What we do

This section discusses our work with those four agencies, as well as the specialist roles we perform, including the:

• Defence Force Ombudsman
• Overseas Students Ombudsman
• Law Enforcement Ombudsman
• inspection functions
• Public Interest Disclosure scheme
• international program.

Social Services portfolio

While most complaints to our office are about the actions and decisions of a single Government agency, many of the underlying systemic issues are in fact the responsibility of more than one agency.

In the Social Services portfolio, there are several key agencies that variously deliver, or set policy for the administration and delivery of, payments and services to the Australian community. In some instances an agency will perform both a policy and delivery role.

A number of Social Service agencies are discussed in detail in this section:

• the Department of Human Services, which delivers the Australian Government’s Centrelink, Child Support and Medicare programs
• the Department of Employment, which has policy responsibility for the delivery of job services programs to people who are required to look for work in order to receive income support payments, as well as those who elect to access job services on a voluntary basis
• the Department of Social Services, which has policy responsibility for (among other things) social security and family assistance payments, child support, housing, child care and disability. It also directly administers a small number of programs directly to the public
• the National Disability Insurance Agency, which has responsibility for administering the National Disability Insurance Scheme.

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Department of Human Services

In 2014-15 we received 8116 complaints about DHS programs. This represents a 21.5% increase against the 6682 complaints we received in 2013-14, largely as a result of the 26.5% increase in the number of Centrelink complaints.

Complaints about the Centrelink program made up 77.4% of complaints about DHS, followed by 18.1% about the Child Support program. Of the remaining complaints, most were about Medicare and the early release of superannuation benefits programs.

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DHS - Centrelink

Centrelink delivers social security and family assistance payments, plus a range of other payments and services to people in the Australian community, and some people overseas.

Complaints about Centrelink (and its predecessors) have always represented a substantial proportion of the complaints to this office. Although we receive more complaints about Centrelink than any other Commonwealth program or agency, we recognise that this is largely tied to the size and complexity of its service-delivery responsibilities.

In 2013-14 DHS paid out $159.2 billion to customers in respect of programs across the Australian Government and touched the lives of around 99 per cent of Australians' through the delivery of payments and services.¹ It is inevitable that errors and delays will occur in an operation of this scale. However, the potential for these errors to impact on the lives of a significant number of Australians means it is important to minimise these mistakes and their effect as much as possible.

Statistics

In 2014-15 we received 6280 complaints about Centrelink, an increase of 26.5% on the 4966 we received in 2013-14. This increase follows two years of reduced complaints about Centrelink. While it reflects a greater number of complaints across the board, there has been a particular increase in complaints about difficulties accessing DHS services and its own phone and online complaints mechanisms. These issues are discussed in greater detail below under Implementation of recommendations in Centrelink Service Delivery report.

During 2014-15 we investigated 8.7% of all finalised Centrelink complaints compared to the 10.7% we investigated during 2013-14.

This reduction is largely explained by two factors; namely, an increase in the number of referrals to the DHS Feedback and Complaints service where a complainant has not already accessed it, and warm transfers' to DHS's internal complaint service for resolution where a complainant is vulnerable or requires assistance to communicate their complaint.

This warm transfer' process allows DHS the opportunity to resolve the complainant's concerns in the first instance without the need for investigation by our office. At the time of transfer the complainant is invited to contact the Ombudsman again if they are dissatisfied or do not hear from Centrelink within the agreed timeframe.

Significant issues

Implementation of recommendations in Centrelink Service Delivery report

In April 2014 we published an own motion report concerning service delivery complaints about the Centrelink program. There were 33 sub-recommendations made about 12 areas of Centrelink's administrative practices, ranging from call wait times on its phone lines to the accessibility of its internal complaint-handling processes.

In March 2015 we commenced an own motion investigation to assess the work DHS had done to implement those recommendations. We published a further report detailing the status of the recommendations in September 2015. Details of that report will be discussed in next year's annual report.

We will continue to engage with DHS into 2015-16 as it works to further improve its service delivery and overcome the remaining service barriers and challenges affecting its customers.

Implementation of changes to residential aged care fee assessments

From 1 July 2014, as part of ongoing reforms to the aged care system, the arrangements for calculating residential aged care fees changed, with DHS taking over responsibility from DSS for assessing those fees.

In late 2014 we received a cluster of complaints about delays in processing of fee assessment applications. People also complained about fee assessments that were affected by errors and instances where people were sent multiple but contradictory assessment letters. The impacts of these issues varied.

