complaint handling was satisfactory and had properly dealt with the issues raised by complainants. In the small number of cases where we found the complaint handling incomplete, the underlying themes related to complaints about delays in security clearances. When the complexity of a case required it to be referred to the processing area, the unit had experienced difficulties in getting a timely response. These problems have been raised with DIAC on a case-by-case basis.

Ombudsman staff liaised with DIAC staff on an ongoing basis to discuss their processes for resolving the complaints the department receives from members of the public, and its handling of our investigative inquiries. We discussed our role with DIAC and our ideas for improving complaint handling generally.

Security clearance delays in offshore processing

Through 2010–11 we continued to receive a large number of complaints from visa applicants who were concerned about the time taken to finalise their visa applications. The case below provides an illustration of the type of complaints we received and the concerns expressed by applicants who face uncertainty about when their application will be finalised.

Our investigations found that in a majority of cases, delays were due to the high number of visa applicants requiring security clearances, which were being carried out by an external agency. These delays were not always within DIAC’s direct control.

DIAC has worked with the external agency to address delays in the referral process, further developed its Security Referral System (SRS) protocols and provided additional training to its staff to better manage and monitor the referrals and clearances process. During 2010–11 DIAC provided our staff with a demonstration of the SRS and a briefing on how its staff handle delays. This has assisted Ombudsman investigation officers in their work.

Security clearance issues

Ms AA, an Australian citizen, complained about DIAC’s delay in finalising an application for a spouse visa for her husband. She was concerned as she was expecting a child and wanted her husband to be granted his visa to be in Australia for the birth. DIAC claimed it had no control over the delay because it was caused by a security check of Mr AA’s background, which was being conducted by an external agency.

Our investigation revealed that DIAC had provided mandatory information about the security checks required for the grant of a spouse visa and that these checks were undertaken by external agencies. We further explained to Ms AA that DIAC had followed the legislative requirements in regard to Public Interest Criteria referrals to external agencies, in respect of which, DIAC had no control over the time taken to process the clearances.

International student visa processing

Some complaints stemmed from the reforms to the General Skilled Migration program, particularly changes to the skills needed in the Australian labour market. Changes to the skills sought meant the studies being undertaken by some students aspiring to gain permanent residency became redundant.

In one case, a complainant raised concerns about an apparent delay in assessing the validity of her visa application and the impact it had on her ability to obtain permanent residence. This case is also relevant to our discussion of systemic visa application validity issues at the end of this chapter and is discussed in more detail there.

There was also a period of several months during which a review of the skills sets Australia needed was conducted. Students, migration agents and educational institutions raised concerns about the impact this had on their capacity to make informed decisions.

Our office noted some processing issues related to students, particularly concerning misunderstandings about implementation by DIAC of processing arrangements for subclass 485 applications. The case study over the page illustrates one such issue.

Student visa issues

DIAC implemented arrangements for processing subclass 485 applications. Under the arrangements, DIAC will process subclass 485 applications in the following order:

  1. Applications from people who will have completed a Professional Year before 30 June 2011 who lodged a subclass 485 application before 17 March 2011.
  2. Applications lodged from 9 February 2010 to 30 June 2010 where the nominated occupation was on the Skilled Occupation List (SOL) Schedule 3 in effect from 1 July 2010.
  3. All other applications will generally be processed based on the date they were received.

Mr AB raised concerns that as a ‘priority three’ applicant, his application may not be finalised before the new points test comes into effect. He stated the criteria used by DIAC to prioritise the processing of applications were unfair. Our investigation found that DIAC’s decision to implement the current processing arrangements was in accordance with the relevant legislation.

Compliance and removals

Monitoring of DIAC’s compliance functions demonstrated an improvement in its compliance field operations and training. The main purpose of this ongoing monitoring is to assess the effectiveness of DIAC’s policies and procedures governing the location, identification and detention of unlawful non-citizens.

Field observations by Ombudsman staff indicated that DIAC officers were detaining people as a last resort, in keeping with the former Minister for Immigration and Citizenship’s statement relating to detention values.

We also observed some of the DIAC training sessions for its field operations staff who plan and conduct compliance activities.

Compliance Issues

Mr AC complained to us about a decision to issue him a Bridging Visa E (BVE) without work rights. His wife and two children were dependants on his visa.

Mr AC was working lawfully whilst going through the review process for a substantive visa. DIAC conducted a compliance visit to his home on 1 July 2010, at which time Mr AC became aware for the first time that his BVE would expire at midnight. On the same day Mr AC went to DIAC’s office and was told to come back the next day. By the time he returned at the appointed time he had been unlawful for nine hours. Mr AC decided to request Ministerial Intervention to stay in Australia, a process that can take many months, and was issued a BVE without work rights.

DIAC’s response to our investigation indicated that the imposition of the no work condition was a correct application of the law relating to the particular visa, because Mr AC had been unlawful. We considered that although DIAC was not responsible for notifying Mr AC of the impending expiration of his BVE, it did not give Mr AC important information about the implications of becoming unlawful, even for a short time, when it was within its power to do so. We asked DIAC to reconsider the visa options open to Mr AC given this context.

In response to our investigation, DIAC identified that in the compelling and exceptional circumstances of the case it could grant Mr AC a new BVE with permission to work. It also undertook to make changes to its training to reinforce the lessons learned from Mr AC’s complaint.

Immigration detention inspections program

We expanded our program to cater for increased numbers and locations of irregular maritime arrivals. Our visits also included complaint clinics and interviews with detainees to support our detention review and oversight function. We aim to visit each immigration detention centre (IDC) at least twice a year while maintaining a schedule of four visits a year to Christmas Island and six visits a year to Villawood Immigration Detention Facilities.

During 2010–11 our teams visited:

IDC

Timing

Christmas Island IDC

September, November 2010; May, June 2011

Curtin IDC

May 2011

Scherger

February 2011

Inverbrackie

December 2010, March 2011

Darwin IDC and APODS

January 2011

Villawood

July, September, December 2010; February, May 2011

Perth IDC

July 2010

Maribyrnong IDC

September 2010

Leonora APOD

April 2011

Adelaide Immigration Transit Accommodation

May 2011

Observations across the detention network

We made a number of general observations about issues of concern within the detention network. These included:

Detention Issues

An Indonesian boat crew detained on Christmas Island approached us on a number of property-related issues. The complaint was multifaceted and included access to suitable clothing to play sport and attend the mosque (they were not attending for this reason), access to schooling for the school age crew, access to internet, and access to English classes.

Discussions with senior Serco staff during the visit resolved all issues raised. This shows the value of our visits program: a mass complaint by 12 or so persons was resolved in less than a day.

Remote locations

Throughout the year, increasing numbers of irregular maritime arrivals were relocated to immigration detention centres in remote areas. In these centres we observed:

We were concerned that the cramped conditions found on Christmas Island were being replicated on a smaller scale in several centres. In general terms:

At Scherger Immigration Detention Centre (Weipa – Far North Queensland) we noted that contingency planning for cyclonic events in the area was inadequate and we made several recommendations concerning this.

A particular concern of ours related to the lack of specialist psychiatric services on site. This was particularly important when detainees were being advised that their claims had been refused:

Record-keeping and processes for dealing with incidents

Our ongoing investigation of an incident which occurred during an inspection, as well as other incidents brought to our attention through complaints and reviews, has highlighted several concerns about the management of incidents. These issues include:

We will continue our focus on these issues during the coming year in anticipation of improvements in record keeping and processes for managing incidents.

Issues raised by detainees during inspection visits

We observed an underlying level of tension in many centres as well as high levels of distress and anxiety amongst detainees.

Issues raised in complaints clinics:

Detainees consistently raised concerns about the process of their refugee status assessments, as discussed below. This office has provided a report to DIAC detailing our observations of detention facilities arising from visits conducted in the later part of the financial year. DIAC is expected to provide a response to the observations and suggestions outlined in the report.

Oversight of Refugee Status Assessment

The High Court’s decision in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 of November 2010 confirmed that the Refuge Status Assessment and Independent Merits Review processes were valid but there were errors in the Independent Merit Review processes for the two cases before the Court. The Court also determined that irregular maritime arrivals were able to seek judicial review of negative refugee status assessments. In response DIAC introduced a refined process known as a Protection Obligation Determination (POD). When the new system commenced on 1 March 2011, around 900 irregular maritime arrivals had not commenced Refugee Status Assessment. These were processed under the POD arrangements. At this time there were around 1300 clients who had commenced a Refugee Status Assessment and were awaiting an outcome. Further, on 1 March 2011 there were around 1900 irregular arrivals who were eligible for an Independent Merits Review. Almost 450 of the 1900 were awaiting notification of the refugee status assessment or were yet to request review.

We received a number of complaints about delays in the Refugee Status Assessment process caused by delays in security clearances by an external agency.

Issues with Refugee Status Assessment processing raised by detainees during inspection visits

We received complaints about:

Detainees had a perception that certain Independent Merits Review decision-makers were consistently positive or negative in their decisions.

We felt there was limited understanding of the Independent Merits Review process, when cases will be referred for review, and how referrals are prioritised.

There were also concerns about the:

Our office will continue to investigate and monitor these issues.

Reporting on people held in immigration detention

The Ombudsman is required under s 486O of the Migration Act 1958 to report to the Minister on the appropriateness of the arrangements of a person’s detention for anyone who has been in immigration detention for more than two years, and every six months thereafter. A de-identified copy of the report is also tabled in Parliament.

In 2009 a non-statutory process was implemented whereby the Ombudsman would report to the Secretary 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.

The number of non-statutory reports we received from DIAC increased dramatically in January and placed pressure on the resources of DIAC and our office to respond in an effective and timely manner.

A risk created by the increased number of people in detention may be that reviews become process driven rather than purpose driven.

We noted that during the latter part of the financial year that the reports received from DIAC did not include relevant and essential detainee health information and other sundry matters. Following discussion with DIAC this information has since been supplied. We are continuing to work with the department to streamline the reporting process and address the challenges imposed on both this office and DIAC by an increasing number of detainees.

Detention reviews are a valuable indicator of systemic issues in immigration detention arrangements and in refugee claims processing.

In part as a result of the significant increase in the number of people in immigration detention, our office will be reviewing the approach we take to oversight of those who have been in detention for the six months to less than two years period.

Resolving complex issues

DIAC faces the problem of an increasing number of detainees who have been found:

These groups raise complex issues for which DIAC has limited solutions under the current legislative and policy framework. The office is concerned that they appear to face indefinite detention.

Two-year review reports

In according with the Migration Act, this office has a statutory reporting requirement for those persons who have been detained in immigration detention for two or more years.

Reports received under s 486N and s486O of the Migration Act, 2010–11 are:

S 486N reports received from DIAC

60

S 486O reports sent to the Minister

41

People detained for more than two years in Immigration Detention have often been exposed to significant incidents within the detention network, including but not limited to suicides and disturbances at detention centres in Villawood, Darwin and Curtin. These are obviously negative and traumatic environments for people who may also be experiencing depression and anxiety.

Issues raised in the two-year reports include:

Two Year Report

Two reports to the Minister about detainees at Villawood Immigration Detention Centre include allegations of detainee to detainee assault, Detention Service Provider (DSP) officer to detainee assault; and detainee to DSP officer assault. Although detainees have the right to ask for the police to be called to investigate an alleged assault, the police report indicated a general view that charges will not be pursued when the alleged perpetrator has an unresolved immigration status. There is also concern that jurisdictional issues between NSW Police and the Australian Federal Police have not been resolved, with neither agency taking responsibility for investigating claims of alleged offences at Villawood.

Our section 486O report highlighted the need to provide a safe environment for detainees and staff, which includes the involvement of the criminal justice system where appropriate. The Minister has asked DIAC to review the situation. and this office understands that this is in process. This office will continue to monitor the management of serious incidents and investigations within the detention network

Non-statutory review reports

Non-statutory review reports were prepared on the following:

Complaints from people in detention

Recurrent complaint issues include:

Systemic issues

Visa application validity

In July 2009, the Ombudsman released Department of Immigration and Citizenship: Invalid visa applications (Report 10|2009). This investigation focused on DIAC’s management of invalid visa applications and considered the problems that can occur when invalid visa applications are poorly managed. The investigation looked at the timeliness and adequacy of advice given to visa applicants about their invalid visa applications.

The report found that overall DIAC’s management of applications was in accordance with current policy and legislation. However, key areas in need of attention related to:

During the next financial year this office will be reviewing the steps DIAC is taking to address the issues identified by the office during 2010–11 with a view to making recommendations if we identify areas that need further attention. The following case study illustrates some of the issues that arise in visa application validity cases.

See also the proposed own motion and systemic investigations in the ‘Looking ahead’ section on page 113.

Visa application validity Issues

Ms AD arrived in Australia on a student visa. When she had finished her tertiary studies she became eligible to apply for skilled migration. Ms AD needed to lodge her skilled migration application within six months of having completed her course. She lodged her application on 21 March 2010, and within the prescribed time, but did not provide a skills assessment from the relevant assessing authority at that time. This meant that her application was invalid. While DIAC considered whether her application became valid on 9 June 2010 (the day her skills assessment was received by the Department), because Ms AD was no longer the holder of a substantive visa at this later time it could not determine that the application was in fact valid. DIAC formally advised her of this on 28 February 2011.

Prior to lodging her application, Ms AD spoke to a DIAC officer who advised her that she needed to provide evidence of having completed her studies. However, the officer may not have told her that she also needed to provide evidence of a suitable skills assessment from the relevant assessing authority. While DIAC officers can provide general advice to applicants, it is the responsibility of applicants to ensure that they meet all relevant visa application and eligibility criteria. DIAC provides this information on its website and applications forms, including:

For these reasons, we formed the view that DIAC’s general advice to Ms AD was not inadequate or incorrect or that its actions were unreasonable.

However, Ms AD also complained that DIAC’s delay in advising her that the application was invalid meant that she was no longer eligible to apply for a further substantive visa while in Australia. On considering this issue, we felt that if DIAC could have advised her in a more timely manner that her application was invalid, she may have been able to avoid being disadvantaged by becoming unable to validly apply for permanent residence in Australia. However, an investigation of DIAC’s actions in this instance would not have provided her with a practical remedy or positive outcome.

Cross-agency issues

We may investigate as appropriate or necessary, issues that arise in the immigration context and which involve other agencies or service providers. For example, in the field of student visas and skilled visas, or in relation to health and detention services provided for DIAC by private individuals or companies.

Please see the Overseas Students Ombudsman section on page 123 for information on the department’s role in that jurisdiction.

Reports released

In February 2011, the Ombudsman released Christmas Island immigration detention facilities: Report on the Commonwealth and Immigration Ombudsman’s oversight of immigration processes on Christmas Island October 2008 to September 2010 (Report 02|2011).

Outline of recommendations and DIAC’s response include:

In February 2011, the Ombudsman released Department of Immigration and Citizenship: Proper Process for Challenging a Tribunal Decision (Report 03|2011). The investigation examined DIAC’s approach to the implementation of a Migration Review Tribunal decision that the complainant was in a genuine ongoing relationship for the purposes of the grant of a temporary partner visa. After two years a permanent partner visa could be granted if prescribed criteria could be met. In response to our investigation, DIAC indicated it had concerns about the integrity of the complainant’s relationship and, because of those concerns, it disagreed with the Tribunal’s relationship findings. It did not, however, apply for review of the Tribunal’s decision and after an 18-month delay refused the permanent partner visa, two days after granting the temporary partner visa.

We formed the view that DIAC’s approach involved procedural deficiencies including inconsistency and a denial of natural justice, a failure to follow statutory appeal processes and delay.

We recommended that DIAC ensure:

DIAC accepted all three recommendations and acted quickly to address the visa grant. It also gave consideration to developing an internal monitoring mechanism to oversight implementation of tribunal decisions and develop further policy guidance for decision-makers on compliance with tribunal decisions.

See the ‘Systemic Issues’ section on page 110 relating to visa application validity as a current systemic theme.

Update from last year

See earlier sections relating to visa application validity as a systemic theme and as a released report.

During the upcoming financial year we propose reviewing the steps DIAC has taken to address the issues identified by the Ombudsman with a view to making further recommendations if we identify areas which need further attention.

Stakeholder engagement, outreach and education activities

We held regular liaison and engagement meetings with DIAC’s Ombudsman and Human Rights Coordination Section to discuss complaint issues.

Through the Section we arranged for a series of briefings that helped our office better understand the context of a number of complaints we had received.

Staff have attended, or will be attending, a range of stakeholder community presentations and conferences on matters of relevance. We will be looking at developing a program of community stakeholder forums through roundtable meetings, attending conferences and as part of our own motion processes.

Looking ahead

During the next financial year, the office is looking to:

The year ahead will also bring a continuing challenge to maintain quality review and oversight of systemic issues and individual cases within the immigration detention framework. We will continue to examine the circumstances of prolonged detention and the implementation of the immigration detention values for detainees in general.

FEATURE

Immigration Detention – visits program

During the latter part of 2010 this office reviewed the approach taken to the oversight of immigration detention facilities with a view to providing equitable coverage of all centres. We determined that to provide a commensurate level of service to all irregular maritime arrivals regardless of location the existing visit program should be expanded to include all immigration detention facilities on mainland Australia. An assessment of the oversight needs determined that it was feasible to undertake formal visits to each facility at least twice a year with a capacity to increase our presence in any particular location if the need arose.

The trial of the visits program is considered to be a success with activities including conduct-of-complaint clinics, interviewing individual long-term detainees and observing local practices and procedures. As a direct result of the program we have had the opportunity to speak to more than 500 individual detainees and groups with whom we would otherwise not have had contact due to communication challenges associated with these groups and the remote locations in which they are detained. In the majority of instances the issues raised by detainees have been resolved through direct liaison with the Department of Immigration and Citizenship and Serco staff during the visit or if required addressed more formally post-visit.Christmas Island Immigration Detention Centre

Christmas Island Immigration Detention Centre – North West Point

  1. In essence, the principle that a person cannot be returned to a place where they fear harm, including persecution.
  2. This office will continue to monitor the resolution of the jurisdictional issues surrounding potentially criminal acts within detention facilities and the development of a Memorandum of Understanding between DIAC, the Australian Federal Police and State police.
  3. This office notes that DIAC is continuing to work with the Detention Health Advisory Group (DeHAG) and industry experts to improve the level of psychological support provided to detainees and we will continue to monitor the efficacy of this service through our routine visits and reporting functions.

Law Enforcement Ombudsman

Law Enforcement

Overview

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 made about the:

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 the AFP’s complaint-handling arrangements.

The relevant legislation relating to these functions of the Ombudsman is shown in Table 5.2.

Table 5.2: Legislative basis for Commonwealth Ombudsman oversight of law enforcement activities

Legislation

Function

Investigations

Ombudsman Act 1976

Investigate complaints about the AFP, AGD, ACC, CrimTrac, ACLEI, AUSTRAC

Witness Protection Act 1994

Investigate complaints from people placed on the National Witness Protection Program or from unsuccessful applicants

Review

Australian Federal Police Act 1979

Report to the Parliament on the AFP’s complaint handling, with comments on its adequacy and comprehensiveness; receive notification of serious misconduct matters from the AFP

The Ombudsman also inspects the records of law enforcement agencies and other agencies to ensure compliance with legislative requirements applying to certain law enforcement and regulatory activities. This latter work is described in the Monitoring and inspections section of this report.

Complaint themes

Key issues arising from law enforcement complaints to the Ombudsman’s office included:

Australian Federal Police

The Ombudsman’s office performs two significant functions in relation to the AFP. We investigate complaints from both members of the public and members of the AFP, and we also conduct reviews of the administration of the AFP’s complaint handling. With this combination of functions, the Ombudsman is well placed to help the public to have confidence in the AFP by being independent, impartial and honest in our views formed from our unique oversight perspective.

A summary of the complaint trends since 2004–05 are shown in Figure 5.13 below. The significant reduction in the number of complaints received after 2006–07 is principally due to a change in the legislation governing the Ombudsman’s role in relation to AFP complaints.

Figure 5.13: AFP approach and complaint trends, 2004–05 to 2010–11

Figure 5.13: AFP approach and complaint trends, 2004-05 to 2010-11

Most of the Ombudsman’s law enforcement work in 2010–11 related to complaints made by members of the public about the actions of members of the AFP. Complaints made to the AFP are dealt with under the Australian Federal Police Act 1979 (AFP Act) and complaints can also be made to the Ombudsman and investigated under the Ombudsman Act 1976 . The Ombudsman has a statutory obligation to at least annually review the AFP’s complaint handling under Part V of the AFP Act and one such review was conducted during the year.

Review of complaint handling

The Ombudsman has an obligation under s40XA of the AFP Act to review the administration of the AFP’s handling of complaints through inspection of AFP records. This includes records of the handling of complaints about ACT Policing. The Ombudsman reports to the Commonwealth Parliament annually, commenting on the adequacy and comprehensiveness of the AFP’s handling of conduct and practices issues, and inquiries ordered by the relevant Minister. Our most recent Annual report on the Commonwealth Ombudsman’s activities under Part V of the Australian Federal Police Act 1979 covered the period 1 July 2009 to 30 June 2010 and was tabled in Parliament in February 2011. This report covered three reviews and is available on the Ombudsman’s website.

The combined recommendations that were made to the AFP from the three reviews referred to in the report were as follows.

  1. The AFP should conduct further analysis to determine the causes of delay in finalising complaints in all categories.
  2. The AFP should continue to focus on improving outcome letters to complainants to provide details of the finding made and reasons for those findings.
  3. The AFP should give more attention to maintaining regular contact with complainants during the course of an investigation and, where a matter will not be finalised within the prescribed time, provide a report to the complainant that outlines progress.
  4. The AFP should explain the complaints process clearly to a complainant and record this in their record management system (CRAMS).
  5. The AFP should advise the complainant they have the right to complaint to the Ombudsman about the actions of AFP members and about AFP policies, practices and procedures, and advise how they can complain.
  6. The AFP should improve the standard of recording of information in Operational Safety Use of Force Reports, consistent with the requirements of the Commissioner Orders (CO3).
  7. Investigations and adjudications of complaints of excessive use of force should overtly demonstrate that the CO3 requirements of negotiation and de-escalation have been fully considered. Members using force should be required to demonstrate that they appropriately employed or discarded these strategies based upon the circumstances of the incident.
  8. The Operational Safety Use of Force Report should be amended to include a section requiring the member to set out full details of the member’s attempts to negotiate and de-escalate the situation, or to set out full details of why this was not appropriate in the circumstances.
  9. Complaint investigations should seek to resolve any difference between the evidence of complaints and members, particularly for more serious conduct issues, by seeking corroborating evidence where this is reasonable to achieve. This should include other forms of evidence such as CCTV records.
  10. Investigators and decision-makers should consider a member’s complaint history when conducting a complaint investigation and making a decision whether or not to establish a complaint.

We noted that the AFP continued to make efforts to improve the quality and consistency of its complaint handling. In particular the standard of adjudications of complaints was high. However, we noted deteriorating timeliness in resolving complaints across all complaint categories1. It was also noted that the AFP could better use the information provided by complainants to identify and address systemic problems. We have consistently found that complaints from members of the public have a low rate of being ‘established’2 by the AFP. For example, from the time that Part V began in December 2006 until November 2009, no complaints from members of the public for excessive use of force were established through the AFP complaint-handling process. However, we did not draw any conclusion from this finding. We intend to monitor the way that the AFP deals with complaints about excessive use of force.

During this year we also conducted an inspection to review the AFP’s complaint handling for the period 1 March – 31 August 2010. The results of that review will be reported to Parliament in the latter part of 2011.

Complaints received

During 2010–11, we received 349 approaches and complaints relating to the work of the AFP at the ACT community policing (142), national (182) and international (25) levels. This is a slight reduction on the 389 received in 2009–10. Of the 349 complaints, 183 complainants were advised 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. The office further examined 166 of the complaints. The most common issues concerned:

Complaints finalised

During 2010–11, we finalised 406 approaches and complaints about the AFP – 148 related to ACT Policing, 19 to International Operations, and the remainder to national issues. In 185 cases we referred the complainant to the AFP. We declined to investigate 66 complaints for reasons including 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.

There were 24 complaints that were out of our jurisdiction and in 15 cases we advised the complainant to pursue their matter with another oversight body, court or tribunal.

We completed 117 investigations and advised the AFP that we were critical of its actions in 15 of those cases. In 12, the main criticism was the unreasonable delay in the AFP investigating and finalising the complaints. In two cases we found there to be a legal error and in one that there had been inadequate advice or explanation to the complainant.

Police behaviour

Mr AE contacted this office in relation to Police behaviour at the site of his son’s car crash. Mr AE said the crash took place the day after his house had burnt down. Mr AE was aggressively arguing with his son at the crash site when police were called. Mr AE said that police yelled at him and used capsicum spray. Mr AE complained to the AFP which acknowledged that police at the scene did yell at Mr AE due to his aggressive behaviour to his son but there was no acknowledgement of the use of capsicum spray. Our investigation revealed that the actions of the police were not unreasonable in the circumstances and we found no evidence to indicate that capsicum spray was used on Mr AE.

Unreasonable delay

Mr AF lodged complaints with the AFP concerning criminal allegations against him. Mr AF said that an unknown member of the public whom Mr AF suspected was an AFP officer contacted his employer and disclosed personal information that led to Mr AF having to leave his employment. He contacted this office and we investigated the delay in the AFP investigating his complaints. In our view, there was an unreasonable delay of over 23 months to resolve Mr AF’s complaints, with a closure date still to be determined when we finished our investigation. This far exceeds the benchmark time standard outlined in the AFP National Guideline on Complaint Management.

A badly handled complaint

Mr AG complained to this office that the AFP officer who had investigated his complaint was the supervisor of the officer about whom he had complained. The outcome of that investigation was that Mr AG’s complaint was ‘not established’. The original complaint that Mr AG had made to the AFP was that an officer had acted on unsubstantiated information to make enquiries about Mr AG that had caused him embarrassment.

After we investigated Mr AG’s complaint we came to the view that the original officer had made an error in judgement in the actions that he had taken. However, of particular concern to us was that the AFP officer who investigated Mr AG’s complaint had not disclosed that he was the supervisor of the officer complained about. We were of the view that this supervisor had also not properly investigated Mr AG’s complaint and not adequately disclosed what we considered to be his conflict of interest in conducting this investigation. The Ombudsman was sufficiently concerned about this matter, and the initial AFP response to our views, to prepare a report to the AFP Commissioner about our conclusions on the investigation and to recommend that the AFP better address conflict of interest, and information sharing issues, and improve its record keeping.

The Commissioner reconsidered the case in light of the Ombudsman’s comments and commissioned a review of the way that the AFP had managed the complaint and the circumstances that led to that complaint being made. The Commissioner’s conclusion was that the case showed isolated issues of procedure in terms of the actions of the officer subject to the complaint and the officer who undertook the complaint investigation. However, the Commissioner was satisfied that a ‘conflict of interest’ was not a key factor in either the original investigation or the complaint investigation.

The Commissioner agreed to action the Ombudsman’s recommendations in relation to conflict of interest and record keeping but was of the view that the AFP’s information sharing practices were consistent with the relevant legislation.

Given the AFP response the then Ombudsman decided not to publish the report, but he was sufficiently concerned about the way the original complaint was managed to reiterate to the Commissioner his critical findings.

Own motion investigations

In the 2009–10 annual report, we indicated that the Ombudsman had commenced an own motion investigation to determine if the AFP’s practice of making payments to witnesses, particularly large payments, was widespread, and if so whether the governance in place was suitably robust. However, we have suspended work on this investigation pending the resolution of some matters before the court.

Looking ahead

Over the next year we will continue to focus our attention on working with the AFP to improve its timeliness in finalising complaint investigations. The establishment of the Adjudication Panel in 2010, and the appointment of a consultant to adjudicate on older Category 3 complaints, demonstrates that the AFP is taking steps to address this problem.

We would like to see the AFP further embrace complaints from members of the public as a resource for the AFP to improve their operations and interactions with the wider community. The AFP generally agrees with our review recommendations and we will continue to monitor steps taken to implement them.

Australian Crime Commission (ACC)

Complaints about the ACC are managed under the Ombudsman Act. In 2010–11, we received three complaints about the ACC. One of the complaints we referred back to the ACC in the first instance and the other two were considered out of our jurisdiction as they were employment related.

Attorney-General’s Department

The Attorney-General’s Department provides expert support to the Government in the maintenance and improvement of Australia’s system of law and justice and its national security and emergency management systems.

In 2010–11, we received 31 complaints and approaches about the Department. In 13 instances, we advised the complainants to raise their concerns with the Department; we declined to investigate eight complaints; three were referred to our Indigenous Team for investigation (they related to Night Patrols in indigenous communities, administered by the Department); the remainder were either out of jurisdiction or more in the nature of preliminary inquiries.

In one case we investigated we recommended that the complainant be provided with an explanation as to why the Department exempted certain documents from the complainant’s FOI request.

Australian Commission for Law Enforcement Integrity (ACLEI)

The Integrity Commissioner, supported by the Australian Commission for Law Enforcement Integrity (ACLEI), is responsible for preventing, detecting and investigating serious and systemic corruption issues in the Australian Crime Commission and the Australian Federal Police.

During 2010–11, we received three complaints about ACLEI and finalised four complaints during the year (as one related to the previous year). Two complaints were referred to the Australian Federal Police as they were more relevant to the AFP and one was referred to ACLEI in the first instance. In one case we suggested that ACLEI should communicate better with the complainant who was concerned the ACLEI investigation of the complaint was taking too long.

Keeping complainants informed

Ms AH had referred a matter to ACLEI concerning allegations of corruption within the Australian Federal Police.

Ms AH complained to this office that ACLEI had failed to keep her informed of the progress of the matter. We noted that ACLEI does not have a complaint-handling role and does not generally provide personal remedies or restitution to complainants. How ACLEI conducts its inquiries is also a matter for ACLEI to determine. However, in our view, ACLEI, as an Australian government agency, is obliged to conduct its administration in an appropriate manner. This includes managing the expectations of those people who approach it. ACLEI offered to contact Ms AH to inform her of the outcome of her referral.

CrimTrac

CrimTrac’s primary role is to provide national information-sharing solutions to support the effective operation of police services and law enforcement agencies across state and territory borders. During the period, we received no complaints relating to CrimTrac.

AUSTRAC

AUSTRAC is Australia’s anti-money laundering and counter-terrorism financing regulator and specialist financial intelligence unit.

We received three complaints during the 2010–11 about AUSTRAC compared to five complaints in 2009–10. Two of these complaints were from the same person about the same issue and this investigation is still in progress. The other complaint was considered out of our jurisdiction and the complainant was advised to contact AUSTRAC for more information about the financial-related issue raised. Another complaint received during the year was considered to be employment related and out of our jurisdiction so the complainant was referred to other authorities.

Stakeholder engagement, outreach and education activities

Staff of the Law Enforcement Team meet regularly with the AFP Professional Standards officers and both agencies hold a joint annual forum to discuss issues of mutual interest and to work on ways to improve the AFP’s complaint-handling processes. This year we reviewed the AFP Categories of Conduct for joint consideration by the AFP Commissioner and the Ombudsman.

The Law Enforcement Team engaged in a number of outreach and stakeholder activities during the year to discuss the role of the Ombudsman and our complaint-handling procedures:

Feature

Australian Federal Police/Ombudsman Forum

The Ombudsman’s office hosted the annual Australian Federal Police/Ombudsman Forum in March 2011. The Forum is a valuable opportunity to discuss relevant issues that arise through the work of both agencies, and to exchange information and ideas on ways to improve the AFP’s complaint-handling processes. The Forums contribute to a greater understanding by our office of how the AFP operates and the diversity of functions it performs. These Forums have helped build the professional relationship between the AFP’s Professional Standards Section and Law Enforcement Ombudsman staff to enable a better understanding of the issues that each face in investigating complaints.

Among the issues considered were proposed changes to the Categories of Conduct, which form the basis for AFP investigation of complaints against AFP members. The changes to the Categories will be considered next year by the Ombudsman and the AFP Commissioner.

Discussions were also held about how the Professional Standards Section could improve the time taken to investigate complaints, as the percentage of complaints being finalised within benchmarks at that time was low. Recent advice from the AFP indicates there has been an improvement in the timeliness of complaint investigation.

Another focus of the Forum was the low establishment rates3 for complaints from members of the public as compared to those raised internally within the AFP.

It was agreed that these issues would be further addressed in future Ombudsman Reviews under Part V of the AFP Act 1979 .Delegates at the Australian Federal Police/Ombudsman ForumDelegates at the Australian Federal Police/Ombudsman Forum

Delegates at the Australian Federal Police/Ombudsman Forum – hosted by the office of the Commonwealth Ombudsman, March 2011

  1. The AFP Commissioner and the Ombudsman, jointly determine the kinds of conduct that are Category 1, 2 or 3 conduct for the purposes of the AFP Act. See feature at the end of this section for more information.
  2. A complaint is established where the AFP investigation concludes in favour of the complainant or against the AFP member.
  3. A complaint is established where the AFP investigation concludes in favour of the member of the public or against the AFP member.

Overseas Students Ombudsman

Overseas Students

Overview

The role of the Overseas Students Ombudsman was created following a recommendation by the Hon. Bruce Baird in his Review of the Education for Overseas Students Act 2000 . The Baird Review found that overseas students studying with private education providers were particularly vulnerable, and would benefit from access to a statutorily independent complaints-handling body such as the Commonwealth Ombudsman. Following amendment of the Ombudsman Act 1976 , the Overseas Students Ombudsman began operation on 9 April 2011.

The Overseas Students Ombudsman has three clear roles under the legislation:

Within the office of the Commonwealth Ombudsman, the Overseas Students Ombudsman role complements existing jurisdiction in relation to the Departments of Education, Employment and Workplace Relations (DEEWR), the Department of Immigration and Citizenship (DIAC), and the Australian National University. It is also relevant to the ACT Ombudsman’s jurisdiction in relation to public education providers in the territory.

Between 9 April and 30 June 2011, the Overseas Students Ombudsman received 169 approaches and complaints. The number of complaints – 95 – includes only those contacts that related specifically to complaints within the jurisdiction of the Overseas Students Ombudsman. There were 74 approaches that were not complaints. These included contacts from students and others whose problems were outside our jurisdiction (for instance, relating to public education providers) and questions from providers and others about the new role and how it functions.

This year we have investigated nine complaints against DEEWR in relation to overseas students. Student-visa related complaints form part of the work of the Immigration Ombudsman.

Complaint themes

The Overseas Students Ombudsman is not limited in the type of complaints it can investigate, so long as those 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 has received 95 complaints in the nearly 12 weeks since commencement. Some clear trends have emerged. The largest proportion of complaints (almost one in four) relate to refunds of course fees. Issues with transferring between providers lead to 13% of complaints. External reviews of decisions to report students for failing to meet attendance (21%) and progress (12%) requirements are also significant. These complaints are particularly serious and time sensitive. From a student perspective, they may result in cancellation of a student visa and return to their home country. For providers, who must maintain a student’s enrolment while an external review is underway, delays can impact on clarity about future student numbers.

Providers must advise their students of their right to an external review when notifying students of their intention to report them to DIAC. We anticipate that, following the full launch of the Overseas Students Ombudsman to students and the wider community in July 2011, the base of complaints will broaden.

Systemic issues

Very few complaints have been finalised or progressed to the point where systemic issues in the sector can be identified and commented on at this stage.

On the whole, we are pleased to note that providers have been very quick to respond to requests for information from the Overseas Students Ombudsman and to act on recommendations made as a result of complaint investigations. This is an early but positive indicator of the willingness of the sector to accept the Ombudsman’s role in working to improve outcomes for all stakeholders.

A theme that appears to be emerging across complaint types is the confusion experienced in the drafting, maintenance and interpretation of clear policies which providers are obliged to have in relation to refunds, progress and attendance. Clarity and accessibility of those documents is essential to students and providers understanding their rights and responsibilities, and in being able to meet the standards required of them under the Education Services for Overseas Students framework.

Cross-agency issues

Both DEEWR and DIAC have significant roles in relation to the overseas student sector. Their policies directly affect both providers and students, and the intersection of requirements and procedures is complex and sometimes confusing for both. As Commonwealth and Overseas Student Ombudsman, we have capacity to investigate complaints about both these departments and the providers affected by them. This enables a broad and comprehensive view of the major policy actors in the sector, and of the businesses and individuals that deal with them.

Reports released

In June this year the Commonwealth Ombudsman notified DEEWR that it had commenced an own motion investigation into the operation of the Education Services for Overseas Students Fund, which operates under its policy and legislation. In certain circumstances, the Education Services for Overseas Students Fund repays money to students whose education provider has defaulted, leaving them with no suitable alternative course. We anticipate that that investigation will result in a published report in the latter part of 2011.

At this stage, the focus of the Ombudsman has been on building awareness of the Overseas Students Ombudsman function amongst potential complainants, education providers, other statutory complaint-handlers within the sector (for instance, State and Territory ombudsmen dealing with complaints about public education providers) and other key stakeholders.

Insights from direct experience of complaint handling and further engagement will inform the direction of any major investigations and related reports in the coming year.

Stakeholder engagement, outreach and education activities

The Overseas Students Ombudsman has undertaken significant engagement in preparation for the role commencing. This has included meeting with and presenting to State and Territory ombudsmen, regulators, provider peak bodies, student support organisations, DEEWR, DIAC and others. This consultation helped to clarify the operation of the role and its intersection with other complaint-handling and support bodies to ensure that students received the most appropriate support with minimal effort.

Prior to commencement, the Overseas Students Ombudsman communicated with all registered private education providers (more than 900) to ensure that they were aware of the role and the need to tell students that they could access the Ombudsman’s services. The Ombudsman made arrangements with the Australian Council for Private Education and Training, a peak body representing the majority of private education providers, that the Ombudsman’s external review service would replace external review arrangements that the Council had offered its members up to that point.

A dedicated Overseas Students Ombudsman website was made available from the beginning of the service. It includes Frequently Asked Questions (FAQs) for providers and for students, with the student FAQs available in 21 languages as well as English. Brochures explaining what an ombudsman is, the right to complain, examples of what can be complained about and remedies that might be sought, were sent to all private providers.

A full launch of the Overseas Students Ombudsman, targeting student bodies and specialist education and student media, took place on 12 July 2011 coinciding with the Council for International Students Australia’s inaugural conference.

Looking ahead

With the Overseas Students Ombudsman now in full operation, priorities for the year ahead include continued liaison with industry stakeholders – most particularly students – to ensure that the Ombudsman is accessible and our role understood. We will continue to identify and act on opportunities to streamline referrals and transfers of complaints.

The Overseas Students Ombudsman has already identified and committed to a number of opportunities to address stakeholder groups about our role and our insights from complaint handling. Those insights will form an important basis for working with providers to promote best practice complaint handling.

Reporting students to DIAC

Three students separately complained about one provider. Each complaint related to the provider’s intention to report the student to DIAC for failing to meet course progress or attendance requirements. Ultimately, such reports can lead to the student’s visa being cancelled.

In investigating those complaints, we found a number of contradictions in the provider’s policies and notices. Ultimately we concluded that the notices could not be effective because they were not based on clear statements of policies that complied with the National Code1 and were available to the students.

The provider responded promptly and positively to our investigation. It welcomed the clarification of the National Code, which had been inaccurately reflected in its policies and procedures. The provider withdrew all notices in relation to the student complainants and other students to whom notices had been issued but who had not complained to the Ombudsman. The provider updated its policies, posted them on their website, and informed its entire student body of the changes, ensuring that students signed a statement noting that they were aware of the new arrangements.

Delays in refunding fees

Three students contacted the Overseas Students Ombudsman about gross delays in receiving a refund of tuition fees from their education provider. The students had each paid around $7,000 in fees but had been unable to begin their course because their student visa applications were refused. The students applied for a refund. Under the Education Services for Overseas Students Act, providers must pay the refund within four weeks. The provider in this case also had a policy that said they would pay refunds within 10 working days. Despite this, the provider failed to pay the refunds over periods ranging from 11 to 17 months, even though the student’s education agents had contacted the provider repeatedly and in some cases made complaints through other avenues without success. At the time of this report, payment of the refunds is imminent. It was not until the Overseas Students Ombudsman investigated that this progress was made.

FEATURE

Safety net for overseas students

The approximately 100,000 overseas students who are currently enrolled in private education now have access to a free, independent and impartial complaints service when they cannot resolve problems directly with any of the roughly 900 private providers offering education services in Australia.

Though the Overseas Students Ombudsman service began operating on 9 April 2011, it was officially launched by the then Ombudsman Allan Asher in his keynote speech to the first Council of International Students Australia conference in Melbourne on 12 July 2011.

“This is an important new service for an often vulnerable group,” said Mr Asher.

Overseas students were encouraged to keep note of key transactions with their providers, and providers were warned to keep track of their agents’ claims overseas at the launch of the new Overseas Students Ombudsman service.

News of the service has been warmly welcomed by international students in private education and training, and their representative and support organisations. Complaints have mainly related to refunds and provider intention to report students on progress and attendance requirements, which can result in visa cancellation.

Together with State and Territory ombudsmen (who deal with complaints from overseas students in public education), the Overseas Students Ombudsman creates a comprehensive safety net for overseas students.

The service also offers information and training to education providers on best-practice complaint handling, drawing on the Commonwealth Ombudsman’s more than 30 years of experience in complaint investigation. And importantly, the Overseas Students Ombudsman publishes reports on problems and broader issues in international education identified through investigations.

More information is available at www.oso.gov.auMr Allan Asher at the official launch of the Overseas Students Ombudsman at Victoria University in Melbourne

Mr Allan Asher at the official launch of the Overseas Students Ombudsman at Victoria University in Melbourne.

  1. he National Code is established under the Education Services for Overseas Students (ESOS) Act 2000 as a set of national standards that governs the protection of overseas students and delivery of courses to those students by providers registered on the Commonwealth Register of Institutions and Courses for Overseas Students.

Postal Industry Ombudsman

Postal Industry

Overview

Postal Industry Ombudsman Scheme

The Postal Industry Ombudsman (PIO) can only investigate complaints about the provision of a postal or similar service. It cannot consider complaints about other aspects of a postal provider’s operations, such as retail services, employment matters or environmental issues. The PIO cannot investigate any complaints made to the PIO more than 12 months after the action that caused the complaint. However, in these cases, the Commonwealth Ombudsman retains jurisdiction and may investigate administrative actions of Australia Post that do not fall within the jurisdiction of the PIO.

In 2010–11 the PIO received 2,952 approaches and complaints. This is a 22% increase on the 2,421 complaints we received in 2009-10. Table 5.3 shows the number of complaints received and the number of investigations completed during the year about Australia Post and Private Postal Operators.

Table 5.3: Complaints in PIO jurisdiction 2010–11

 

Approaches and complaints received

Complaint investigations completed

Australia Post

2,932

472

Private Postal Operators

20

6

Total

2,952

478

Australia Post

There continues to be a significant upward trend in complaints to us about Australia Post, with complaints more than doubling over the past six years. In 2010–11 we received 3,123 complaints about Australia Post, of which 2,932 were in PIO jurisdiction and 191 were in Commonwealth jurisdiction (Figure 5.14). The total is a 19% increase on the 2,626 we received in 2009–10.

We investigated 507 complaints about Australia Post in 2010–11. Of the remainder, we resolved many without investigation, for example by providing the person with a better explanation or informing them about their avenues to resolve the problem. We did not investigate other complaints because they were withdrawn, were out of our jurisdiction or, for a number of reasons, did not warrant investigation at that time. When complaints were withdrawn, it was generally because the person had been able to resolve their complaint directly with Australia Post without our intervention.

The total number of complaints to our office remains small in comparison to the size of Australia Post’s operations. In 2009–10, Australia Post reported handling over 5 billion articles and employed 43,000 people. Our focus is on ensuring that Australia Post has adequate complaint resolution mechanisms and provides reasonable remedies for individual complaints, and that it identifies and addresses systemic problems.

As a Government Business Enterprise, Australia Post is required by legislation to act in accordance with sound commercial practice and to meet certain community service obligations. These obligations require Australia Post to provide a domestic letter service at a single uniform rate of postage and to ensure that the service is reasonably accessible to all people in Australia on an equitable basis. The performance standards for the letter service, set out in regulations, must reasonably meet the social, industrial and commercial needs of the Australian community.

The letter volume is declining rapidly as people change to electronic means of communication. At the same time, parcel volume is increasing and the domestic delivery network is also expanding. Australia Post advises that in 2010–11 the domestic delivery network expanded by about 200,000 addresses. These changes are putting increasing pressure on Australia Post’s capacity to return a dividend to government and its ability to fund its community service obligations. To address these challenges, Australia Post has implemented a significant restructure of its business.

In dealing with complaints about Australia Post and assessing what is fair and reasonable, we consider Australia Post’s commercial and community service obligations. Part of our role is to help complainants better understand these obligations as many Australia Post customers appear to be either unaware or unaccepting of them.

Figure 5.14: Approach and complaint trends Australia Post 2004–05 to 2010–11 by jurisdiction

Figure 5.14: Approach and complaint trends Australia Post 2004-05 to 2010-11 by jurisdiction

Other postal operators

In 2010–11, we received 20 complaints about other postal operators, consisting of 7 about Australian Air Express (AAE) and 13 about Federal Express (Australia) Pty Ltd (FedEx). While this is an 82% increase on the 11 complaints we received in 2009–10, the number remains relatively low. The increase may be due to an increased awareness of our role among postal operators and their customers following the consultation we undertook with postal operators on which we reported in our 2009–10 annual report.

Of the 19 complaints we finalised in 2010–11, we investigated six. The remainder were out of our jurisdiction, did not warrant investigation, or were resolved without investigation or because the complainant withdrew the complaint.

Common themes were: delay or loss of items; delay in finalising a complaint; and unclear advice from the private postal operator in responding a complaint.

Complaint themes

The main themes in complaints about Australia Post were: the Customer Contact Centre’s quality of service or information (36%); recurrent mail problems (30%); single event mail problems (27%); post office services, including banking and retail (4%); and corporate, including unfair policy or legislation (3%).

Systemic issues

In addition to investigating individual complaints we use the intelligence from these to monitor and identify potential systemic issues. We discuss these with our Australia Post contacts and, where warranted, we consider if and how we can investigate at a broader level and make recommendations for Australia Post to consider. This is discussed in more detail later in this chapter.

Australia Post’s terms and conditions

Australia Post’s terms and conditions for its services set out the rights and obligations of Australia Post and the customer when entering into a service. They are authorised under Australia Post’s enabling legislation.

We received complaints about the terms and conditions and the way in which Australia Post applied them. Where Australia Post had met the terms and conditions, we were not always able to achieve a better outcome for the individual. However, by monitoring these issues we can identify the level and nature of dissatisfaction with the terms and conditions. We are interested in the terms and conditions as a systemic issue because they underlie so many of the complaints we receive.

Australia Post’s complaint management

We found recurring issues with Australia Post’s complaint management, which may stem from the systems and procedures in place, rather than from human error. For example, the complaints about Australia Post not recording complaints or documentation, or losing documentation and packaging, may point to problems in document registration and record management systems. The complaints about the Customer Contact Centre’s lack of response or delay in responding may be due in part to the ‘inbound-outbound’ arrangements at the Customer Contact Centre where separate teams deal with inbound and outbound callers, and are unable to transfer callers between the two.

Australia Post’s stakeholder and community engagement, consultation and notification

We received complaints where the complainants expressed dissatisfaction about how Australia Post considered their views and needs when providing or changing its services, and how Australia Post provided or failed to provide important service information to them. For example, this occurred when Australia Post decided to close post offices in certain areas, and made changes to its business credit account policy.

Cross-agency issues

We continued to receive complaints in 2010–11 about passports lost in the mail. We are progressing work to obtain an update from Australia Post and the Department of Foreign Affairs and Trade on the progress and outcomes of their implementing recommendations in our report Australia Post and Department of Foreign Affairs and Trade: Passports lost in the mail (Report 08|2010), which was released in June 2010.

We continued to receive complaints in 2010–11 involving both Australia Post and the Australian Customs and Border Protection Service. Complaints were generally about the notification and advice that addressees received from either or both agencies about mail items being seized, held, destroyed or returned to sender.

We also visited Christmas Island and discussed with some residents the impact of Australian Government activities on services such as postal.

Reports or submissions released

We did not undertake or publish any own motion or investigation reports in 2010–11. There were two main reasons for this.

Firstly, Australia Post’s business renewal program Future Ready started on 1 July 2010 and aims to achieve significant changes within Australia Post. As we released three own motion investigations in 2009–10 and three in 2008–09, we decided to give Australia Post the opportunity to implement the recommendations to which they had agreed, and to achieve improvements through its renewal program, before undertaking further own motion investigation into systemic issues.

Secondly, we necessarily focused our resources on investigating and responding to the increasing number of complaints we are receiving. We are using the information gathered from these complaints to identify potential systemic issues.

Update from last year

In 2009–10, as detailed in that year’s annual report, we recommended that Australia Post:

In response to our recommendations, Australia Post changed its Express Post Platinum service to include compensation of up to $100 (increased from $50) for lost or damaged items and the replacement of valuable documents, and to allow for extra cover of up to $5,000. It has made some changes to the terms and conditions, other information, and the Express Post products to better reflect the compensation arrangements.

Stakeholder engagement, outreach and education activities

The then Ombudsman met with Australia Post’s CEO and Managing Director to discuss the strategic direction and priorities of their respective organisations.

PIO representatives continued to meet with Australia Post at the executive and corporate level, and visited and toured Australia Post facilities at the Melbourne Airport, the Dandenong Letters Centre, and the Port Melbourne Mail Centre. Our focus was on better understanding Australia Post’s logistics and operations in service delivery, its complaint management policies and procedures, and the actions it was taking to address the challenges in these areas.

We participated in public outreach activities to promote the PIO’s role. PIO team members attended outreach events at Midsumma Festival in Melbourne (January), Orientation Week in Victoria (February) and Agfest in Launceston (May). In their state-based outreach activities, various state offices represented the PIO by providing information and answering questions at events.

Looking ahead

The vision for our work with the postal industry is to support the industry to improve complaint management. We are particularly interested in helping postal agencies to better identify underlying causes of complaints, to resolve complaints more effectively and efficiently, and to achieve better resolution outcomes.

We want to find ways to better target and engage with stakeholders. In particular, we want to maintain an awareness of the PIO among its members and their customers, and we want to attract new members to the scheme. We also want to encourage and support Australia Post to improve its community and stakeholder consultation.

Addressing underlying or systemic issues within Australia Post, especially in complaint management, could reduce the number of complaints we receive. Our challenge is how to best investigate and address systemic issues while continuing to investigate and respond to the increasing number of individual complaints within a reasonable timeframe.

For the year ahead, we have identified the following three key challenges facing Australia Post as our key areas of focus.

Australia Post’s terms and conditions for its services

Australia Post’s terms and conditions for its services set out the rights and obligations of Australia Post and the customer when entering into a service. A key theme in complaints we receive is the perceived unfairness of Australia Post’s terms and conditions for its services. This includes but is not limited to the terms and conditions covering liability and compensation, especially for loss or damage to postal items and for consequential loss.

Australia Post’s complaint management

In early 2010, Australia Post consolidated its state-based complaints management centres into a national system based in two centres in Brisbane and Melbourne. We intend to pursue with Australia Post whether the arrangements are effective in responding to and resolving complaints.

Australia Post’s stakeholder and community engagement, consultation and notification

Australia Post communicates with the community and stakeholders in multiple ways. Much information is publicly available, while other information is communicated more directly to a target audience. Key issues emerging from complaints we receive include:

We will continue to work with Australia Post to address these concerns.

Case studies – general observations

Lost item and disputed packaging

After seeking advice and help from counter staff at the local post office, Mr AI posted a dental crown that cost around $3,000 by Registered Post. The envelope arrived with the edge torn and the contents missing. Australia Post declared the item lost but declined to pay compensation because it considered the packaging was inadequate.

We investigated on the basis of the reported advice and help that post office staff gave to Mr AI. In response, Australia Post contacted the post office staff involved, who recalled the transaction and confirmed helping Mr AI. Australia Post apologised, paid full compensation for the lost item, and counselled the staff involved about packaging requirements.

Mail redirection

When Mr AJ moved interstate out of the family home, he applied to Australia Post to redirect his mail from the family’s PO Box to his new address. Instead of redirecting only his mail, the Licenced Post Office (LPO) redirected all the family’s mail. The LPO manager told his family that staff were too busy to sort each mail item; that the redirection service was ‘all or nothing’ which meant they would redirect all mail or no mail; and that the son could cancel the service and ask for a refund. The family then received mail addressed to the son, and again asked the manager to redirect the mail correctly. The manager reiterated the earlier advice and referred the family to the area manager but would not provide a contact name or details.

We investigated due to the lack of resolution, and because the manager’s advice and the LPO’s actions appeared to be contrary to Australia Post’s terms and conditions for its redirection service. In response, Australia Post acknowledged the error, found that the LPO manager had misunderstood the terms and conditions and the complaints process, and instructed the manager to correctly action the redirection. Australia Post apologised to the complainant and provided a refund for the period of failure.

Addressing and mail delivery problems

When Mr AK moved to a new house she confirmed with the state land agency and her local council that her new address was included in Australia Post’s address database—the National Address File—which Australia Post uses to manage mail sorting and delivery. She should have been receiving mail at her new residential address but was not. When she complained to Australia Post, Australia Post told her that her address was not included in the database and referred her to the local council. The council told her it had authorised Australia Post to include her address in the database, and referred her back to Australia Post.

We investigated on the basis of contradictory advice and lack of resolution. In response, Australia Post confirmed that her address had been included and that mail delivery was active and would improve as businesses progressively used the updated addressing information. Australia Post also found that complaints about the National Address File and mail delivery could be managed better. It quickly implemented a new process for managing such complaints.

Property damage and compensation

Mr AL reported that her newly tiled driveway was damaged by a postal delivery officer. When she made a claim to Australia Post for the cost of repairs, Australia Post asked her, not unreasonably, to provide a quote. She provided a quote from the tiler who had done the original work as he would be able to use leftover matching tiles. Australia Post declined to pay compensation because she did not obtain three quotes and because the quote was not on the tiler’s letterhead.

We investigated because Australia Post had not made its requirements clear or provided a reasonable explanation for declining compensation. In response to our investigation, Australia Post acknowledged that it could have exercised its discretion to accept the quote because it did include the tiler’s business contact details and because Mr AL had valid reasons for wanting to use the specific tiler. Australia Post apologised, accepted the quote and paid $300 compensation.

FEATURE

Role of the Postal Industry Ombudsman

The Commonwealth Ombudsman has served as the Postal Industry Ombudsman (PIO) since the PIO was established on 6 October 2006 to offer an industry ombudsman for the postal and courier industry.

The PIO investigates complaints about Australia Post, and other postal or courier operators that are registered as a Private Postal Operator (PPO) under the Ombudsman Act 1976 .

Private postal operators registered with the PIO

Australia Post is automatically subject to the PIO’s jurisdiction, and other private postal operators can voluntarily register with the PIO. A new private postal operator (Business Porter) joined the PIO scheme on 28 February 2011. At 30 June 2011 the following nine private postal operators, in addition to Australia Post, were registered with the PIO:

The PIO:

The PIO can only investigate a complaint if:

The PIO cannot investigate:

More information is available on the PIO website (www.pio.gov.au).Postal Industry Ombudsman postal truck

Postal Industry Ombudsman postal trucks have been useful in raising awareness of the office’s work.

Taxation Ombudsman

Role

In 1995 the Ombudsman was given the title of Taxation Ombudsman following a recommendation by the Joint Committee of Public Accounts. It recognised the unequal position of the Australian Taxation Office (ATO) and taxpayers, and aimed to give greater focus to the investigation of complaints about the ATO.

The Commonwealth Ombudsman investigates complaints about the ATO and is assisted in this role by a small team who also investigate complaints about the Tax Practitioners Board (TPB) and the Insolvency and Trustee Service Australia (ITSA).

The Tax Practitioners Board was established on 1 March 2010, taking over responsibility for the regulation of tax agents and Business Activity Statement (BAS) agents from the previous state-based Tax Agents’ Boards.

The Insolvency and Trustee Service Australia is the government agency responsible for the administration and regulation of the personal insolvency system in Australia.

Australian Tax Office

Complaint trends

In 2010–11 we received 2,589 approaches and complaints about the ATO, an increase of 43% from the 1,810 received in 2009–10. This was a continuing trend from the previous year and amounts to an 82% increase in the two years to 2010–11. It is the highest number of complaints about the ATO in five years. Complaints about the ATO represented 13% of all complaints received by the Ombudsman.

As reported in the 2009–10 Annual Report, in 2010 the ATO deployed a major component (release three) of its core tax system as part of its ongoing Information and Communication Technology (ICT) project, referred to as the Change Program1, which replaced the 30 year old National Tax System. The new system had some early teething problems which resulted in delays to processing of income tax returns and as shown in the graph below, complaints to this office increased sharply (see also “tax-time” below for further detail).

The office was flooded with approaches in the first quarter of the year, doubling the monthly average of 150 and peaking at 375 in August 2010. As a result, we turned people away advising that the delay issues were known; that the ATO were working to resolve the problems and asked that they wait three months before contacting the office again. In this way, we could address the more serious issues which required further investigation to resolve.

Delays in receipt of refunds, amended assessments and other interactions with the ATO generated the most complaints from taxpayers and tax professionals.

During the year we finalised 2,604 approaches and complaints (1,762 in 2009–10) of which 558 (22.5%) were investigated (316 in 2009–10). We obtained information concerning around 300 other cases, which did not require full investigation to resolve.

We transferred 13% of the complaints we received directly to ATO Complaints under our assisted transfer process. Transfers occur when the taxpayer has not already complained to the ATO, and they agree to us referring their complaint directly to the ATO’s complaint-handling system.

In 2010–11 we achieved one or more remedies in 86% of the cases we investigated. The most common remedies were better explanations (34%), financial remedy (28%) and actions expedited (10%).

Figure 5.15: ATO approach and complaint trends, 2004–05 to 2010–11

Figure 5.15: ATO approach and complaint trends, 2004-05 to 2010-11

Complaint themes

Tax-time 2009–10 (Lodgment and Processing)

As previously mentioned, the ATO deployment of a major new system (release three) as part of the Change program was a key factor causing a dramatic increase in number of complaints and approaches to the office in the latter part of 2009–10.

Whilst the system itself appeared to function as planned, the transition from the old National Taxpayer System (NTS) to the new integrated core processing (ICP) system generated some unforeseen issues which delayed a large number of the lodged income tax returns.

One of the main causes of complaints about delay related to the ATO’s use of “suppressions”2. Suppressions in the ICP system resulted in a greater number of returns being suspended and stockpiled than anticipated, which under the NTS may have been cleared with minor intervention.

Suppressions recorded on the records of taxpayers who had previously been bankrupt or who may have had a debt with another agency were the greatest source of complainants to this office. These complainants and others waited in some cases up to five months to receive their return (see Suppressions case study below).

Other events delaying the issue of income tax returns included problems arising from the garnishee system between the ATO and Centrelink as well as the suspected compromise of a tax file number (for further detail, see the Tax File Number Compromise section on page 137).

The deployment of the new system and the Change Program in general received significant scrutiny at the Joint Committee of Parliamentary and Administrative Audits (JCPAA) hearing,3 by the Inspector-General of Taxation,4 as well as criticism in the media.

The ATO received a significant increase in complaints during tax-time 2010 and responded by diverting significant resources and energy to reduce the stockpile, issue refunds and correct the problems. Much work has already been undertaken by the ATO to ensure that the same issues are not present for the 2010–11 tax-time.

Figure 5.16: ATO Main issues raised for fully investigated complaints 2010–11

Figure 5.16: ATO Main issues raised for fully investigated complaints 2010-11

Suppressions: Insolvency indicator delays issue of refund

Mr AM’s tax agent lodged his tax return mid-August 2010 and contacted the ATO mid-December 2010 when he had still not received his refund and the ATO could not provide an explanation. He lodged a complaint with the ATO in early January 2011 and was advised that the matter would be reviewed. In mid-January 2011, Mr AM contacted the Ombudsman’s office for assistance.

Initial information obtained from the ATO revealed that Mr AM’s record contained a Composite Debt Indicator (suppression) on his record relating to a previous period when Mr AM had been insolvent. These indicators were automatically transferred over with the conversion from the National Taxpayer System to the integrated core processing system. System limitations in overriding the errors caused delays as Mr AM’s return (as well as many other taxpayers with suppressions) had to be rekeyed manually.

Mr AM’s refund was released within three days of us approaching the ATO which also paid interest for the period exceeding the performance standard.

Debt Collection

Eleven percent of the complaints investigated concerned debt collection compared to 13% the previous year.

The source of complaints relate to the ATO’s firmer approach to outstanding debt (which it had published information about5) aimed at those: who do not respond to multiple contact attempts; repeatedly default on their payment arrangements; have an escalating debt and there is no evidence that they will be able to meet their ongoing tax obligations; or have been subject to an audit where deliberate avoidance was detected and payment avoidance is continuing.

Whilst taxpayers are required to advise the ATO of change of address, an increasing number of complainants advise that they were not aware of the multiple number of addresses that the ATO may hold for them for each ‘role’ they may have in the ATO systems or that simply updating their income tax address does not update all addresses. As seen from the case study below, mail could be sent to a previous address and the resultant non-response may initiate firmer action which may ultimately result in legal action. We continue to consult with the ATO on this issue.

Firmer action not required

The ATO had raised a Pay As You Go instalment debt against Mr AN, but Mr AN had not correctly notified the ATO of his change of residential address when he moved overseas to work. When the debt remained unpaid, the ATO issued debt demand notices to Mr AN at his former residential address, which was still the address of Mr AN’s elderly father (Mr AN senior). Mr AN senior did not send on the debt notices to his son overseas, and did not return them to the ATO.

When the debt demand notices went unanswered, the ATO escalated its recovery action to engage a collection agent to pursue the debt in accordance with its Receivables Policy. The debt collection agent contacted Mr AN senior by phone, but quickly realised that Mr AN senior was not the debtor, and ended the call without revealing any of Mr AN’s debt information to his father. Mr AN senior was upset and confused by the call, and contacted his son to describe what had occurred.

Mr AN complained to the Ombudsman about the ATO’s actions in contacting his father, and for failing to correctly record his current residential address for communicating about his tax affairs. Our investigation revealed that the original debt had been inadvertently raised after Mr AN had moved to work overseas and the ATO had failed to correctly record Mr AN’s changed tax status on its systems. However, we were satisfied that the debt collection practices were undertaken in line with ATO policy and relevant guidelines for collection agency practices.

The ATO reversed the debt when Mr AN was able to confirm his changed circumstances, and apologised to Mr AN and his father for the distress and confusion caused by the debt recovery action. The ATO also provided Mr AN with a better explanation of its processes for recording changes in taxpayer circumstances.

Tax File Number Compromise (Taxpayer information)

Tax File Number (TFN) issues accounted for 12% of all complaint issues recorded by us this year and almost 75% of those related to TFN compromise. We released a report on this issue in September 2010 (see Reports and submissions, below). Whilst the ATO has addressed the matters raised, the Ombudsman continues to receive complaints as illustrated by the case study below.

TFN Compromise no simple problem

Mr AO lodged his 2009 income tax return through his tax agent in October 2009, expecting a refund from his return. Soon after lodgment the ATO notified Mr AO’s tax agent that a return had already been lodged in July 2009 using Mr AO’s tax file number (TFN). The tax agent then advised Mr AO that he needed to apply for a new TFN because of the suspected identity theft against his TFN.

Mr AO applied for a new TFN in November 2009, and also informed the ATO that his Centrelink benefits were being affected by the delay in him receiving his 2009 Notice of Assessment.

Mr AO enquired to the ATO in February 2010 about progress of his new TFN and 2009 return, and was told that the ‘systems upgrade’ was delaying the TFN replacement process. Subsequent calls from Mr AO and his tax agent to the ATO between February and June 2010, including escalation to the compromised TFN business line, failed to resolve the issue. Mr AO lodged a formal complaint with the ATO but further calls to the ATO in June and July 2010 did not resolve the matter.

Mr AO complained to the Ombudsman on 16 August 2010 about the delay. Our enquiries revealed that Mr AO was issued his new TFN on 20 August 2010; however, his 2009 return had not been processed due to an ongoing systems issue. This issue was associated with the fraudulent 2009 transaction identity on the system, leaving Mr AO’s legitimate 2009 return ‘in suspension’.

On 3 December 2010 the ATO successfully implemented a technical solution to resolve the identified systems issue, and Mr AO’s 2009 return was released for processing. The ATO issued his 2009 refund in mid-December 2010. The ATO provided a written apology to Mr AO for the inconvenience and distress caused to him by the delay in resolving this matter.

Superannuation

In 2010–11, around 9% of complaint issues we recorded related to superannuation, especially about unpaid Superannuation Guarantee payments and excess contributions tax.

This is a reduction on the previous year (13%) mainly due to improvement in ATO processes. However, complaints from employees concerned about the ATO’s progress towards collecting unpaid superannuation continue to account for almost half of all investigated complaints relating to superannuation.

Following a previous review of the ATO’s management of the Superannuation Guarantee system in July 2006, the Ombudsman reported6 that a main source of complaints (from employees) was insufficient information provided about the collection of unpaid superannuation guarantee. Inadequate communication with taxpayers is clearly still a problem as complainants report concerns around the infrequency of the advice, the lack of clarity concerning actions taken and the duration of investigations. A review undertaken by the Inspector-General of Taxation of the ATO’s administration of the Superannuation Guarantee7 also identified the need for the ATO to improve communications with complainants.

We continue to consult with the ATO concerning the frequency of advice and clarity and content of the letters.

Another major factor identified in non-payment of Superannuation Guarantee related to phoenix8 practices by employers, leaving employees as unsecured creditors and consequently unpaid as illustrated in this case study.

Employee as an unsecured creditor loses unpaid Superannuation Guarantee

Mr AP complained that he had contacted the ATO on a number of occasions concerning unpaid Superannuation Guarantee by his employer. Because of delays by the ATO, the employer was able to liquidate and re-establish in another location leaving no funds available for the complainant and other employees.

Our initial investigation revealed that Mr AP correctly lodged the necessary Employee Notification and that the ATO had followed the appropriate processes to collect the Superannuation Guarantee, including writing a letter to Mr AP informing him of its progress.

The letter also informed Mr AP that the ATO would advise him within one week of it discovering that the employer’s company had become bankrupt, was in liquidation or under administration. However, when the ATO was later advised that the employer’s company was in liquidation, it failed to advise Mr AP. As Mr AP was an unsecured creditor, liquidation of the company resulted in insufficient funds being available to pay his Superannuation Guarantee.

Our investigation revealed that the ATO had taken appropriate action to collect the debt but the employer’s action was the cause of the non-payment of the Superannuation Guarantee. The ATO apologised to Mr AP for not informing him of the liquidation of the employer’s company.

This issue was further highlighted in the Cooper Review which commented that in the event of the employer’s insolvency, Superannuation Guarantee should be regarded as a priority along with wages.9 The Government recently announced proposed changes to taxation legislation to extend the Director Penalty regime to include the Superannuation Guarantee so that so that directors are made personally liable for unpaid Superannuation Guarantee amounts. This is expected to dramatically improve Superannuation Guarantee collections and payments.

Systemic issues

Complaints received reveal systemic issues in the Compensation for Detriment caused by Defective Administration (CDDA) program and communications generally. The issues are demonstrated by the following case studies.

Delayed decision on CDDA claim

Company AQ, through its legal representative, lodged a claim for compensation under the Compensation for Detriment caused by Defective Administration (CDDA) scheme. The claim related to significant costs incurred by Company AQ in disputing audit decisions with the ATO in relation to three tax years.

From the outset, the scope and nature of the claim became a point of uncertainty and there was poor communication between the ATO and Company AQ. Agreement could not be reached about whether the claim was an issue of legal liability, or compensation under the CDDA scheme. The ATO made no offer to Company AQ to resolve the claim within an agreed timeframe.

After almost 12 months without resolution, Company AQ lodged a complaint to the Ombudsman. Our investigation found that there had been considerable indecision on the ATO’s part to confirm whether the matter was a legal liability or a compensation claim under the CDDA scheme. For its part, Company AQ had also been at fault in not responding in good faith to the ATO’s requests for clarification of its claim.

We advised Company AQ that the ATO had undertaken to resolve the legal liability issue within six weeks of our investigation ending. This deadline passed without a response from the ATO to Company AQ. Soon after, Company AQ again lodged a second complaint with the Ombudsman over the continuing delay.

Our second investigation of the delay revealed that several administrative factors, including staff shortages and unplanned absences of key staff in the ATO, contributed to periods of inactivity in the decision-making process of the CDDA claim. While Company AQ had also not engaged with the ATO during this period to progress the matter, we continued to press the ATO to resolve the matter.

After a further three months the ATO made an offer of compensation to Company AQ, conceding that there was an element of defective administrative in relation to one aspect of the audit included in the CDDA claim.

The Ombudsman issued a formal notice to the ATO advising that it found the delay in settling the CDDA claim with Company AQ unreasonable. We sought assurances that the causes of the delay were being addressed. The ATO accepted the Ombudsman’s finding and undertook to implement the necessary remedial action to avoid similar occurrences in future. The Ombudsman will monitor progress of the ATO’s remedial actions over the next few months.

Lack of contact compounds payment issue

Mrs AR paid an ATO debt through her local post office, and received a receipt for her payment. Almost five months later Mrs AR received a debt demand notice from the ATO for the amount she had paid previously. Mrs AR rang the ATO a few days later to advise that she had already paid the debt, and two days later wrote to the ATO providing the payment receipt details and asking the ATO to locate and confirm her payment.

About two weeks after writing to the ATO, Mrs AR received another ATO debt demand letter. She again phoned the ATO to explain that the debt was already paid, and that she was expecting ATO confirmation of this. The ATO told Mrs AR that its service standard was 14 days to issue a response in relation to missing payment enquiries.

Two days later the ATO located the payment and credited it against Mrs AR’s income tax account with effect from the original date of her payment. However, the ATO did not respond to Mrs AR to advise her that the payment had been located and credited to her account.

After hearing nothing from the ATO after a further two months and becoming frustrated by the delay in resolving the matter, Mrs AR complained to the Ombudsman. She explained that she was still expecting a response from the ATO to her letter sent three months previously asking it to locate her payment.

After our investigation confirmed the delay was due to administrative lapses in the ATO, we asked the ATO to apologise in writing to Mrs AR for the delay. We have registered Mrs AR’s complaint as a possible systemic issue to be addressed in consultation with the ATO to improve its policies and procedures.

Cross-agency issues

The ATO works closely with a range of other Commonwealth agencies and most notably, during tax-time, the ATO routinely receives debt information from the Child Support Agency (CSA) and Centrelink and provides income data to these agencies to enable them to administer their programs.

Many of these exchanges are automated, but problems with those automated processes can prove difficult to resolve as outlined in the case study below:

Getting the run-around between agencies

Ms AS complained to us that the CSA and the ATO were refusing to take responsibility for a mistake that had led to her missing out on child support payments. She said that both agencies had ‘missed the point of her complaint’. Ms AS is a CSA payee. The payer, Mr AT, was behind with his child support payments and ordinarily, the CSA would intercept his tax refund to apply it to his child support debt. Ms AS was distressed to discover that Mr AT had received his tax refund and she had missed out.

Ms AS complained to the CSA. The CSA said that it had asked the ATO for the refund, but the ATO didn’t send it. The CSA said that Ms AS would have to take it up with the ATO. The ATO told Ms AS that due to privacy issues, it was unable to act on her complaint or provide further information as she was not an authorised contact on Mr G’s account and referred her back to the CSA.

We investigated Ms AS’s complaint about both agencies. We found that a human error in the ATO had resulted in Mr AT’s tax refund being released to him, instead of being sent to the CSA. The ATO has now apologised to Ms AS for its mistake. We asked the CSA and the ATO to devise a much better system to work together to investigate and resolve complaints when things go wrong between the agencies. After the financial year ended, the ATO agreed to pay compensation to Ms AS to cover the amount of child support that would have been recovered from Mr AT’s tax refund plus interest.

Reports and submissions released

Resolving Tax File Number Compromise

In September 2010 we released an own motion report on the ATO’s response when Tax File Numbers (TFNs) have been compromised or TFN records are incorrectly linked. TFN integrity and ATO data and systems quality are areas of high importance to the tax system.

The report highlighted a deficiency in the system requiring a significant improvement to ATO processes. The ATO has addressed many of the matters we raised and re-engineered the systems and processes to better manage this issue. A new complaint-handling process has been trialled and is currently being assessed for possible expansion to other complaint areas within the ATO.

Other submissions

The Ombudsman made a number of submissions related to our taxation complaint-handling role, including:

The office also provided feedback to the ATO in response to its publishing of new procedures relating to study expense changes for full-time students receiving Youth Allowance (the Anstiscase10). Although at that stage the office had not received any complaints concerning this process, we felt the procedures could create uncertainty concerning eligibility, amendment of previous year returns, contact details and the existing Tax Ruling TR 98/9. The ATO subsequently reported that the program has worked with minimal complaints. The ATO welcomed the feedback provided by our office and, as a result, made some changes to its products. The ATO also invited feedback on other new measures.

Current Own Motion investigation

In April 2011 the Commonwealth Ombudsman commenced an own motion investigation into certain aspects of the administration of the joint-agency taskforce, Project Wickenby.

Complaints management

At the Joint Committee of Public Accounts and Audit eighth biannual hearing with the Commissioner of Taxation11, the Committee informed the Commissioner that:

The Committee expects the next submission to the biannual hearing (September 2011) from the Australia Taxation Office to contain explicit consideration of, and reporting on, action taken to improve complaint handling and address the underlying causes of complaints.

The ATO has begun a review of its complaint-handling process and this office is directly involved in the process.

This office also regularly attends two ATO complaints working groups and provides feedback on the complaints process to help bring continuous improvement to the complaints management process in the ATO.

Australian Prudential and Regulation Authority

The Australian Prudential Regulation Authority (APRA) is the prudential regulator of the financial services industry. It oversees banks, credit unions, building societies, life and general insurers and superannuation funds.

The Ombudsman received 162 approaches and complaints about APRA in 2010–11. The office finalised 156 approaches and complaints about APRA in that year, of which 38 were investigated. This is slightly fewer than in previous years.

The majority of complaints concerned the processing of applications for early release of superannuation benefits. The grounds on which APRA can approve early release of superannuation benefits are set out in regulations made under the Superannuation Industry (Supervision) Act 1993 and are very specific. Common themes in these complaints were that APRA made multiple requests for information and that there were delays in assessing applications once the information was supplied.

Approval processes to access superannuation benefits

Ms AU applied for early release of her superannuation benefits on the basis that this was necessary to pay for an operation for her daughter. She was advised it would take 21 days to process her application. Meanwhile she borrowed money from her friends and the bank to repay lenders who had previously provided money for her daughter’s treatment. Ms AU complained that, after the 21 day period, she called APRA only to be advised that her application had not been processed and that she needed to provide more information. When she provided the additional information she was told her application would be placed back in the queue for assessment and she would need to wait a further 21 days.

On investigation, APRA advised us that some, but not all, of the information it had requested had been provided by the applicant. In part, this was due to changes in the applicant’s circumstances over the application processing period. However, APRA advised that it was able to approve a partial release of the funds requested based on the information it already had and that the complainant could seek a reconsideration of the amount if she wished to provide the further information.

Transfer of function

During 2011 APRA delegated the management of applications for early release of superannuation benefits to Medicare Australia. Legislation has since been passed that will transfer the function of processing applications for early release of superannuation benefits to the Medicare program of the Department of Human Services from November 2011.

Australian Securities and Investments Commission

The Ombudsman received 169 approaches and complaints about the Australian Securities and Investments Commission (ASIC) in 2010–11. The office finalised 174 approaches and complaints, of which 42 were investigated. This is a similar number to previous years.

While ASIC delivers a wide range of programs, complaints to the Ombudsman principally concern registration issues and penalty fees relating to the lodgement of documents, and decisions by ASIC to decline to investigate or take action on complaints made to it.

The following case studies show how time consuming and frustrating registration and lodgement issues can be for customers.

Return to sender

In December 2008 ASIC sent an annual review invoice to the complainant company’s registered address but it was returned to ASIC marked ‘return to sender’. This fact was noted on ASIC’s register so that no further mail would be sent to that address until verified. Late fees accrued for the non-payment of the annual review fees and eventually ASIC sent a letter to the residential address of the company secretary. The company paid the amount and wrote to ASIC asking that the late fees be waived because the business was a garage which was still at the address on the register and they did not know why the original invoice had not been delivered.

In addition, the company’s letter explained it had opened a post office box and enclosed form 486 to change the contact address to the post box. ASIC waived the late fees on the 2008 invoice. However, instead of following up the reference to the enclosed form 486 (which ASIC says it has no record of receiving) it treated the garage address as verified. In 2009 ASIC again sent the annual review invoice to the garage address and similar events followed. When the company secretary was apprised of the 2009 invoice, they accidently paid ASIC twice. ASIC refunded the second payment by cheque posted to the garage address. When the cheque was ‘returned to sender’, ASIC again annotated the garage address as unverified.

In 2010 ASIC again sent the annual review invoice to the garage address, but withheld the subsequent late fee and reminder notices on the basis that the address was unverified. Despite having received no notifications from ASIC, in February 2011 the company secretary paid the review fee based on the amount charged the previous year, just to avoid the previous year’s problems. ASIC then sent an overdue notice for the $6 difference between the last year’s annual review fee and the current year’s along with the corresponding late fee for not having paid the full amount on time. The company paid the $6 but sought waiver of the late fees complaining that every year they receive notice of the late fees but never receive the original invoice.

As a result of intervention by this office ASIC agreed to:

The Ombudsman received a number of complaints from people experiencing difficulty trying to correct the spelling of company details.

Forms, forms, forms

Mr AV used ASIC’s online lodgement system to lodge a form 205A notifying ASIC of a resolution to change his company’s name. The form was lodged at 10.20 am and Mr AV telephoned ASIC at 10.26 am to enquire about confirmation of receipt. Meanwhile ASIC’s system issued a notice back to Mr AV advising that the name would need to be manually verified as it contained a word that was not in the database or the Macquarie dictionary. Mr AV then noticed a spelling error in the company name on the form and telephoned ASIC again at 10.59 am and 11.05 am to make the correction.

Each time, he was advised that a new form 205A would need to be lodged as the manual verification of the name on the original form had been fully processed by 10.31 am. This would incur a second transaction fee of $340. Following intervention by the Ombudsman, ASIC took into account all of Mr AV’s circumstances which included that he was a first time company office holder and had lodged the form within the prescribed timeframe through ASIC’s preferred online channel. ASIC agreed to refund the fee he had already paid.

Correcting details

On contacting ASIC to request a form, Ms AW discovered that ASIC’s database had her company’s new street name split into two words. ASIC’s contact officer referred the issue on to another team for correction, but this was not acted upon. Two months later Ms AW telephoned ASIC and became aware that the street name was still recorded as two separate words. The ASIC officer told her this was an issue for Australia Post because ASIC relied on its ‘Postal Address File’ as a database reference for all addresses to Australia. Ms AW called back and was asked to provide a written submission and rates notice to prove the street name was one word. Ms AW then sent ASIC a letter of complaint. Not having received a response three months later, Ms AW telephoned ASIC and advised that she had checked with Australia Post and the street name was one word. Again, her complaint was sent on for assessment. However, nothing further was done.