Some people were advised by the aged care facility that they were unable to secure a permanent place until they had received notification of an aged care assessment determination, while some were charged higher respite care fees until they received their assessment. Others paid a much higher fee to the provider than they were ultimately assessed to pay in their corrected assessment.

Many complainants raised concerns that the higher fees depleted their funds, forcing some to make hard decisions about as whether their loved one could remain in the aged care facility. They also complained about out-of-pocket expenses incurred from juggling finances while trying to meet the higher fees, pending receipt of a corrected assessment notification and subsequent reconciliation process with the aged care facility.

Overpaid fees meant people needed to negotiate a refund with the provider, sometimes encountering resistance because providers were not prepared to review their fees until they had received advice from DHS of the possible refund amount.

Our investigations, and information provided at DHS briefings, highlighted issues with the quality and timeliness of the fee assessments and with the transfer of data relevant to the assessment. Both DHS and DVA have been affected by system issues.

DHS became aware of the issues shortly after implementation and applied a manual quality-checking process for every automated assessment letter it produced, replacing incorrect letters with manual letters.

At the time a lack of established communication protocols between DHS and DVA also added to the delay in resolving complaints and led to customers' frustration as they bounced' between departments. Multiple aged care phone lines maintained by all three departments (DHS, DVA and DSS) further complicated complaint resolution.

Our office met with DHS several times, and with DVA, to discuss the complaint issues. Those discussions centred on the errors made, the fixes they had applied and the strategies DHS and DVA had put in place to rectify the communication barriers and establish interdepartmental complaint-handling processes.

We have continued to receive complaints that seem to be about difficulties in the transfer of data from DVA to DHS and vice versa, but note that these appear to relate to issues that existed prior to the system fixes that were implemented by DHS up to and including March 2015. We have written to the departments about the issues identified in the complaints to this office.

We intend to remain in discussions with DHS and DVA to ensure that both departments have resolved the issues with data transfer and resultant assessments. We have encouraged both departments to actively consider whether any of its customers were financially disadvantaged by an incorrect assessment or a delay in issuing an assessment.

We suggested that the departments invite any customers in that position to make a claim under the Compensation for the Detriment caused by Defective Administration (CDDA) scheme. DHS has agreed to include information about the CDDA scheme in its letters to affected customers. We also suggested that a comprehensive review into the multiple causes of the problems be undertaken so as to ensure they do not occur again in respect of this program or others.

DHS has confirmed review processes were undertaken and that this information will be used to feed into future changes. It has also committed to continue to engage with this office to support future change processes.

Interaction between child support and Family Tax Benefit

Over the past year we have received many complaints from people who have incurred Family Tax Benefit (FTB) debts as a result of retrospective changes to their child support assessment. We consider that these complaints highlight the importance of the Centrelink and Child Support programs ensuring their respective letters alert FTB recipients to the potential for FTB debts if they elect to collect their child support entitlement directly from the paying parent, rather than having DHS collect the amount for them. We continue to discuss these issues with DHS and the policy department, the Department of Social Services.

Restricted servicing arrangements for certain DHS customers

Our last two Annual Reports mentioned the arrangements DHS has available to impose service restrictions on some customers to manage the way they interact with DHS. We are satisfied that in many cases this is a sensible practice, which aims to protect staff and other customers from risks presented by physical or verbal abuse.

However, we continue to receive complaints, albeit at a reduced rate, from DHS customers who are unhappy that their access to DHS services has been limited. Our investigations of these matters indicate that DHS generally manages these cases well.

However, we consider that some areas of DHS's administration of these arrangements could be improved. For example, recent complaints indicate that staff do not always clearly communicate the reasons and terms of the restrictions to customers, or record these in detail on DHS's records.

Major activities

In addition to the remedies we have obtained for individuals via investigation of their complaints, our major outcomes related to the Centrelink program include:

• the ongoing application of our warm transfer' arrangements to refer certain complaints to DHS's internal complaint service for prompt resolution
• roundtable meetings with community groups in Perth and Melbourne to discuss their experience of Centrelink's service delivery

• the continuation of effective liaison arrangements with DHS to investigate Centrelink complaints and broader issues of interest
• regular engagement with DHS staff to discuss and resolve systemic issues in Centrelink complaints, through scheduled quarterly meetings and ad hoc meetings by telephone and in person.