Our investigation found that ASIC used an Australia Post ‘Postal Address File’ downloaded into its computer system for validating addresses which had programmed the street name as two words. In response, ASIC advised that it would: review its process for accepting and correcting minor address details so that these may be actioned by telephone request; introduce a process to ensure that complaints were properly recorded and responded to by call centre staff; and that in this case would correct the company address.

Tax Practitioners Board

In March 2011, the Tax Practitioners Board (TPB) completed its first full year of operation. This involved finalising the registration transition from the previous state-based Tax Agent Boards (TAB) to the centralised system.

The Board also has a wide range of sanctions available to it under legislation12 to ensure that tax and Business Activity Statement agents comply with ethical and legal standards. A new set of registration standards and a code of professional conduct has been developed to provide guidance to agents and their clients as to what minimum standards are acceptable and how sanctions might apply. These same sanctions were not previously available to the TAB.

It is still early days and complaint numbers (33) have been consistent with what would be expected given the relatively short existence of the organisation, the new registration, ethical standards and new sanctions.

The TPB has developed its complaint-management system based on the Ombudsman’s best practice model.

Complaints to this office concerning the TPB predominantly related to the explanation offered to complainants concerning an investigation of a complaint made about a registered tax agent. This is illustrated in the following case study.

A better explanation removes doubt

Ms AX complained in February 2010 to the then TAB about the actions of her tax agent who lodged her 2007–08 tax return late in 2009 and informed her that she would be eligible for the then $900 Economic Stimulus Payment. Because the return was lodged after the legislated cut-off date, Ms AX was not eligible and did not receive the payment. Approaches to the tax agent proved fruitless and Ms AX complained that the tax agent had misled her and felt the charges incurred were not appropriate in the circumstances.

As it had replaced the role of the TAB, the TPB managed the complaint. The TPB advised that it does not investigate matters relating to fee disputes but would look at the actions of the tax agent. Ms AX maintained contact with the TPB during this time and was advised of a response in August 2010. A final response was not received till mid-December 2010 which contained minimal information about the outcome or findings of the investigation. Ms AX asked this office to assist.

Our initial enquiries revealed that the TPB had thoroughly investigated the matter and had sought detailed information from the tax agent to resolve the matter. Privacy legislation imposes restrictions on what information could be conveyed to Ms AX and a minimalist approach was taken in providing a response to the complainant. The TPB also advised that as the issue occurred prior to 1 March 2010 when the new law came into effect, the TPB could only apply the previously available sanctions which involved de-registration. The TPB felt that the issue raised was not of significant value to warrant de-registration.

As there was limited remedy available to address Ms AX’s complaint, we asked the TPB to contact Ms AX further and discuss the investigation, within the privacy constraints, and to offer an apology to Ms AX for not providing a sufficient explanation. Ms O was satisfied with the outcome and thanked the office for its assistance.

Remedies were achieved in more than 70% of cases investigated which were mostly a better explanation and/or an apology.

We continue to work with the TPB to ensure that the information it provides to complainants helps them understand the process, what can be expected from the investigation, and fully explains the outcome.

Insolvency and Trustee Service Australia

The number of complaints to the Ombudsman concerning the Insolvency and Trustee Service Australia (ITSA) has remained at around 70 per year for the last three years. The majority of complaints were from those who were themselves bankrupt (almost 75%) and regarded the administration of the estate or issues relating to discharge from bankruptcy. The remainder were from creditors or an associated entity with issues relating to the administration of the estate.

We continue to work with ITSA to bring continuous improvement to its management of complaints.

Stakeholder engagement

The Ombudsman meets regularly with the Inspector-General of Taxation and contributes to the Inspector’s reviews.

Looking ahead

We have identified three priority areas for attention:

  1. Improving the language of government – more than one third of complaints to the Taxation Ombudsman are resolved through provision of a better explanation either from the agency or the Ombudsman. Clearer communication can dramatically reduce enquiries and confusion.
  2. Providing greater access to information and services.
  3. Improving complaint handling – addressing the issues raised through the complaint to fix the problem so there is a reduced need for complaints.

Feature

Tax Institute National Convention

Ombudsman staff manned an exhibition stand at the annual Tax Institute National Convention in Brisbane in March 2011.

The purpose of our attendance at the Convention was to promote the role and function of the office to tax practitioners. In particular, we encouraged practitioners to make informed suggestions to the Ombudsman about areas of tax administration that are problematic or in need of attention.

Many of the delegates at the Convention showed great interest in the office. A few had some knowledge of the work the Ombudsman does but were keen to know more, while three delegates took the opportunity to make formal complaints.

Delegates discussed their concerns about their work with the Australian Tax Office and what they felt were systemic issues. Ombudsman staff were able to share their experiences of complaints about the Australian Tax Office and its responsiveness. We were also to explain the Ombudsman’s powers and ability to seek remedies.Ombudsman staff at the Tax Institute National Convention

Ombudsman staff at the Tax Institute National Convention in Brisbane.

  1. The Change Program commenced 2003 when the ATO announced that it had entered into arrangements with service providers to deliver major changes to its ICT in order to enable it to continue to effectively administer the taxation and superannuation systems in the future.
  2. Suppression – a form of indicator or alert which temporarily suspends automatic processing of income tax returns to allow corrective action or review, for example in the case of duplications or possible fraudulent activity. It provides a high level of integrity to the processing system.
  3. JCPAA hearing 4 March 2011
  4. Inspector-General of Taxation Report – Review of the Australian Taxation Office’s Change Program, December 2010 (released 5 May 2011)
  5. ATO publication NAT 73708 – Firmer action approach to debt collection
  6. Taxation Ombudsman Activities 2008 Superannuation guarantee internal review, p. 18
  7. Inspector-General of Taxation - Review into the ATO’s administration of the Superannuation Guarantee Charge – publicly released 24 November 2010
  8. Phoenix activity is typically associated with directors who transfer the assets of an indebted company into a new company of which they are also directors. The director then places the initial company into administration or liquidation with no assets to pay creditors, meanwhile continuing the business using the new company structure.
  9. Cooper Review – Super System Review: Final Report – Part Two: Recommendation packages. 4.1.2 Corporations Act and employer insolvency.
  10. Commissioner of Taxation v Symone Anstis, High Court, 11 November 2010
  11. Report 424 – June 2011. Joint Committee of Public Accounts and Audit eighth biannual hearing with the Commissioner of Taxation – 4 March 2011
  12. Tax Agent Services Act 2009; Tax Agent Services Regulations 2009 and Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009
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      Annual Report 2010-11 | Chapter 5

      Chapter 5

      Agencies overview

      1. Agencies overview
      2. Commonwealth Ombudsman
      3. Australian Customs and Border Protection Service
      4. Centrelink
      5. Child Support Agency
      6. Comcare
      7. Department of Education, Employment and Workplace Relations
      8. Department of Climate Change and Energy Efficiency and Department of Sustainability, Environment, Water, Population and Communities
      9. Department of Families, Housing, Community Services and Indigenous Affairs
      10. Department of Health and Ageing
      11. Fair Work Ombudsman
      12. Medicare Australia
      13. Monitoring and Inspections
      14. Freedom of Information
      15. Indigenous programs – Closing the Gap in the Northern Territory
      16. Feature – Improving agencies’ use of Indigenous Interpreters
      17. Defence Force Ombudsman
      18. Department of Defence and the Australian Defence Force
      19. Department of Veterans’ Affairs
      20. Defence Housing Australia and Toll Transitions
      21. Feature – Defence Portfolio Agencies Forum
      22. Immigration Ombudsman
      23. Department of Immigration and Citizenship
      24. Feature – Immigration Detention – visits program
      25. Law Enforcement Ombudsman
      26. Law Enforcement
      27. Australian Federal Police
      28. Australian Crime Commission (ACC)
      29. Attorney-General’s Department
      30. Australian Commission for Law Enforcement Integrity (ACLEI)
      31. CrimTrac
      32. AUSTRAC
      33. Feature – Australian Federal Police/Ombudsman Forum
      34. Overseas Students Ombudsman
      35. Overseas Students
      36. Feature – Safety net for overseas students
      37. Postal Industry Ombudsman
      38. Postal Industry
      39. Feature – Role of the Postal Industry Ombudsman
      40. Taxation Ombudsman
      41. Role
      42. Australian Tax Office
      43. Australian Prudential and Regulation Authority
      44. Australian Securities and Investments Commission
      45. Tax Practitioners Board
      46. Insolvency and Trustee Service Australia
      47. Feature – Tax Institute National Convention

      Agencies overview

      Most of the approaches and complaints received by the Ombudsman’s office within its jurisdiction related to the following individual Australian Government agencies:

      1. Centrelink (4954)
      2. Australia Post (3123)
      3. Australian Taxation Office (2589)
      4. Department of Immigration and Citizenship (2137)
      5. Child Support Agency (2121)
      6. ACT Government (742)1
      7. Defence agencies (638)
      8. Department of Education, Employment and Workplace Relations (481)
      9. Australian Federal Police (207)

      The Overseas Students Ombudsman jurisdiction received 161 complaints and approaches. A further 2734 complaints and approaches were received about other Australian Government agencies.

      Figure 5.1 represents the above figures in percentage terms.

      This chapter assesses our work with agencies in handling complaints and dealing with broader issues during 2010–11. It also discusses the monitoring and inspection work we undertake and complaints arising from the way agencies deal with freedom of information requests.

      The chapter is divided into seven sections dealing with the Ombudsman’s jurisdictions at the Commonwealth level.

      These jurisdictions are:

      • Commonwealth Ombudsman
      • Defence Force Ombudsman
      • Immigration Ombudsman
      • Law Enforcement Ombudsman
      • Overseas Students Ombudsman
      • Postal Industry Ombudsman
      • Taxation Ombudsman.

      More detailed information by portfolio and agency is provided in Appendix 3— Statistics .

      Figure 5.1: Proportion of approaches and complaints received within jurisdiction 2010–11

      Figure 5.1: Proportion of approaches and complaints received within jurisdiction 2010-11

      1. Figures that relate to the ACT Ombudsman jurisdiction have been included in this annual report to provide an indication of workflow. A separate ACT Ombudsman Annual Report has also been prepared for the ACT Parliament.

      Commonwealth Ombudsmen

      Australian Customs and Border Protection Service

      Overview

      The Australian Customs and Border Protection Service (Customs and Border Protection) regulates the security and integrity of Australia’s borders.

      The Commonwealth Ombudsman received 107 approaches and complaints about Customs and Border Protection this financial year. This was a slight increase on the 2009–10 financial year, in which we received 99 complaints. There was a decrease in passenger processing complaints from the previous year.

      As well as investigating individual complaints, we also published an own motion report into the use of coercive powers in passenger processing, and scrutinised the implementation of new passenger screening arrangements.

      Figure 5.2: Customs and Border Protection approach and complaint trends 2004–5 to 2010–11

      Figure 5.2: Customs and Border Protection approach and complaint trends 2004-5 to 2010-11

      Complaint themes

      Our office receives complaints on a diverse range of issues about Customs and Border Protection. The most common themes this year were the importation of goods (relating to seizure decisions in particular), complaint handling issues and the exercise of powers relating to the processing of international air passengers.

      We have noted significant media interest in the proposed introduction of new screening technologies and processes affecting international air passengers. We expect this to be an area of continued public interest and possible complaint to our office, and will monitor this in the year ahead.

      Customs and Border Protection has a robust complaints system and undertook to review that system for airports in particular, following the identification of some areas for improvement during our investigation of a complaint finalised early this year. These areas included the inadequate provision of information at airports about how to make a complaint, limited requirements to document complaints in the airport environment and a lack of clear procedures specific to handling complaints at airports. Given the significant powers exercised by the agency in the busy and often pressured environment of an airport, it is important that complaints are encouraged and properly handled.

      Reports or submissions released

      In December 2010 the Commonwealth Ombudsman released an own motion report on the administration of coercive powers in passenger processing. The report was well received by Customs and Border Protection and most of the recommendations made were accepted. The purpose of the report was to provide external scrutiny of the use of strong coercive powers (for example to question, examine baggage, copy documents and retain possessions for further examination) and to ensure proper checks and balances are in place.

      Our recommendations were substantially implemented by the end of the financial year. The outcomes of that process can be seen in improvements to internal training, policies and procedures used by officers exercising strong coercive powers in the processing of international air passengers. We will continue to monitor complaints and liaise with Customs and Border Protection to assess the outcomes of the own motion report and any further areas for improvement.

      Systemic issues

      Our investigation into the exercise of Customs and Border Protection’s coercive powers (Australian Customs and Border Protection Service: Administration of coercive powers in passenger processing – December 2010) identified issues with the information provided to people whose possessions are retained by Customs to check whether they are prohibited. Typically complaints have related to the retention of mobile phones, laptops and other electronic storage devices, which require forensic examination by Customs before a seizure decision can be made. Changes are currently being implemented by Customs and Border Protection to ensure adequate information is provided to the person and that items are returned as quickly as possible (if the item is not seized). Complaints to our office since the own motion investigation suggest this is no longer a prevalent issue – we will continue to monitor the situation to determine whether further action is required.

      Cross-agency issues

      Legal processes involving the movement of people and goods across the border are complex and involve multiple government agencies. Staff of the Ombudsman’s office visited Christmas Island this year, where Commonwealth Government agencies involved in the interception, transfer and processing of asylum seekers include Customs and Border Protection and the multi-agency authority Border Protection Command (comprising officers from both Customs and Border Protection and the Department of Defence), the Department of Immigration and Citizenship and the Australian Federal Police.

      A complaint to our office highlighted the impact of this complexity on the simple receipting of property. A complainant’s wallet, which it is alleged had contained currency, was handled by officers from a number of agencies at various levels of responsibility before the complainant realised the money was missing. This multiple handling made it difficult to ascertain what had happened to the wallet.

      Cross-agency issues also arise at airports, where the Department of Immigration and Citizenship, the Australian Quarantine and Inspection Service, the Australian Federal Police, and Customs and Border Protection all operate. Similar issues occur with the processing of inbound international mail, where Australia Post and Customs and Border Protection functions cross over.

      Feedback from agencies indicates that they have taken steps to ensure people understand what each agency is responsible for. It is critical that the public understand how to make complaints about Government services, including in multi-agency environments.

      Update from last year

      In the 2009–10 annual report we referred to our own motion report (see previous section), which has now been released and the recommendations largely implemented.

      Stakeholder engagement, outreach and education activities

      This year we engaged in numerous liaison activities, for example with Border Protection Command regarding its role in the interception and transfer of asylum seekers on Christmas Island. Recent liaison activities have concerned the new airport screening processes relating to internal examination of travellers suspected of internally concealing prohibited substances. We have developed our role as a resource for Customs and Border Protection in the introduction of new processes to support change in the airport environment, and presented to the Enforcement & Investigations Division on our role.

      Looking ahead

      Passenger screening will be a priority for our office in the year ahead. In particular we will liaise with Customs and Border Protection regarding the trial of new screening technology and the development of related policies and procedures. We will monitor passenger complaints and broader feedback on this topic and assess the need for further scrutiny by our office as 2011–12 progresses.

      We will be monitoring the way that Customs and Border Protection deals with and responds to complaints, and assess the need for further action in this area. A priority will be whether responses to complaints are appropriate, in terms of the remedies offered, level of explanation provided and plain language expression used.

      We will continue to:

      • investigate individual complaints
      • raise complaint issues with Customs and Border Protection to ensure that information can be used as impetus improving their administration
      • be a resource for Customs and Border Protection on good administrative practice as they develop new policies and procedures.

      Overview

      In 2010–11 the Ombudsman’s office received 4954 approaches and complaints about Centrelink compared to 5199 in 2009–10. This represents a 4.7% decrease over the previous year and is the lowest number in 11 years. The figure also includes 50 approaches relating to ‘Closing the Gap in the Northern Territory’ initiatives. Centrelink remains the agency about which the Ombudsman receives the highest number of complaints. This outcome is not unexpected given the volume, complexity and diversity of Centrelink’s workload. Figure 5.3 shows the trend in approaches and complaints over the past seven years.

      During 2010–11 the office investigated 1098, or approximately 22.4%, of the 4910 approaches closed during the period. Consistent with previous years, the payments most commonly complained about in 2010–11 were Disability Support Pension, Newstart Allowance, Age Pension, Family Tax Benefit and Youth Allowance. The most common complaint reasons were problems with claims for payment, debt raising and recovery, delays, and suspension or cancellation of payments.

      Centrelink’s programs impact upon some of the most vulnerable members of the Australian community, so the need for Centrelink to be accessible, transparent and accountable in the delivery of payments and services has been a particular focus for the Ombudsman this year. The case study below provides an example of the types of difficulties vulnerable customers can experience and how greater flexibility on the part of Centrelink can ensure a better outcome.

      Figure 5.3: Centrelink approach and complaint trends 2004–5 to 2010–11

      Figure 5.3: Centrelink approach and complaint trends 2004-5 to 2010-11

      Debt raising

      We received a complaint from Mrs A on behalf of her son Mr A, that Centrelink had raised a debt against him for overpayment of Youth Allowance. Mrs A told us that Mr A had a medical condition which made it difficult for him to communicate with Centrelink without assistance. She said that the condition had prevented Mr A from continuing with his studies and had resulted in the debt being raised against him. Mrs A stated she had contacted Centrelink when Mr A ceased studying but Centrelink did not cancel his Youth Allowance.

      We asked Centrelink to reconsider the decision to raise the debt and asked the Authorised Review Officer to consider if all or part of the debt could be waived in special circumstances. We highlighted Mr A’s likely eligibility for another payment instead of Youth Allowance during the debt period, his lack of awareness of the overpayment, the difficulties he had managing his affairs and Centrelink’s error in failing to cancel the Youth Allowance payment. The Authorised Review Officer acted quickly to waive recovery of the debt in full and initiated a compensation claim under the Compensation for Detriment caused by Deficient Administration scheme for a possible underpayment of a more favourable benefit.

      Complaint themes

      Quality of advice

      The Ombudsman’s office has received many complaints from members of the public who complain that Centrelink has not provided them with correct and complete advice about their possible entitlement to social security programs and payments.

      The social security program is complex and in navigating the system, members of the public rely on Centrelink staff to provide accurate and timely advice about their entitlements to social security at various times of life. The following case study highlights the importance of staff awareness and training about the social security system as well as the consequences of not providing a customer with complete advice about their entitlements.

      Providing complex information to customers

      Mr B complained to this office that his wife, Mrs B, had not been informed of the pension bonus scheme (PBS) when she asked Centrelink for information about the age pension in 2004. As a result, Mrs B claimed the age pension and between 2004 and 2007 received less than she would have if she had registered for the Pension Bonus Scheme. Centrelink then declined to pay compensation to Mrs B under the Compensation for Detriment caused by Deficient Administration (CDDA) scheme. This office investigated and identified that Mrs B had been incorrectly permitted to lodge an abridged version of the Age Pension claim form, which did not include information about the Pension Bonus Scheme. We recommended to Centrelink that the CDDA decision be reconsidered as proper procedures had not been followed. The CDDA reconsideration resulted in compensation being paid to Mrs B.

      System issues

      Over the years, the Ombudsman’s office has received complaints that involve ‘computer system errors’ and/ or ‘technical glitches’ that have impacted on a customer’s payment. The complaints have demonstrated the frustration and delays customers experience in having such problems rectified. In some cases, the Ombudsman’s office has observed that Centrelink has put in place manual work-arounds until system reforms can be carried out. This can result in the potential for error, accidents and omissions which can be difficult for both Centrelink and the customer to identify.

      Computer system errors

      Mrs C approached this office as her husband, Mr C, was having difficulty reporting his fortnightly employment income to Centrelink in relation to his Newstart allowance and Mrs C’s Age Pension. Centrelink required Mr C to contact them by telephone or in person to report even though his preferred method of reporting was online. Due to a systems problem, the calculation of the Age Pension rate paid to Mrs C to reflect the work bonus rules needed to be done manually by a Centrelink officer. Following investigation by this office Centrelink implemented a manual system in which two Centrelink officers were notified by reminder email to manually process the income information each fortnight and Mr C was able to resume reporting the information online. We remained concerned that this arrangement was open to human error and that other Centrelink customers may be in a similar situation.

      Following further investigation we were informed by Centrelink that the problem arose from an error in its pension computer system. Centrelink identified approximately 1,800 affected customers and, in May 2011, it identified that around 800 had been underpaid. In June 2011 Centrelink implemented a system fix and paid arrears to approximately 800 customers whose entitlements had been under-paid.

      Internal Centrelink reviews

      Complaints about Centrelink review processes are regularly received by the office. As discussed below, an own motion investigation and report was released on this issue earlier this year and Centrelink is trialling a new internal review framework which aims to address some of the issues raised in the report such as timely access to review.

      Debt raising and recovery

      Debt has continued to be a common issue of complaint to our office in 2010–11. In particular, we have received a number of complaints from customers who believe that Centrelink has raised a debt against them on the basis of incorrect information and without giving them an opportunity to correct the information. We have also received many complaints about Centrelink’s debt recovery methods, including automatic referrals to private collection agents and initiation of garnishees1 and legal action even while a repayment arrangement is being adhered to. These issues may be explored in more detail in 2011–12.

      Systemic issues

      Systemic issues this year included the following matters:

      Australian Government Disaster Recovery Payment

      Earlier this year, the Australian Government activated the Australian Government Disaster Recovery Payment (AGDRP) in relation to the Queensland, New South Wales, Victorian and Western Australian floods, Cyclone Yasi and Western Australia fires. This resulted in an increase in AGDRP applications to Centrelink and a modest increase in complaints to this office about Centrelink in the three months following the disasters. In the main, we were able to refer complainants back to Centrelink to obtain information about seeking review of a decision to refuse a claim for the AGDRP.

      Our office also received a number of complaints about delays in processing AGDRP claims for Cyclone Yasi, which Centrelink advised us occurred as a result of the need for it to seek policy clarification from the Attorney-General’s Department (AGD), as the policy department, about one of the eligibility criteria. We intend to discuss these delays with the department shortly, and will also be seeking further information from it about the AGDRP policy as it relates to claims from ‘non principal carers’ who had a child in their care at the time of the disaster.

      Implementation of tribunal decisions

      The Ombudsman’s office continues to have concerns about Centrelink’s processes for scrutinising and responding to tribunal decisions that have broader implications for the policies and procedures as instructed by the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) and the Department of Education, Employment and Workplace Relations (DEEWR).

      This issue arose in the Ombudsman’s report Review rights for Income Managed people in the Northern Territory (10|2010) where our investigation of a complaint identified a Social Security Appeals Tribunal decision on the Tribunal’s lack of jurisdiction to consider reviews about Income Management exemptions. The Tribunal’s decision went unnoticed by FaHCSIA and Centrelink, but should have prompted the two agencies to assess the decision and consider the need for appeal, legislative amendment or a change to administrative processes. The specific issue of this report became redundant when the new Income Management arrangements were rolled out in mid-2010, but we are continuing to follow up on the broader issue of timely analysis and action in response to significant Tribunal decisions.

      The Ombudsman’s office has observed other complaints where the Administrative Appeals Tribunal has made decisions that impact upon the interpretation and administration of social security law and have implications for other customers. However, Centrelink and the policy departments do not always appear to have responded promptly to clarify policy guidelines, creating an ongoing inconsistency between how Centrelink and the tribunal interpret the law. Our office is currently pursuing with Centrelink, FaHCSIA and DEEWR the decision-making processes around the review of tribunal decisions, particularly where they relate to key definitions in the law.

      Customers in crisis

      In recent years the Ombudsman’s office has received complaints from people in crisis who have been advised by Centrelink that they are not eligible for financial assistance. In many of these complaints the advice provided by Centrelink has been correct and the customers do not meet the legislative or policy requirements to receive a crisis, urgent or advance payment. However, our investigation of these complaints has led us to query whether the current arrangements for providing crisis or emergency payments are too narrow and unreasonably prevent some needy customers from accessing support. Some of these issues were raised in our submission to the Australian Law Reform Commission’s inquiry into the treatment of family violence in Commonwealth laws. This issue may be further explored in 2011–12.

      Cross-agency issues

      Many complaints to the Ombudsman require us to make enquiries of more than one agency. This is often the case where one agency is responsible for delivering a product or service, while another has responsibility for the relevant policy or law. As the largest government service delivery agency and portal for a variety of government payments and services, this is often a factor in Centrelink complaints.

      Child care payments – Centrelink and DEEWR

      The intersection between Centrelink and the Department of Education, Employment and Workplace Relations (DEEWR) in the delivery of child care payments has been a source of complaints to our office over a number of years. In August 2010, a ‘contact once’ model was implemented to simplify complaint handling about child care issues by placing a responsibility on the agency with which the customer makes contact to liaise with the other agency to resolve the problem and provide a response directly to the customer. Although this has improved the resolution of complaints between Centrelink and DEEWR some problems still remain as highlighted in the example below.

      Reasonable maintenance action data transfer – Centrelink and CSA

      Over the past twelve months our office has been working with Centrelink and the CSA to investigate their respective roles in administering the ‘reasonable maintenance action test’ for Family Tax Benefit. Specifically, we have been trying to find out why some customers have incurred substantial Family Tax Benefit debts as a result of Centrelink finding out some years later, via an electronic data transfer from the CSA, that the customer has not had a child in their care for a period. Centrelink’s processes rely upon the transfer of computer data as the basis for making a complex decision about whether a person has taken reasonable maintenance action. We do not consider that this is an appropriate use of computer-assisted decision making.

      This is also discussed in the Child Support Agency overview on page 55, and will continue to be an area of focus for our office over the coming year.

      Cross-agency issues

      In November 2010 Mr D claimed Child Care Benefit to enable him to receive Child Care Rebate through Centrelink in relation to his son’s child care attendance. Centrelink told Mr D that due to a computer system problem his child care provider had been unable to submit child care usage details via the DEEWR Child Care Management System, which in turn prevented payment of the rebate by Centrelink. Mr D complained to this office after making numerous complaints to Centrelink.

      This office investigated the complaint with Centrelink and DEEWR. Centrelink provided us with email correspondence between itself and DEEWR which indicated DEEWR was not responding to Centrelink about the issue. DEEWR advised this office that it had made an error in trying to obtain child care attendance figures from the wrong child care provider and had also attempted to apply approval for the incorrect dates. As a result DEEWR was able to correct the errors and Centrelink paid Mr D Child Care Rebate in April 2011.

      We are continuing to follow up with Centrelink and DEEWR to ensure customer complaints that involve multiple government agencies are able to be easily resolved.

      Reports released

      The Ombudsman released the following reports in 2010–11 relating to Centrelink:

      • The report Falling through the cracks—Centrelink, DEEWR and FaHCSIA: Engaging with customers with a mental illness in the social security system (Report 13|2010) was published in October 2010. Centrelink was one of three agencies investigated regarding service delivery to customers suffering from a mental illness. The report made a range of recommendations designed to improve engagement with, and services to, customers with mental health issues and disabilities. Subsequent to the report Centrelink has established an Interagency Working Group, comprising representatives of Centrelink, the Department of Human Services, Department of Education, Employment and Workplace Relations (DEEWR) and Department of Families, Housing, Community Services and Indigenous Affairs to progress the Ombudsman’s recommendations, particularly in relation to training needs and updating policy guidelines. Centrelink has also convened a Working Party consisting of agency representatives and a number of welfare, disability, advocacy and carer organisations to guide implementation of the more complex recommendations. Our office will continue to monitor implementation of the report recommendations. DEEWR has also provided an update on the implementation of the recommendations relevant to its areas of policy responsibility including Job Services Australia providers. Information about DEEWR’s progress in implementing the recommendations can be found at page 64 of the DEEWR chapter.
      • The report Centrelink: Right to review–having choices, making choices (Report 04|2011) investigated Centrelink’s internal review processes and was published in March 2011. The report highlighted problems with the existing review processes and made a number of recommendations including that Centrelink improve the timeliness of reviews, limit the negative consequences of incorrect decisions pending review, improve the quality of original decisions and work with relevant policy departments to ensure that legislation and policy guides align to support improvements to the review system. Centrelink accepted the recommendations and advised that it had commenced a trial of an enhanced internal review process. The Ombudsman’s office accepted Centrelink’s offer to provide input to the design and review of the new framework and meets regularly with Centrelink. We expect to release a follow-up report on the progress of the report recommendations once the new framework has been implemented.
      • Centrelink was one of two agencies investigated as a result of a complaint about the Income Management regime in the Northern Territory. The report Department of Families, Housing, Community Services and Indigenous Affairs and Centrelink: Review rights for Income managed people in the Northern Territory (Report 10|2010) was published in August 2010 highlighting significant failure in the provision of review rights to people affected by the former income management regime. Further information is included in the Indigenous overview on page 87.
      • Centrelink was also included in a report titled Talking in Language: Indigenous language interpreters and government communication (Report 05|2011), published in April 2011. Centrelink was responsive to this report and participated in a workshop with the other agencies included in the report to discuss implementation of the recommendations. Further information is included in the Indigenous overview on page 87.
      • Submissions were made to the Australian Law Reform Commission’s inquiry into the treatment of family violence in Commonwealth laws, regarding Issues papers 38 (child support and family payments) and 39 (social security). Staff from the Ombudsman’s office also participated in the Commission’s expert roundtable to discuss proposals regarding social security law.

      Update from last year

      Transfer to age pension

      In our last annual report, we discussed a complaint that highlighted a systemic problem with the way that some customers were transferred to Age Pension when they reached Age Pension age. At that time we had sought information from Centrelink about its processes for assessing the claims of affected customers and determining whether they were entitled to backdated payments. We have since been advised that the 1,800 affected customers were contacted by Centrelink and, where appropriate, arrears of Age Pension were paid to the date they first became eligible for an increased rate of payment.

      Review of circumstances leading to a fraud conviction

      In May 2010 the Ombudsman’s office released an investigation report into the handling of a fraud matter by Centrelink and the Commonwealth Director of Public Prosecutions. That report recommended that both agencies revisit their handling of the case and provide advice to the customer about appealing the recorded fraud conviction. In 2010–11 our office was advised that, following an appeal by the customer, the conviction was set aside and a verdict of acquittal recorded. The Director also provided an assurance to the customer that it did not intend to further pursue the matter.

      Stakeholder engagement, outreach and education activities

      The office has increased its outreach and community engagement in an effort to be more accessible and to gain a better understanding of the issues faced by the people in the community. Community roundtables focused on social welfare issues were conducted with non-government organisations in capital cities last year. More recently roundtables have been held in Brisbane, Canberra and Melbourne.

      Further information about the office’s involvement in stakeholder engagement and outreach can be found in Chapter 7— Engagement .

      Looking ahead

      Department of Human Services – Service Delivery Reform

      As the Department of Human Services continues to progress its Service Delivery Reform agenda, our office will be closely observing the impact of any changes on Centrelink customers. We are particularly interested in the issues of accessibility, information sharing and the standardisation of procedures and policies across the portfolio. We will be seeking regular updates on the work in these areas, and will participate in working groups and consultative forums where appropriate.

      Changes to payments and services

      The 2011–12 Federal Budget flagged a number of substantial changes to some payments and services delivered by Centrelink. Of particular interest to our office are the changes to eligibility requirements for Disability Support Pension, and the rolling out of Income Management and increased compliance activity initiatives in target areas. We will continue to seek updates from Centrelink as it implements these reforms, and highlight relevant issues of concern that may arise from complaints to our office.

      Debt raising and recovery

      Over a number of years the Ombudsman has received complaints about Centrelink’s practices in raising and recovery of social security and family assistance debts.

      As mentioned in the ‘Complaint Themes’ section, particular areas of focus have included procedural fairness in decision making, the quality of information provided to customers about the reasons for a debt, and the willingness of staff to adapt debt recovery arrangements to the customer’s circumstances.

      This will be a continued area of attention in the coming year.

      Income management decision making

      Our office is currently conducting an audit of Centrelink’s decisions to apply Income Management (IM) to a person because they are assessed as being a Vulnerable Welfare Payment Recipient, and its decisions not to exempt a person because Centrelink has determined there are indicators of Financial Vulnerability. The Ombudsman will release a public report in 2011–12 regarding the results of this audit.

      Child Support Agency

      Overview

      The Child Support Agency (the Agency) is part of the Commonwealth Department of Human Services1, and is responsible for the assessment and transfer of child support payments between separated parents.

      Complaints about the Agency still make up a considerable proportion of the Commonwealth Ombudsman’s workload. However, the actual number of complaints received by our office has dropped slightly (2,121 complaints in 2010–11 compared to 2,280 in 2009–10). This continues a downward trend since 2008–09, when we received 2,471 complaints about the Agency – a ‘spike’ largely attributable to the Agency’s implementation of a new child support formula. Interestingly, the Agency also fell from third to fifth most complained about agency in 2010–11, although this is attributable to more complaints about other Commonwealth agencies, rather than fewer complaints about the Agency.

      We investigated approximately 28% of the complaints that we finalised in 2010–11. The other 72% either raised issues that we considered did not warrant investigation, or which the complainant could readily or more appropriately pursue through other avenues. Those other avenues include using the Agency’s internal complaints or objection process; appealing to the Social Security Appeals Tribunal; or applying to a court. Whenever we decline to investigate a person’s complaint about the Agency, we explain our reasons for doing so, and provide information about the other ways the person can address their complaint issue. We also record information about the issues raised by each complaint to assist us in monitoring trends in the Agency’s administration.

      There have been some significant policy and service delivery changes affecting the Agency this year. As we discuss below, those changes have generally improved aspects of the Child Support Scheme, but there have been some teething problems.

      Figure 5.4: Child Support Agency approach and complaint trends 2004–5 to 2010–11

      Figure 5.4: Child Support Agency approach and complaint trends 2004-5 to 2010-11

      Complaint themes

      Which Child Support Agency customers complain to the Ombudsman?

      The Agency’s customers fall into two quite distinct groups: people (usually parents) who are entitled to receive child support payments (‘payees’); and those parents who are liable to pay child support (‘payers’). From 1 July 2010, we started recording whether our complainants were payees or payers. We hoped this data would help us to better analyse the underlying causes of Agency complaints. In 2010–11, slightly more than two-thirds of the people who complained to us about the Agency were payers. At this stage we do not possess data to indicate the reasons for this discrepancy so it is not clear to us whether this means that payers are generally less satisfied with the Agency’s administration than payees. We will however be doing more to ensure that all Agency customers are aware of the Ombudsman’s services and their right to complain to us if they are dissatisfied with the Agency’s administration.

      Right to know

      Mr E is entitled to receive child support from his former wife, Ms F. Mr E complained to us about the Agency’s failure to keep him informed of its attempts to collect arrears of child support from Ms F. However, Ms F had recently left her job and this had made it more difficult for the Agency to collect child support. Mr E told the Agency that Ms F intended travelling overseas in the near future and had asked it to consider making a Departure Prohibition Order (DPO) to prevent her leaving Australia without paying her child support debt. The Agency refused to tell him whether it had done so.

      When we contacted the Agency office administering Mr E’s case, it advised us that the Privacy Act 1988 prevented it from telling Mr E any personal information about Ms F. The Agency believed that this meant that it could not tell Mr E whether it had issued a DPO against Ms F. We wrote to the Agency’s national office and expressed our view that Parliament actually included a specific provision in the child support legislation to allow the Agency to provide reports to a payee about collection actions, and this meant that the Agency could disclose limited amounts of personal information to keep the payee informed. The Agency agreed, clarified the position for its staff and apologised to Mr E.

      Debt enforcement

      A perennial issue in complaints from Agency payees is that they are unhappy with the Agency’s action to collect child support from the payer. These complainants frequently also say that the Agency has failed to provide any meaningful report about the efforts that it has made, or will make in the future. Often the Agency will tell the payee that it is not allowed to provide this sort of information to them because it would breach the payer’s privacy. However, as the following case study shows, this is not strictly true. We believe the Agency needs to recognise that it is important to be accountable to the payee for the actions that it takes in its efforts to collect child support for them.

      We have also advised the Agency of our concern that its usual procedures for gathering information to assist it to collect child support do not currently include requiring the debtor to attend an interview to answer questions about their finances. We consider including an interview would be a cost effective measure that would complement the other inquiries that the Agency makes via third parties, particularly in cases where the debtor’s lifestyle is not consistent with his or her known income or assets.

      Overseas cases

      The Agency can make (or continue) a child support assessment in a case where the payer or payee lives overseas. It can also register and collect spousal or child maintenance payable under a court order or administrative assessment made in a `reciprocating jurisdiction’. We have noticed, however, that the Agency’s administration of some of these cases can be hampered by a failure to set reasonable customer expectations, communication problems, delays, or general lack of responsiveness. The following case study illustrates all of these themes.

      So far away

      Mrs G lives in the UK, where she obtained a court order for child and spousal maintenance from Mr H, who lives in Australia. The UK authorities sent the order to the Agency in Australia for registration and collection. Mrs G complained to us that the Agency had only registered the child maintenance component of the order. Mrs G sent the Agency a series of emails about this problem over a six month period, but the Agency had not responded to many of them. She felt the Agency was ignoring her and she had no faith that it would address her concerns.

      When we contacted the Agency we found that it was confused about the wording of Mrs G’s order. It had acted promptly to register the part of the order about child maintenance, but although it could legally collect spousal maintenance, it did not understand the wording of the order about the period over which those payments were to be made. The Agency had written to the UK authorities for clarification, but it had not received a response, or followed this up. The Agency also advised us that it may have made a mistake when it worked out how much child maintenance Mr H had to pay under the order. The Agency had also not answered Mr H’s queries about his debt to the Agency, which he disputed.

      We persuaded the Agency to deal with all of Mrs G and Mr H’s concerns as objections to the details entered into the child support register. This meant that a single Agency officer reconsidered all the information, made a decision about the correct amounts of child and spousal maintenance payable under the UK order, amended the Agency’s records accordingly and provided written decisions to Mr H and Mrs G. This resolved the impasse and gave them the option of appealing to the Social Security Appeals Tribunal if they disagree with the Agency’s decisions.

      Systemic issues

      Garnishee notices to collect child support debts

      The Agency can serve an administrative garnishee notice upon a person who holds, or is likely to hold in the future, money on account of a child support debtor2. A person who fails to comply with the notice may be subject to penalties, which might include being required to pay the debt out of their own funds. This can be a very effective way for the Agency to collect child support from a reluctant payer. However, it is important that the Agency monitor whether the third party actually complies with the notice.

      My boss stole my money!

      Mr J complained to us that the Agency was chasing him to pay around $8,000 in child support arrears. He said he had paid off this debt years ago, through deductions from his contract payments. Mr J said the Agency should get the money from Mr J’s former employer, who had gone into liquidation.

      We investigated Mr J’s complaint and found that the Agency instructed Mr J’s employer to deduct 30% from every payment they made to Mr J, and send that money to the Agency. The employer made the deductions, but failed to transfer all the money to the Agency. When the Agency’s efforts to encourage the employer to comply did not succeed, it failed to refer the employer’s case for prosecution. Even more worryingly, it decided to leave the arrangement in place, so more deductions were made from Mr J’s payments. When the Agency learned that the employer had gone into liquidation, it told Mr J that this was now a matter between Mr J and his former employer.

      During our investigation, the Agency accepted that it had failed to take decisive and appropriate action in Mr J’s case and that this had caused Mr J to lose a substantial sum of money. It offered Mr J compensation equivalent to the sum that his employer had retained. The Agency proposed to Mr J that it would apply that compensation to his child support debt, and that this money would then be transferred to his former partner for the support of their children.

      The Agency has advised us that it is planning a range of procedural and computer system improvements, plus staff training, to address the systemic problems exposed by Mr J’s complaint. It is also in discussion with its policy department (of Families, Housing, Community Services and Indigenous Affairs) about the possibility of legislative changes to ensure that the Commonwealth, rather than Agency customers, bear the financial risk in cases like Mr J’s.

      In another case, the Agency failed to withdraw a garnishee notice after the person’s child support debt had been paid off. The officers who refunded the overpaid money to the payer failed to make sure that the employer was instructed not to make further deductions, so they continued to deduct and send money to the Agency. We intend working with the Agency in the coming year to highlight areas where it can improve its administration of garnishee notices.

      Child Support Overpayments

      We have received a small but steady stream of complaints from both payers and payees since at least 2007 about the Agency’s approach to overpaid child support. The payees’ issues include the Agency’s failure to clearly explain the reason for the overpayment and how it was calculated, the perceived unfairness of requiring them to repay a debt received in good faith, that their child support payments were stopped without warning when the Agency decided they had been overpaid, and the Agency’s refusal to allow them to repay the overpayment by withholdings from future child support payments. The payer complaint issues include the Agency’s refusal to refund the overpaid amount until it has been recovered from the payee, to recover it fast enough, or its failure to recover the overpayment at all.

      We acknowledge that child support overpayments are a difficult problem, requiring the Agency to carefully balance the interests of both parents, the children and the Commonwealth. The Agency has advised us that it is well advanced in developing a new approach to recovering overpayments. It has undertaken to provide us with a briefing about that new approach in advance of implementing it. We will be carefully monitoring complaints about child support overpayments in future to see whether the new approach is an improvement.

      Cross-agency issues

      The Agency needs to work closely with a range of other Commonwealth agencies to administer the Child Support Scheme. Most notably, the Agency routinely has interactions with the Australian Taxation Office (ATO) and Centrelink, as set out below, the Agency:

      • relies upon the ATO for details of parents’ incomes
      • instructs the ATO to deduct child support payments from debtors’ tax refunds
      • and Centrelink exchange information about the proportion of time that children spend in each parent’s care, for the purposes of working out child support and family tax benefit entitlements
      • tells Centrelink whether a person has applied for a child support assessment, so Centrelink can work out that person’s family tax benefit entitlement
      • instructs Centrelink to deduct child support payments from benefits paid to Centrelink customers, and Centrelink transfers those payments to the Agency, which in turn pays them to the payee.

      Many of these interactions are automated, but problems with those automated processes can prove difficult to resolve.

      Centrelink / Child Support Agency

      We have also been working closely with Centrelink and the Agency for more than a year on a project about their interaction to administer the ‘reasonable maintenance action test’ for family tax benefit. We have been trying to find out the underlying reasons for certain mutual customers acquiring large family tax benefit debts when Centrelink belatedly discovers that the Agency has not for some time had a current child support case for one of the children in their care.

      Social Security Appeals Tribunal/Child Support Agency

      The Agency also needs to work with the Social Security Appeals Tribunal (the Tribunal), which has jurisdiction to review the Agency’s objection decisions. The Agency is responsible for copying and sending the relevant documents from its file to the Tribunal and to the parties to a review. The Agency must also implement the Tribunal’s decision if the Tribunal changes the Agency’s decision.

      We have received two complaints alleging an error in the Agency’s implementation of the Tribunal’s decision, or alternatively an error in the Tribunal’s decision. We have had some success in resolving these complaints by investigating them with the Agency. However, we decided that it would not be efficient to contact the Tribunal to seek to clarify the intended effect of its decisions, because of the difficulties we experienced in investigating another unrelated complaint.

      The Principal Member of the Tribunal has discontinued her predecessor’s arrangements which allowed us to contact the relevant Tribunal registry to clarify a complaint, or conduct simple investigations. She has also asserted that the Ombudsman has no power to investigate decisions made by Tribunal Members in relation to a review. This is something we will seek to resolve in the future through continued contact with the Tribunal and seeking the advice of the responsible policy Department, about the intent of the relevant legislation.

      Reports or submissions released

      The Ombudsman made the following reports and submissions about the Agency in 2010–11:

      • Report 11|2010 — Child Support Agency, Department of Human Services: Investigation of a parent’s ‘capacity to pay’ , published August 2010. The Agency responded positively to the report and we are monitoring its implementation of the recommendations.
      • Report 14|2010 — Department of Human Services, Child Support Agency: Unreasonable Customer Conduct and ‘Write Only’ policy , published November 2010. The Agency has developed new procedures in the light of this report and it has reviewed all of the cases where it had previously restricted customers to ‘write only’. In the coming year we will be examining the Agency’s records of those reviews and providing feedback on the Agency’s new policy and procedures for managing unreasonable customer conduct.
      • Submission to the Australian Law Reform Commission’s inquiry into the treatment of family violence in Commonwealth laws, Issues papers 38 (child support and family payments) and 39 (social security). Staff from the Ombudsman’s office participated in the ALRC’s expert roundtable to discuss proposals regarding child support and family assistance.

      Update from last year

      In our 2009–10 report we mentioned changes to the child support legislation that would commence from 1 July 2010 about ‘care percentage’ decisions and income estimates.

      The amended legislation about ‘care percentage’ decisions was part of a broader service delivery reform that aligned the rules applied by the Child Support Agency and Centrelink for working out a care percentage, and enables either agency to make a decision that applies across both agencies. Centrelink and the Agency have provided us with regular briefings about the implementation of the alignment of care initiative. We have investigated a small number of complaints about delays or failures in the automated transfer of care percentage data between the two agencies. We will continue to monitor this issue.

      In 2010–11 we have not seen any increase in complaints about the Agency’s administration of income estimates under the new rules. At the same time, we are receiving fewer complaints about delays in the Agency’s reconciliation of old income estimates.

      Stakeholder engagement, outreach and education activities

      We maintain a close working relationship with the Agency, meeting regularly with senior staff, and participating in a range of stakeholder groups and working parties convened by the Agency and its policy department FaHCSIA. These include: the Child Support National Stakeholder Engagement Group; various State Stakeholder Engagement Groups; and the NSW Legal Liaison Group. We keep in contact with many of the community groups involved in those meetings between sessions.

      We participated in the Agency’s Domestic Violence working party, and an Agency stakeholder consultation on its project to simplify child support assessment notices; we provided feedback on the Agency’s proposed new account statements for payers; and we met with a consultant conducting a review of the Agency’s privacy practices.

      We held successful community round table meetings in Sydney and Adelaide in late 2010 to talk about the Ombudsman’s work in relation to the Agency. We also gave a presentation at a conference of the NSW Women’s Refuge Movement about the assistance that the Ombudsman can provide to people having problems with Centrelink or the Agency regarding homelessness, family breakdown or family violence.

      In June 2011, we conducted outreach to the Central Coast of New South Wales, where we had talks with the electorate staff of a Federal MP, a community legal centre specialising in domestic violence and a non-government agency that provides free meals, support and referrals to homeless people.

      Our regular and open communication with stakeholders has enriched our understanding of the experiences of those who deal with the Agency and alerted us to issues that are not readily apparent from the complaints we receive. We have also been able to put some of our contacts in touch with each other so they can share information and strategies for dealing with child support matters.

      DNA tests for single mothers

      In late 2010, we attended a child support stakeholder meeting where a community legal centre staff member told us the centre was unable to get Legal Aid funding for DNA tests for single mothers wanting to claim child support. Not only did this mean that these women could not receive child support, they were also at risk of Centrelink deciding they were not ‘taking reasonable maintenance action’ and cutting their Family Tax Benefit payments. Knowing such funding is available in other States, we arranged for one of our contacts in a Legal Aid office (in a State that provides funding for the purpose) to contact the community legal centre. The centre has now secured Legal Aid funding for DNA tests.

      Looking ahead

      Although we encourage and in many cases expect Agency customers to use the Agency’s complaints service to resolve their problems, we are concerned that some people approach our office first, or do not wish to approach the Agency at all. We are also not confident that the people we advise to complain to the Agency first actually act on our advice. We intend developing a process, in consultation with the Agency, to directly transfer some complaints to its complaints service for resolution. This will occur only with the complainant’s consent. The person will be invited to come back to us if they remain dissatisfied with the Agency’s response.

      In the coming year, the Agency’s customers will see further changes as the Department of Human Services reforms service delivery by integrating Centrelink, Medicare and Child Support into the one agency. We intend to monitor the Agency’s processes as it becomes part of the integrated department and will seek to influence and improve the service delivery model, particularly for vulnerable customers. We are especially keen to ensure that the Department of Human Services minimises the barriers to people using its complaints and internal and external review processes, reducing the need for them to approach the Commonwealth Ombudsman.

      Comcare

      Overview

      In 2010–11 we received 64 approaches and complaints about Comcare, compared to 72 during 2009–10. Although this is not a significant change in the number of complaints received, it continues a downward trend in complaint numbers over the last three years.

      Figure 5.5: Agency approach and complaint trends 2004–5 to 2010–11

      Figure 5.5: Agency approach and complaint trends 2004-5 to 2010-11

      Complaint themes

      In 2010–11 we investigated 16 complaints, compared to 31 complaints in the previous period. Key complaint themes continue, as in previous years, to concern the rejection of claims for compensation, delays in the assessment of claims, and overall treatment of clients by Comcare and claim managers.

      Comcare’s improved internal complaint-handling procedures may have assisted in reducing the number of complaints needing to be investigated by our office. Of note is that the number of remedies recorded by our office to ‘expedite action’ has halved, suggesting greater effort by Comcare to deal with timeliness issues.

      Systemic issues

      While the Ombudsman can investigate those complaints mentioned in the previous section, we cannot overturn individual decisions made by Comcare. If a complainant is unhappy with a decision, there is a formal two-tier review process available. The first step involves an internal Comcare review by someone not involved in the original decision. If still unhappy, the complainant can appeal to the Administrative Appeals Tribunal.

      Although cases are often settled at the Administrative Appeals Tribunal pre-hearing, it can be a lengthy process to get to that point and some complainants question whether it is necessary for matters to have progressed that far before getting a more favourable decision.

      Cross-agency issues

      There were no significant issues identified.

      Reports released

      There were no reports issued this financial year.

      Update from last year

      As stated in last year’s annual report, Comcare provided an undertaking in response to Comcare and Department of Finance and Deregulation: Discretionary Payments of Compensation (Report 04/2010) that it would work to develop a compensation scheme similar to the Compensation for Detriment caused by Defective Administration (CDDA) scheme. Progress has been made. In June 2011 Comcare told this office that it is continuing its consultation with the Department of Education, Employment and Workplace Relations and the Department of Finance and Deregulation in relation to the option of establishing a scheme, similar in nature to the CDDA scheme, within the Safety, Rehabilitation and Compensation Act 1988 .

      The recommendations of Report 04/2010 were considered by the Finance and Public Administration Legislation Committee, which examined the lack of a proper compensation scheme for claimants who have been disadvantaged as a result of administrative errors by Government agencies not included under the CDDA Scheme. It recommended that the limit for payment in special circumstances provided for by the Public Service Act 1999 and the Parliamentary Service Act 1999 be increased from $100,000 to $250,000, thereby expanding an avenue for compensating some claimants affected by defective administration.

      While we welcome the above recommendation, unfortunately it will not fully address the current inequities in compensation across different agency types. It is our position that people should have a mechanism to claim compensation where they have suffered a financial loss due to the defective actions or decisions of all agencies and contracted service providers that deliver services on behalf of the Australian Government. For this reason we welcome the Committee’s recommendation that Comcare, the Department of Education Employment and Workplace Relations and the Department of Finance and Deregulation conclude their consultation in relation to creating a CDDA-type scheme, as a matter of priority. This will be a step towards achieving the goal of more equitable access to compensation across the whole of the public sector.

      Stakeholder engagement, outreach and education activities

      Our office has developed an effective working relationship with Comcare that has assisted in the effective resolution of complaints. We generally meet quarterly with Comcare’s key contact area to discuss any issues arising out of complaints.

      Looking ahead

      In response to concerns by complainants about the review process we intend to work with Comcare to identify administrative changes that could be made to the review process that might improve claimant experience. With the assistance of Comcare, the initial step would involve monitoring the type and volume of pre-hearing settlements at the Administrative Appeals Tribunal. If this confirms the experience of complainants, steps will be taken to identify barriers to reaching the correct or preferable decision more quickly. This process would also involve working with the Tribunal.

      The following case study is an example of how our office was able to assist complainants.

      Delay in review

      Ms M complained about the time taken by Comcare to complete a review of a decision that she requested in March 2010. Our investigation found that one of the requests for review had initially been overlooked. No action was taken to progress it until after we became involved.

      Comcare finalised the review on 30 July 2010 and apologised to the complainant for the delay. Our office recorded administrative deficiency on the grounds of unreasonable delay, which Comcare accepted.

      Department of Education, Employment and Workplace Relations

      Overview

      In 2010–11 we received 481 complaints about the Department of Education, Employment and Workplace Relations (DEEWR, or the department), compared to 479 complaints in 2009–10 and 571 in 2008–09. The number of complaints investigated, as a proportion of complaints received, has reduced. This reflects the impact centralisation of DEEWR investigations by the office has had on complaints investigated. Such centralisation has enabled a greater level of specialisation and knowledge of the issues and thereby a greater capacity to assist complainants without having to undertake an investigation.

      Figure 5.6: DEEWR approach and complaint trends 2004–5 to 2010–11

      Figure 5.6: DEEWR approach and complaint trends 2004-5 to 2010-11

      Complaint themes

      The main issues raised with our office this year were in relation to:

      • concerns about the department’s handling of complaints about Job Services Australia and Disability Employment Service providers
      • issues relating to the Australian Apprenticeship Incentive Program
      • the administration of child care assistance subsidies such as Jobs, Education and Training Child Care Fee Assistance.

      There has been an overall reduction in the number of complaints about Trades Recognition Australia and the General Employee Entitlements and Redundancy Scheme since 2009–10. In relation to the reduction in complaints about Trades Recognition Australia, this is a trend that was noted in our last annual report and appears to be due to the implementation of the Job Ready Program in January 2010. That program provides greater clarity about the steps required by international graduates to demonstrate their job readiness before applying for permanent residency.

      Systemic issues

      The key systemic issues identified during 2010–11 were:

      • adequacy of complaint handling by Job Services Australia and Disability Employment Service providers
      • adequacy of record keeping by Job Services Australia and Disability Employment Service providers
      • lack of advice about review rights where request to transfer to new Job Services Australia provider has been declined
      • consistency and adequacy of decision making by Trades Recognition Australia
      • adequacy of complaint handling in relation to child care assistance subsidies.

      Cross-agency issues

      The intersection between the department and Centrelink in the delivery of child care assistance programs such as Jobs, Education and Training Child Care Fee Assistance has been a source of complaints.

      Please see the Overseas Students Ombudsman section on page 123 for information on the department’s role in that jurisdiction.

      Reports released

      Falling through the cracks

      The report Falling through the cracks—Centrelink, DEEWR and FaHCSIA: Engaging with customers with a mental illness in the social security system (Report 13|2010) was published in October 2010. The report made a range of recommendations designed to improve engagement with and services to customers with mental health issues and disabilities. As the agency with responsibility for elements of social security policy and for Job Services Australia and Disability Employment Services providers, many of the recommendations required action on the part of DEEWR.

      Subsequent to the report, DEEWR has participated in the Interagency Working Group, which was established to progress the Ombudsman’s recommendations, particularly in relation to training needs for Centrelink and Job Services Australia and Disability Employment Services staff and updating policy guidelines for payments and service delivery. Additionally, in the 2011–12 Budget, as a part of the National Mental Health Reform package, DEEWR secured $2.4 million in additional funding over the next five years to increase economic and social participation for people with mental illness.

      Further information about Centrelink’s response to the report can be found at page 52 of the Centrelink overview.

      Administration of the National School Chaplaincy Program

      During 2010–11 our office conducted an own motion investigation into DEEWR’s administration of the National School Chaplaincy Program, in response to a report released by the Northern Territory (NT) Ombudsman following her office’s investigation of complaints about the program. The NT Ombudsman’s Report identified issues with the department’s administration of the Chaplaincy Program, which she was unable to investigate due to lack of jurisdiction. These matters were referred to our office for consideration, leading to the decision to initiate the investigation. On 26 July 2011 a report was published by our office, Administration of the National School Chaplaincy Program (Report No 06|2011). The department broadly agreed with the eight recommendations contained in the report.

      The department has recently reviewed the Chaplaincy Program and the Government is currently considering the findings of that review. The department is currently reviewing its administrative arrangements, including the Program Guidelines, in preparation for the expansion of the program in 2012. We will be monitoring the action taken by the department in response to our recommendation in the year ahead.

      Update from last year

      Our office meets with the department quarterly to discuss systemic issues and to follow up on recommendations arising from formal reports and complaints where administrative deficiency has been recorded.

      Stakeholder engagement, outreach and education activities

      Our stakeholder engagement included:

      • social support round tables
      • regular briefings provided by the department regarding its programs
      • involvement in a briefing regarding job services in Brisbane.

      Looking ahead

      Despite the implementation of the ‘Contact Once’ complaint model by the department and Centrelink in August 2010, the administration of child care assistance subsidies and complaint handling relating to those subsidies remains of concern to our office as complaints continue to be received. The identification of the cause(s) of problems with the administration of the subsidies, as well as the effectiveness of complaint handling in this area, will be the subject of further scrutiny by our office during 2011–12. This is likely to also involve engagement with Centrelink as the subsidies are jointly administered by the department and Centrelink.

      Our office also intends to work further with the department to improve its complaint handling about Job Services Australia and Disability Employment Service providers, as this remains the main subject of complaints about the department.

      Case studies

      The following cases highlight good outcomes achieved through investigation and communication with agencies, on behalf of complainants.

      Lost emails

      Mr N complained to DEEWR by email about a Job Services Australia provider. He was dissatisfied that his complaint was dealt with by the provider rather than the department.

      On investigation, the department advised that it had no record of the email complaint that Mr N had submitted, despite the provider having been notified by the department at the time that a complaint had been lodged. In response to our investigation the department conducted further searches and located Mr N’s email. The department advised that staffing changes and absences had resulted in the email being incorrectly classed as having been ‘actioned’.

      The department apologised to Mr N for failing to respond to his complaint. It also took steps to try to prevent similar oversights from occurring in the future, including increasing staffing levels and implementing a strategy to manage risks associated with staff absences.

      Following correct procedure

      Mr O complained to the department about an incident that occurred at the office of his Job Services Australia provider in which the police were called to intervene. Mr O did not consider that the department had properly assessed his complaint.

      Our investigation found that the department had conducted a thorough investigation of the incident and correctly referred Mr O to the relevant law enforcement authorities. However, the investigation also found that the provider failed to prepare an incident report about its decision to call the police, in accordance with the department’s procedures. Our office expressed concern about the provider’s failure to follow correct procedure. In response, the department advised it has taken steps to remind Job Services Australia providers of their obligations and the need to properly record and report incidents.

      Improved communication

      Ms P complained to our office about non-payment of Child Care Rebate for 2009–10. She advised that this had occurred despite advising her child care centre that her daughter had returned to her care. Despite attempts to resolve this issue directly with the child care centre, Centrelink and the department over a number of months, the payment issue was not resolved.

      On investigation by our office it became apparent that Centrelink, the department and the child care centre needed to take further action to resolve Ms P’s complaint. In response to our investigation the department negotiated with the child care centre to facilitate resubmission of child care attendance information by the child care centre. This enabled the rebate to be paid to Ms P.

      This case was a good example of the department working with a child care provider to achieve a reasonable outcome where each party (the parent and the provider) had different views on the matter and there had been no obvious error by any of the parties.

      Department of Climate Change and Energy Efficiency and Department of Sustainability, Environment, Water, Population and Communities

      Overview

      During 2010–2011 we received 305 approaches and complaints about the Department of Climate Change and Energy Efficiency (DCCEE), and 32 approaches and complaints about the Department of Sustainability, Environment, Water, Population and Communities (DSEWPC, which was formerly the Department of Environment, Water, Heritage and the Arts – DEWHA).

      This was a 30% decrease from the 494 approaches and complaints that we received about these two Departments in 2009–10. This decrease reflects the ending of a number of the Australian Government’s energy efficiency programs that were a significant source of complaints in 2009–10, particularly the Home Insulation Program and the Green Loans Program. In March 2010, responsibility for administering all energy efficiency programs transferred from the then Department of Environment, Water, Heritage and the Arts (now Department of Sustainability, Environment, Water, Population and Communities) to the Department of Climate Change and Energy Efficiency.

      Figure 5.7: Approach and complaint trends DCCEE and DEWHA 2004–5 to 2010–11

      Figure 5.7: Approach and complaint trends DCCEE and DEWHA 2004-5 to 2010-11

      Complaint themes

      The main issues that people complained to our office about concerned:

      • Solar Panel Rebate decisions
      • compensation arising from the Green Loans program
      • the Insulation Industry Assistance Package.

      Solar Panel Rebates

      As we reported last year, on 9 June 2009, the Minister for the Environment announced that the Australian Government would only accept applications for the $8,000 solar panel rebate that were sent before midnight on 9 June 2009. We received many complaints about lost solar panel rebate applications. DCCEE confirmed that over 1200 applications had been reported lost. In May 2010 the Department wrote to all applicants who claimed to have submitted applications before the 9 June 2009 closure of the program, inviting them to resubmit their applications, together with supporting evidence to show that they had applied before the 9 June 2009 cut-off. Where applicants had not kept a copy of their original application, they were offered the opportunity to submit a duplicate application together with a statutory declaration to that effect. Applicants had until 4 June 2010 to resubmit their application.

      Many people took up the Department’s offer and resubmitted their applications within the required timeframe. The review of these applications took some time and many applicants were not notified of the Department’s decision on their resubmitted application until November 2010. In the meantime we received many complaints about the Department’s delay in making its decision on the resubmitted applications.

      In our view, DCCEE’s delay was regrettable, particularly given the short time frame that it had allowed for applications to be resubmitted and we expressed our concern to the Department.

      Compensation for the Green Loans program’s cancellation

      The Green Loans program was intended to assist energy efficiency initiatives in Australian homes by providing free home sustainability assessments. The assessments were voluntary and provided householders with advice on what they could do to save energy and water in their homes. However, in February 2010 as a result of well-publicised problems with the program’s delivery, the Government capped the number of home sustainability assessors at 5000, and the Department suspended issuing contracts to new assessors. In July 2010 the Government announced that the Green Loans program would be replaced by the new Green Start program. However, on 21 December 2010, the Government announced that the Green Start program would not proceed, and that the Green Loans program would continue until 28 February 2011 and then close.

      The decisions to suspend issuing new contracts, and eventually to close the home sustainability assessment scheme affected thousands of home sustainability assessors who had not been able to obtain contracts with the Australian Government. Each had invested time and money on training, insurance and registration, but had never been able to obtain any work under the scheme. Those business establishment costs were essentially lost. Some assessors claimed compensation for these losses from DCCEE under the Scheme for Compensation for Detriment caused by Defective Administration (CDDA Scheme).

      In recognition of the impact of its decisions on uncontracted assessors, the Government introduced a new Financial Assistance Scheme (FAS) designed to provide some compensation for uncontracted assessors. DCCEE then wrote to the assessors who had made CDDA claims and told them that it would not proceed with considering those claims, and invited them to lodge FAS claims instead.

      We received a number of complaints from uncontracted assessors about the Department’s decision to discontinue their CDDA claims.

      In our view, it was a positive step for the Government to introduce the FAS to provide compensation for uncontracted assessors, because FAS claims were likely to be much simpler and more straightforward to establish than CDDA claims.

      As we explained to complainants, under the FAS, unlike the CDDA Scheme, claimants did not need to show either that there had been any ‘defective administration’, nor that it caused their losses. It was sufficient for claimants to show that they were an uncontracted assessor, and that they did in fact incur the kinds of business establishment costs covered by the FAS.

      To establish a claim under the CDDA scheme, in contrast, claimants need to show both that there was ‘defective administration’ by an Australian Government agency, and that the defective administration directly caused their losses. In our view, in practice, both requirements were likely to be significant hurdles for uncontracted assessors. In particular, while there were undoubted failures in the governance of the Green Loans program, those kinds of governance failures did not fit easily into the CDDA Scheme’s definition of defective administration.

      On the other hand, we were conscious that there might be exceptional cases where uncontracted assessors had experienced specific administrative failures, such as receiving incorrect advice from the Department, that would clearly fall within the definition of ‘defective administration’ in the CDDA Scheme. If that defective administration directly caused loss not covered by the FAS, then in our view, compensation under the CDDA Scheme should still be payable, notwithstanding the FAS.

      We put this view to the Department before the FAS Guidelines were finalised, and the Department made some amendments to the Guidelines as a result. The Department explained to us that the changes were intended to ensure that the introduction of the FAS would not prevent it from considering any CDDA claims in exceptional cases.

      In light of this, we invited complainants to tell us if they considered that their case was one of these exceptional ones. To date no-one has pursued their complaint with us on this basis.

      Insulation Industry Assistance Package

      As with the Green Loans programs, because of well-publicised problems the Government announced the closure of the Home Insulation Program in February 2010. This left insulation installers, manufacturers, importers and distributors with few prospects for their employees, and with many hundreds of thousands of dollars tied up in unwanted stock. The Insulation Industry Assistance Package (IIAP) was designed to assist these businesses by partially reimbursing them for the value of the insulation stock they were holding when the Home Insulation Program closed.

      We received a number of complaints from businesses in relation to decisions about their eligibility for assistance under the IIAP. Some had their applications rejected in the first place. Others have received IIAP payments of as much as $100,000, only to have the Department subsequently determine that they were ineligible and demand the return of the grant.

      One IIAP eligibility criterion for insulation installers, intended to ensure that only installers who were still active when the Home Insulation Program was cancelled would be eligible, was that the applicant must have undertaken 10 or more installations between 1 December 2009 and 12 February 2010 (the ‘active installer’ test).

      We received complaints from several installers who appeared to fall within the intent of the IIAP, in the sense that they were still active in the installation industry when the program closed, but who for various reasons had not made the required number of installations in the relevant period. We pointed out to the Department that the IIAP Guidelines stated:

      In cases where these Guidelines do not deal with the particular circumstances of an applicant and the Program Delegate is satisfied that those circumstances are exceptional and favour an assistance payment, the Program Delegate may give directions to permit the approval of the application.

      After our intervention, the Department agreed to reconsider several applications in light of that provision.

      Another group of complaints was from businesses that had at some point registered with the Department as installers, but had then shifted their activities away from installing insulation, and instead had concentrated on importing and/or distributing insulation. As these businesses were no longer active as installers when the Home Insulation Program was cancelled, they could not meet the ‘active installer’ test. They therefore applied as importers or distributors.

      A key requirement for the IIAP, which reflected the concerns about ‘dodgy’ installers that had contributed to the Home Insulation Program being cancelled, was that the applicant could not be either the subject of a serious non-compliance investigation, or linked to a serious safety issue (the ‘no dodgy installers’ requirement).

      The Department wanted to make sure that businesses that had been installers at any point would not avoid the ‘no dodgy installers’ requirement because they had shifted their activities from installing to importing or distributing insulation. However, under the Guidelines, this requirement only applied to insulation installers – not importers or distributors.

      The Department therefore adopted an approach of ‘once an installer, always an installer’ when assessing all IIAP applications. It applied the ‘installer’ criteria to all businesses that had ever been registered as installers, even if they were no longer active as installers, and were applying only as importers and/or distributors.

      The problem was that, even if these businesses met the ‘no dodgy installers’ requirement, they could not meet the ‘active installer’ test, and therefore were not eligible for the IIAP even though they had not done anything wrong.

      In our view, the ‘no dodgy installers’ requirement itself is not unreasonable, given the safety and fraud issues that emerged in the Home Insulation Program. The Department’s desire to apply that requirement to any applicant who conducted installations at any time under the Home Insulation Program is understandable.

      However, we are concerned that an overly rigid approach to applying the Guidelines might have led to unfair and unintended consequences for businesses that shifted their activities. In our view, the ‘exceptional circumstances’ provision referred to above provides sufficient flexibility for the Department to require ex-installer applicants to meet the ‘no dodgy installers’ requirement, but without them also having to meet the ‘active installer’ test. We are continuing to liaise with the Department on this issue.

      Systemic issues

      Complaints to us over the last year highlighted issues about the lack of integration between DCCEE’s contracted call centres, and the Department’s line areas responsible for delivering programs. In particular, the call centres were not able to access information about whether or not the Department had received the caller’s application for a particular rebate, or where the application was in the queue.

      We have frequently raised this issue with DCCEE, and DEWHA before it, over the past several years. As the case study below demonstrates, this lack of integration can lead not only to delays and frustrations for callers, but to people missing out on rebates they might otherwise be entitled to.

      Maintaining accurate records

      Mr Q wrote to his local Member of Parliament on 26 November 2009 and to the then Prime Minister the Hon Kevin Rudd MP seeking their assistance to expedite payment of his Home Insulation Program rebate. DCCEE received this correspondence on 19 March 2010. It wrote to Mr Q on 22 July 2010 and advised him that he was not eligible for the rebate because the Department had not received his application within 6 months of the installation date, as required by the Program Guidelines. Mr Q then complained to our office.

      Our investigation established that Mr Q had in fact contacted the Energy Efficient Homes call centre on four occasions: 10 and 20 August, 27 October and 26 November 2009. These calls should have alerted the Department to the fact that Mr Q’s application had not been received, and the Department should have advised Mr Q to re-send his application.

      Our investigation also established that the Department had not properly checked the call centre records when it was preparing its response to the Ministerial correspondence.

      In response, the Department immediately sought to remedy its errors. A senior officer telephoned Mr Q to apologise, and to invite him to submit a replacement application. The Department sent the application form to Mr Q on 15 September 2010, and when Mr Q returned the forms they were processed and he was reimbursed immediately.

      We have received many other complaints from people whose applications for various rebates had gone missing, and who had followed up with the Department before the due date for them to apply had passed. In cases where our investigation established that the Department failed to give clear and timely advice to callers about their application not being received, and that they needed to resubmit before the relevant cut-off date, we have recommended that the Department accept late submissions. The Department generally has accepted our recommendations in these cases.

      The Department has also recently engaged a new call centre provider, and initial indications are that there are fewer problems arising from a lack of integration between it and the Department. We will continue to closely monitor this issue.

      Update from last year

      In our last annual report, we reported that we had finalised an own motion investigation into DEWHA’s complaint-handling policies and processes without publishing a report because of the transfer of DEWHA’s energy efficiency programs to DCCEE in March 2010, and because DEWHA had already committed to bringing its complaints policy into line with our Better practice guide to complaint handling .

      We continued to liaise with DSEWPAC (as DEWHA became), and were pleased to see the introduction of a new whole-of-Department complaints policy in November 2010.

      Last year we also reported that we had worked closely with DCCEE to help it establish new complaint-handling processes specifically for the energy efficiency programs that were transferred to it in March 2010. We said we would continue to work with the Department as it also develops a whole-of-Department complaint-handling system that reflects our better practice guide.

      The Department is continuing to develop the DCCEE Complaints Management and Review Framework to guide complaints. It has established an Internal Review Section, and published its Service Charter in March 2011. A departmental working group is working on the final draft of its Complaints Reporting Framework and Reporting Requirements.

      We will continue to work with the Department through this process, and expect to be able to report that a whole-of-Department complaint-handling process is in place in our next annual report.

      Looking ahead

      DCCEE is the lead agency responsible for developing and implementing the Australian Government’s Climate Change Plan. The Government’s plan does not include the type of large scale, demand-driven rebate programs, such as the Home Insulation and Green Loans programs, which drove the significant increase in complaints this office has received over the last two years.

      However, the Plan does envisage establishing at least five new agencies, such as the Clean Energy Regulator and Climate Change Authority, which will be within our jurisdiction. We will be proactive in seeking to ensure that such agencies have appropriate review and complaint-handling mechanisms in place from the start.

      Department of Families, Housing, Community Services and Indigenous Affairs

      Overview

      The responsibilities of the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA, or the department) include the design, management and delivery of services to some of Australia’s most vulnerable and marginalised people. Not only does it have policy responsibility for the majority of Australia’s social security system, it oversees and is engaged in, program delivery to Indigenous Australians in remote communities throughout the Northern Territory and in locations in South Australia, Western Australia, New South Wales and Queensland.

      The majority of complaints about the department or its programs concern Indigenous programs in the Northern Territory – in the 2010–11 financial year, 89 of the 131 complaints about the department arose out of the Northern Territory. Further details about those complaints and the issues arising from them can be viewed in the Indigenous section (pages 97–94).

      Outside of the Northern Territory, the department’s role tends to be that of a policy and funding agency rather than a service delivery agency. This limits the amount of direct contact that this agency has with the community, and thus the number of complaints made about it. Nonetheless, funding agencies such as FaHCSIA retain a responsibility to ensure that the funded entities provide services that meet the policy objectives behind the funding. This is an area of increasing interest to this office and has been at the heart of a number of reports concerning the department which have been published this year (detailed below).

      Figure 5.8: FAHCSIA approach and complaint trends 2004–5 to 2010–11

      Figure 5.8: FAHCSIA approach and complaint trends 2004-5 to 2010-11

      Complaint themes

      Of the 42 complaints that did not concern Indigenous programs in the Northern Territory, the key areas of complaint were:

      • about the FaHCSIA-funded Complaint Resolution and Referral Service’s (CRRS) handling of complaints about Disability Employment Network service providers
      • about the service delivery and decisions made by Relationships Australia supervision centres
      • from or about bodies funded by FaHCSIA in relation to funding, reporting requirements and disputes about alterations to funding agreements
      • about policy issues surrounding social security payments.

      The following case study is typical of the complaints we receive from funded bodies as they negotiate with FaHCSIA about funding or address issues arising from audits. This office has been critical of the actions of funding agencies, see for example our report titled Administration of funding agreements with regional and remote indigenous organisations (Report 16|2010), released in December 2010. However, in this case, we were satisfied that the Department had acted appropriately.

      FaHCSIA’s funding decisions and process

      An organisation funded by FaHCSIA complained that it had been without funding for two months. Our investigation showed that the Department had carried out an audit of the organisation in response to concerns about financial management. The audit, which identified some financial viability issues, led to negotiations for a revised funding agreement.

      There was evidence that the Department had spent considerable time and effort in dealing with this organisation in helping it provide up-to-date financial statements. As those statements were not prepared in time, the department was unable to assess the viability of continuing funding until the old funding agreement was nearing its end. The Department quickly prepared a new funding agreement that took into account the issues raised through the audit process. Understandably, the organisation then took time to analyse and sign the new agreement, during which time it did not have an agreement and was unfunded. As soon as the new agreement was signed, funding re-commenced.

      We decided that we could not be critical of the actions taken by the Department as it had taken reasonable steps to assist the organisation through this process, and the unfunded period was an unavoidable consequence of earlier delays caused by factors external to the department. We provided the complainant with an independent review of the Department’s actions and a clear explanation of the reasons for our view.

      Systemic issues

      One of the hallmarks of good government administration is a coordinated and responsive complaint handling system. However, it is often the case that people approach this office because they are not satisfied with the way their complaint to FaHCSIA has been handled. While we continue to get a moderate number of complaints about the Department’s complaint handling outside of the NT, the Department is working to improve its own responses to complaints, including improving internal guidance on complaint handling. The Department’s recognition of the need for improvement and increased interest in this area was evident at the Department’s complaint-handling workshops, held in early 2011. We presented at the Canberra and Adelaide workshops and the Ombudsman spoke to FaHCSIA officers in February 2011. During those presentations, we reinforced the value of complaints, and the importance of encouraging a culture that is receptive to complaints and feedback. We look forward to assisting the Department in this process.

      Complaints during this financial year highlighted the need for greater awareness of, and responsiveness to, tribunal decisions. The implications of this problem were evident in the report Review rights for Income Managed people in the Northern Territory (Report 10|2010), published in late 2010. Other complaints to this office, such as the one on the next page, reinforce the need for policy agencies to have mechanisms in place that ensure they are duly informed of any significant tribunal decisions, engage with the broader implications of such decisions and give proper instructions to service agencies, such as Centrelink, so that decisions and policy and guideline changes are efficiently carried out. We will continue to engage with FaHCSIA and other policy agencies on this issue.

      Implementation of a Social Security Appeals Tribunal decision

      The Social Security Appeals Tribunal made a decision in February 2010 that highlighted an inconsistency between the legislation and FaHCSIA’s instructions to Centrelink on how to assess pension claims under an international agreement. While the procedure in place at the time required Centrelink to inform FaHCSIA if there was a problem with those instructions, this Tribunal decision was not brought to FaHCSIA’s attention. FaHCSIA did not become aware of this Tribunal decision until, in the course of our investigation, we contacted it about this matter in November 2010. The instructions about the international agreement were then changed to reflect the Tribunal’s decision. FaHCSIA is taking steps to avoid a repeat of this and similar problems. Firstly, it is reviewing and consolidating the procedure that Centrelink is required to follow when deciding which Social Security Appeals Tribunal decisions it should alert FaHCSIA to so that significant decisions are referred. Secondly, FaHCSIA’s legal section is putting procedures in place aimed at ensuring prompt consideration of the implications of such decisions and the development of strategic responses to them.

      Cross-agency issues

      As the above case study illustrates, complaints about FaHCSIA often intersect with the work of Centrelink. During our investigation into service delivery to customers dealing with mental health issues, we looked at Centrelink, the Department of Education, Employment and Workplace Relations (DEEWR) and FaHCSIA. The report of those investigations ( Falling through the cracks ) explored the complexity and gaps that can arise in multi-agency service delivery. Further information about that report is below and contained in the Centrelink section of this Annual Report.

      The provision of services under the Disability Employment Services program can also often involve FaHCSIA, DEEWR and Centrelink. When complainants come to us it is not uncommon to find that they have had dealings with all three agencies but remain confused about which agency can look at the various aspects of their complaint. When complaints of this type come to our attention we work with the complainant to identify the remedy they wish to achieve and to assist them in determining which agency they should progress their problem with.

      Reports released

      FaHCSIA was one of three agencies investigated in a report concerning service delivery to customers suffering from a mental illness. The report is titled Falling through the cracks—Centrelink, DEEWR and FaHSCIA: Engaging with customers with a mental illness in the social security system (Report 13|2010). The report made a range of recommendations designed to improve engagement with, and services to, customers with mental health issues and disabilities.

      FaHCSIA was one of two agencies investigated as a result of a complaint about the Income Management regime in the Northern Territory. The report is titled Department of Families, Housing, Community Services and Indigenous Affairs and Centrelink: Review rights for Income managed people in the Northern Territory (Report 10|2010). It highlighted a significant failure in the provision of review rights to people affected by the former income management regime. This report also led to the changes referred to in the case study above about the implementation of a Social Security Appeals Tribunal decision. Further information about that report is included in the Indigenous section of this Annual Report.

      FaHCSIA was included in a report titled Talking in Language: Indigenous language interpreters and government communication (Report 05|2011). Importantly, FaHCSIA is responsible for the establishment of a national framework on the supply and use of Indigenous language interpreters. It was responsive to this report and provided a briefing to this office, and other agencies involved in the report, at a workshop about Indigenous language interpreting that was hosted by this office in late June 2011. There is further information about that report in the Indigenous section of the Annual Report.

      Update from last year

      Last year we reported that we were working on reports about the use of Indigenous language interpreters and income management review rights. Both of those reports have been released as detailed above and we continue to monitor and engage with the Department as it implements the recommendations.

      Stakeholder engagement, outreach and education activities

      As noted earlier, we held a workshop on the problems facing agencies as they seek to better utilise Indigenous language interpreters. The workshop enabled agencies to explain what they are doing to address these problems and to share their knowledge about the challenges and opportunities that exist in this area. FaHCSIA was a primary contributor to that workshop and will continue to play a central role as it seeks to increase the recruitment and retention of Indigenous language interpreters, and encourage agencies to properly use interpreters.

      We have been holding round table meetings about social welfare issues with community stakeholders across the country. These meetings often raise issues that touch upon the department’s responsibilities for social security policy. Our work in the NT also includes regular engagement with stakeholders involved in Indigenous housing issues, income management policy and other Northern Territory Emergency Response initiatives that come within the department’s areas of responsibility. We value the insights these stakeholders provide and benefit from their first-hand experience of how the Department’s policies work in practice.