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DHS - Child Support

DHS's Child Support program assesses and, in some cases, transfers child support payments between separated parents and/or other carers of eligible children. DHS also registers and collects court-ordered spousal and child maintenance payments, and some overseas maintenance liabilities.

The Ombudsman has jurisdiction to investigate complaints about DHS's administration of a child support case.

Statistics

In 2014-15 we received 1468 complaints about Child Support, only a slight increase on 2013-14 when we received 1426.

We classify the issues in the complaints we receive about Child Support according to whether the complaint was made by a payee (the person entitled to receive child support) or the payer (the person assessed to pay child support). As in previous years, we received just over twice as many complaints from payers (67.2% of all Child Support complaints) as from payees (30.7%).

Reduction in number of investigations

During 2014-15 the proportion of complaints we investigated about Child Support dropped to 16.6%, compared to 18.4% in 2013-14. This continues the downward trend seen in past years resulting from our focus on encouraging complainants to allow DHS the opportunity to resolve their concerns in the first instance, either via complaints directly to DHS or via having their complaint warm transferred to DHS for priority response.

Significant issues

Use of amended taxable incomes arising from circumstances beyond the customer's control

We have received a number of complaints in 2014-15 from payers who complain that DHS cannot adjust their child support assessment to use an amended (reduced) income tax assessment. These complainants advise that the amended tax assessment was brought about by an error, omission or wrongdoing on the part of another person or organisation, and they believe it is unfair they should be assessed to pay a higher rate of child support as a result of circumstances beyond their control.

In response to our inquiries in these cases, DHS advised that it had sought policy guidance from the Department of Social Services (DSS). The advice from DSS was that it considered the Child Support (Assessment) Act 1989 allows DHS to use amended taxable incomes for child support assessments only in very limited instances, usually where there has been a conviction for fraud or tax evasion.

The complaints our office has considered demonstrate the potential for anomalous outcomes, whereby payers have had to pay substantially higher amounts of child support and/or lodge a time-consuming and intrusive application for a change of assessment in special circumstances (COA) in order to remedy a simple error.

Although we have seen DHS expedite the processing of the COA application in some instances, there is no guarantee of a favourable outcome and some payers have been required to continue to pay child support assessments that are not reflective of their actual earnings.

We are concerned that the current law and policy do not provide an effective or efficient way to address simple errors, particularly those beyond the paying parent's control. We are currently discussing this issue directly with DSS.

Areas of ongoing concern

In our 2013-14 Annual Report we noted three areas of complaints about Child Support where we intended to undertaken further analysis and engagement. These were:

• child support for children aged over 18
• complaints from payees where the paying parent had been able to avoid paying child support through relatively simple structuring of their finances
• FTB debts accrued by payees as a result of retrospective increases in their child support entitlement, where they have no reasonable prospect of receiving the unpaid additional child support.

We were pleased to find that, as a result of feedback from this office, DHS has taken action aimed at addressing the first two issues. However, we remain concerned about the issue of FTB debts and intend to continue to discuss this with DHS and DSS.

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Looking forward

Child Support's updated case-management system

DHS's Cuba case-management system is in the process of being replaced. The first phase is scheduled for full implementation in the coming months. We have provided feedback to DHS over a number of years regarding the issues we have identified with the current system, and have also been involved in discussions regarding the improvements that are expected to be derived from the upgrades.

We are pleased that the upgrade is progressing and we understand that it will address a number of the issues we have raised with DHS in recent times. Last year's Annual Report referred to the issue of DHS's inability to collect overpayments from payees, as well as the need for payees and payers to receive clearer information about how the overpayment occurred and the options available to recover it.

A requirement of the new system is that it will be able to isolate an overpayment, identify the reason for it occurring and allow for DHS to make withholdings from income support payments.

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Department of Employment

During 2014-15 our office saw a 53.1% increase in complaints about the Department of Employment with 344 complaints received this year compared to 224 in 2013-14. The majority of these complaints were recorded as being about the actions or decisions of job service providers.

Changes to jobseeker compliance framework

From 1 July 2014 the Government commenced a phased process for strengthening the jobseeker compliance framework'. This process implemented arrangements to place a greater onus on jobseekers to engage with employment service providers and to impose more stringent consequences where they failed to complete these engagements without a good reason.