      Looking ahead

      The Ombudsman’s office and the Department have taken steps towards a protocol governing the relationship between our two agencies and to assist with communication and the investigation of complaints about Indigenous programs in the Northern Territory. It is hoped that the protocol will assist this office and the department to achieve practical remedies more quickly for individual complainants and to facilitate root cause analysis as necessary.

      In the interim, we continue to engage with FaHCSIA at all levels and meet with specific areas as issues arise. A key theme for our continuing engagement is the extent to which the Department as a funding and policy agency is responsible for the provision of outcomes in an increasingly devolved delivery environment.

      Department of Health and Ageing

      Overview

      The Ombudsman received 120 approaches and complaints about the Department of Health and Ageing (DoHA) in 2010–11. It finalised 113, of which 19 were investigated.

      As noted in the 2009–10 Annual Report, most complaints received by the Ombudsman concerned the Department’s handling of complaints about aged care.

      Figure 5.9: DoHA approach and complaint trends 2004–5 to 2010–11

      Figure 5.9: DoHA approach and complaint trends 2004-5 to 2010-11

      Aged Care

      A common theme in these complaints is access to the Aged Care Commissioner, with many complainants missing the 14-day time limit in which to lodge an appeal against a decision of DoHA’s aged care Complaints Investigation Scheme (CIS). In some cases the Aged Care Commissioner’s office has been able to accommodate the complainant by considering the issues raised as complaints about CIS’s processes, rather than as an appeal about their decisions. There is no time limit for complaints about process.

      However, this approach cannot apply in all cases and the outcomes are different from those available where an appeal against a decision has been accepted. We understand that DoHA has implemented the Walton Review recommendation to extend the time limit to appeal from 14 to 28 days from 1 September 2011.

      Other complaints this year have highlighted complexities in the aged care system.

      Aged care complaints

      Mrs S had been residing in an aged care facility for respite care and indicated to her family that she would like to stay in the facility. An assessment was carried out by an Aged Care Assessment Team for the purposes of admission which indicated that Mrs S’s care needs were on the border of low to high care and, taking into account her degenerating eyesight, she should be assessed as requiring high care. On entry, the facility advised Mrs S’s family that she actually only required low care and would be entered as such. At the time the accommodation agreement was signed the family were unaware that the financial arrangements were different for low and high care and that accommodation bonds were not charged for high care residents.

      Later the family queried how the facility could decide that Mrs S required low care when the Assessment Team had assessed her as having high care needs. The Aged Care Commissioner and DoHA each had different views on the law, with DoHA ultimately deciding that the law simply specified that a bond was not payable if the person required high care at the time of entry to the facility. DoHA decided that whether the person required high care was a question of fact to be decided on all of the available evidence at the time including, but not limited to, the Assessment Team assessment and contemporaneous care notes held by the facility. Following a request from the Ombudsman, DoHA also agreed to take into account any additional evidence the family provided.

      The complaint also raised concerns that the requirement was not well understood by participants and advisors in the aged care sector. In response, DoHA amended its fact sheets to provide additional information.

      The Ombudsman made submissions in this period to the Productivity Commission’s Inquiry Caring for Older Australians , and in response to DoHA’s discussion paper Aged Care Complaints Scheme: Proposed Complaints Management Framework .

      The Ombudsman will continue to monitor the progress of reform in aged care complaint handling.

      Continence Aids Payment Scheme program transfers

      In mid-2010 the Ombudsman received a number of complaints about the replacement of the Continence Aids Assistance Scheme (CAAS) with the Continence Aids Payment Scheme (CAPS) to be administered by Medicare Australia (Medicare) on behalf of DoHA. These complaints concerned delays in processing registrations for CAPS and problems experienced by carers in meeting the requirements to allow them to act as nominee for a person whose disability prevented them acting on their own behalf. Our office found it necessary to correspond with both Medicare and DoHA to resolve these complaints.

      Continence Aids Payment Scheme

      Mrs T completed the form for transfer from the CAAS to the CAPS program on behalf of her adult son in April 2010. The form contained a section for completion by a person’s ‘legal representative or parent’ and Mrs T indicated that she was her son’s guardian and mother. In May her son received a letter from Medicare advising him to provide a certified copy of his legal representative‘s authority to act on his behalf. Mrs T complained that she was already her son’s correspondence nominee for Centrelink purposes and that she did not think it reasonable that she had to obtain a formal guardianship order to manage $470 per year for continence aids.

      We contacted Medicare which advised us that this was a policy issue and referred us to DoHA. DoHA advised us that it was the intention of the scheme that people who were already correspondence and payment nominees for Centrelink purposes would be accepted as nominees for the CAPS program. However, neither the form, which included both DoHA and Medicare branding, nor the letter from Medicare had indicated this.

      Mrs T provided confirmation of her status as a nominee with Centrelink in June 2010 and the payment was processed in August 2010. The information on the CAPS application form has been amended to include a Centrelink nominee as one of the options for valid legal representation to act on behalf of another party.

      Therapeutic Goods Administration

      In last year’s annual report, we noted that complaints to the Ombudsman had demonstrated that there was room for improvement in the way the Therapeutic Goods Administration communicated with the public about its work. To this end the Ombudsman made a submission to DoHA’s Review to improve the transparency of the Therapeutic Goods Administration , which reported in June 2011.

      Fair Work Ombudsman

      Overview

      The Office of the Fair Work Ombudsman (Fair Work Ombudsman) is a statutory office created by the Fair Work Act 2009 . Operating independently of Government, its functions include promoting harmonious, productive and cooperative workplace relations and ensuring compliance with Commonwealth workplace laws.

      In 2010–11 we received 79 approaches and complaints about the Fair Work Ombudsman. This is 26 more than the 53 received in the previous financial year.

      The majority of complaints made to our office this year concerned decisions made by the Fair Work Ombudsman in response to claims from employees. The underlying issue with these decisions was that the Fair Work Ombudsman had determined that there had been no breach of the legislation or relevant award. The underlying reason for the increase in complaints to our office appears to relate to a lack of clear understanding about the Fair Work Ombudsman’s tiered internal review process. For example complainants often believe that they have exhausted their review rights with the FWO when they have had a process (Tier 1) review, even though they are still eligible for a Tier 2 review. The Fair Work Ombudsman has recently advised that it will be amending its decision letters to provide further information about how a review can be requested. Our office will continue to work with the Fair Work Ombudsman to try to resolve any perceived confusion by complainants about the review process.

      Complaint themes

      In 2010–11 we investigated only 17 complaints lodged with our office about the Fair Work Ombudsman. Of these complaints the main issues concerned timeliness of the Fair Work Ombudsman during different stages of its assessment and investigation processes.

      Although timeliness was an issue for people who had either lodged a claim against an employer, or for an employer being investigated, on the whole we found that the time taken by the Fair Work Ombudsman was not unreasonable in the circumstances. We observed that both employees and employers were anxious to receive their decision as quickly as possible. However, there are many complicating elements of an investigation that can make it difficult for agencies like the Fair Work Ombudsman to provide accurate timeframes to parties at early stages in the process. We found very few instances of unreasonable delay by the Fair Work Ombudsman.

      In most cases where our office did not undertake an investigation, it was because the complainants still had an avenue of review with the Fair Work Ombudsman available to them. Over the coming 12 months we intend to monitor complaints of this type to ensure the Fair Work Ombudsman is adequately communicating information about review rights to claimants.

      Cross-agency issues

      The Overseas Students Ombudsman and the Fair Work Ombudsman have agreed on an approach to transferring any complaints from overseas students which could more effectively or conveniently be dealt with by the Fair Work Ombudsman. The Overseas Students Ombudsman is required under legislation to transfer complaints in those circumstances, and the agreement is intended to facilitate that process. To date no transfer of a complaint has been made.

      Reports released

      During 2010–11 we met with the Fair Work Ombudsman and were provided with an update on its implementation of the recommendations made in our own motion investigation report Fair Work Ombudsman: Exercise of coercive information-gathering powers (Report 09|2010). That report focused on the policies and procedures used by the Fair Work Ombudsman when exercising those powers in its investigations. The Fair Work Ombudsman responded positively to the report and acknowledged that the working relationship between our agencies had matured as a result of the own motion process. On its website the Fair Work Ombudsman acknowledged that our office’s involvement as the Tier 3 step in the Fair Work Ombudsman’s file review process is an important part of its quality review processes and strengthens the standing of its investigations. The Fair Work Ombudsman has advised that it referred to our report in a recent review of its Operations Manual.

      Update from last year

      Since the release of the report mentioned above, the Fair Work Ombudsman has made a number of improvements to its practices to take into account the best practice principles contained in the Administrative Review Council’s report The Coercive Information-Gathering Powers of Government Agencies” (Report 04|2008).

      Looking ahead

      Our office will continue to monitor how the Fair Work Ombudsman’s internal review mechanism is communicated to complainants.

      Medicare Australia

      Overview

      In 2010–11 the Ombudsman received 177 approaches and complaints about Medicare Australia (Medicare). It finalised 184 of which 30 were investigated. This is a similar complaint pattern to previous years.

      Complaints about Medicare are diverse and include complaints about enrolments, entitlements, administration of the Medicare levy exemption and newer programs such as the Continence Aids Payment Scheme (see case study about this program in the Department of Health and Ageing overview on page 76).

      However, a number of complaints concerned access to allied health services under the Medicare Better Access initiative. Some of these complaints concerned the quality of advice about entitlements, while others arose from the requirement that certain Medicare services be claimed as a prerequisite before claiming allied health care items under a Mental Health Care Plan. The latter type of complaints reflect the complexity of the program, which requires patients to know when the care plan has been lodged or that another prerequisite item has been recorded before making their claim. Issues about the recording of verbal advice about entitlements under care plans were reported on in our 2009–10 Annual Report (page 81).

      Figure 5.10: Medicare approach and complaint trends 2004–5 to 2010–11

      Figure 5.10: Medicare approach and complaint trends 2004-5 to 2010-11

      Confusion about Medical Health Care Plans

      Mrs U visited her doctor for a Mental Health Care Plan to enable her child to receive a number of services from a clinical psychologist under the Better Access Intiative. The doctor’s surgery advised that the care plan would not be lodged with Medicare straight away and that this needed to be done before the appointments with the psychologist were covered by the plan. Some days later Mrs U’s child attended a psychologist after which Mrs U took her account to a Medicare office and the claim was paid. Mrs U assumed that the care plan was in place and proceeded to make a further appointment for her child. However on the next occasion Medicare advised that the claim could not be paid because the care plan was not in place and none of the other prerequisites for payment applied. Mrs U complained that she had relied on the fact that the previous claim had been paid when she made the second appointment and would have waited if she had known the care plan was still not in place.

      On investigation, we found that the Medicare computer system had identified an old unrelated item in Mrs U’s claims history and had allowed the initial claim on the basis that a prerequisite item had been claimed. The error had been picked up in a routine post payment check. Medicare advised that options to prevent customers experiencing this type of inconvenience had been discussed with the Department of Health and Ageing. The Department concluded that significant costly systems changes, that were disproportionate to the extent of the problem, would be necessary to prevent claims being allowed and that the steps that had been taken to educate medical practitioners to advise patients were adequate. This left it up to customers to check with their doctors that their care plan has been lodged before receiving a service under the plan. However, Medicare resolved Mrs U’s complaint on an individual basis.

      Monitoring and Inspections

      Overview

      The Ombudsman is required by law to inspect the records of certain agencies in relation to their use of covert and coercive powers. We do this to determine compliance with legislative requirements governing the use of these powers. We also aim to help agencies improve their processes to comply with the various statutes.

      The covert and coercive powers include:

      • telecommunications interceptions by the Australian Federal Police, the Australian Crime Commission and the Australian Commission for Law Enforcement Integrity
      • access to stored communications by Commonwealth agencies, including the Australian Federal Police, the Australian Crime Commission, the Australian Customs and Border Protection Service, and state and territory agencies
      • use of surveillance devices by the Australian Federal Police, Australian Crime Commission, and the Australian Commission for Law Enforcement Integrity, and state and territory law enforcement agencies under the Commonwealth legislation
      • controlled operations conducted by the Australian Federal Police, the Australian Crime Commission and the Australian Commission for Law Enforcement Integrity.

      Definitions

      Telecommunications interceptions are the recording of telephone conversations or other transmissions passing over a telecommunications network. Interceptions occur under warrant for the purposes of obtaining information relevant to an investigation.

      Stored communications typically refer to emails and text messages, but may include images or video, which are electronically stored by a telecommunications carrier or internet service provider. For instance, an SMS message is stored by a carrier and sent when the intended recipient is able to take the message. Stored communications access occurs under warrant for the purposes of obtaining information relevant to an investigation.

      Surveillance devices are typically listening devices, cameras and tracking devices that are used to gather information relating to criminal investigations and the location and safe recovery of children. The use of these devices will, in most circumstances, require the issue of a warrant.

      A controlled operation is a covert operation carried out by law enforcement officers under the Crimes Act 1914  (Cth) for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious offence. The operation may result in law enforcement officers engaging in conduct that would otherwise constitute an offence.

      In addition, we undertook the function, recommended by the Senate Rural and Regional Affairs and Transport Legislation Committee in 2006 and agreed by the Department of Agriculture, Fisheries and Forestry, of reviewing investigations carried out by the Compliance Branch of the department’s Biosecurity Services Group.

      We also inform the Commonwealth Attorney-General’s Department of our inspection findings, and report regularly to the Attorney-General and the Minister for Home Affairs. These findings form the basis of our annual briefing to the Parliamentary Joint Committee on Law Enforcement.

      In 2010–11, we undertook 37 inspections across 17 different agencies, at both the Commonwealth and the state and territory level.

      Influencing positive change

      Our inspections provide external scrutiny of, and hold agencies accountable for, the use of covert powers and how they deal with sensitive information. Our main focus in this area of our work is to improve agencies’ compliance with the relevant legislative provisions. As a result, a large part of our work is raising awareness of actual and potential compliance issues among the agencies we inspect, and with the relevant policy makers within government. By promoting positive change in this way, we believe that agencies are more likely to collaborate with us to achieve positive results.

      Another way in which we promote positive change is to ensure that our own inspection processes are open and transparent to the agencies, the responsible Ministers and to Parliamentary Committees. For example, before conducting inspections we write to agencies outlining our inspection process, the criteria we use to assess compliance, the documents we require access to and the reasons for requesting these documents. We also welcome discussions with agencies outside the formal inspection process on administrative processes that may lead to improved compliance with legislation.

      In 2010–11 we saw improved compliance across all regimes and generally in all the agencies we inspected.

      Reports released

      The Ombudsman released the following inspection reports in 2010–11:

      • November 2010 – Biannual report to the Attorney-General on the results of inspections of records under s 55 of the Surveillance Devices Act 2004
      • November 2010 – Annual Report on the Commonwealth Ombudsman’s activities in monitoring controlled operations conducted by the Australian Crime Commission and the Australian Federal Police in 2009–10
      • November 2010 – Report to the Department of Agriculture, Fisheries and Forestry on the compliance and investigations activities of the Biosecurity Services Group
      • March 2011 – Biannual report to the Attorney-General on the results of inspections of records under s 55 of the Surveillance Devices Act 2004 .

      Stakeholder engagement

      Working with agencies

      Throughout 2010–11, we worked closely with agencies outside our formal inspection processes to promote our oversight role and help them improve compliance. We particularly valued our interaction with the Queensland Crime and Misconduct Commission, the Australian Federal Police and the Australian Crime Commission, who demonstrated their willingness to engage with us to improve compliance and were receptive to our recommendations.

      During the year, we met with new staff at the Queensland Crime and Misconduct Commission, the Queensland Police, Tasmania Police, the Australian Customs and Border Protection Service and the Australian Federal Police to explain our oversight functions and inspection procedures.

      We also helped agencies such as the Australian Federal Police to set up new policies and procedures following amendments to legislation affecting their exercise of covert and coercive powers.

      Working with the Commonwealth Government

      Over the past financial year, we have strengthened our collaborative working relationships with the Attorney-General’s Department and the Department of the Prime Minister and Cabinet.

      Because we work closely with several state and federal law enforcement agencies, we are in a position to provide detailed feedback to both departments on:

      • how law enforcement agencies apply different regimes;
      • provisions of relevant Acts that work well; and
      • high-level systemic problems and issues.

      This assists us in providing input into the legislative process, especially on issues we have identified during inspections.

      Informing the public

      In addition to our legislative obligation to report to the Commonwealth Attorney-General and the Minister for Home Affairs on our inspection findings, we believe that where appropriate, we should also inform the Australian public of the results of our activities. In 2010–11, for example, we issued media releases on:

      • covert policing under the Surveillance Devices Act and the high level of compliance by the Australian Crime Commission and improved procedures of the Australian Federal Police in relation to the use of surveillance devices in the second half of 2010
      • the findings from our inspection of Department of Agriculture, Fisheries and Forestry investigations, which outlined our recommendations regarding areas for improvement in compliance with internal operating guidelines and procedures, and noted the high-level of competency evident in the department’s Sydney office
      • controlled operations conducted by the Australian Federal Police and the Australian Crime Commission under Part 1AB of the Crimes Act, noting the need for the Australian Crime Commission to improve the level of external scrutiny of ongoing operations.

      A day in the life of an inspections officer

      Bleary-eyed at the Canberra airport lounge, waiting to board the 7am flight, the Ombudsman inspector prepares for the three days ahead on inspection.

      After arriving at the agency concerned, informal discussions begin with the agency representatives. They provide updates on legislative amendments, agency policy and procedural changes, and issues from the previous inspection. During this interview, the agency representative self-discloses an issue which may impact the Ombudsman inspector’s findings – she notes the issue and thanks the agency for its forthcoming attitude. She is appreciative of both the representative’s understanding of the Ombudsman’s role and their willingness to engage with her. Both parties share the same aim – a high level of compliance within the agency.

      After the opening interview, she commences the inspection of agency records. She is well prepared for the inspection:

      • she is aware of recent issues surrounding the regime she is inspecting
      • equipped with up-to-date inspection guidance material, audit criteria and test plans
      • has the details of recent legislative changes and agency policy and procedural changes included in her notes.

      Her days in the agency office run smoothly. This is partly due to all the preparation work prior to the inspection: her team had issued a notification letter to the agency head, outlining the inspection process and date, the criteria and methodology used to assess compliance, and a list of documents and sources of evidence required to be provided. This ensured that the agency was aware of the inspection scope, so they understood what would and would not be inspected. In doing their part, the agency provided easy access to all the requested documents and sources. The inspections officer often engages with officers in the operational and compliance areas, who provide further information and details. They answer questions and clarify issues, all of which help the inspections officer to conduct her assessment.

      On her third and final day, she finalises the inspection with an exit interview with the agency representative. This time, she summarises the inspection process and discusses her preliminary findings against the audit criteria. She outlines her findings in relation to the agency’s good practices and notes the areas that could be improved. She welcomes any clarification and further information the representative offers.

      On returning to Canberra, the next stage begins. She collates her findings and outcomes from her discussions and begins to draft an agency report. She also emails the agency for a little more information, so the report is accurate and fair. Once completed, the agency is provided with the opportunity to make comments on the report. On this occasion, the agency and the Ombudsman’s Office have taken different positions on an issue, so a meeting is arranged to reach an agreement. Outcomes from the meeting are included in the finalised report, which is again sent to the agency.

      Although the report has been finalised, the process is not yet over. In meeting the Ombudsman’s legislative obligations, she then prepares a report on the results of this inspection to the Minister. Also, in recognition of the agency’s improvement in legislative compliance, the Ombudsman releases a public statement on the office’s general findings.

      Looking ahead

      As a major focus in future years, we will seek to enhance engagement with all our stakeholders. The Federal and State law enforcement agencies have been responsive to our reports by implementing improvements to deal with issues we have raised. We will seek to build further on this foundation by encouraging even greater mutual co-operation with the aim of improving transparency of administration in applying coercive powers.

      We will also seek to extend our inter-agency co-operation to include the Attorney-General’s Department, whose advice is essential to us in developing a consistent approach to interpreting the legislation under which law enforcement agencies operate.

      Freedom of Information

      The Australian Information Commissioner Act 2010 commenced on 1 November 2010. That Act created offices of the Australian Information Commissioner (OAIC) and the Freedom of Information Commissioner who, together with the existing Privacy Commissioner, are responsible for information management, access and related matters in the Commonwealth.

      The Commonwealth Ombudsman entered into a Memorandum of Understanding with the OAIC and agreed that investigating actions taken by Australian Government agencies under the Freedom of Information Act 1982 (FOI Act) would be the primary responsibility of the OAIC from 1 November 2010. However, the transitional provisions in the new FOI Act mean that complaints about the handling of FOI requests made before 1 November 2010 remain the responsibility of the Commonwealth Ombudsman.

      In 2010–11 we received 146 complaints about FOI requests handled by agencies. During the year we finalised 177 complaints about 180 issues. These related to a range of issues including agency delay, lack of explanation for exemptions claimed, and issues concerning processing fees and charges. Of these, 104 were about access to personal documents and 76 about access to general documents. We recommended the remedies for complainants, including expedited processing of delayed FOI requests together with an apology to the applicant and better explanation of reasons for exemptions claimed or for fees and charges levied.

      Indigenous programs – Closing the Gap in the Northern Territory

      Overview

      The Government has continued its significant investment in and program of reform for Indigenous programs in the Northern Territory (NT). Indigenous Australians in the NT are increasingly exposed to and impacted by a variety of government programs, services and policies. These include the continuation of the measures under the Northern Territory Emergency Response; Closing the Gap in the NT programs; National Partnership Agreements;1 significant investment and reform in relation to remote Indigenous housing; and changes to Income Management and other government programs such as employment services.

      The office’s dedicated Indigenous Unit, which provides oversight of Indigenous programs in the NT, has continued to visit Indigenous communities, investigate complaints, raise systemic issues and achieve remedies for individuals during this financial year. This year, the team has received 209 complaints relating to Indigenous programs in the NT. Seventy-three per cent of these were received during outreach to 15 remote Indigenous communities and several town camps. Resource constraints, an increased focus on systemic issues and an effort to finalise longstanding complaint investigations meant a reduced capacity for outreach activities toward the second half of the financial year.

      Complaint themes again highlight the need for governments to work better together to achieve large scale objectives, and for agencies to be more accessible to people impacted by their policies, programs or services. There is also room for improvement in how government communicates, engages and consults with Indigenous Australians. As outlined below, this office, in working with the agencies, has made some headway in relation to these areas.

      Increasingly, complaints, feedback and our observations highlight the complexities associated with the three levels of government working together to achieve objectives such as those in place under the National Partnership Agreement on Remote Indigenous Housing in the NT, and the Alice Springs Transformation Plan. This office is uniquely positioned to ensure that under such arrangements governments remain focused on delivering citizen-centric and seamless services and programs. A number of complaints investigated by this office this year have identified areas for improvement.

      Complaint themes

      With the range and complexity of Indigenous programs and significant government investment in the NT, an independent and robust complaints and oversight function is critical. In performing this role, we are in a unique position to provide early warning of problems to government, build community confidence in the accountability of government programs in the NT and work with a range of stakeholders to improve government services and programs delivered to Indigenous Australians in the NT.

      Failure to use interpreters led to misunderstanding and confusion

      A community worker discussed some concerns with this office during outreach to an Aboriginal community and subsequently supported those affected to make a complaint to the Ombudsman’s office. The complaint concerned residents’ confusion about the Government’s housing plans for their community. Government officials had visited the community to discuss plans for Strategic Indigenous Housing and Infrastructure Program including transition accommodation arrangements for people while their houses were being refurbished. Residents did not fully understand the information that had been told to them and were worried that they might lose their houses if they moved out of them while they were being refurbished.

      An investigation by this office identified that the information session provided by government had not been delivered with the use of an Indigenous interpreter. As a result, the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) responded positively by revisiting the community and delivering the information session with the use of an interpreter. The complainants were happy with this outcome and reported that they now understood the arrangements, and their concerns about losing their houses were alleviated.

      Improved treatment of BasicsCard customers by a merchant

      Ms V complained to our office on behalf of other customers in her community who use the BasicsCard, which is a reusable, PIN-protected EFTPOS card that allows people to spend income-managed money at approved stores and businesses.

      She reported that BasicsCard holders often suffer poor treatment by a staff member at the local store. She reported that if people do not have sufficient balances on their cards to purchase their goods, the staff member gets angry at the customer, demands that they leave the store and does not allow them to use other payment methods. Ms V reported that customers are highly embarrassed because the staff member yells at them in front of others. This has resulted in some BasicsCard customers travelling to stores elsewhere to avoid this poor treatment, and having to pay the costs involved in doing so.

      After being alerted to this matter, Centrelink took a proactive and problem-solving approach to the matter. This was particularly encouraging given the specific issue did not breach requirements of the merchant terms and conditions managed by Centrelink. Centrelink arranged for senior officers to visit the merchant to discuss the concerns. Centrelink advised that it has an expectation that a merchant will treat customers with courtesy and respect and that in order for a merchant to remain approved for BasicsCard, the merchant would need to continue to support the primary outcome of the BasicsCard.

      When Centrelink discussed this matter with the store manager, the store manager was very apologetic and was able to identify the staff member as they had previously been counselled for similar behaviour. The store manager undertook to address the issue straight away. Ms V reported that the staff member no longer works at the store and her community now feel comfortable with shopping there.

      In response to this matter, Centrelink advised that it is discussing with FaHCSIA the need for an additional clause in the terms and conditions to address this scenario and the additional requirement for merchant compliance.

      The main source of complaints this year again concerned housing reforms in the NT. Since last year’s report, a new remote housing system has been rolled out; the Strategic Indigenous Housing and Infrastructure Program has progressed and completed work in 36 communities with work in a further 16 communities underway;2 and the NT government has entered Service Level Agreements with the shires clarifying property and tenancy management arrangements and repairs and maintenance processes. During this time, we have also clarified our focus in relation to housing complaints and have continued to refine our understanding of the issues.

      It is the office’s view that Australian Government agencies who provide funds or policy direction to State and Territory governments should be accountable for the outcomes on the ground. Further to this, when it comes to housing reforms in the NT, our approach with FaHCSIA has been grounded in its responsibility as the landlord for community housing in 53 communities.

      Under the statutory five-year leases that the Australian Government compulsorily acquired over communities at the commencement of the Northern Territory Emergency Response, the Commonwealth stands in the place of the landlord and has control over all land and fixed assets, including community housing. FaHCSIA manages those leases and has entered into a service level agreement with the NT Government’s Department of Housing, Local Government and Regional Services (Territory Housing) authorising Territory Housing to manage housing on its behalf. Territory Housing remits rent for housing to FaHCSIA, which in return pays a management fee to Territory Housing. Territory Housing has further devolved service delivery to local shires including housing repairs and maintenance.

      We have had a consistent flow of complaints in relation to housing reforms in the NT, which generally relate to:

      • confusion surrounding how much rent people are paying or should be paying
      • confusion about tenancy agreements, difficulties associated with the responsibilities of head tenants and that people do not get copies of tenancy agreements or have them explained in their language
      • confusion about processes and timeframes for repairs and maintenance requests
      • weaknesses in the system used to log, receipt, monitor and provide status reports to residents for repairs and maintenance requests
      • a lack of a response or delayed action in relation to repairs and maintenance requests
      • collection of poll taxes or service fees despite reforms aimed at ending this practice
      • inability of people to pay rent when they came off Income Management as there were no systems in place to facilitate rent payments outside of Income Management
      • inability of people to obtain rent statements in contravention of the Northern Territory Residential Tenancies Act
      • poor quality work under the Strategic Indigenous Housing and Infrastructure Program (SIHIP) and little action or avenue known to residents to have deficient or faulty work fixed
      • problems with transitional housing arrangements for people who were required to move out of their homes while SIHIP work was undertaken
      • concerns about the effectiveness of Housing Reference Groups, over-reliance on them to communicate critical government decisions or policy with communities, and about how decisions are made and communicated by these groups.

      As a result of our investigation into many of these complaints, FaHCSIA has assisted to address issues for individuals. However, we are continuing to work with FaHCSIA in relation to the systemic nature of these issues and the impact of housing reforms for people on the ground. Welfare rights, legal and advocacy services in the NT have also assisted us to identify issues and case examples, strengthening the quality of feedback and recommendations to agencies. The Ombudsman will release a report in the next financial year drawing on these housing issues to make recommendations aimed at improving government administration in this area.

      No action on repairs classified as immediate

      During outreach to a remote community in the NT in December 2009, Ms W advised Ombudsman officers that she was unhappy that no action had been taken over an extended period on significant repair issues in her house. Ms W lived in her house with her partner and five children ranging in age from infancy to 15 years. Ombudsman staff were invited into her home where a number of significant repair issues were observed, some of which posed a danger to those living in the house.

      Ms W advised that she had her name on the housing waitlist for an extended period. In around August 2009 she agreed to take her name off the list in exchange for repairs to be carried out on her house. However, when repairs to her bathroom had not begun a month later she asked to be placed back onto the waitlist.

      We raised these issues with FaHCSIA in January 2010. Five months later we were advised that Territory Housing had not previously had a record of these repair issues, but that they had now been referred for urgent action. Two months later, as a result of persistent follow up by this office, Territory Housing inspected the house and classified the repairs as an immediate priority.

      Despite continued efforts by this office to follow up on the progress of the repairs, in November 2010 work still had not commenced. Also, Ms W had provided a medical certificate asserting that accommodation issues were causing her child’s chest infection. However, this certificate was initially lost and then not acted upon by Territory Housing. Further investigation by our office led to the location of the certificate.

      Ms W was eventually allocated a new house and this office continues to pursue the broader systemic problems with FAHCSIA and Territory Housing including a lack an local complaint mechanisms and responsiveness to issues, the need for adequate escalation pathways, an inability to monitor timeframes as per service delivery standards, and a need for further clarification of roles and responsibilities.

      Inadequate communication and engagement is another theme threading through the majority of complaints received from Indigenous people in the NT. Further, in almost all government services to remote communities there is a critical need for a more effective local information service and for adequate complaints mechanisms. Often complaints to this office are the result of:

      • people not being able to access information or obtain explanations about significant matters affecting them
      • government agencies delivering information in a passive way
      • government agencies failing to use interpreters
      • government officials over-simplifying information and missing significant points.

      These issues result in people being unable to make informed decisions or gain access to services, exemptions, entitlements or information. These concerns led to the Ombudsman’s report, Talking in language: Indigenous language interpreters and government communication (Report 05|2011).

      We also have jurisdiction over Land councils in the NT as they are established by the Aboriginal Land Rights Act (Northern Territory) Act 1976 and are responsible for representing the interests of Aboriginal people in relation to Aboriginal land. Land councils in the NT are responsible for a range of functions including: consulting with Aboriginal people about proposals to use Aboriginal land such as mining activities and developments; assisting Aboriginal people to pursue land claims, compensation or to resolve disputes about Aboriginal land and its use; assisting Aboriginal people to protect sacred sites; and assisting Aboriginal people to manage their land.

      There are an increasing number of complaints made to the Ombudsman about land councils in the NT. As a result, the Ombudsman looks forward to working more closely with the land councils in the coming years to explore opportunities for improvement in:

      • accessibility of information about land council processes
      • responsiveness to queries, concerns or complaints
      • approaches to service delivery and functions of land councils.

      A new model of income management was introduced in the NT in mid-2010 which focuses more on the circumstances of individuals and their payments rather than applying income management to a person because they live in a prescribed community (which was the old Northern Territory Emergency Response model). Since Income Management began in 2007, this office has received complaints highlighting problems with: how it was being communicated or explained; difficulties people faced in accessing balances and using their BasicsCards; confusing Income Management account statements; and transfers or retractions of Income Management funds from third parties. During this reporting period, we have received fewer complaints about the workings of Income Management and the BasicsCard. Exemptions from Income Management are an emerging issue and are the subject of an own motion investigation underway by the Ombudsman, due for release in the 2011–12 financial year.

      Systemic issues

      The Indigenous Unit has been in operation for almost four years. During this time there has been a strong focus on outreach to Indigenous communities, complaint investigation, engagement with a range of stakeholders, and liaison with key agencies. This has meant that there is now a good grasp of the challenges, systemic issues and broad areas for improvement in government services and programs to Indigenous communities in the NT.

      As highlighted above, systemic issues arising from complaint investigations are being identified and raised with agencies. Primarily we do this through individual complaint investigations, meetings or briefings with agencies, contributing to the Closing the Gap monitoring reports released by the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) twice a year, or through reports on specific topics.

      Key examples include:

      Indigenous language interpreters and government communication – an own motion investigation into this issue was conducted and a report including recommendations aimed at 6 agencies was released. This was followed by a workshop with those agencies to discuss implementation of recommendations and hear valuable insights from the Northern Territory Aboriginal Interpreter Service.

      Delay in payment of rent compensation for communities subject to a five year lease held by the Commonwealth – we are concerned that although money has been paid to land councils for some communities for distribution to traditional owners, in the majority of cases this money has not been passed onto those traditional owners. FaHCSIA provided a briefing to this office on this issue which outlined action being taken to address the problem and we will continue to monitor progress in this area with a focus on communication and the circumstances of further delay in the next financial year.

      Inability of some remote housing tenants to pay rent – through our close engagement with stakeholders we became aware of a problem whereby remote housing customers who exited from Income Management did not have a mechanism by which they could pay their rent. We wrote to three agencies about this issue and made suggestions for managing the situation. The rent deduction scheme available to urban tenants is now in the process of being rolled out to remote tenants.

      The Strategic Indigenous Housing and Infrastructure Program employment of ‘local’ Indigenous people – we identified that the monitoring and reporting data for ‘local’ Indigenous employees under the program only captured general Indigenous employment numbers rather than ‘local’ employment numbers. This was identified through complaints where people raised concerns that locals were not being employed under the program as per the government’s objective under the National Partnership Agreement on Remote Indigenous Housing. As a result, and to more accurately reflect employment numbers and information provided to the public about the program’s employment statistics, FaHCSIA and the Northern Territory Government have agreed to change the way this information is publicly reported and work together to develop an agreed definition of ‘local’ for the purposes of capturing employment data.

      Inability to transfer funds to BasicsCards on weekends – we received complaints highlighting difficulties people were facing when they had no money on their BasicsCards on weekends and could not contact Centrelink to arrange transfers. In response to raising these concerns with Centrelink, we were advised that Centrelink extended its customer service for the allocation of Income Management funds onto BasicsCards to seven days a week between 8am and 5pm.

      Cross-agency issues

      The office is becoming increasingly concerned about the inadequate level of access that Indigenous people in remote communities have to information about government services and programs affecting them. This is compounded by the fact that agencies’ complaint mechanisms are often substandard, although some are better than others. Agencies must implement responsive, accessible and genuine complaint mechanisms that are suitable to the remote Indigenous communities receiving increasing government services, funding and programs. Those mechanisms must also be able to handle the complexities of the three tiers of government working together. An effective complaints mechanism must be built on a culture that values complaints, seeks feedback and meaningfully engages with people. There must be a genuine focus on resolving problems and complaints, achieving remedies and drawing on complaints to improve service delivery and underpin policy. Because some agencies have not developed good quality complaints mechanisms, the Indigenous Unit does not refer many of the complaints it receives to agencies in the first instance.

      Often issues are only resolved or considered by agencies once complaints have been made to his office. While we appreciate agencies’ responsiveness to our complaint investigations, we encourage agencies to proactively identify issues and resolve both systemic and individual problems.

      Reports released

      Three reports were released this year.

      Talking in language: Indigenous language interpreters and government communication (Report 05|2011)

      With the increase of government investment, services and programs in the NT there has been a significant increase in government engagement with Indigenous people. Complaints to this office since the commencement of the Northern Territory Emergency Response highlighted problems with the use and accessibility of Indigenous interpreters by government agencies. As a result, the Ombudsman conducted an own motion investigation to examine six agencies’ awareness of the need to make use of Indigenous language interpreters. This investigation resulted in recommendations aimed at improving the use of Indigenous Interpreters and included broad recommendations for all agencies.

      The report also identified significant challenges in recruitment, retention and use of Indigenous interpreters. In order to explore these challenges, and to allow an opportunity for agencies to share ideas and experiences in relation to Indigenous interpreters and to discuss agencies’ progress with implementing the Ombudsman’s recommendations, we facilitated a workshop with all the agencies, and with representatives from the Northern Territory Aboriginal Interpreter Service and NT Government. The involvement of all agencies and the valuable insights from the Northern Territory Aboriginal Interpreter Service resulted in a positive and constructive forum.

      Administration of funding agreements with regional and remote Indigenous organisations (Report 16|2010)

      A complaint investigation about one agency’s administration of a program-funding agreement was the catalyst for this report. Significant challenges exist for remote and regional Indigenous organisations operating largely from government grant programs. This report found complex grant requirements and insufficient support for the funded Indigenous organisations can increase the risk of these organisations failing even where programs are being successfully delivered.

      This report outlines five principles for better administration by government agencies of funding agreements with regional and remote Indigenous organisations.

      Review Rights for Income-Managed people in the Northern Territory (Report 10|2010)

      A complaint investigation identified a Social Security Appeals Tribunal (SSAT) decision that it did not have jurisdiction to review a particular case. The SSAT decision had a broader application to other Income Management customers. The impact of the Tribunal’s decision went unnoticed by FaHCSIA and Centrelink. The decision should have prompted the two agencies to consider the need for appeal, legislative amendment or a change to administrative processes.

      When the new Income Management model was rolled out in mid-2010, the particular issue was resolved. We are continuing to follow up on the intersection between the Tribunal and Centrelink in relation to timely analysis and action in response to significant Tribunal decisions (see Centrelink overview on page 48).

      Update from last year

      Last year we reported that we engaged an officer to develop an Indigenous communication and engagement strategy, including evidence based research. We have now obtained this research and will be drawing on the results to better inform our approach and share insights with other agencies.

      We foreshadowed the release of three reports which were released and outlined above.

      Many of last year’s complaint themes remain current and substantial progress remains to be made to address recurring problems raised with this office about housing reforms and its impacts on people. However, we are better engaged with the relevant stakeholders, having clarified and refined our approach. We have obtained a significant number of remedies for individuals who have raised housing complaints and we have narrowed our focus to a number of key issues requiring attention in our report into the housing reforms in the NT.

      Stakeholder engagement, outreach and education activities

      A key focus of the Indigenous Unit’s work is stakeholder engagement and outreach. There is little awareness among Indigenous people in the NT, particularly those in remote locations about the role of the Ombudsman’s office and their right to complain. We conduct outreach to Indigenous communities in the NT to ensure our complaints service is accessible and known. The majority of our complaints are received during outreach, which underlines the value of our approach. If we did not ensure our service was accessible, many Indigenous people living in remote settings would have no avenue to seek redress for problems with Government, and the valuable insights provided by the individual complaints and feedback would be lost.

      We value our close engagement with stakeholders such as welfare rights, legal and advocacy services. Their input assists us to identify issues for focus and strengthens our feedback to government agencies. They are also well placed to refer individual or systemic matters to us for investigation. A good example is the then Ombudsman’s decision to conduct an own motion investigation into Centrelink’s decision making surrounding Income Management. Information we received from welfare rights agencies coupled with our own complaints and observations led to this decision. We look forward to working with stakeholders on that investigation.

      Our work in our own motion investigation on the use of Indigenous interpreters involved close consultation and engagement with the Northern Territory Aboriginal Interpreter Service (NTAIS). The assistance of the NTAIS helped us to better understand the issues and complexities. The NTAIS also provided training to Indigenous Unit employees in relation to working with Indigenous interpreters. This was immensely valuable for our work in remote communities.

      Looking ahead

      The Indigenous Unit will continue to conduct outreach to Indigenous communities in the NT, investigate complaints and pursue systemic issues with agencies. In doing this, we will draw on our office’s research into communication and engagement with Indigenous people to continue to refine both our approach and our marketing materials. We will also explore avenues to raise people’s awareness about the Ombudsman and to assist people to access our services outside of our outreach visits.

      We intend to increase our focus on assisting agencies to develop and implement accessible, robust and responsive complaint mechanisms, appropriate for people living in remote communities and which can respond to the complexities of the multi-agency, cross jurisdictional environment. We will also work with agencies to improve their communication with Indigenous communities, with a focus on ensuring that people can access the information they need to make informed decisions. Indigenous people should expect that they can access the information they need from government, that they will be given clear explanations and reasons for decisions, and that agencies will be proactive in identifying and responding to problems.

      With governments increasingly working together to achieve objectives including under COAG and NPAs, there may be implications for the role of oversight agencies such as the Ombudsman. It is critical that Australian Government agencies are held to account for outcomes of Commonwealth policy or investment. We need to work with agencies and stakeholders to discuss challenges and ensure that oversight mechanisms adequately respond to the changing nature of government service delivery.

      We look forward to finalising our investigation into Centrelink’s decision making in relation to Income Management and producing a report dealing with remote housing reforms in the NT.

      FEATURE

      Improving agencies’ use of Indigenous Interpreters

      The Commonwealth Ombudsman hosted a meeting of Commonwealth agencies involved in Indigenous service delivery in the Northern Territory (NT) on 19 June 2011 as a follow-up to his April 2011 report Talking in Language: Indigenous language interpreters and government communication (Report 05|2011). While the report drew upon the Ombudsman’s work in the NT, it is applicable to service delivery to Indigenous Australians across the country.

      The report emphasised that interpreters should be made available to agency staff and the customers they are servicing so that meaningful two-way communication can occur. Other key messages were the importance of agency-wide guidelines on the use of interpreters, training for agencies in working with Indigenous language interpreters, engaging with interpreter services during the design of new programs and reviewing contracts and funding agreements to ensure that third parties meet the same standards as those expected of agencies.

      The meeting was an opportunity for agencies to come together and explain the steps they have taken to implement the Ombudsman’s recommendations and to discuss the challenges in improving government’s use of, and access to, Indigenous language interpreters. Agencies reported that it also provided a valuable opportunity to share ideas and resources.

      More information about the Ombudsman’s report can be found at www.ombudsman.gov.au. Information about the work of the Northern Territory Aboriginal Interpreter Service, as well as tips for working with Indigenous interpreters, and interpreter bookings can be found at http://www.dhlgrs.nt.gov.au/ais or by calling (08) 8999 8353.Colleen Rosas (Director, Northern Territory Aboriginal Interpreter Service) and George Masri (Senior Assistant Ombudsman)

      Colleen Rosas (Director, Northern Territory Aboriginal Interpreter Service) and George Masri (Senior Assistant Ombudsman) with the Ombudsman’s report Talking in Language: Indigenous language interpreters and government communication .

      1. A garnishee is a notice issued to a third party requiring them to deduct money held on behalf of or given to a customer and forward it to Centrelink, with or without the customer’s consent, to repay a debt.
      2. The Human Services Legislation Amendment Act 2011 integrated the services of Medicare Australia, Centrelink and CRS Australia on 1 July 2011 into the Department of Human Services. From 1 July 2011, the Child Support Program is identified as Child Support.
      3. A garnishee is a notice issued to a third party requiring it to deduct money held on behalf of or due to a customer (such as wages or bank account funds) and forward it to the Agency, with or without the customer’s consent, to repay a debt to the Agency.
      4. Including National Partnership Agreements on Remote Indigenous Housing and Remote Service Delivery
      5. Accurate as at July 2011 (sourced from NT Department of Housing, Local Government and Regional Services website)

      Defence Force Ombudsman

      Overview

      Each year as the Commonwealth and Defence Force Ombudsman we receive, on average, between 550 and 750 approaches and complaints about Defence-related agencies. This year we received 632 approaches and complaints, compared to 579 received in 2009–2010.

      Among Defence-related agencies are the Department of Defence, each arm of the Australian Defence Force (ADF), the Department of Veterans’ Affairs, Defence Housing Australia, Toll Transitions and the Australian Government Security Vetting Agency.

      We can investigate complaints as either the Commonwealth Ombudsman or the Defence Force Ombudsman depending on the circumstances. Complaints that arise as a result of a person serving or having served in the ADF are normally investigated under the Defence Force Ombudsman role. These employment-related matters can include complaints about termination, promotion, postings and pay and entitlements. The Commonwealth Ombudsman normally investigates complaints from members of the public about Defence-related agencies. Complaints of this nature can include issues such as weapons range and aircraft noise, contracting matters and service delivery.

      Figure 5.11: Approach and complaint trends 2004–5 to 2010–11 for all Defence agencies

      Figure 5.11: Approach and complaint trends 2004-5 to 2010-11 for all Defence agencies

      Department of Defence and the Australian Defence Force

      Complaint themes

      We received 229 approaches and complaints about the Department of Defence and 182 about the ADF. Significant issues arising from these complaints included:

      • delay associated with the Redress of Grievance (ROG) process
      • a lack of understanding about legislative and policy requirements for matters relating to recruitment, discharge, pay and conditions, entitlements and debt recovery
      • transgression of Defence values (in particular, unacceptable behaviour).

      The complaints we receive about termination and discharge are often about the procedural fairness aspects of the process. In some complaints about recruitment, pay and conditions, entitlements and debt recovery, we found that decision-making was flawed due to irrelevant considerations being taken into account or the decision maker not having the appropriate delegation.

      However, when the rules were applied correctly we sometimes found that there is limited scope for resolution or remedy, apart from provision of a clearer explanation for the decision.

      In investigating these complaints, it is our intention to not only identify flaws in the administrative process and so find a solution for the individual, but to also offer suggestions for improving the process in the longer term.

      Systemic issues

      Our office has received 34 complaints about delays associated with the Redress of Grievance (ROG) process.

      The ROG process involves a member’s Commanding Officer (CO) as the first avenue of complaint. Where that officer does not resolve the member’s concerns, the member has the right to refer their complaint to their service chief. There has been a significant improvement in the management of ROGs at Unit (CO) level, particularly in the time taken to finalise ROGs about discharge.

      However, once a ROG has been escalated to the service chief level the problem of delay has continued. We have worked with Defence to finalise recommendations aimed at improving the review process attached to the ROG system. We will continue to monitor the timeliness of service chief ROGs and propose to review Defence’s implementation of the recommendations in 2011–2012.

      Table 5.1: Defence-related approaches and complaints received, 2004–05 to 2010–11

      Agency

      2004–05

      2005–06

      2006–07

      2007–08

      2008–09

      2009–10

      2010–11

      Australian Army

      190

      169

      145

      138

      141

      111

      103

      Defence Housing Australia

      28

      29

      36

      28

      43

      31

      32

      Department of Defence

      165

      138

      106

      135

      157

      176

      229

      Department of Veterans’ Affairs

      216

      276

      256

      139

      160

      167

      172

      Royal Australian Air Force

      69

      80

      57

      48

      45

      39

      29

      Royal Australian Navy

      54

      54

      50

      59

      49

      43

      50

      Other (see breakdown for 2010–11 in Appendix 3)

      12

      4

      20

      15

      14

      11

      17

      Total

      758

      750

      670

      562

      609

      578

      632

      Unreasonable delay

      In July 2009, Mr X lodged a ROG with his service chief concerning his suspension from a course. He was informed that his ROG was not likely to be allocated a case officer until after March 2010 and he complained to the Defence Force Ombudsman. Due to the likelihood of the ROG delay overtaking the remedy Mr X was seeking, and the potential for irreparable career disruption, the Defence Force Ombudsman pursued Mr X’s complaint. However, the service chief decision was not made until March 2011.

      The decision-maker apologised for procedural flaws in the handling of Mr X’s suspension and the time it had taken to attend to his ROG. However due to the suspension being in force and the delay in handling Mr X’s ROG, providing him with a meaningful remedy was now more difficult.

      Another area of concern that Defence has recognised as being a systemic cultural problem involves complaints about unacceptable behaviour in the ADF. The Defence Force Ombudsman welcomes the Defence reviews into aspects of Defence culture and is providing a governance and quality assurance role for the Review of Allegations of Sexual and other Abuse in Defence .

      The Defence Force Ombudsman receives complaints about unacceptable behaviour in the ADF, some of which may not have been reported through the appropriate complaint channel in Defence. It is of concern that rank and the chain of command might make some members disinclined to complain or use the military justice system. The Ombudsman’s role in assessing these complaints is limited to investigating complaints about the administrative processes associated with decisions affecting members, and the Ombudsman may also choose not to investigate a complaint if the complainant has not first raised the matter with the ADF or if the ADF is still considering the matter.

      In June 2011 the Defence Force Ombudsman met with the Inspector General of the ADF to provide input into the Review of the Management of Incidents and Complaints in Defence . The Ombudsman has provided comment on: the treatment of victims; transparency of processes; the application of relevant equity policies and contracted Defence staff; and the jurisdictional interface between civil and military law. The Ombudsman’s comments were informed by an analysis of complaints received about disciplinary matters, and recommended greater transparency around complainant processes, including publishing results of disciplinary and administrative action and advising the complainant about the results of the action.

      Insufficient guidance

      Ms Y complained about what she believed to be a lack of investigation by Defence of her sexual assault by a serving member of the ADF. She reported the assault to the hospital and was treated. After undergoing counselling for a few months Ms Y reported the matter to the police. This matter was considered by a civilian court and the ADF member was acquitted by a jury. When the member was charged for the alleged assault he had advised his commanding officer. This was reported (as required) but no further action was taken.

      The commanding officer did not consider applying the relevant instruction: Management and Reporting of Sexual Offences . Advice from Defence is that this instruction does not apply because the alleged assault was not a workplace incident. While we accept this, there appears to be no clear guidance to commanding officers on how to manage situations like that of Ms Y.

      Update from last year

      Throughout 2010–2011 we have been actively monitoring the issue of ROG delay at service chief level. Defence’s backlog at this level reveals significant problems and trends that need to be acted on by Defence.

      A new function of Defence commenced in 1 October 2010 – a central security vetting agency in the Department of Defence for Commonwealth security clearances, in addition to clearances for ADF members. Our office has received only four complaints concerning security vetting issues, two of which were investigated.

      Stakeholder engagement, outreach and education activities

      During the year staff from our office travelled to several military establishments and spoke with commanders, administrators and general service members about the role and function of the Defence Force Ombudsman. We have also delivered presentations to service training courses.

      On 28 June 2011 the Deputy Defence Force Ombudsman presented a Defence Portfolio Agencies Forum to highlight emerging issues facing decision makers in Defence and the Department of Veterans’ Affairs. Key speakers were Professor Robin Creyke, who spoke about the framework and processes of the Administrative Appeals Tribunal; Dr Grant Lester, who presented on issues concerning persistent complainants; and Mr Geoff Earley, Inspector General of the ADF, who chaired a lively panel discussion. The Forum was well received with feedback indicating that the content was valuable and thought-provoking.

      Looking ahead

      The Defence Force Ombudsman has invited selected Defence members to meet twice yearly to act in an advisory capacity through a consultative forum. The forum will discuss issues and processes which may require Ombudsman intervention to assist Defence in its interactions with members, their families or the wider community. It will also provide advice to the Ombudsman to lead to a more comprehensive understanding of Defence issues and identify areas where the Ombudsman may need to make changes to its complaint-handling processes.

      The Defence Force Ombudsman is committed to strengthening our relationship with Defence in order to target strategic opportunities for improvement and actively promote and encourage good complaint handling practices.

      Department of Veterans’ Affairs

      Complaint themes

      The Department of Veterans’ Affairs (DVA) administers a wide range of services and benefits to approximately 360,000 Australians. During 2010–12 we received 172 approaches and complaints about DVA, four more than the previous year.

      Complaints about DVA are often complex. Depending on the nature, time and place of a person’s service with the ADF, eligibility for benefits, rehabilitation or compensation under one or more of three pieces of legislation may be possible. An important role of our office can be to offer a better explanation for a decision or action. This is often the case in complex DVA matters.

      Consequences of overpayments

      DVA made overpayments to several elderly veterans’ widows as a result of income received from overseas pension funds not being included in the calculation of the DVA service pension payment.

      The DVA’s overpayment guidelines provide for a waiver of debt caused by administrative error if the error is wholly DVA’s fault. The DVA considered that because the widows were partially or fully responsible for the error, the waiver provision was not applicable. DVA then commenced to recover the overpaid funds from the widows.

      Our investigation into this complex issue concluded that DVA’s decision not to consider a waiver of the debts was unreasonable. In one case, the widow advised DVA about the death of her husband and provided the necessary income statement to DVA in a timely manner. Whilst the widow had omitted details of one of her overseas pensions from the income statement, DVA did not identify this mistake or a subsequent recording error until four years after its reassessment of the widow’s entitlements. We recommended that the decision not to waive the debt be reconsidered and that the guidelines be reviewed with a view to including certain circumstances where discretion should be applied.

      In addition to complexity of provisions, it is common for complainants to have mental and physical health conditions which need to be considered in responding to their complaints appropriately. As a result, it often takes time to develop an accurate understanding of the matters complained of and the interaction the claimant has had with DVA prior to a complaint reaching our office. In such cases we have found DVA ready to assist by providing information to clarify its involvement with the person and to also discuss any follow-up issues that may arise. We note that DVA maintains a ‘better practice model’ in maintaining a dedicated Client Liaison Unit and case coordinators to deal with particularly complex cases and allowing claimants to have regular contact with a dedicated case officer. The Defence Force Ombudsman supports this continuing commitment by DVA to its more vulnerable clients.

      In finalising some DVA complaints the only remedy that our office could provide is to better explain why the agency took a particular course of action or why the action taken was, in all the circumstances, not unreasonable.

      Systemic issues

      A recurring theme in complaints received by our office is that complainants do not understand the explanation provided by DVA in response to their concerns. A priority for our office is to reduce the number of complaints relating to a lack of adequate explanation to veterans and their families about DVA’s legislative and policy requirements.

      Update from last year

      Throughout 2010–2011 we have monitored the success of DVA’s internal complaint handling process, established in 2010, and referred complainants to the Veterans’ Services and Complaints Management Team. This supports our decision to encourage complainants to try to resolve their problem with the agency before the Defence Force Ombudsman becomes involved.

      The Defence Force Ombudsman notes that DVA has been very responsive to recognising the different needs of its often vulnerable client groups and has introduced a number of new `service models’ to assist dependants of deceased ADF members; those multiple or mass casualties; who are seriously injured or wounded; and those with complex or multiple needs.

      A positive resolution

      Mr Z asked our office to investigate discrepancies in his pension payments, specifically that part of his pension had stopped without a reasonable explanation, and that he was dissatisfied with the lack of response from DVA on this matter.

      DVA had begun to investigate Mr Z’s complaint before we commenced our formal investigation. DVA notified our office that an initial error had been made by DVA in determining Mr Z’s service pension claim, and it had arranged back pay for a total of $13,000 owed to him and his wife. DVA agreed that the matter had not been sufficiently investigated when first brought to DVA’s attention by Mr Z, and apologised for the frustration and uncertainty this may have caused Mr Z and his wife.

      Stakeholder engagement, outreach and education activities

      In October 2010 the Defence Force Ombudsman participated in a Forum presented by the Returned and Services League national state advocates and pension officers.The Defence Force Ombudsman also sponsored a Root Cause Analysis (RCA) workshop with the Society of Consumer Affairs Professionals (SOCAP). RCA can prevent serious high-risk problems from recurring and can help to reduce consumer enquiries and complaints to the Ombudsman. RCA is a helpful tool for agencies wanting to create a continuous improvement culture and to address systemic issues. This workshop was well attended by DVA staff.

      Defence Housing Australia and Toll Transitions

      Defence Housing Australia (DHA) provides housing services for ADF members. DHA also maintains properties and manages leases with members of the public who lease their houses to DHA. When an ADF member relocates on posting, DHA calculates and arranges for the payment of associated allowances and benefits.

      On 1 July 2010 Toll Transitions assumed responsibility for those functions associated with an ADF member’s removal on posting and payment of allowances.

      During the last period we received 32 approaches about DHA and five approaches about Toll Transitions.

      Many of the complaints related to the adequacy of the policy applicable to ADF removals and allowances payable to ADF personnel. DHA is responsible for delivering a service on behalf of Defence using policy created by Defence. Such cases are not complaints about DHA or Toll Transitions’ service delivery, but are rather complaints about Defence policy. In these cases the Defence Force Ombudsman is able to comment on whether the rules are ambiguous or poorly worded, but this does not necessarily provide a satisfactory remedy for the complainant.

      FEATURE

      Defence Portfolio Agencies Forum

      The Deputy Defence Force Ombudsman Alison Larkins held a Defence Portfolio Agencies Forum on 28 June 2011. The Forum provided an opportunity to promote discussion among senior Defence policy officers and decision-makers about administrative issues they needed to be aware of, systems they should consider implementing, and their openness to external critique.

      Guest speakers were:

      • Professor Robin Creyke, Senior Member, Administrative Appeals Tribunal (AAT)
      • Dr Grant Lester, consultant psychiatrist, Victorian Institute of Forensic Mental Health
      • Mr Geoff Earley, Inspector General of the Australian Defence Force.

      In speaking about the framework and processes of the AAT, Professor Creyke deconstructed several common assumptions, including that by the time a matter reaches the AAT it is often too late to remedy a bad decision.

      Dr Lester analysed the spectrum of complainants and the management of unreasonable complaint behaviour, emphasising the importance of recognising and managing it. He also suggested methods of early detection and alternative management strategies.

      The presentations were concluded with Mr Geoff Earley who chaired a lively panel discussion on the issues raised by the speakers. Feedback from the participants was that the content from all presenters was valuable and worthwhile.Dr Grant Lester, consultant psychiatrist at the Victorian Institute of Forensic Mental Health

      Dr Grant Lester, consultant psychiatrist at the Victorian Institute of Forensic Mental Health, discusses the management of unreasonable complaint behaviour.

      Immigration Ombudsman

      Department of Immigration and Citizenship

      Overview

      In 2010–11 we focused on two streams of complaints related to the Department of Immigration and Citizenship (DIAC, or the department). One related to irregular maritime arrivals and detention issues. The second stream of complaints related to other migration programs and activities, such as General Skilled Migration. It also included complaints about citizenship decision-making and processing.

      During 2010–11 we saw a continued increase in the numbers of irregular maritime arrivals on Christmas Island and their placement in detention facilities located in both remote locations and metropolitan areas on the mainland. As a consequence we expanded our inspection program and faced new challenges in providing detention reviews for individual detainees.

      Despite these challenges we continued our program of inspections of immigration detention facilities, own motion investigations into systemic issues, and ongoing engagement with the department through regular meetings, briefings and consultation on proposed initiatives. This preventive approach helped to reduce the volume of complaints received about systemic issues and enabled the department to quickly implement processes to address underlying problems.

      Overall, we received 2,137 approaches and complaints in 2010–11, a 34% increase from the previous year. This increase is explained by the increased number of irregular maritime arrivals who complained to the office in the course of the year, particularly as a result of our active visits program where more than 90% of detention-related complaints were made.

      Of these complaints, we investigated 341, or 16% of all complaints received, and were able to facilitate remedial action by the department in 242, or 71%, of those cases we investigated.

      We held regular liaison and engagement activities with the department via its Ombudsman and Human Rights Coordination Section. This included monthly meetings to reconcile complaints and complaint-handling issues as well as a series of briefings by DIAC on areas of interest to us. The latter assisted the office to better understand the context of many of the complaints we had received and to follow up on systemic issues.

      The complaint trends we observed in 2010–11 were similar to those we observed in 2009–10, suggesting there is scope for us to investigate them to identify and focus on systemic or thematic issues. We are actively addressing many of these trends with the department.

      We continued our program-monitoring compliance and removal inspection actions.

      We completed two own motion reports in this reporting period in February 2011:

      • Proper Process for Challenging a Tribunal Decision (Report 03|2011)
      • Christmas Island immigration detention facilities: Report on the Commonwealth and Immigration Ombudsman’s oversight of immigration processes on Christmas Island October 2008 to September 2010 (Report 02|2011)

      We are conducting an investigation into increasing levels of suicide and self-harm in immigration detention and will report on outcomes and recommendations of that investigation in the coming year.

      Figure 5.12: DIAC approach and complaint trends, 2004–05 to 2010–11

      Figure 5.12: DIAC approach and complaint trends, 2004-05 to 2010-11

      Complaint themes

      Monitoring of DIAC’s internal complaint-handling

      Throughout 2010–11 we continued to monitor the quality of DIAC’s internal complaint handling, which is conducted by its Global Feedback Unit (GFU). This underlies our policy of encouraging complainants to try to resolve their problem with the agency before the Ombudsman becomes involved. We monitor the unit’s complaint-monitoring practices and reporting by reviewing its complaint records.

      Our monitoring activities noted that generally the unit’s complaint handling was satisfactory and had properly dealt with the issues raised by complainants. In the small number of cases where we found the complaint handling incomplete, the underlying themes related to complaints about delays in security clearances. When the complexity of a case required it to be referred to the processing area, the unit had experienced difficulties in getting a timely response. These problems have been raised with DIAC on a case-by-case basis.

      Ombudsman staff liaised with DIAC staff on an ongoing basis to discuss their processes for resolving the complaints the department receives from members of the public, and its handling of our investigative inquiries. We discussed our role with DIAC and our ideas for improving complaint handling generally.

      Security clearance delays in offshore processing

      Through 2010–11 we continued to receive a large number of complaints from visa applicants who were concerned about the time taken to finalise their visa applications. The case below provides an illustration of the type of complaints we received and the concerns expressed by applicants who face uncertainty about when their application will be finalised.

      Our investigations found that in a majority of cases, delays were due to the high number of visa applicants requiring security clearances, which were being carried out by an external agency. These delays were not always within DIAC’s direct control.

      DIAC has worked with the external agency to address delays in the referral process, further developed its Security Referral System (SRS) protocols and provided additional training to its staff to better manage and monitor the referrals and clearances process. During 2010–11 DIAC provided our staff with a demonstration of the SRS and a briefing on how its staff handle delays. This has assisted Ombudsman investigation officers in their work.

      Security clearance issues

      Ms AA, an Australian citizen, complained about DIAC’s delay in finalising an application for a spouse visa for her husband. She was concerned as she was expecting a child and wanted her husband to be granted his visa to be in Australia for the birth. DIAC claimed it had no control over the delay because it was caused by a security check of Mr AA’s background, which was being conducted by an external agency.

      Our investigation revealed that DIAC had provided mandatory information about the security checks required for the grant of a spouse visa and that these checks were undertaken by external agencies. We further explained to Ms AA that DIAC had followed the legislative requirements in regard to Public Interest Criteria referrals to external agencies, in respect of which, DIAC had no control over the time taken to process the clearances.

      International student visa processing

      Some complaints stemmed from the reforms to the General Skilled Migration program, particularly changes to the skills needed in the Australian labour market. Changes to the skills sought meant the studies being undertaken by some students aspiring to gain permanent residency became redundant.

      In one case, a complainant raised concerns about an apparent delay in assessing the validity of her visa application and the impact it had on her ability to obtain permanent residence. This case is also relevant to our discussion of systemic visa application validity issues at the end of this chapter and is discussed in more detail there.

      There was also a period of several months during which a review of the skills sets Australia needed was conducted. Students, migration agents and educational institutions raised concerns about the impact this had on their capacity to make informed decisions.

      Our office noted some processing issues related to students, particularly concerning misunderstandings about implementation by DIAC of processing arrangements for subclass 485 applications. The case study over the page illustrates one such issue.

      Student visa issues

      DIAC implemented arrangements for processing subclass 485 applications. Under the arrangements, DIAC will process subclass 485 applications in the following order:

      1. Applications from people who will have completed a Professional Year before 30 June 2011 who lodged a subclass 485 application before 17 March 2011.
      2. Applications lodged from 9 February 2010 to 30 June 2010 where the nominated occupation was on the Skilled Occupation List (SOL) Schedule 3 in effect from 1 July 2010.
      3. All other applications will generally be processed based on the date they were received.

      Mr AB raised concerns that as a ‘priority three’ applicant, his application may not be finalised before the new points test comes into effect. He stated the criteria used by DIAC to prioritise the processing of applications were unfair. Our investigation found that DIAC’s decision to implement the current processing arrangements was in accordance with the relevant legislation.

      Compliance and removals

      Monitoring of DIAC’s compliance functions demonstrated an improvement in its compliance field operations and training. The main purpose of this ongoing monitoring is to assess the effectiveness of DIAC’s policies and procedures governing the location, identification and detention of unlawful non-citizens.

      Field observations by Ombudsman staff indicated that DIAC officers were detaining people as a last resort, in keeping with the former Minister for Immigration and Citizenship’s statement relating to detention values.

      We also observed some of the DIAC training sessions for its field operations staff who plan and conduct compliance activities.

      Compliance Issues

      Mr AC complained to us about a decision to issue him a Bridging Visa E (BVE) without work rights. His wife and two children were dependants on his visa.

      Mr AC was working lawfully whilst going through the review process for a substantive visa. DIAC conducted a compliance visit to his home on 1 July 2010, at which time Mr AC became aware for the first time that his BVE would expire at midnight. On the same day Mr AC went to DIAC’s office and was told to come back the next day. By the time he returned at the appointed time he had been unlawful for nine hours. Mr AC decided to request Ministerial Intervention to stay in Australia, a process that can take many months, and was issued a BVE without work rights.

      DIAC’s response to our investigation indicated that the imposition of the no work condition was a correct application of the law relating to the particular visa, because Mr AC had been unlawful. We considered that although DIAC was not responsible for notifying Mr AC of the impending expiration of his BVE, it did not give Mr AC important information about the implications of becoming unlawful, even for a short time, when it was within its power to do so. We asked DIAC to reconsider the visa options open to Mr AC given this context.

      In response to our investigation, DIAC identified that in the compelling and exceptional circumstances of the case it could grant Mr AC a new BVE with permission to work. It also undertook to make changes to its training to reinforce the lessons learned from Mr AC’s complaint.

      Immigration detention inspections program

      We expanded our program to cater for increased numbers and locations of irregular maritime arrivals. Our visits also included complaint clinics and interviews with detainees to support our detention review and oversight function. We aim to visit each immigration detention centre (IDC) at least twice a year while maintaining a schedule of four visits a year to Christmas Island and six visits a year to Villawood Immigration Detention Facilities.

      During 2010–11 our teams visited:

      IDC

      Timing

      Christmas Island IDC

      September, November 2010; May, June 2011

      Curtin IDC

      May 2011

      Scherger

      February 2011

      Inverbrackie

      December 2010, March 2011

      Darwin IDC and APODS

      January 2011

      Villawood

      July, September, December 2010; February, May 2011

      Perth IDC

      July 2010

      Maribyrnong IDC

      September 2010

      Leonora APOD

      April 2011

      Adelaide Immigration Transit Accommodation

      May 2011

      Observations across the detention network

      We made a number of general observations about issues of concern within the detention network. These included:

      • Overcrowding, particularly on Christmas Island, and the effect this appeared to have on the quality of life for detainees. With the transfer of large numbers of detainees from Christmas Island to mainland detention centres, we will continue to monitor overcrowding issues at all centres.
      • Concerns about suicide and self-harm are a major issue and continue to be actively monitored across the detention network. The previous Ombudsman foreshadowed that an own motion investigation into this issue would be conducted; this investigation has now commenced.
      • Prolonged detention due to time taken to process detainees’ cases, particularly relating to delays in: receiving refugee status assessment outcomes; having an Independent Merits Review hearing scheduled; and receiving security clearance outcomes. New procedures implemented by DIAC to address these problems have seen improvements in delays however there are still concerns that many detainees are in detention for more than 12 months, and for those who receive a negative security clearance and who cannot be returned to their own country appear to face indefinite detention.
      • Appropriate use of force, not just during times of major disturbances within the detention network, but also in cases of incidents involving individual detainees. Staff should be suitably qualified to apply such force as necessary. An own motion investigation into the use of force by Australian Federal Police and Serco staff during the Christmas Island disturbances in April 2011 will be released during 2011–12.
      • Limited recreational and educational activities and excursions across the detention network which continue to be a source of ongoing frustration for detainees.
      • Problems with property management and loss of property. It is recognised that the large number of people coming into immigration detention and being moved within the detention network creates challenges for managing the logistics of detainees’ property. We have received a number of complaints about this issue, particularly relating to items of high value and cash.
      • Levels of cultural awareness and consideration of personal dignity feature regularly in approaches to the Ombudsman. Complaints about these matters include referring to people by their ethnic or religious background, lack of personal privacy (particularly for people with disabilities) and claims of racism made against detention service provider staff.

      Detention Issues

      An Indonesian boat crew detained on Christmas Island approached us on a number of property-related issues. The complaint was multifaceted and included access to suitable clothing to play sport and attend the mosque (they were not attending for this reason), access to schooling for the school age crew, access to internet, and access to English classes.

      Discussions with senior Serco staff during the visit resolved all issues raised. This shows the value of our visits program: a mass complaint by 12 or so persons was resolved in less than a day.

      Remote locations

      Throughout the year, increasing numbers of irregular maritime arrivals were relocated to immigration detention centres in remote areas. In these centres we observed:

      • similar risks of overcrowding and unrest, coupled with an increased sense of isolation, including limited access by road, and reduced access to telephone or internet during adverse weather conditions
      • medical services were limited in terms of access to local services
      • perceptions of lengthy delays in processing.

      We were concerned that the cramped conditions found on Christmas Island were being replicated on a smaller scale in several centres. In general terms:

      • several centres are subject to isolation due to weather conditions when roads are flooded and telephone and internet are down etc
      • there are consequential difficulties for emergency medical attendance, supply of food and spare parts for equipment
      • waiting times for replacement or repair of equipment are significant and adversely impacted on centre operations
      • another consequence is the increased pressure detainees placed on the medical services available for local communities.

      At Scherger Immigration Detention Centre (Weipa – Far North Queensland) we noted that contingency planning for cyclonic events in the area was inadequate and we made several recommendations concerning this.

      A particular concern of ours related to the lack of specialist psychiatric services on site. This was particularly important when detainees were being advised that their claims had been refused:

      • we observed that negative results also impacted on other detainees, increasing their anxiety
      • our inspection at one location found that the method of informing people of Refugee Status Assessment and Independent Merits Review outcomes was undertaken in a manner that would enable detainees to predict an outcome and did little to decrease the adverse impact of negative decision-making outcomes generally.

      Record-keeping and processes for dealing with incidents

      Our ongoing investigation of an incident which occurred during an inspection, as well as other incidents brought to our attention through complaints and reviews, has highlighted several concerns about the management of incidents. These issues include:

      • the accuracy and adequacy of records made when an incident occurs
      • poor reporting of use of force during an incident
      • poor quality assurance of reports generated post incident
      • lack of understanding about critical decision points in the use of force and the need to report these in records
      • inadequate investigation of use of force incidents
      • lack of de-escalation practices at the time of an incident.

      We will continue our focus on these issues during the coming year in anticipation of improvements in record keeping and processes for managing incidents.

      Issues raised by detainees during inspection visits

      We observed an underlying level of tension in many centres as well as high levels of distress and anxiety amongst detainees.

      Issues raised in complaints clinics:

      • despair at length of time in detention
      • confusion over the system of medical appointments
      • uncertainty over the Independent Merits Review process
      • lack of contact with a DIAC case manager
      • anxiety for families remaining in home country
      • perceptions of unfair Refugee Status Assessment and Independent Merits Review decision-making
      • feelings of hopelessness including expression of intent to self-harm.

      Detainees consistently raised concerns about the process of their refugee status assessments, as discussed below. This office has provided a report to DIAC detailing our observations of detention facilities arising from visits conducted in the later part of the financial year. DIAC is expected to provide a response to the observations and suggestions outlined in the report.

      Oversight of Refugee Status Assessment

      The High Court’s decision in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 of November 2010 confirmed that the Refuge Status Assessment and Independent Merits Review processes were valid but there were errors in the Independent Merit Review processes for the two cases before the Court. The Court also determined that irregular maritime arrivals were able to seek judicial review of negative refugee status assessments. In response DIAC introduced a refined process known as a Protection Obligation Determination (POD). When the new system commenced on 1 March 2011, around 900 irregular maritime arrivals had not commenced Refugee Status Assessment. These were processed under the POD arrangements. At this time there were around 1300 clients who had commenced a Refugee Status Assessment and were awaiting an outcome. Further, on 1 March 2011 there were around 1900 irregular arrivals who were eligible for an Independent Merits Review. Almost 450 of the 1900 were awaiting notification of the refugee status assessment or were yet to request review.

      We received a number of complaints about delays in the Refugee Status Assessment process caused by delays in security clearances by an external agency.

      • we looked at DIAC’s processes regarding the referral and handing down of decisions
      • DIAC’s new security triage hopes to reduce the number of people requiring full security clearance checks and the backlog of external clearances
      • we will continue to monitor this process in the coming year.

      Issues with Refugee Status Assessment processing raised by detainees during inspection visits

      We received complaints about:

      • delays between the time decisions were made and the time that detainees were informed of the decision outcome
      • errors in decision letters.

      Detainees had a perception that certain Independent Merits Review decision-makers were consistently positive or negative in their decisions.

      We felt there was limited understanding of the Independent Merits Review process, when cases will be referred for review, and how referrals are prioritised.

      There were also concerns about the:

      • use of interpreters who did not understand the particular dialect of the irregular maritime arrivals. Poorly interpreted information can have significant consequences on decision-making
      • accuracy of the country information relied upon by decision-makers.

      Our office will continue to investigate and monitor these issues.

      Reporting on people held in immigration detention

      The Ombudsman is required under s 486O of the Migration Act 1958 to report to the Minister on the appropriateness of the arrangements of a person’s detention for anyone who has been in immigration detention for more than two years, and every six months thereafter. A de-identified copy of the report is also tabled in Parliament.

      In 2009 a non-statutory process was implemented whereby the Ombudsman would report to the Secretary 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.

      The number of non-statutory reports we received from DIAC increased dramatically in January and placed pressure on the resources of DIAC and our office to respond in an effective and timely manner.

      A risk created by the increased number of people in detention may be that reviews become process driven rather than purpose driven.

      We noted that during the latter part of the financial year that the reports received from DIAC did not include relevant and essential detainee health information and other sundry matters. Following discussion with DIAC this information has since been supplied. We are continuing to work with the department to streamline the reporting process and address the challenges imposed on both this office and DIAC by an increasing number of detainees.

      Detention reviews are a valuable indicator of systemic issues in immigration detention arrangements and in refugee claims processing.

      In part as a result of the significant increase in the number of people in immigration detention, our office will be reviewing the approach we take to oversight of those who have been in detention for the six months to less than two years period.

      Resolving complex issues

      DIAC faces the problem of an increasing number of detainees who have been found:

      • not to be refugees, but will not be accepted back by the original country who on an involuntary basis or who are stateless
      • to be refugees through an Refugee Status Assessment, but have not met security clearance requirements.

      These groups raise complex issues for which DIAC has limited solutions under the current legislative and policy framework. The office is concerned that they appear to face indefinite detention.

      Two-year review reports

      In according with the Migration Act, this office has a statutory reporting requirement for those persons who have been detained in immigration detention for two or more years.

      Reports received under s 486N and s486O of the Migration Act, 2010–11 are:

      S 486N reports received from DIAC

      60

      S 486O reports sent to the Minister

      41

      People detained for more than two years in Immigration Detention have often been exposed to significant incidents within the detention network, including but not limited to suicides and disturbances at detention centres in Villawood, Darwin and Curtin. These are obviously negative and traumatic environments for people who may also be experiencing depression and anxiety.

      Issues raised in the two-year reports include:

      • an increase in the level of violence in detention centres, particularly Villawood
      • deterioration in mental health, in particular of those persons held in immigration detention facilities for prolonged periods. Even though DIAC undertakes monthly assessments of an individual’s circumstances and placement it remains that an increasing number of long-term detainees are continuing to be held in immigration detention centres despite ongoing recommendations from mental health professionals to consider community detention
      • several people whose visas have been cancelled under s 501 and for whom Australia appears to have non-refoulement1 obligations are subject to prolonged and apparently indefinite detention
      • limited police investigation into alleged assaults in Villawood Immigration Detention Centre arising from jurisdictional confusion2
      • limited supportive psychological intervention in immigration detention3.

      Two Year Report

      Two reports to the Minister about detainees at Villawood Immigration Detention Centre include allegations of detainee to detainee assault, Detention Service Provider (DSP) officer to detainee assault; and detainee to DSP officer assault. Although detainees have the right to ask for the police to be called to investigate an alleged assault, the police report indicated a general view that charges will not be pursued when the alleged perpetrator has an unresolved immigration status. There is also concern that jurisdictional issues between NSW Police and the Australian Federal Police have not been resolved, with neither agency taking responsibility for investigating claims of alleged offences at Villawood.

      Our section 486O report highlighted the need to provide a safe environment for detainees and staff, which includes the involvement of the criminal justice system where appropriate. The Minister has asked DIAC to review the situation. and this office understands that this is in process. This office will continue to monitor the management of serious incidents and investigations within the detention network

      Non-statutory review reports

      Non-statutory review reports were prepared on the following:

      • families in Immigration Residential Housing for long periods
      • case placement assessments – several issues and potential case studies including lack of natural justice and not taking into account relevant information, discounting mental health issues and, in one case, isolation from ethnic group
      • mental health problems.

      Complaints from people in detention

      Recurrent complaint issues include:

      • access to medical services
      • length of time in detention and associated psychological impact
      • violent incidents
      • property handling and loss

      Systemic issues

      Visa application validity

      In July 2009, the Ombudsman released Department of Immigration and Citizenship: Invalid visa applications (Report 10|2009). This investigation focused on DIAC’s management of invalid visa applications and considered the problems that can occur when invalid visa applications are poorly managed. The investigation looked at the timeliness and adequacy of advice given to visa applicants about their invalid visa applications.

      The report found that overall DIAC’s management of applications was in accordance with current policy and legislation. However, key areas in need of attention related to:

      • improving the clarity of DIAC policies
      • addressing the delays associated with assessing invalidity
      • improving the advice to visa applicants about the invalidity of their applications
      • improving record-keeping practices.

      During the next financial year this office will be reviewing the steps DIAC is taking to address the issues identified by the office during 2010–11 with a view to making recommendations if we identify areas that need further attention. The following case study illustrates some of the issues that arise in visa application validity cases.

      See also the proposed own motion and systemic investigations in the ‘Looking ahead’ section on page 113.

      Visa application validity Issues

      Ms AD arrived in Australia on a student visa. When she had finished her tertiary studies she became eligible to apply for skilled migration. Ms AD needed to lodge her skilled migration application within six months of having completed her course. She lodged her application on 21 March 2010, and within the prescribed time, but did not provide a skills assessment from the relevant assessing authority at that time. This meant that her application was invalid. While DIAC considered whether her application became valid on 9 June 2010 (the day her skills assessment was received by the Department), because Ms AD was no longer the holder of a substantive visa at this later time it could not determine that the application was in fact valid. DIAC formally advised her of this on 28 February 2011.

      Prior to lodging her application, Ms AD spoke to a DIAC officer who advised her that she needed to provide evidence of having completed her studies. However, the officer may not have told her that she also needed to provide evidence of a suitable skills assessment from the relevant assessing authority. While DIAC officers can provide general advice to applicants, it is the responsibility of applicants to ensure that they meet all relevant visa application and eligibility criteria. DIAC provides this information on its website and applications forms, including:

      • how to apply for each class of visa
      • visa eligibility requirements
      • the need to provide evidence of a skills assessment at the time of lodgement, and
      • a list of the relevant assessing authorities.

      For these reasons, we formed the view that DIAC’s general advice to Ms AD was not inadequate or incorrect or that its actions were unreasonable.