As part of these reforms, employment service providers have been empowered to recommend to DHS that a jobseeker's income support payment be suspended where they have failed to attend an appointment without a good reason. While the provider makes only a recommendation, as long as the jobseeker is in fact receiving an income support payment and is required to participate in job services, the DHS ICT system will then automatically apply the suspension.

During the past six months we have seen a spike in complaints about employment service providers where a jobseeker has their payment suspended as a result of a failure to attend an appointment, and then experiences difficulty in identifying whether DHS or the provider is responsible for assisting them to reconnect.

We continue to liaise with the Department of Employment and DHS to highlight these situations, and to encourage them to identify ways to ensure customers are provided with clear information about the pathways for resolving non-attendance failures.

This collaboration will become increasingly important into the future as, from 1 July 2015, job services providers are also able to recommend that DHS impose a financial penalty (in the form of a reduced income support payment) where a jobseeker has failed to attend an appointment.

We understand that broad discretion will be available to providers in deciding whether it is appropriate to recommend a financial penalty in the jobseeker's particular circumstances. DHS staff will then consider the recommendation and make contact with the jobseeker before making a final decision.

DHS already applies financial penalties for failure to comply with mutual obligation requirements, including serious non-compliance, but these penalties may apply for even a first non-attendance failure. We will be monitoring complaints in this area closely into 2015-16 to understand the practical implications for jobseekers, and will also engage with the Department of Employment and DHS to discuss their respective approaches to the new compliance arrangements.

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National Disability Insurance Agency

The National Disability Insurance Agency (NDIA) is the agency responsible for administering the National Disability Insurance Scheme (NDIS), a government scheme that funds supports for people with a permanent and significant disability that affects their ability to take part in everyday activities.

At present, the NDIS is being conducted on a trial basis in seven sites across Australia, with the national rollout to be completed between 1 July 2016 and 30 June 2019. All states and territories except Queensland are involved in the trial.

The Commonwealth Ombudsman has jurisdiction to investigate the administrative actions of the NDIA. We have received less than 40 complaints to date, most of which have centred on delays in scheduling a planning meeting, disagreements about what is included in the participant's support plan and dissatisfaction with their assigned planner.

Major activities

Engagement

Over the past year we have visited the ACT trial site and regularly engaged with the NDIA and a number of disability advocacy organisations to discuss emerging issues. Over 2015-16 we plan to visit a number of the other NDIA trial sites, with a view to understanding participants' experience of the NDIS and improving public awareness of the Ombudsman's role in considering complaints about the NDIA.

Submission to proposal for an NDIS Quality and Safeguarding Framework

In February 2015 DSS commenced consultations regarding a proposed NDIS Quality and Safeguarding Framework. The consultation sought views regarding how the Government could ensure the NDIS provides quality support, choice and control, and keeps participants safe from harm. It focused on:

• systems for handling of complaints
• NDIA provider framework
• vetting of provider staff
• protections for self-managing participants
• reducing and eliminating the use of restrictive practices.

The Ombudsman made a submission regarding the framework, which was prepared following consultation with state and territory Ombudsmen. We made particular recommendations regarding the key principles that should underpin a strong complaint and oversight function, most notably that the oversight body should be independent, well-resourced and have authority to handle complaints in a tailored, person-centric manner.

The submission asserted that, in light of these key principles and his office's experience, geographic coverage, presence, networks, business processes and infrastructure, the Commonwealth Ombudsman is well placed to provide the NDIS oversight and complaint function. We await the Government's consideration of our proposal.

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Department of Social Services

The Department of Social Services is the policy department responsible for, among other things, social security, family assistance, child support, child care and disability. Our office engages with DSS on many of these areas where we have questions or concerns about the way a policy is being administered by the relevant agency.

On occasion, DSS is responsible for directly administering payments or services to the public.

National Rental Affordability Scheme (NRAS)

The National Rental Affordability Scheme (NRAS), which commenced in 2008, is a partnership between the Commonwealth, state and territory governments which aims to increase the supply of new affordable rental housing and reduce rental costs for low and moderate income households by offering incentives to invest in dwellings. The scheme is administered by DSS.

Approved participants are entitled to an annual incentive in respect of each dwelling that satisfies certain NRAS requirements, such as letting the property at 20% or more below the market rent value. The incentive is either a cash amount or a tax offset certificate that is issued to the Approved Participant and then distributed to the individual investor who owns the property.

Approved Participants are usually property developers, not-for-profit organisations or community housing providers. NRAS is designed so that DSS has a direct relationship with the Approved Participants, but not with individual investors.

In early to mid-2014 DSS became aware that its administration of the scheme was not consistent with the regulations. DSS also assessed that a high proportion of the Approved Participants' claims for the 2013-14 NRAS year were likely to be refused.

DSS decided at it would be in the interest of investors, and in keeping with the intent of the scheme, to seek regulatory change before processing these claims. The regulatory amendments came into effect in late 2014.

These changes sought to allow greater flexibility, provide more generous timeframes for the lodgement of documentation evidencing compliance with the scheme and better align the regulations with policy and long-standing administrative practices.

While these changes intended to make it more likely that claims for the 2013-14 NRAS year would be successful, the process of amending the regulations delayed the assessment of these claims. Claim processing was further delayed when it became apparent that a significant proportion of claims were still non-compliant.

In October 2014 we started to receive complaints from investors in the scheme about the delays.

DSS has advised that it has also received an influx of complaints from investors (mainly individuals with a single dwelling in the scheme) who reported that the delay was causing them financial hardship. However, the design of the scheme has impacted DSS' ability to meaningfully engage with investors even though these are the individuals who are financially invested in the scheme.

DSS has endeavoured to communicate with investors via its website and has developed a letter for Approved Participants to sign so it can discuss individual claims directly with investors.

Throughout this time we have engaged in regular meetings and liaison with DSS to discuss the issues raised by the delayed processing of claims and the efficacy of the remedial measures the department implemented to address the issues. We have also engaged with the ANAO about its two-phase audit of DSS's administration of the scheme and continue to engage with DSS about ongoing issues flowing from the delay.

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Indigenous Australians

Our office monitors complaints about Australian Government programs that specifically or predominantly impact on Aboriginal and Torres Strait Islander Australians, and particularly those living in remote communities. We also run an outreach program, focused on ensuring that our office remains accessible to Aboriginal and Torres Strait Islander communities and that we are proactive in identifying issues with the administration of government programs which directly impact Aboriginal and Torres Strait Islander people.

Outreach and engagement

This year we have expanded our engagement strategy by broadening our networks of community and government stakeholders across the country. We have continued to meet regularly with our established networks of community stakeholders in the Northern Territory, who have kept us informed about current issues affecting their Indigenous customers, who are predominantly from remote areas.

We have also started establishing stakeholder networks in capital cities around the country and have commenced a program of Indigenous roundtable discussion forums with these groups. This financial year we conducted a series of roundtable discussions in Brisbane, Canberra, Melbourne, Adelaide, Perth and Sydney.

We met with a wide range of community stakeholders and advocates who work closely with the Indigenous community and we heard from them about key issues and problems affecting their clients.

In April in Darwin, in conjunction with the Northern Territory Ombudsman's office, we held Indigenous discussion forums focusing specifically on government complaint-handling systems for Indigenous individuals and communities.

We held separate forums with community and government stakeholders, who contributed their views about what works, what doesn't work, and possible solutions for improving government complaint systems so that they are both effective and accessible for Indigenous individuals and communities.

We intend to continue this dialogue with more forums over the coming year, with a view to encouraging government agencies to pursue more creative approaches in their dealings with Indigenous Australians in ensuring there are appropriate mechanisms to seek feedback and deal with complaints when delivering services and programs.

Two key areas of interest that we have continued to monitor closely are the Department of Human Services' (DHS) Centrepay and Income Management schemes.

Centrepay

Centrepay is a free bill-paying scheme for DHS customers. Over the years our office has received complaints and feedback about the scheme's administration, including problems which have contributed to detrimental outcomes for vulnerable customers, particularly Indigenous customers.

In 2013 DHS commissioned an independent review into the scheme. Our office was one of a number of stakeholders who made a submission to that review.

The Report of the Independent Review of Centrepay was submitted to the Secretary of DHS in June 2013. It made 89 recommendations for changes to the scheme. Our office has continued to engage with DHS about its response to the review since that time, including through our investigation of complaints raised with us on behalf of remote Indigenous customers.

In May 2015 DHS sought our office's views on aspects of its revised Centrepay framework and we provided our feedback in early June 2015. DHS has since published its responses to the independent review's 89 recommendations on its website, and it has also published its new Centrepay policy, which will begin to apply to businesses from 1 July 2015.