      However, Ms AD also complained that DIAC’s delay in advising her that the application was invalid meant that she was no longer eligible to apply for a further substantive visa while in Australia. On considering this issue, we felt that if DIAC could have advised her in a more timely manner that her application was invalid, she may have been able to avoid being disadvantaged by becoming unable to validly apply for permanent residence in Australia. However, an investigation of DIAC’s actions in this instance would not have provided her with a practical remedy or positive outcome.

      Cross-agency issues

      We may investigate as appropriate or necessary, issues that arise in the immigration context and which involve other agencies or service providers. For example, in the field of student visas and skilled visas, or in relation to health and detention services provided for DIAC by private individuals or companies.

      Please see the Overseas Students Ombudsman section on page 123 for information on the department’s role in that jurisdiction.

      Reports released

      In February 2011, the Ombudsman released Christmas Island immigration detention facilities: Report on the Commonwealth and Immigration Ombudsman’s oversight of immigration processes on Christmas Island October 2008 to September 2010 (Report 02|2011).

      Outline of recommendations and DIAC’s response include:

      • A review of the Refugee Status Assessment process and the processing of security clearances.

        The Refugee Status Assessment process has now been replaced by the Protection Obligation Determination, and new procedures put in place to improve processing times for security clearances.

      • Releasing detainees who receive a positive Refugee Status Assessment into community detention.

        Community detention is not possible on Christmas Island. Consideration will be given to transferring detainees from Christmas Island to community detention on the Australian mainland.

      • There should be adequate numbers of accredited interpreters available on Christmas Island to assist in the processing of refugee claims and provision of support services.

        DIAC is working to improve interpreter services through a range of strategies, including recruitment, increased use of technology for interpreting services and addressing infrastructure inadequacies on Christmas Island.

      • Unaccompanied minors and families with children should have their claims processed on the Australian mainland and be placed in community detention.

        The Minister announced his intention to place the majority of children and their families in community detention.

      • DIAC should move as many detainees to the mainland to reduce overcrowding on Christmas Island.

        New facilities have been opened at Curtin in Western Australia and Scherger in Queensland. There has been a significant reduction in detainee numbers on Christmas Island as detainees have been transferred to mainland detention centres.

      • DIAC should urgently address the shortage of adequate health services on Christmas Island, particularly for detainees with mental health issues.

        DIAC will be developing facilities at the Christmas Island hospital for mental health counselling.

      In February 2011, the Ombudsman released Department of Immigration and Citizenship: Proper Process for Challenging a Tribunal Decision (Report 03|2011). The investigation examined DIAC’s approach to the implementation of a Migration Review Tribunal decision that the complainant was in a genuine ongoing relationship for the purposes of the grant of a temporary partner visa. After two years a permanent partner visa could be granted if prescribed criteria could be met. In response to our investigation, DIAC indicated it had concerns about the integrity of the complainant’s relationship and, because of those concerns, it disagreed with the Tribunal’s relationship findings. It did not, however, apply for review of the Tribunal’s decision and after an 18-month delay refused the permanent partner visa, two days after granting the temporary partner visa.

      We formed the view that DIAC’s approach involved procedural deficiencies including inconsistency and a denial of natural justice, a failure to follow statutory appeal processes and delay.

      We recommended that DIAC ensure:

      • challenges to court or tribunal decisions occur through proper processes and in a timely fashion
      • difficult cases are actively managed
      • the flawed decision on the permanent partner visa be remedied.

      DIAC accepted all three recommendations and acted quickly to address the visa grant. It also gave consideration to developing an internal monitoring mechanism to oversight implementation of tribunal decisions and develop further policy guidance for decision-makers on compliance with tribunal decisions.

      See the ‘Systemic Issues’ section on page 110 relating to visa application validity as a current systemic theme.

      Update from last year

      See earlier sections relating to visa application validity as a systemic theme and as a released report.

      During the upcoming financial year we propose reviewing the steps DIAC has taken to address the issues identified by the Ombudsman with a view to making further recommendations if we identify areas which need further attention.

      Stakeholder engagement, outreach and education activities

      We held regular liaison and engagement meetings with DIAC’s Ombudsman and Human Rights Coordination Section to discuss complaint issues.

      Through the Section we arranged for a series of briefings that helped our office better understand the context of a number of complaints we had received.

      Staff have attended, or will be attending, a range of stakeholder community presentations and conferences on matters of relevance. We will be looking at developing a program of community stakeholder forums through roundtable meetings, attending conferences and as part of our own motion processes.

      Looking ahead

      During the next financial year, the office is looking to:

      • re-affirm and refine its contact protocols with DIAC to better elaborate and clarify complaint-handling matters
      • look at a range of systemic issues, subject to resources and priorities, in the following areas:
        • suicide and self-harm behaviour by detainees
        • complaint-handling by DIAC’s Global Feedback Unit and service providers
        • genuineness assessments in visa decision-making
        • DIAC implementation of court and tribunal decisions

      The year ahead will also bring a continuing challenge to maintain quality review and oversight of systemic issues and individual cases within the immigration detention framework. We will continue to examine the circumstances of prolonged detention and the implementation of the immigration detention values for detainees in general.

      FEATURE

      Immigration Detention – visits program

      During the latter part of 2010 this office reviewed the approach taken to the oversight of immigration detention facilities with a view to providing equitable coverage of all centres. We determined that to provide a commensurate level of service to all irregular maritime arrivals regardless of location the existing visit program should be expanded to include all immigration detention facilities on mainland Australia. An assessment of the oversight needs determined that it was feasible to undertake formal visits to each facility at least twice a year with a capacity to increase our presence in any particular location if the need arose.

      The trial of the visits program is considered to be a success with activities including conduct-of-complaint clinics, interviewing individual long-term detainees and observing local practices and procedures. As a direct result of the program we have had the opportunity to speak to more than 500 individual detainees and groups with whom we would otherwise not have had contact due to communication challenges associated with these groups and the remote locations in which they are detained. In the majority of instances the issues raised by detainees have been resolved through direct liaison with the Department of Immigration and Citizenship and Serco staff during the visit or if required addressed more formally post-visit.Christmas Island Immigration Detention Centre

      Christmas Island Immigration Detention Centre – North West Point

      1. In essence, the principle that a person cannot be returned to a place where they fear harm, including persecution.
      2. This office will continue to monitor the resolution of the jurisdictional issues surrounding potentially criminal acts within detention facilities and the development of a Memorandum of Understanding between DIAC, the Australian Federal Police and State police.
      3. This office notes that DIAC is continuing to work with the Detention Health Advisory Group (DeHAG) and industry experts to improve the level of psychological support provided to detainees and we will continue to monitor the efficacy of this service through our routine visits and reporting functions.

      Law Enforcement Ombudsman

      Law Enforcement

      Overview

      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 made about the:

      • Australian Federal Police (AFP)
      • Australian Commission for Law Enforcement Integrity (ACLEI)
      • Australian Crime Commission (ACC)
      • Attorney-General’s Department (AGD)
      • Australian Transaction Reports and Analysis Centre (AUSTRAC)
      • CrimTrac.

      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 the AFP’s complaint-handling arrangements.

      The relevant legislation relating to these functions of the Ombudsman is shown in Table 5.2.

      Table 5.2: Legislative basis for Commonwealth Ombudsman oversight of law enforcement activities

      Legislation

      Function

      Investigations

      Ombudsman Act 1976

      Investigate complaints about the AFP, AGD, ACC, CrimTrac, ACLEI, AUSTRAC

      Witness Protection Act 1994

      Investigate complaints from people placed on the National Witness Protection Program or from unsuccessful applicants

      Review

      Australian Federal Police Act 1979

      Report to the Parliament on the AFP’s complaint handling, with comments on its adequacy and comprehensiveness; receive notification of serious misconduct matters from the AFP

      The Ombudsman also inspects the records of law enforcement agencies and other agencies to ensure compliance with legislative requirements applying to certain law enforcement and regulatory activities. This latter work is described in the Monitoring and inspections section of this report.

      Complaint themes

      Key issues arising from law enforcement complaints to the Ombudsman’s office included:

      • there are still considerable delays in the AFP processing of some complaints, but in general there has been an improvement since last year
      • law enforcement agencies should welcome complaints as a way of improving their administrative practices
      • the AFP should aim to maintain regular contact with complainants and improve the quality of its letters by using plain language aimed at communicating a message, particularly about the decisions made from investigations
      • agencies often provide limited information to complainants and cite the Privacy Act as a reason for taking this approach. This office has seen examples of where an agency could have provided at least general information to a complainant without breaching an employee’s privacy (for example, where an employee of an agency has acted inappropriately and the agency takes action against that employee). The Ombudsman suggests that it would be appropriate for agencies to seek the views of the Privacy Commissioner if they remain unsure about how much information can be provided to complainants.

      Australian Federal Police

      The Ombudsman’s office performs two significant functions in relation to the AFP. We investigate complaints from both members of the public and members of the AFP, and we also conduct reviews of the administration of the AFP’s complaint handling. With this combination of functions, the Ombudsman is well placed to help the public to have confidence in the AFP by being independent, impartial and honest in our views formed from our unique oversight perspective.

      A summary of the complaint trends since 2004–05 are shown in Figure 5.13 below. The significant reduction in the number of complaints received after 2006–07 is principally due to a change in the legislation governing the Ombudsman’s role in relation to AFP complaints.

      Figure 5.13: AFP approach and complaint trends, 2004–05 to 2010–11

      Figure 5.13: AFP approach and complaint trends, 2004-05 to 2010-11

      Most of the Ombudsman’s law enforcement work in 2010–11 related to complaints made by members of the public about the actions of members of the AFP. Complaints made to the AFP are dealt with under the Australian Federal Police Act 1979 (AFP Act) and complaints can also be made to the Ombudsman and investigated under the Ombudsman Act 1976 . The Ombudsman has a statutory obligation to at least annually review the AFP’s complaint handling under Part V of the AFP Act and one such review was conducted during the year.

      Review of complaint handling

      The Ombudsman has an obligation under s40XA of the AFP Act to review the administration of the AFP’s handling of complaints through inspection of AFP records. This includes records of the handling of complaints about ACT Policing. The Ombudsman reports to the Commonwealth Parliament annually, commenting on the adequacy and comprehensiveness of the AFP’s handling of conduct and practices issues, and inquiries ordered by the relevant Minister. Our most recent Annual report on the Commonwealth Ombudsman’s activities under Part V of the Australian Federal Police Act 1979 covered the period 1 July 2009 to 30 June 2010 and was tabled in Parliament in February 2011. This report covered three reviews and is available on the Ombudsman’s website.

      The combined recommendations that were made to the AFP from the three reviews referred to in the report were as follows.

      1. The AFP should conduct further analysis to determine the causes of delay in finalising complaints in all categories.
      2. The AFP should continue to focus on improving outcome letters to complainants to provide details of the finding made and reasons for those findings.
      3. The AFP should give more attention to maintaining regular contact with complainants during the course of an investigation and, where a matter will not be finalised within the prescribed time, provide a report to the complainant that outlines progress.
      4. The AFP should explain the complaints process clearly to a complainant and record this in their record management system (CRAMS).
      5. The AFP should advise the complainant they have the right to complaint to the Ombudsman about the actions of AFP members and about AFP policies, practices and procedures, and advise how they can complain.
      6. The AFP should improve the standard of recording of information in Operational Safety Use of Force Reports, consistent with the requirements of the Commissioner Orders (CO3).
      7. Investigations and adjudications of complaints of excessive use of force should overtly demonstrate that the CO3 requirements of negotiation and de-escalation have been fully considered. Members using force should be required to demonstrate that they appropriately employed or discarded these strategies based upon the circumstances of the incident.
      8. The Operational Safety Use of Force Report should be amended to include a section requiring the member to set out full details of the member’s attempts to negotiate and de-escalate the situation, or to set out full details of why this was not appropriate in the circumstances.
      9. Complaint investigations should seek to resolve any difference between the evidence of complaints and members, particularly for more serious conduct issues, by seeking corroborating evidence where this is reasonable to achieve. This should include other forms of evidence such as CCTV records.
      10. Investigators and decision-makers should consider a member’s complaint history when conducting a complaint investigation and making a decision whether or not to establish a complaint.

      We noted that the AFP continued to make efforts to improve the quality and consistency of its complaint handling. In particular the standard of adjudications of complaints was high. However, we noted deteriorating timeliness in resolving complaints across all complaint categories1. It was also noted that the AFP could better use the information provided by complainants to identify and address systemic problems. We have consistently found that complaints from members of the public have a low rate of being ‘established’2 by the AFP. For example, from the time that Part V began in December 2006 until November 2009, no complaints from members of the public for excessive use of force were established through the AFP complaint-handling process. However, we did not draw any conclusion from this finding. We intend to monitor the way that the AFP deals with complaints about excessive use of force.

      During this year we also conducted an inspection to review the AFP’s complaint handling for the period 1 March – 31 August 2010. The results of that review will be reported to Parliament in the latter part of 2011.

      Complaints received

      During 2010–11, we received 349 approaches and complaints relating to the work of the AFP at the ACT community policing (142), national (182) and international (25) levels. This is a slight reduction on the 389 received in 2009–10. Of the 349 complaints, 183 complainants were advised 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. The office further examined 166 of the complaints. The most common issues concerned:

      • inappropriate action (54), such as excessive delay, failure to act, inadequate investigation
      • customer service (36)
      • practices (25)
      • conduct on duty (24)
      • property and exhibits (3).

      Complaints finalised

      During 2010–11, we finalised 406 approaches and complaints about the AFP – 148 related to ACT Policing, 19 to International Operations, and the remainder to national issues. In 185 cases we referred the complainant to the AFP. We declined to investigate 66 complaints for reasons including 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.

      There were 24 complaints that were out of our jurisdiction and in 15 cases we advised the complainant to pursue their matter with another oversight body, court or tribunal.

      We completed 117 investigations and advised the AFP that we were critical of its actions in 15 of those cases. In 12, the main criticism was the unreasonable delay in the AFP investigating and finalising the complaints. In two cases we found there to be a legal error and in one that there had been inadequate advice or explanation to the complainant.

      Police behaviour

      Mr AE contacted this office in relation to Police behaviour at the site of his son’s car crash. Mr AE said the crash took place the day after his house had burnt down. Mr AE was aggressively arguing with his son at the crash site when police were called. Mr AE said that police yelled at him and used capsicum spray. Mr AE complained to the AFP which acknowledged that police at the scene did yell at Mr AE due to his aggressive behaviour to his son but there was no acknowledgement of the use of capsicum spray. Our investigation revealed that the actions of the police were not unreasonable in the circumstances and we found no evidence to indicate that capsicum spray was used on Mr AE.

      Unreasonable delay

      Mr AF lodged complaints with the AFP concerning criminal allegations against him. Mr AF said that an unknown member of the public whom Mr AF suspected was an AFP officer contacted his employer and disclosed personal information that led to Mr AF having to leave his employment. He contacted this office and we investigated the delay in the AFP investigating his complaints. In our view, there was an unreasonable delay of over 23 months to resolve Mr AF’s complaints, with a closure date still to be determined when we finished our investigation. This far exceeds the benchmark time standard outlined in the AFP National Guideline on Complaint Management.

      A badly handled complaint

      Mr AG complained to this office that the AFP officer who had investigated his complaint was the supervisor of the officer about whom he had complained. The outcome of that investigation was that Mr AG’s complaint was ‘not established’. The original complaint that Mr AG had made to the AFP was that an officer had acted on unsubstantiated information to make enquiries about Mr AG that had caused him embarrassment.

      After we investigated Mr AG’s complaint we came to the view that the original officer had made an error in judgement in the actions that he had taken. However, of particular concern to us was that the AFP officer who investigated Mr AG’s complaint had not disclosed that he was the supervisor of the officer complained about. We were of the view that this supervisor had also not properly investigated Mr AG’s complaint and not adequately disclosed what we considered to be his conflict of interest in conducting this investigation. The Ombudsman was sufficiently concerned about this matter, and the initial AFP response to our views, to prepare a report to the AFP Commissioner about our conclusions on the investigation and to recommend that the AFP better address conflict of interest, and information sharing issues, and improve its record keeping.

      The Commissioner reconsidered the case in light of the Ombudsman’s comments and commissioned a review of the way that the AFP had managed the complaint and the circumstances that led to that complaint being made. The Commissioner’s conclusion was that the case showed isolated issues of procedure in terms of the actions of the officer subject to the complaint and the officer who undertook the complaint investigation. However, the Commissioner was satisfied that a ‘conflict of interest’ was not a key factor in either the original investigation or the complaint investigation.

      The Commissioner agreed to action the Ombudsman’s recommendations in relation to conflict of interest and record keeping but was of the view that the AFP’s information sharing practices were consistent with the relevant legislation.

      Given the AFP response the then Ombudsman decided not to publish the report, but he was sufficiently concerned about the way the original complaint was managed to reiterate to the Commissioner his critical findings.

      Own motion investigations

      In the 2009–10 annual report, we indicated that the Ombudsman had commenced an own motion investigation to determine if the AFP’s practice of making payments to witnesses, particularly large payments, was widespread, and if so whether the governance in place was suitably robust. However, we have suspended work on this investigation pending the resolution of some matters before the court.

      Looking ahead

      Over the next year we will continue to focus our attention on working with the AFP to improve its timeliness in finalising complaint investigations. The establishment of the Adjudication Panel in 2010, and the appointment of a consultant to adjudicate on older Category 3 complaints, demonstrates that the AFP is taking steps to address this problem.

      We would like to see the AFP further embrace complaints from members of the public as a resource for the AFP to improve their operations and interactions with the wider community. The AFP generally agrees with our review recommendations and we will continue to monitor steps taken to implement them.

      Australian Crime Commission (ACC)

      Complaints about the ACC are managed under the Ombudsman Act. In 2010–11, we received three complaints about the ACC. One of the complaints we referred back to the ACC in the first instance and the other two were considered out of our jurisdiction as they were employment related.

      Attorney-General’s Department

      The Attorney-General’s Department provides expert support to the Government in the maintenance and improvement of Australia’s system of law and justice and its national security and emergency management systems.

      In 2010–11, we received 31 complaints and approaches about the Department. In 13 instances, we advised the complainants to raise their concerns with the Department; we declined to investigate eight complaints; three were referred to our Indigenous Team for investigation (they related to Night Patrols in indigenous communities, administered by the Department); the remainder were either out of jurisdiction or more in the nature of preliminary inquiries.

      In one case we investigated we recommended that the complainant be provided with an explanation as to why the Department exempted certain documents from the complainant’s FOI request.

      Australian Commission for Law Enforcement Integrity (ACLEI)

      The Integrity Commissioner, supported by the Australian Commission for Law Enforcement Integrity (ACLEI), is responsible for preventing, detecting and investigating serious and systemic corruption issues in the Australian Crime Commission and the Australian Federal Police.

      During 2010–11, we received three complaints about ACLEI and finalised four complaints during the year (as one related to the previous year). Two complaints were referred to the Australian Federal Police as they were more relevant to the AFP and one was referred to ACLEI in the first instance. In one case we suggested that ACLEI should communicate better with the complainant who was concerned the ACLEI investigation of the complaint was taking too long.

      Keeping complainants informed

      Ms AH had referred a matter to ACLEI concerning allegations of corruption within the Australian Federal Police.

      Ms AH complained to this office that ACLEI had failed to keep her informed of the progress of the matter. We noted that ACLEI does not have a complaint-handling role and does not generally provide personal remedies or restitution to complainants. How ACLEI conducts its inquiries is also a matter for ACLEI to determine. However, in our view, ACLEI, as an Australian government agency, is obliged to conduct its administration in an appropriate manner. This includes managing the expectations of those people who approach it. ACLEI offered to contact Ms AH to inform her of the outcome of her referral.

      CrimTrac

      CrimTrac’s primary role is to provide national information-sharing solutions to support the effective operation of police services and law enforcement agencies across state and territory borders. During the period, we received no complaints relating to CrimTrac.

      AUSTRAC

      AUSTRAC is Australia’s anti-money laundering and counter-terrorism financing regulator and specialist financial intelligence unit.

      We received three complaints during the 2010–11 about AUSTRAC compared to five complaints in 2009–10. Two of these complaints were from the same person about the same issue and this investigation is still in progress. The other complaint was considered out of our jurisdiction and the complainant was advised to contact AUSTRAC for more information about the financial-related issue raised. Another complaint received during the year was considered to be employment related and out of our jurisdiction so the complainant was referred to other authorities.

      Stakeholder engagement, outreach and education activities

      Staff of the Law Enforcement Team meet regularly with the AFP Professional Standards officers and both agencies hold a joint annual forum to discuss issues of mutual interest and to work on ways to improve the AFP’s complaint-handling processes. This year we reviewed the AFP Categories of Conduct for joint consideration by the AFP Commissioner and the Ombudsman.

      The Law Enforcement Team engaged in a number of outreach and stakeholder activities during the year to discuss the role of the Ombudsman and our complaint-handling procedures:

      • visit to the Solomon Islands with the AFP and ACLEI
      • presentation to a visiting delegation of the Maldives Police Integrity Commission
      • Canberra Institute of Technology Students Association and Summernats Fyshwick Nats 2010 car show
      • presentation to Bimberi (ACT Government youth detention centre) staff
      • visit to our office by the Director, Internal Affairs of the PNG Police Constabulary
      • presentation and market stall at Canberra Institute of Technology International Student Orientation Day
      • presentation at ACT Disability, Aged and Carer Advocacy Service.

      Feature

      Australian Federal Police/Ombudsman Forum

      The Ombudsman’s office hosted the annual Australian Federal Police/Ombudsman Forum in March 2011. The Forum is a valuable opportunity to discuss relevant issues that arise through the work of both agencies, and to exchange information and ideas on ways to improve the AFP’s complaint-handling processes. The Forums contribute to a greater understanding by our office of how the AFP operates and the diversity of functions it performs. These Forums have helped build the professional relationship between the AFP’s Professional Standards Section and Law Enforcement Ombudsman staff to enable a better understanding of the issues that each face in investigating complaints.

      Among the issues considered were proposed changes to the Categories of Conduct, which form the basis for AFP investigation of complaints against AFP members. The changes to the Categories will be considered next year by the Ombudsman and the AFP Commissioner.

      Discussions were also held about how the Professional Standards Section could improve the time taken to investigate complaints, as the percentage of complaints being finalised within benchmarks at that time was low. Recent advice from the AFP indicates there has been an improvement in the timeliness of complaint investigation.

      Another focus of the Forum was the low establishment rates3 for complaints from members of the public as compared to those raised internally within the AFP.

      It was agreed that these issues would be further addressed in future Ombudsman Reviews under Part V of the AFP Act 1979 .Delegates at the Australian Federal Police/Ombudsman ForumDelegates at the Australian Federal Police/Ombudsman Forum

      Delegates at the Australian Federal Police/Ombudsman Forum – hosted by the office of the Commonwealth Ombudsman, March 2011

      1. The AFP Commissioner and the Ombudsman, jointly determine the kinds of conduct that are Category 1, 2 or 3 conduct for the purposes of the AFP Act. See feature at the end of this section for more information.
      2. A complaint is established where the AFP investigation concludes in favour of the complainant or against the AFP member.
      3. A complaint is established where the AFP investigation concludes in favour of the member of the public or against the AFP member.

      Overseas Students Ombudsman

      Overseas Students

      Overview

      The role of the Overseas Students Ombudsman was created following a recommendation by the Hon. Bruce Baird in his Review of the Education for Overseas Students Act 2000 . The Baird Review found that overseas students studying with private education providers were particularly vulnerable, and would benefit from access to a statutorily independent complaints-handling body such as the Commonwealth Ombudsman. Following amendment of the Ombudsman Act 1976 , the Overseas Students Ombudsman began operation on 9 April 2011.

      The Overseas Students Ombudsman has three clear roles under the legislation:

      • to investigate individual complaints
      • to report on trends and systemic issues in the sector
      • to 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 Departments of Education, Employment and Workplace Relations (DEEWR), the Department of Immigration and Citizenship (DIAC), and the Australian National University. It is also relevant to the ACT Ombudsman’s jurisdiction in relation to public education providers in the territory.

      Between 9 April and 30 June 2011, the Overseas Students Ombudsman received 169 approaches and complaints. The number of complaints – 95 – includes only those contacts that related specifically to complaints within the jurisdiction of the Overseas Students Ombudsman. There were 74 approaches that were not complaints. These included contacts from students and others whose problems were outside our jurisdiction (for instance, relating to public education providers) and questions from providers and others about the new role and how it functions.

      This year we have investigated nine complaints against DEEWR in relation to overseas students. Student-visa related complaints form part of the work of the Immigration Ombudsman.

      Complaint themes

      The Overseas Students Ombudsman is not limited in the type of complaints it can investigate, so long as those 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 has received 95 complaints in the nearly 12 weeks since commencement. Some clear trends have emerged. The largest proportion of complaints (almost one in four) relate to refunds of course fees. Issues with transferring between providers lead to 13% of complaints. External reviews of decisions to report students for failing to meet attendance (21%) and progress (12%) requirements are also significant. These complaints are particularly serious and time sensitive. From a student perspective, they may result in cancellation of a student visa and return to their home country. For providers, who must maintain a student’s enrolment while an external review is underway, delays can impact on clarity about future student numbers.

      Providers must advise their students of their right to an external review when notifying students of their intention to report them to DIAC. We anticipate that, following the full launch of the Overseas Students Ombudsman to students and the wider community in July 2011, the base of complaints will broaden.

      Systemic issues

      Very few complaints have been finalised or progressed to the point where systemic issues in the sector can be identified and commented on at this stage.

      On the whole, we are pleased to note that providers have been very quick to respond to requests for information from the Overseas Students Ombudsman and to act on recommendations made as a result of complaint investigations. This is an early but positive indicator of the willingness of the sector to accept the Ombudsman’s role in working to improve outcomes for all stakeholders.

      A theme that appears to be emerging across complaint types is the confusion experienced in the drafting, maintenance and interpretation of clear policies which providers are obliged to have in relation to refunds, progress and attendance. Clarity and accessibility of those documents is essential to students and providers understanding their rights and responsibilities, and in being able to meet the standards required of them under the Education Services for Overseas Students framework.

      Cross-agency issues

      Both DEEWR and DIAC have significant roles in relation to the overseas student sector. Their policies directly affect both providers and students, and the intersection of requirements and procedures is complex and sometimes confusing for both. As Commonwealth and Overseas Student Ombudsman, we have capacity to investigate complaints about both these departments and the providers affected by them. This enables a broad and comprehensive view of the major policy actors in the sector, and of the businesses and individuals that deal with them.

      Reports released

      In June this year the Commonwealth Ombudsman notified DEEWR that it had commenced an own motion investigation into the operation of the Education Services for Overseas Students Fund, which operates under its policy and legislation. In certain circumstances, the Education Services for Overseas Students Fund repays money to students whose education provider has defaulted, leaving them with no suitable alternative course. We anticipate that that investigation will result in a published report in the latter part of 2011.

      At this stage, the focus of the Ombudsman has been on building awareness of the Overseas Students Ombudsman function amongst potential complainants, education providers, other statutory complaint-handlers within the sector (for instance, State and Territory ombudsmen dealing with complaints about public education providers) and other key stakeholders.

      Insights from direct experience of complaint handling and further engagement will inform the direction of any major investigations and related reports in the coming year.

      Stakeholder engagement, outreach and education activities

      The Overseas Students Ombudsman has undertaken significant engagement in preparation for the role commencing. This has included meeting with and presenting to State and Territory ombudsmen, regulators, provider peak bodies, student support organisations, DEEWR, DIAC and others. This consultation helped to clarify the operation of the role and its intersection with other complaint-handling and support bodies to ensure that students received the most appropriate support with minimal effort.

      Prior to commencement, the Overseas Students Ombudsman communicated with all registered private education providers (more than 900) to ensure that they were aware of the role and the need to tell students that they could access the Ombudsman’s services. The Ombudsman made arrangements with the Australian Council for Private Education and Training, a peak body representing the majority of private education providers, that the Ombudsman’s external review service would replace external review arrangements that the Council had offered its members up to that point.

      A dedicated Overseas Students Ombudsman website was made available from the beginning of the service. It includes Frequently Asked Questions (FAQs) for providers and for students, with the student FAQs available in 21 languages as well as English. Brochures explaining what an ombudsman is, the right to complain, examples of what can be complained about and remedies that might be sought, were sent to all private providers.

      A full launch of the Overseas Students Ombudsman, targeting student bodies and specialist education and student media, took place on 12 July 2011 coinciding with the Council for International Students Australia’s inaugural conference.

      Looking ahead

      With the Overseas Students Ombudsman now in full operation, priorities for the year ahead include continued liaison with industry stakeholders – most particularly students – to ensure that the Ombudsman is accessible and our role understood. We will continue to identify and act on opportunities to streamline referrals and transfers of complaints.

      The Overseas Students Ombudsman has already identified and committed to a number of opportunities to address stakeholder groups about our role and our insights from complaint handling. Those insights will form an important basis for working with providers to promote best practice complaint handling.

      Reporting students to DIAC

      Three students separately complained about one provider. Each complaint related to the provider’s intention to report the student to DIAC for failing to meet course progress or attendance requirements. Ultimately, such reports can lead to the student’s visa being cancelled.

      In investigating those complaints, we found a number of contradictions in the provider’s policies and notices. Ultimately we concluded that the notices could not be effective because they were not based on clear statements of policies that complied with the National Code1 and were available to the students.

      The provider responded promptly and positively to our investigation. It welcomed the clarification of the National Code, which had been inaccurately reflected in its policies and procedures. The provider withdrew all notices in relation to the student complainants and other students to whom notices had been issued but who had not complained to the Ombudsman. The provider updated its policies, posted them on their website, and informed its entire student body of the changes, ensuring that students signed a statement noting that they were aware of the new arrangements.

      Delays in refunding fees

      Three students contacted the Overseas Students Ombudsman about gross delays in receiving a refund of tuition fees from their education provider. The students had each paid around $7,000 in fees but had been unable to begin their course because their student visa applications were refused. The students applied for a refund. Under the Education Services for Overseas Students Act, providers must pay the refund within four weeks. The provider in this case also had a policy that said they would pay refunds within 10 working days. Despite this, the provider failed to pay the refunds over periods ranging from 11 to 17 months, even though the student’s education agents had contacted the provider repeatedly and in some cases made complaints through other avenues without success. At the time of this report, payment of the refunds is imminent. It was not until the Overseas Students Ombudsman investigated that this progress was made.

      FEATURE

      Safety net for overseas students

      The approximately 100,000 overseas students who are currently enrolled in private education now have access to a free, independent and impartial complaints service when they cannot resolve problems directly with any of the roughly 900 private providers offering education services in Australia.

      Though the Overseas Students Ombudsman service began operating on 9 April 2011, it was officially launched by the then Ombudsman Allan Asher in his keynote speech to the first Council of International Students Australia conference in Melbourne on 12 July 2011.

      “This is an important new service for an often vulnerable group,” said Mr Asher.

      Overseas students were encouraged to keep note of key transactions with their providers, and providers were warned to keep track of their agents’ claims overseas at the launch of the new Overseas Students Ombudsman service.

      News of the service has been warmly welcomed by international students in private education and training, and their representative and support organisations. Complaints have mainly related to refunds and provider intention to report students on progress and attendance requirements, which can result in visa cancellation.

      Together with State and Territory ombudsmen (who deal with complaints from overseas students in public education), the Overseas Students Ombudsman creates a comprehensive safety net for overseas students.

      The service also offers information and training to education providers on best-practice complaint handling, drawing on the Commonwealth Ombudsman’s more than 30 years of experience in complaint investigation. And importantly, the Overseas Students Ombudsman publishes reports on problems and broader issues in international education identified through investigations.

      More information is available at www.oso.gov.auMr Allan Asher at the official launch of the Overseas Students Ombudsman at Victoria University in Melbourne

      Mr Allan Asher at the official launch of the Overseas Students Ombudsman at Victoria University in Melbourne.

      1. he National Code is established under the Education Services for Overseas Students (ESOS) Act 2000 as a set of national standards that governs the protection of overseas students and delivery of courses to those students by providers registered on the Commonwealth Register of Institutions and Courses for Overseas Students.

      Postal Industry Ombudsman

      Postal Industry

      Overview

      Postal Industry Ombudsman Scheme

      The Postal Industry Ombudsman (PIO) can only investigate complaints about the provision of a postal or similar service. It cannot consider complaints about other aspects of a postal provider’s operations, such as retail services, employment matters or environmental issues. The PIO cannot investigate any complaints made to the PIO more than 12 months after the action that caused the complaint. However, in these cases, the Commonwealth Ombudsman retains jurisdiction and may investigate administrative actions of Australia Post that do not fall within the jurisdiction of the PIO.

      In 2010–11 the PIO received 2,952 approaches and complaints. This is a 22% increase on the 2,421 complaints we received in 2009-10. Table 5.3 shows the number of complaints received and the number of investigations completed during the year about Australia Post and Private Postal Operators.

      Table 5.3: Complaints in PIO jurisdiction 2010–11

       

      Approaches and complaints received

      Complaint investigations completed

      Australia Post

      2,932

      472

      Private Postal Operators

      20

      6

      Total

      2,952

      478

      Australia Post

      There continues to be a significant upward trend in complaints to us about Australia Post, with complaints more than doubling over the past six years. In 2010–11 we received 3,123 complaints about Australia Post, of which 2,932 were in PIO jurisdiction and 191 were in Commonwealth jurisdiction (Figure 5.14). The total is a 19% increase on the 2,626 we received in 2009–10.

      We investigated 507 complaints about Australia Post in 2010–11. Of the remainder, we resolved many without investigation, for example by providing the person with a better explanation or informing them about their avenues to resolve the problem. We did not investigate other complaints because they were withdrawn, were out of our jurisdiction or, for a number of reasons, did not warrant investigation at that time. When complaints were withdrawn, it was generally because the person had been able to resolve their complaint directly with Australia Post without our intervention.

      The total number of complaints to our office remains small in comparison to the size of Australia Post’s operations. In 2009–10, Australia Post reported handling over 5 billion articles and employed 43,000 people. Our focus is on ensuring that Australia Post has adequate complaint resolution mechanisms and provides reasonable remedies for individual complaints, and that it identifies and addresses systemic problems.

      As a Government Business Enterprise, Australia Post is required by legislation to act in accordance with sound commercial practice and to meet certain community service obligations. These obligations require Australia Post to provide a domestic letter service at a single uniform rate of postage and to ensure that the service is reasonably accessible to all people in Australia on an equitable basis. The performance standards for the letter service, set out in regulations, must reasonably meet the social, industrial and commercial needs of the Australian community.

      The letter volume is declining rapidly as people change to electronic means of communication. At the same time, parcel volume is increasing and the domestic delivery network is also expanding. Australia Post advises that in 2010–11 the domestic delivery network expanded by about 200,000 addresses. These changes are putting increasing pressure on Australia Post’s capacity to return a dividend to government and its ability to fund its community service obligations. To address these challenges, Australia Post has implemented a significant restructure of its business.

      In dealing with complaints about Australia Post and assessing what is fair and reasonable, we consider Australia Post’s commercial and community service obligations. Part of our role is to help complainants better understand these obligations as many Australia Post customers appear to be either unaware or unaccepting of them.

      Figure 5.14: Approach and complaint trends Australia Post 2004–05 to 2010–11 by jurisdiction

      Figure 5.14: Approach and complaint trends Australia Post 2004-05 to 2010-11 by jurisdiction

      Other postal operators

      In 2010–11, we received 20 complaints about other postal operators, consisting of 7 about Australian Air Express (AAE) and 13 about Federal Express (Australia) Pty Ltd (FedEx). While this is an 82% increase on the 11 complaints we received in 2009–10, the number remains relatively low. The increase may be due to an increased awareness of our role among postal operators and their customers following the consultation we undertook with postal operators on which we reported in our 2009–10 annual report.

      Of the 19 complaints we finalised in 2010–11, we investigated six. The remainder were out of our jurisdiction, did not warrant investigation, or were resolved without investigation or because the complainant withdrew the complaint.

      Common themes were: delay or loss of items; delay in finalising a complaint; and unclear advice from the private postal operator in responding a complaint.

      Complaint themes

      The main themes in complaints about Australia Post were: the Customer Contact Centre’s quality of service or information (36%); recurrent mail problems (30%); single event mail problems (27%); post office services, including banking and retail (4%); and corporate, including unfair policy or legislation (3%).

      Systemic issues

      In addition to investigating individual complaints we use the intelligence from these to monitor and identify potential systemic issues. We discuss these with our Australia Post contacts and, where warranted, we consider if and how we can investigate at a broader level and make recommendations for Australia Post to consider. This is discussed in more detail later in this chapter.

      Australia Post’s terms and conditions

      Australia Post’s terms and conditions for its services set out the rights and obligations of Australia Post and the customer when entering into a service. They are authorised under Australia Post’s enabling legislation.

      We received complaints about the terms and conditions and the way in which Australia Post applied them. Where Australia Post had met the terms and conditions, we were not always able to achieve a better outcome for the individual. However, by monitoring these issues we can identify the level and nature of dissatisfaction with the terms and conditions. We are interested in the terms and conditions as a systemic issue because they underlie so many of the complaints we receive.

      Australia Post’s complaint management

      We found recurring issues with Australia Post’s complaint management, which may stem from the systems and procedures in place, rather than from human error. For example, the complaints about Australia Post not recording complaints or documentation, or losing documentation and packaging, may point to problems in document registration and record management systems. The complaints about the Customer Contact Centre’s lack of response or delay in responding may be due in part to the ‘inbound-outbound’ arrangements at the Customer Contact Centre where separate teams deal with inbound and outbound callers, and are unable to transfer callers between the two.

      Australia Post’s stakeholder and community engagement, consultation and notification

      We received complaints where the complainants expressed dissatisfaction about how Australia Post considered their views and needs when providing or changing its services, and how Australia Post provided or failed to provide important service information to them. For example, this occurred when Australia Post decided to close post offices in certain areas, and made changes to its business credit account policy.

      Cross-agency issues

      We continued to receive complaints in 2010–11 about passports lost in the mail. We are progressing work to obtain an update from Australia Post and the Department of Foreign Affairs and Trade on the progress and outcomes of their implementing recommendations in our report Australia Post and Department of Foreign Affairs and Trade: Passports lost in the mail (Report 08|2010), which was released in June 2010.

      We continued to receive complaints in 2010–11 involving both Australia Post and the Australian Customs and Border Protection Service. Complaints were generally about the notification and advice that addressees received from either or both agencies about mail items being seized, held, destroyed or returned to sender.

      We also visited Christmas Island and discussed with some residents the impact of Australian Government activities on services such as postal.

      Reports or submissions released

      We did not undertake or publish any own motion or investigation reports in 2010–11. There were two main reasons for this.

      Firstly, Australia Post’s business renewal program Future Ready started on 1 July 2010 and aims to achieve significant changes within Australia Post. As we released three own motion investigations in 2009–10 and three in 2008–09, we decided to give Australia Post the opportunity to implement the recommendations to which they had agreed, and to achieve improvements through its renewal program, before undertaking further own motion investigation into systemic issues.

      Secondly, we necessarily focused our resources on investigating and responding to the increasing number of complaints we are receiving. We are using the information gathered from these complaints to identify potential systemic issues.

      Update from last year

      In 2009–10, as detailed in that year’s annual report, we recommended that Australia Post:

      • increase the amount of compensation that it pays for lost or damaged items
      • revise its terms and conditions and other information to more clearly state compensation arrangements for lost or damaged passports
      • include on Express Post envelopes and satchels a statement that passports are excluded from compensation if carried by Express Post.

      In response to our recommendations, Australia Post changed its Express Post Platinum service to include compensation of up to $100 (increased from $50) for lost or damaged items and the replacement of valuable documents, and to allow for extra cover of up to $5,000. It has made some changes to the terms and conditions, other information, and the Express Post products to better reflect the compensation arrangements.