Our office welcomes DHS's restructuring of the Centrepay scheme, and particularly the changes aimed at limiting access to the scheme by business types which have historically been identified as predatory or exploitative, and improving the level of information provided to customers about their Centrepay deductions. However, we are yet to review the finer details of the new scheme, and have not yet been able to fully assess the extent to which the changes address the concerns previously raised by our office.

We will continue to monitor the rollout of the new Centrepay scheme and the impact of the changes through meetings and discussions with DHS and our stakeholder networks.

Income management

Income management (IM) is a scheme that enables DHS to manage at least 50% of a person's income support payments to ensure they meet their priority needs and those of their family. IM has applied in the Northern Territory since 2007 and has gradually been extended to other areas, and to new groups of DHS customers.

Despite these changes, the number of Indigenous customers being income managed still far outweighs the number of non-Indigenous customers, with 20,778 of 26,250 income-managed customers identifying as Indigenous as at March 2015.

Our office continues to monitor and investigate the scheme's administration through complaints and feedback we receive from our stakeholders and members of the public.

In September 2014 the Social Policy Research Centre at the University of New South Wales released the Final Evaluation Report, Evaluating new Income Management in the Northern Territory. The report, commissioned by the Department of Social Services, noted that new processes DHS had implemented in response to our office's 2012 own motion report into IM decision making had resulted in improvements to the IM exemption process, including:

…more stringent reporting about reasons for not allowing an application for an exemption, and new processes to ensure that customers subject to the compulsory income management measures are regularly informed of their right to apply for exemptions when engaging with Centrelink regarding other matters. Many of these changes were welcomed by the exemptions staff interviewed for the evaluation, and they noted they now felt clearer about the process and more comfortable in granting exemptions than before the Ombudsman's report:

There were a lot of exemptions being rejected at first because sometimes it wasn't always clear and there's a fine line of what we saw as being financially vulnerable. The Ombudsman came in and that led to changes in how we did documentation and assessed change. Now it's quite a process to reject an exemption. (Centrelink Customer Service Officer)²

The report also noted that our office's 2012 review had resulted in the tightening of guidelines around social worker assessments concerning customers on the vulnerable measure of IM.

The vulnerable measure of IM was originally designed to provide DHS social workers with an additional tool to use in supporting vulnerable or at-risk individuals who were financially vulnerable. The measure is applied to customers on a case-by-case basis, following an assessment by a DHS Social worker.

The vulnerable measure was expanded from 1 July 2013 to include an additional category of vulnerable customers who are not identified on a case-by-case basis, but rather by virtue of the fact they meet various objective criteria, making them part of a specific class or group. Vulnerable youth customers are identified by DHS's computer system and IM is automatically applied to them after they qualify for a trigger' payment.

In May 2015 the Australian Government introduced the Social Services Legislation Amendment (No.2) Bill 2015, which seeks to end case-by-case social worker identification of vulnerable welfare payment recipients (VWPRs), and to move to a system of identifying all VWPRs by virtue of their membership of a class or group of individuals, like the vulnerable youth measure.

The Bill was referred to the Senate Community Affairs Legislation Committee for inquiry and review and the committee tabled its report on 15 June 2015. Our office was one of a number of organisations and individuals who lodged submissions to the inquiry, cautioning against the removal of the case-by-case identification of vulnerable customers for income management.

Our office's position was based largely on our observations of the administration of the vulnerable youth measure of IM and, in particular, the use of automated decision-making processes.

In our view it has the potential to result in IM being applied to customers in circumstances where it could be detrimental to their wellbeing. Other organisations' submissions echoed our office's concerns in this regard.³

In addition to our submission, we have investigated a number of complaints about income management, resulting in some good outcomes.

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POSTAL INDUSTRY OMBUDSMAN

Overview

The Commonwealth Ombudsman is also the Postal Industry Ombudsman (PIO). The PIO role was established in 2006 to provide an industry ombudsman service for postal operators and their customers.

Australia Post is a mandatory member of the scheme, while private postal operations (PPOs) can register voluntarily. As at 30 June 2015, there were six PPOs registered.

The PIO can investigate complaints about postal or similar services provided by Australia Post and PPOs. The Commonwealth Ombudsman can also investigate complaints about administrative actions and decisions taken by Australia Post. Most commonly, people complain to the PIO about lost letters or parcels, delivery issues (including the failure to attempt delivery of parcels and incorrect safe drop procedures), and dissatisfaction with Australia Post's handling of their complaint.