      Stakeholder engagement, outreach and education activities

      The then Ombudsman met with Australia Post’s CEO and Managing Director to discuss the strategic direction and priorities of their respective organisations.

      PIO representatives continued to meet with Australia Post at the executive and corporate level, and visited and toured Australia Post facilities at the Melbourne Airport, the Dandenong Letters Centre, and the Port Melbourne Mail Centre. Our focus was on better understanding Australia Post’s logistics and operations in service delivery, its complaint management policies and procedures, and the actions it was taking to address the challenges in these areas.

      We participated in public outreach activities to promote the PIO’s role. PIO team members attended outreach events at Midsumma Festival in Melbourne (January), Orientation Week in Victoria (February) and Agfest in Launceston (May). In their state-based outreach activities, various state offices represented the PIO by providing information and answering questions at events.

      Looking ahead

      The vision for our work with the postal industry is to support the industry to improve complaint management. We are particularly interested in helping postal agencies to better identify underlying causes of complaints, to resolve complaints more effectively and efficiently, and to achieve better resolution outcomes.

      We want to find ways to better target and engage with stakeholders. In particular, we want to maintain an awareness of the PIO among its members and their customers, and we want to attract new members to the scheme. We also want to encourage and support Australia Post to improve its community and stakeholder consultation.

      Addressing underlying or systemic issues within Australia Post, especially in complaint management, could reduce the number of complaints we receive. Our challenge is how to best investigate and address systemic issues while continuing to investigate and respond to the increasing number of individual complaints within a reasonable timeframe.

      For the year ahead, we have identified the following three key challenges facing Australia Post as our key areas of focus.

      Australia Post’s terms and conditions for its services

      Australia Post’s terms and conditions for its services set out the rights and obligations of Australia Post and the customer when entering into a service. A key theme in complaints we receive is the perceived unfairness of Australia Post’s terms and conditions for its services. This includes but is not limited to the terms and conditions covering liability and compensation, especially for loss or damage to postal items and for consequential loss.

      Australia Post’s complaint management

      In early 2010, Australia Post consolidated its state-based complaints management centres into a national system based in two centres in Brisbane and Melbourne. We intend to pursue with Australia Post whether the arrangements are effective in responding to and resolving complaints.

      Australia Post’s stakeholder and community engagement, consultation and notification

      Australia Post communicates with the community and stakeholders in multiple ways. Much information is publicly available, while other information is communicated more directly to a target audience. Key issues emerging from complaints we receive include:

      • a general lack of awareness about Australia Post’s role as a commercial enterprise with community service obligations
      • the clarity and accessibility of important information about Australia Post’s services, and the general lack of awareness of such information
      • the need for Australia Post to more actively engage, consult with, and notify stakeholders and the broader community about its services.

      We will continue to work with Australia Post to address these concerns.

      Case studies – general observations

      Lost item and disputed packaging

      After seeking advice and help from counter staff at the local post office, Mr AI posted a dental crown that cost around $3,000 by Registered Post. The envelope arrived with the edge torn and the contents missing. Australia Post declared the item lost but declined to pay compensation because it considered the packaging was inadequate.

      We investigated on the basis of the reported advice and help that post office staff gave to Mr AI. In response, Australia Post contacted the post office staff involved, who recalled the transaction and confirmed helping Mr AI. Australia Post apologised, paid full compensation for the lost item, and counselled the staff involved about packaging requirements.

      Mail redirection

      When Mr AJ moved interstate out of the family home, he applied to Australia Post to redirect his mail from the family’s PO Box to his new address. Instead of redirecting only his mail, the Licenced Post Office (LPO) redirected all the family’s mail. The LPO manager told his family that staff were too busy to sort each mail item; that the redirection service was ‘all or nothing’ which meant they would redirect all mail or no mail; and that the son could cancel the service and ask for a refund. The family then received mail addressed to the son, and again asked the manager to redirect the mail correctly. The manager reiterated the earlier advice and referred the family to the area manager but would not provide a contact name or details.

      We investigated due to the lack of resolution, and because the manager’s advice and the LPO’s actions appeared to be contrary to Australia Post’s terms and conditions for its redirection service. In response, Australia Post acknowledged the error, found that the LPO manager had misunderstood the terms and conditions and the complaints process, and instructed the manager to correctly action the redirection. Australia Post apologised to the complainant and provided a refund for the period of failure.

      Addressing and mail delivery problems

      When Mr AK moved to a new house she confirmed with the state land agency and her local council that her new address was included in Australia Post’s address database—the National Address File—which Australia Post uses to manage mail sorting and delivery. She should have been receiving mail at her new residential address but was not. When she complained to Australia Post, Australia Post told her that her address was not included in the database and referred her to the local council. The council told her it had authorised Australia Post to include her address in the database, and referred her back to Australia Post.

      We investigated on the basis of contradictory advice and lack of resolution. In response, Australia Post confirmed that her address had been included and that mail delivery was active and would improve as businesses progressively used the updated addressing information. Australia Post also found that complaints about the National Address File and mail delivery could be managed better. It quickly implemented a new process for managing such complaints.

      Property damage and compensation

      Mr AL reported that her newly tiled driveway was damaged by a postal delivery officer. When she made a claim to Australia Post for the cost of repairs, Australia Post asked her, not unreasonably, to provide a quote. She provided a quote from the tiler who had done the original work as he would be able to use leftover matching tiles. Australia Post declined to pay compensation because she did not obtain three quotes and because the quote was not on the tiler’s letterhead.

      We investigated because Australia Post had not made its requirements clear or provided a reasonable explanation for declining compensation. In response to our investigation, Australia Post acknowledged that it could have exercised its discretion to accept the quote because it did include the tiler’s business contact details and because Mr AL had valid reasons for wanting to use the specific tiler. Australia Post apologised, accepted the quote and paid $300 compensation.

      FEATURE

      Role of the Postal Industry Ombudsman

      The Commonwealth Ombudsman has served as the Postal Industry Ombudsman (PIO) since the PIO was established on 6 October 2006 to offer an industry ombudsman for the postal and courier industry.

      The PIO investigates complaints about Australia Post, and other postal or courier operators that are registered as a Private Postal Operator (PPO) under the Ombudsman Act 1976 .

      Private postal operators registered with the PIO

      Australia Post is automatically subject to the PIO’s jurisdiction, and other private postal operators can voluntarily register with the PIO. A new private postal operator (Business Porter) joined the PIO scheme on 28 February 2011. At 30 June 2011 the following nine private postal operators, in addition to Australia Post, were registered with the PIO:

      • Australian Air Express Pty Ltd
      • Business Porter
      • Cheque–Mates Pty Ltd
      • D & D Mailing Services
      • Federal Express (Australia) Pty Ltd
      • The Mailing House
      • Mailroom Express Pty Ltd
      • Universal Express Australia Pty Ltd
      • 329 Motorcycle Courier Services.

      The PIO:

      • is independent and impartial, and does not represent either consumers or postal operators
      • can make suggestions or recommendations arising out of their investigations
      • is a function of the Commonwealth Ombudsman.

      The PIO can only investigate a complaint if:

      • the postal operator is Australia Post or a registered PPO
      • the complaint relates to a postal or similar service
      • the complaint is made within 12 months of the action which caused the complaint.

      The PIO cannot investigate:

      • actions of Australia Post or a PPO which are not related to a postal or similar service
      • complaints about postal operators or couriers which are not registered as a PPO
      • matters which are the subject of a court or tribunal hearing (unless special circumstances exist)
      • complaints by Australia Post against a PPO
      • complaints by a PPO against Australia Post or another PPO (complaints about the administrative actions of Australia Post can be made to the Commonwealth Ombudsman).

      More information is available on the PIO website (www.pio.gov.au).Postal Industry Ombudsman postal truck

      Postal Industry Ombudsman postal trucks have been useful in raising awareness of the office’s work.

      Taxation Ombudsman

      Role

      In 1995 the Ombudsman was given the title of Taxation Ombudsman following a recommendation by the Joint Committee of Public Accounts. It recognised the unequal position of the Australian Taxation Office (ATO) and taxpayers, and aimed to give greater focus to the investigation of complaints about the ATO.

      The Commonwealth Ombudsman investigates complaints about the ATO and is assisted in this role by a small team who also investigate complaints about the Tax Practitioners Board (TPB) and the Insolvency and Trustee Service Australia (ITSA).

      The Tax Practitioners Board was established on 1 March 2010, taking over responsibility for the regulation of tax agents and Business Activity Statement (BAS) agents from the previous state-based Tax Agents’ Boards.

      The Insolvency and Trustee Service Australia is the government agency responsible for the administration and regulation of the personal insolvency system in Australia.

      Australian Tax Office

      Complaint trends

      In 2010–11 we received 2,589 approaches and complaints about the ATO, an increase of 43% from the 1,810 received in 2009–10. This was a continuing trend from the previous year and amounts to an 82% increase in the two years to 2010–11. It is the highest number of complaints about the ATO in five years. Complaints about the ATO represented 13% of all complaints received by the Ombudsman.

      As reported in the 2009–10 Annual Report, in 2010 the ATO deployed a major component (release three) of its core tax system as part of its ongoing Information and Communication Technology (ICT) project, referred to as the Change Program1, which replaced the 30 year old National Tax System. The new system had some early teething problems which resulted in delays to processing of income tax returns and as shown in the graph below, complaints to this office increased sharply (see also “tax-time” below for further detail).

      The office was flooded with approaches in the first quarter of the year, doubling the monthly average of 150 and peaking at 375 in August 2010. As a result, we turned people away advising that the delay issues were known; that the ATO were working to resolve the problems and asked that they wait three months before contacting the office again. In this way, we could address the more serious issues which required further investigation to resolve.

      Delays in receipt of refunds, amended assessments and other interactions with the ATO generated the most complaints from taxpayers and tax professionals.

      During the year we finalised 2,604 approaches and complaints (1,762 in 2009–10) of which 558 (22.5%) were investigated (316 in 2009–10). We obtained information concerning around 300 other cases, which did not require full investigation to resolve.

      We transferred 13% of the complaints we received directly to ATO Complaints under our assisted transfer process. Transfers occur when the taxpayer has not already complained to the ATO, and they agree to us referring their complaint directly to the ATO’s complaint-handling system.

      In 2010–11 we achieved one or more remedies in 86% of the cases we investigated. The most common remedies were better explanations (34%), financial remedy (28%) and actions expedited (10%).

      Figure 5.15: ATO approach and complaint trends, 2004–05 to 2010–11

      Figure 5.15: ATO approach and complaint trends, 2004-05 to 2010-11

      Complaint themes

      Tax-time 2009–10 (Lodgment and Processing)

      As previously mentioned, the ATO deployment of a major new system (release three) as part of the Change program was a key factor causing a dramatic increase in number of complaints and approaches to the office in the latter part of 2009–10.

      Whilst the system itself appeared to function as planned, the transition from the old National Taxpayer System (NTS) to the new integrated core processing (ICP) system generated some unforeseen issues which delayed a large number of the lodged income tax returns.

      One of the main causes of complaints about delay related to the ATO’s use of “suppressions”2. Suppressions in the ICP system resulted in a greater number of returns being suspended and stockpiled than anticipated, which under the NTS may have been cleared with minor intervention.

      Suppressions recorded on the records of taxpayers who had previously been bankrupt or who may have had a debt with another agency were the greatest source of complainants to this office. These complainants and others waited in some cases up to five months to receive their return (see Suppressions case study below).

      Other events delaying the issue of income tax returns included problems arising from the garnishee system between the ATO and Centrelink as well as the suspected compromise of a tax file number (for further detail, see the Tax File Number Compromise section on page 137).

      The deployment of the new system and the Change Program in general received significant scrutiny at the Joint Committee of Parliamentary and Administrative Audits (JCPAA) hearing,3 by the Inspector-General of Taxation,4 as well as criticism in the media.

      The ATO received a significant increase in complaints during tax-time 2010 and responded by diverting significant resources and energy to reduce the stockpile, issue refunds and correct the problems. Much work has already been undertaken by the ATO to ensure that the same issues are not present for the 2010–11 tax-time.

      Figure 5.16: ATO Main issues raised for fully investigated complaints 2010–11

      Figure 5.16: ATO Main issues raised for fully investigated complaints 2010-11

      Suppressions: Insolvency indicator delays issue of refund

      Mr AM’s tax agent lodged his tax return mid-August 2010 and contacted the ATO mid-December 2010 when he had still not received his refund and the ATO could not provide an explanation. He lodged a complaint with the ATO in early January 2011 and was advised that the matter would be reviewed. In mid-January 2011, Mr AM contacted the Ombudsman’s office for assistance.

      Initial information obtained from the ATO revealed that Mr AM’s record contained a Composite Debt Indicator (suppression) on his record relating to a previous period when Mr AM had been insolvent. These indicators were automatically transferred over with the conversion from the National Taxpayer System to the integrated core processing system. System limitations in overriding the errors caused delays as Mr AM’s return (as well as many other taxpayers with suppressions) had to be rekeyed manually.

      Mr AM’s refund was released within three days of us approaching the ATO which also paid interest for the period exceeding the performance standard.

      Debt Collection

      Eleven percent of the complaints investigated concerned debt collection compared to 13% the previous year.

      The source of complaints relate to the ATO’s firmer approach to outstanding debt (which it had published information about5) aimed at those: who do not respond to multiple contact attempts; repeatedly default on their payment arrangements; have an escalating debt and there is no evidence that they will be able to meet their ongoing tax obligations; or have been subject to an audit where deliberate avoidance was detected and payment avoidance is continuing.

      Whilst taxpayers are required to advise the ATO of change of address, an increasing number of complainants advise that they were not aware of the multiple number of addresses that the ATO may hold for them for each ‘role’ they may have in the ATO systems or that simply updating their income tax address does not update all addresses. As seen from the case study below, mail could be sent to a previous address and the resultant non-response may initiate firmer action which may ultimately result in legal action. We continue to consult with the ATO on this issue.

      Firmer action not required

      The ATO had raised a Pay As You Go instalment debt against Mr AN, but Mr AN had not correctly notified the ATO of his change of residential address when he moved overseas to work. When the debt remained unpaid, the ATO issued debt demand notices to Mr AN at his former residential address, which was still the address of Mr AN’s elderly father (Mr AN senior). Mr AN senior did not send on the debt notices to his son overseas, and did not return them to the ATO.

      When the debt demand notices went unanswered, the ATO escalated its recovery action to engage a collection agent to pursue the debt in accordance with its Receivables Policy. The debt collection agent contacted Mr AN senior by phone, but quickly realised that Mr AN senior was not the debtor, and ended the call without revealing any of Mr AN’s debt information to his father. Mr AN senior was upset and confused by the call, and contacted his son to describe what had occurred.

      Mr AN complained to the Ombudsman about the ATO’s actions in contacting his father, and for failing to correctly record his current residential address for communicating about his tax affairs. Our investigation revealed that the original debt had been inadvertently raised after Mr AN had moved to work overseas and the ATO had failed to correctly record Mr AN’s changed tax status on its systems. However, we were satisfied that the debt collection practices were undertaken in line with ATO policy and relevant guidelines for collection agency practices.

      The ATO reversed the debt when Mr AN was able to confirm his changed circumstances, and apologised to Mr AN and his father for the distress and confusion caused by the debt recovery action. The ATO also provided Mr AN with a better explanation of its processes for recording changes in taxpayer circumstances.

      Tax File Number Compromise (Taxpayer information)

      Tax File Number (TFN) issues accounted for 12% of all complaint issues recorded by us this year and almost 75% of those related to TFN compromise. We released a report on this issue in September 2010 (see Reports and submissions, below). Whilst the ATO has addressed the matters raised, the Ombudsman continues to receive complaints as illustrated by the case study below.

      TFN Compromise no simple problem

      Mr AO lodged his 2009 income tax return through his tax agent in October 2009, expecting a refund from his return. Soon after lodgment the ATO notified Mr AO’s tax agent that a return had already been lodged in July 2009 using Mr AO’s tax file number (TFN). The tax agent then advised Mr AO that he needed to apply for a new TFN because of the suspected identity theft against his TFN.

      Mr AO applied for a new TFN in November 2009, and also informed the ATO that his Centrelink benefits were being affected by the delay in him receiving his 2009 Notice of Assessment.

      Mr AO enquired to the ATO in February 2010 about progress of his new TFN and 2009 return, and was told that the ‘systems upgrade’ was delaying the TFN replacement process. Subsequent calls from Mr AO and his tax agent to the ATO between February and June 2010, including escalation to the compromised TFN business line, failed to resolve the issue. Mr AO lodged a formal complaint with the ATO but further calls to the ATO in June and July 2010 did not resolve the matter.

      Mr AO complained to the Ombudsman on 16 August 2010 about the delay. Our enquiries revealed that Mr AO was issued his new TFN on 20 August 2010; however, his 2009 return had not been processed due to an ongoing systems issue. This issue was associated with the fraudulent 2009 transaction identity on the system, leaving Mr AO’s legitimate 2009 return ‘in suspension’.

      On 3 December 2010 the ATO successfully implemented a technical solution to resolve the identified systems issue, and Mr AO’s 2009 return was released for processing. The ATO issued his 2009 refund in mid-December 2010. The ATO provided a written apology to Mr AO for the inconvenience and distress caused to him by the delay in resolving this matter.

      Superannuation

      In 2010–11, around 9% of complaint issues we recorded related to superannuation, especially about unpaid Superannuation Guarantee payments and excess contributions tax.

      This is a reduction on the previous year (13%) mainly due to improvement in ATO processes. However, complaints from employees concerned about the ATO’s progress towards collecting unpaid superannuation continue to account for almost half of all investigated complaints relating to superannuation.

      Following a previous review of the ATO’s management of the Superannuation Guarantee system in July 2006, the Ombudsman reported6 that a main source of complaints (from employees) was insufficient information provided about the collection of unpaid superannuation guarantee. Inadequate communication with taxpayers is clearly still a problem as complainants report concerns around the infrequency of the advice, the lack of clarity concerning actions taken and the duration of investigations. A review undertaken by the Inspector-General of Taxation of the ATO’s administration of the Superannuation Guarantee7 also identified the need for the ATO to improve communications with complainants.

      We continue to consult with the ATO concerning the frequency of advice and clarity and content of the letters.

      Another major factor identified in non-payment of Superannuation Guarantee related to phoenix8 practices by employers, leaving employees as unsecured creditors and consequently unpaid as illustrated in this case study.

      Employee as an unsecured creditor loses unpaid Superannuation Guarantee

      Mr AP complained that he had contacted the ATO on a number of occasions concerning unpaid Superannuation Guarantee by his employer. Because of delays by the ATO, the employer was able to liquidate and re-establish in another location leaving no funds available for the complainant and other employees.

      Our initial investigation revealed that Mr AP correctly lodged the necessary Employee Notification and that the ATO had followed the appropriate processes to collect the Superannuation Guarantee, including writing a letter to Mr AP informing him of its progress.

      The letter also informed Mr AP that the ATO would advise him within one week of it discovering that the employer’s company had become bankrupt, was in liquidation or under administration. However, when the ATO was later advised that the employer’s company was in liquidation, it failed to advise Mr AP. As Mr AP was an unsecured creditor, liquidation of the company resulted in insufficient funds being available to pay his Superannuation Guarantee.

      Our investigation revealed that the ATO had taken appropriate action to collect the debt but the employer’s action was the cause of the non-payment of the Superannuation Guarantee. The ATO apologised to Mr AP for not informing him of the liquidation of the employer’s company.

      This issue was further highlighted in the Cooper Review which commented that in the event of the employer’s insolvency, Superannuation Guarantee should be regarded as a priority along with wages.9 The Government recently announced proposed changes to taxation legislation to extend the Director Penalty regime to include the Superannuation Guarantee so that so that directors are made personally liable for unpaid Superannuation Guarantee amounts. This is expected to dramatically improve Superannuation Guarantee collections and payments.

      Systemic issues

      Complaints received reveal systemic issues in the Compensation for Detriment caused by Defective Administration (CDDA) program and communications generally. The issues are demonstrated by the following case studies.

      Delayed decision on CDDA claim

      Company AQ, through its legal representative, lodged a claim for compensation under the Compensation for Detriment caused by Defective Administration (CDDA) scheme. The claim related to significant costs incurred by Company AQ in disputing audit decisions with the ATO in relation to three tax years.

      From the outset, the scope and nature of the claim became a point of uncertainty and there was poor communication between the ATO and Company AQ. Agreement could not be reached about whether the claim was an issue of legal liability, or compensation under the CDDA scheme. The ATO made no offer to Company AQ to resolve the claim within an agreed timeframe.

      After almost 12 months without resolution, Company AQ lodged a complaint to the Ombudsman. Our investigation found that there had been considerable indecision on the ATO’s part to confirm whether the matter was a legal liability or a compensation claim under the CDDA scheme. For its part, Company AQ had also been at fault in not responding in good faith to the ATO’s requests for clarification of its claim.

      We advised Company AQ that the ATO had undertaken to resolve the legal liability issue within six weeks of our investigation ending. This deadline passed without a response from the ATO to Company AQ. Soon after, Company AQ again lodged a second complaint with the Ombudsman over the continuing delay.

      Our second investigation of the delay revealed that several administrative factors, including staff shortages and unplanned absences of key staff in the ATO, contributed to periods of inactivity in the decision-making process of the CDDA claim. While Company AQ had also not engaged with the ATO during this period to progress the matter, we continued to press the ATO to resolve the matter.

      After a further three months the ATO made an offer of compensation to Company AQ, conceding that there was an element of defective administrative in relation to one aspect of the audit included in the CDDA claim.

      The Ombudsman issued a formal notice to the ATO advising that it found the delay in settling the CDDA claim with Company AQ unreasonable. We sought assurances that the causes of the delay were being addressed. The ATO accepted the Ombudsman’s finding and undertook to implement the necessary remedial action to avoid similar occurrences in future. The Ombudsman will monitor progress of the ATO’s remedial actions over the next few months.

      Lack of contact compounds payment issue

      Mrs AR paid an ATO debt through her local post office, and received a receipt for her payment. Almost five months later Mrs AR received a debt demand notice from the ATO for the amount she had paid previously. Mrs AR rang the ATO a few days later to advise that she had already paid the debt, and two days later wrote to the ATO providing the payment receipt details and asking the ATO to locate and confirm her payment.

      About two weeks after writing to the ATO, Mrs AR received another ATO debt demand letter. She again phoned the ATO to explain that the debt was already paid, and that she was expecting ATO confirmation of this. The ATO told Mrs AR that its service standard was 14 days to issue a response in relation to missing payment enquiries.

      Two days later the ATO located the payment and credited it against Mrs AR’s income tax account with effect from the original date of her payment. However, the ATO did not respond to Mrs AR to advise her that the payment had been located and credited to her account.

      After hearing nothing from the ATO after a further two months and becoming frustrated by the delay in resolving the matter, Mrs AR complained to the Ombudsman. She explained that she was still expecting a response from the ATO to her letter sent three months previously asking it to locate her payment.

      After our investigation confirmed the delay was due to administrative lapses in the ATO, we asked the ATO to apologise in writing to Mrs AR for the delay. We have registered Mrs AR’s complaint as a possible systemic issue to be addressed in consultation with the ATO to improve its policies and procedures.

      Cross-agency issues

      The ATO works closely with a range of other Commonwealth agencies and most notably, during tax-time, the ATO routinely receives debt information from the Child Support Agency (CSA) and Centrelink and provides income data to these agencies to enable them to administer their programs.

      Many of these exchanges are automated, but problems with those automated processes can prove difficult to resolve as outlined in the case study below:

      Getting the run-around between agencies

      Ms AS complained to us that the CSA and the ATO were refusing to take responsibility for a mistake that had led to her missing out on child support payments. She said that both agencies had ‘missed the point of her complaint’. Ms AS is a CSA payee. The payer, Mr AT, was behind with his child support payments and ordinarily, the CSA would intercept his tax refund to apply it to his child support debt. Ms AS was distressed to discover that Mr AT had received his tax refund and she had missed out.

      Ms AS complained to the CSA. The CSA said that it had asked the ATO for the refund, but the ATO didn’t send it. The CSA said that Ms AS would have to take it up with the ATO. The ATO told Ms AS that due to privacy issues, it was unable to act on her complaint or provide further information as she was not an authorised contact on Mr G’s account and referred her back to the CSA.

      We investigated Ms AS’s complaint about both agencies. We found that a human error in the ATO had resulted in Mr AT’s tax refund being released to him, instead of being sent to the CSA. The ATO has now apologised to Ms AS for its mistake. We asked the CSA and the ATO to devise a much better system to work together to investigate and resolve complaints when things go wrong between the agencies. After the financial year ended, the ATO agreed to pay compensation to Ms AS to cover the amount of child support that would have been recovered from Mr AT’s tax refund plus interest.

      Reports and submissions released

      Resolving Tax File Number Compromise

      In September 2010 we released an own motion report on the ATO’s response when Tax File Numbers (TFNs) have been compromised or TFN records are incorrectly linked. TFN integrity and ATO data and systems quality are areas of high importance to the tax system.

      The report highlighted a deficiency in the system requiring a significant improvement to ATO processes. The ATO has addressed many of the matters we raised and re-engineered the systems and processes to better manage this issue. A new complaint-handling process has been trialled and is currently being assessed for possible expansion to other complaint areas within the ATO.

      Other submissions

      The Ombudsman made a number of submissions related to our taxation complaint-handling role, including:

      • The Treasury consultation – Designing a Tax System Advisory Board , March 2011 – the Ombudsman suggested an alternative composition for an advisory board to include integrity agencies and other non-government organisations. This board would be well placed to bring problems to the Commissioner’s attention at an early stage to avoid the development of systemic issues.
      • The Treasury discussion paper – Making Tax Time Simpler: Standard Deductions for the Cost of Work-Related Expenses and the Cost of Managing Tax Affairs , April 2011 – clear regulations and instructions are an important element of the design of the proposed optional standard deduction for work-related expenses and the cost of managing tax affairs. Taxpayers need to understand the differences between the current deduction regime and the proposed standard deduction program.
      • The Treasury – response to exposure draft: Stronger Supe r – using tax file numbers as an identifier and to facilitate account consolidation, February 2011 – The ATO has had many years of experience in managing the registration and usage of TFNs, yet still faces challenges in administering the processes. The potential benefits to the superannuation industry and their clients from the extended use of TFNs should be balanced with the need for strong governance policies, process and procedures and an equally robust complaints mechanism.

      The office also provided feedback to the ATO in response to its publishing of new procedures relating to study expense changes for full-time students receiving Youth Allowance (the Anstiscase10). Although at that stage the office had not received any complaints concerning this process, we felt the procedures could create uncertainty concerning eligibility, amendment of previous year returns, contact details and the existing Tax Ruling TR 98/9. The ATO subsequently reported that the program has worked with minimal complaints. The ATO welcomed the feedback provided by our office and, as a result, made some changes to its products. The ATO also invited feedback on other new measures.

      Current Own Motion investigation

      In April 2011 the Commonwealth Ombudsman commenced an own motion investigation into certain aspects of the administration of the joint-agency taskforce, Project Wickenby.

      Complaints management

      At the Joint Committee of Public Accounts and Audit eighth biannual hearing with the Commissioner of Taxation11, the Committee informed the Commissioner that:

      The Committee expects the next submission to the biannual hearing (September 2011) from the Australia Taxation Office to contain explicit consideration of, and reporting on, action taken to improve complaint handling and address the underlying causes of complaints.

      The ATO has begun a review of its complaint-handling process and this office is directly involved in the process.

      This office also regularly attends two ATO complaints working groups and provides feedback on the complaints process to help bring continuous improvement to the complaints management process in the ATO.

      Australian Prudential and Regulation Authority

      The Australian Prudential Regulation Authority (APRA) is the prudential regulator of the financial services industry. It oversees banks, credit unions, building societies, life and general insurers and superannuation funds.

      The Ombudsman received 162 approaches and complaints about APRA in 2010–11. The office finalised 156 approaches and complaints about APRA in that year, of which 38 were investigated. This is slightly fewer than in previous years.

      The majority of complaints concerned the processing of applications for early release of superannuation benefits. The grounds on which APRA can approve early release of superannuation benefits are set out in regulations made under the Superannuation Industry (Supervision) Act 1993 and are very specific. Common themes in these complaints were that APRA made multiple requests for information and that there were delays in assessing applications once the information was supplied.

      Approval processes to access superannuation benefits

      Ms AU applied for early release of her superannuation benefits on the basis that this was necessary to pay for an operation for her daughter. She was advised it would take 21 days to process her application. Meanwhile she borrowed money from her friends and the bank to repay lenders who had previously provided money for her daughter’s treatment. Ms AU complained that, after the 21 day period, she called APRA only to be advised that her application had not been processed and that she needed to provide more information. When she provided the additional information she was told her application would be placed back in the queue for assessment and she would need to wait a further 21 days.

      On investigation, APRA advised us that some, but not all, of the information it had requested had been provided by the applicant. In part, this was due to changes in the applicant’s circumstances over the application processing period. However, APRA advised that it was able to approve a partial release of the funds requested based on the information it already had and that the complainant could seek a reconsideration of the amount if she wished to provide the further information.

      Transfer of function

      During 2011 APRA delegated the management of applications for early release of superannuation benefits to Medicare Australia. Legislation has since been passed that will transfer the function of processing applications for early release of superannuation benefits to the Medicare program of the Department of Human Services from November 2011.

      Australian Securities and Investments Commission

      The Ombudsman received 169 approaches and complaints about the Australian Securities and Investments Commission (ASIC) in 2010–11. The office finalised 174 approaches and complaints, of which 42 were investigated. This is a similar number to previous years.

      While ASIC delivers a wide range of programs, complaints to the Ombudsman principally concern registration issues and penalty fees relating to the lodgement of documents, and decisions by ASIC to decline to investigate or take action on complaints made to it.

      The following case studies show how time consuming and frustrating registration and lodgement issues can be for customers.

      Return to sender

      In December 2008 ASIC sent an annual review invoice to the complainant company’s registered address but it was returned to ASIC marked ‘return to sender’. This fact was noted on ASIC’s register so that no further mail would be sent to that address until verified. Late fees accrued for the non-payment of the annual review fees and eventually ASIC sent a letter to the residential address of the company secretary. The company paid the amount and wrote to ASIC asking that the late fees be waived because the business was a garage which was still at the address on the register and they did not know why the original invoice had not been delivered.

      In addition, the company’s letter explained it had opened a post office box and enclosed form 486 to change the contact address to the post box. ASIC waived the late fees on the 2008 invoice. However, instead of following up the reference to the enclosed form 486 (which ASIC says it has no record of receiving) it treated the garage address as verified. In 2009 ASIC again sent the annual review invoice to the garage address and similar events followed. When the company secretary was apprised of the 2009 invoice, they accidently paid ASIC twice. ASIC refunded the second payment by cheque posted to the garage address. When the cheque was ‘returned to sender’, ASIC again annotated the garage address as unverified.

      In 2010 ASIC again sent the annual review invoice to the garage address, but withheld the subsequent late fee and reminder notices on the basis that the address was unverified. Despite having received no notifications from ASIC, in February 2011 the company secretary paid the review fee based on the amount charged the previous year, just to avoid the previous year’s problems. ASIC then sent an overdue notice for the $6 difference between the last year’s annual review fee and the current year’s along with the corresponding late fee for not having paid the full amount on time. The company paid the $6 but sought waiver of the late fees complaining that every year they receive notice of the late fees but never receive the original invoice.

      As a result of intervention by this office ASIC agreed to:

      • review the effect of the ‘return to sender’ annotation on its system which led to invoices being generated but not sent
      • review its processes to ensure that customers are alerted to any non-receipt of forms referred to as ‘enclosed’ with customer correspondence
      • refund remaining late fee.

      The Ombudsman received a number of complaints from people experiencing difficulty trying to correct the spelling of company details.

      Forms, forms, forms

      Mr AV used ASIC’s online lodgement system to lodge a form 205A notifying ASIC of a resolution to change his company’s name. The form was lodged at 10.20 am and Mr AV telephoned ASIC at 10.26 am to enquire about confirmation of receipt. Meanwhile ASIC’s system issued a notice back to Mr AV advising that the name would need to be manually verified as it contained a word that was not in the database or the Macquarie dictionary. Mr AV then noticed a spelling error in the company name on the form and telephoned ASIC again at 10.59 am and 11.05 am to make the correction.

      Each time, he was advised that a new form 205A would need to be lodged as the manual verification of the name on the original form had been fully processed by 10.31 am. This would incur a second transaction fee of $340. Following intervention by the Ombudsman, ASIC took into account all of Mr AV’s circumstances which included that he was a first time company office holder and had lodged the form within the prescribed timeframe through ASIC’s preferred online channel. ASIC agreed to refund the fee he had already paid.

      Correcting details

      On contacting ASIC to request a form, Ms AW discovered that ASIC’s database had her company’s new street name split into two words. ASIC’s contact officer referred the issue on to another team for correction, but this was not acted upon. Two months later Ms AW telephoned ASIC and became aware that the street name was still recorded as two separate words. The ASIC officer told her this was an issue for Australia Post because ASIC relied on its ‘Postal Address File’ as a database reference for all addresses to Australia. Ms AW called back and was asked to provide a written submission and rates notice to prove the street name was one word. Ms AW then sent ASIC a letter of complaint. Not having received a response three months later, Ms AW telephoned ASIC and advised that she had checked with Australia Post and the street name was one word. Again, her complaint was sent on for assessment. However, nothing further was done.

      Our investigation found that ASIC used an Australia Post ‘Postal Address File’ downloaded into its computer system for validating addresses which had programmed the street name as two words. In response, ASIC advised that it would: review its process for accepting and correcting minor address details so that these may be actioned by telephone request; introduce a process to ensure that complaints were properly recorded and responded to by call centre staff; and that in this case would correct the company address.

      Tax Practitioners Board

      In March 2011, the Tax Practitioners Board (TPB) completed its first full year of operation. This involved finalising the registration transition from the previous state-based Tax Agent Boards (TAB) to the centralised system.

      The Board also has a wide range of sanctions available to it under legislation12 to ensure that tax and Business Activity Statement agents comply with ethical and legal standards. A new set of registration standards and a code of professional conduct has been developed to provide guidance to agents and their clients as to what minimum standards are acceptable and how sanctions might apply. These same sanctions were not previously available to the TAB.

      It is still early days and complaint numbers (33) have been consistent with what would be expected given the relatively short existence of the organisation, the new registration, ethical standards and new sanctions.

      The TPB has developed its complaint-management system based on the Ombudsman’s best practice model.

      Complaints to this office concerning the TPB predominantly related to the explanation offered to complainants concerning an investigation of a complaint made about a registered tax agent. This is illustrated in the following case study.

      A better explanation removes doubt

      Ms AX complained in February 2010 to the then TAB about the actions of her tax agent who lodged her 2007–08 tax return late in 2009 and informed her that she would be eligible for the then $900 Economic Stimulus Payment. Because the return was lodged after the legislated cut-off date, Ms AX was not eligible and did not receive the payment. Approaches to the tax agent proved fruitless and Ms AX complained that the tax agent had misled her and felt the charges incurred were not appropriate in the circumstances.

      As it had replaced the role of the TAB, the TPB managed the complaint. The TPB advised that it does not investigate matters relating to fee disputes but would look at the actions of the tax agent. Ms AX maintained contact with the TPB during this time and was advised of a response in August 2010. A final response was not received till mid-December 2010 which contained minimal information about the outcome or findings of the investigation. Ms AX asked this office to assist.

      Our initial enquiries revealed that the TPB had thoroughly investigated the matter and had sought detailed information from the tax agent to resolve the matter. Privacy legislation imposes restrictions on what information could be conveyed to Ms AX and a minimalist approach was taken in providing a response to the complainant. The TPB also advised that as the issue occurred prior to 1 March 2010 when the new law came into effect, the TPB could only apply the previously available sanctions which involved de-registration. The TPB felt that the issue raised was not of significant value to warrant de-registration.

      As there was limited remedy available to address Ms AX’s complaint, we asked the TPB to contact Ms AX further and discuss the investigation, within the privacy constraints, and to offer an apology to Ms AX for not providing a sufficient explanation. Ms O was satisfied with the outcome and thanked the office for its assistance.

      Remedies were achieved in more than 70% of cases investigated which were mostly a better explanation and/or an apology.

      We continue to work with the TPB to ensure that the information it provides to complainants helps them understand the process, what can be expected from the investigation, and fully explains the outcome.

      Insolvency and Trustee Service Australia

      The number of complaints to the Ombudsman concerning the Insolvency and Trustee Service Australia (ITSA) has remained at around 70 per year for the last three years. The majority of complaints were from those who were themselves bankrupt (almost 75%) and regarded the administration of the estate or issues relating to discharge from bankruptcy. The remainder were from creditors or an associated entity with issues relating to the administration of the estate.

      We continue to work with ITSA to bring continuous improvement to its management of complaints.

      Stakeholder engagement

      The Ombudsman meets regularly with the Inspector-General of Taxation and contributes to the Inspector’s reviews.

      Looking ahead

      We have identified three priority areas for attention:

      1. Improving the language of government – more than one third of complaints to the Taxation Ombudsman are resolved through provision of a better explanation either from the agency or the Ombudsman. Clearer communication can dramatically reduce enquiries and confusion.
      2. Providing greater access to information and services.
      3. Improving complaint handling – addressing the issues raised through the complaint to fix the problem so there is a reduced need for complaints.

      Feature

      Tax Institute National Convention

      Ombudsman staff manned an exhibition stand at the annual Tax Institute National Convention in Brisbane in March 2011.

      The purpose of our attendance at the Convention was to promote the role and function of the office to tax practitioners. In particular, we encouraged practitioners to make informed suggestions to the Ombudsman about areas of tax administration that are problematic or in need of attention.

      Many of the delegates at the Convention showed great interest in the office. A few had some knowledge of the work the Ombudsman does but were keen to know more, while three delegates took the opportunity to make formal complaints.

      Delegates discussed their concerns about their work with the Australian Tax Office and what they felt were systemic issues. Ombudsman staff were able to share their experiences of complaints about the Australian Tax Office and its responsiveness. We were also to explain the Ombudsman’s powers and ability to seek remedies.Ombudsman staff at the Tax Institute National Convention

      Ombudsman staff at the Tax Institute National Convention in Brisbane.

      1. The Change Program commenced 2003 when the ATO announced that it had entered into arrangements with service providers to deliver major changes to its ICT in order to enable it to continue to effectively administer the taxation and superannuation systems in the future.
      2. Suppression – a form of indicator or alert which temporarily suspends automatic processing of income tax returns to allow corrective action or review, for example in the case of duplications or possible fraudulent activity. It provides a high level of integrity to the processing system.
      3. JCPAA hearing 4 March 2011
      4. Inspector-General of Taxation Report – Review of the Australian Taxation Office’s Change Program, December 2010 (released 5 May 2011)
      5. ATO publication NAT 73708 – Firmer action approach to debt collection
      6. Taxation Ombudsman Activities 2008 Superannuation guarantee internal review, p. 18
      7. Inspector-General of Taxation - Review into the ATO’s administration of the Superannuation Guarantee Charge – publicly released 24 November 2010
      8. Phoenix activity is typically associated with directors who transfer the assets of an indebted company into a new company of which they are also directors. The director then places the initial company into administration or liquidation with no assets to pay creditors, meanwhile continuing the business using the new company structure.
      9. Cooper Review – Super System Review: Final Report – Part Two: Recommendation packages. 4.1.2 Corporations Act and employer insolvency.
      10. Commissioner of Taxation v Symone Anstis, High Court, 11 November 2010
      11. Report 424 – June 2011. Joint Committee of Public Accounts and Audit eighth biannual hearing with the Commissioner of Taxation – 4 March 2011
      12. Tax Agent Services Act 2009; Tax Agent Services Regulations 2009 and Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009