Figure 2 All approaches for Australia Post (Commonwealth & PIO)

Statistics

In 2014-15 we received 5613 complaints about Australia Post, which was a 38% increase on the previous financial year. In general, the volume of complaints about Australia Post has been steadily growing and has almost tripled since the PIO was established in 2006.

During this financial year Australia Post complaints represented around 27% of the total number of in-jurisdiction complaints received by the office, making Australia Post the second most complained about entity in our jurisdiction. However, we acknowledge that Australia Post also has a very high level of daily contact with the public.

Australia Post reported that it delivers more than 16 million articles of mail each day to over 11 million addresses and serves approximately 70,000 customers in-store daily.

We also received 16 complaints about other postal operators in the PIO jurisdiction, which was 60% more than the previous financial year. These complaints, together with the 5351 complaints we received about Australia Post in the PIO jurisdiction, totalled 5367 complaints in the PIO jurisdiction. This was an increase of almost 40% on the previous financial year.

We did not investigate all complaints we received about Australia Post or PPOs. The main reasons for declining to investigate a complaint included that:

• the complaint was outside our jurisdiction (for example, it was about employment or a company that was not a registered PPO)
• the complainant could not show they had made a reasonable attempt to resolve the issue with Australia Post or the PPO
• we assessed that a better practical outcome was unlikely.

Where we assessed that Australia Post could consider providing a better outcome, we transferred the complaint to Australia Post for reconsideration (a second-chance transfer, as described below).

Of the approaches we received about Australia Post and PPOs in 2014-15, we commenced 468 investigations. In total, we completed 428 investigations during this period (392 under the PIO jurisdiction and 36 under the Commonwealth Ombudsman jurisdiction). Only two of the investigations completed during this period related to a complaint about a PPO, with the remainder concerning Australia Post.

Second-chance transfers

We transferred 1973 complaints (around 35% of complaints received) to Australia Post for reconsideration pursuant to our second-chance transfer arrangement. These were relatively uncomplicated complaints where we assessed that Australia Post could consider offering a better outcome to the complainant.

In general, this process gives Australia Post another opportunity to review the complaint and resolve the matter, which potentially reduces the need for an Ombudsman investigation. Further, the outcome of a referral back to Australia Post is typically a quicker resolution of the issue for the complainant and an opportunity for Australia Post to learn from complaints to further improve its own complaint-handling practices.

Most of the complaints transferred as part of this arrangement were successfully resolved by Australia Post. However, complainants can return to our office if they are dissatisfied with the response. We recorded a small number of complaints (196, or around 10%) as returning to our office following a transfer. We investigated a small proportion of these complaints, but we were generally satisfied with Australia Post's response and declined to investigate.

Fees

The PIO was established with the intent to recover its costs from the industry by charging investigation fees. Fees are calculated and applied retrospectively after the end of the financial year and are returned to Consolidated Revenue.

Significant issues in the reporting period

At the beginning of the financial year we altered the way we record complaints about Australia Post and PPOs in order to better capture the root cause of complaints. Following this, we identified loss, delivery issues and complaint handling as the three most common top-level complaint issues about Australia Post.

Figure 3 Top level issues closed by Australia Post 2014-15

1. Loss

The most common complaint received by the PIO relates to lost letters or parcels. In these cases the dispute typically arises because Australia Post believes it has correctly delivered an article, but the addressee claims that they have not received it.

2. Delivery issues

Delivery issues are broad-ranging and include complaints about the failure to attempt delivery of parcels, incorrect safe-drop procedures and the failure to obtain a signature on delivery when required to do so.

3. Complaint handling

Complainants often explain to the PIO that they attempted to resolve their complaint with Australia Post, but were dissatisfied with how their complaint was handled. Reasons for dissatisfaction most often included unreasonable delay or a lack of response, or conflicting or confusing advice provided by Australia Post.

Introduction of new services

In addition to the common complaint themes outlined above, we identified two critical events that led to a spike in complaints during 2014-15:

1. Introduction of new complaints management system, MyCustomers

Australia Post introduced its new complaints management system, MyCustomers, in late 2014. Australia Post experienced some early technological problems with this new system, which resulted in a backlog of complaints and some delays. This in turn led to a rise in complaints to the PIO about Australia Post's complaint handling.

A key aspect of MyCustomers is that it sends auto-generated emails to complainants advising when their complaint has been received, progressed and eventually closed. Complainants approached the PIO advising that they had received notifications that their complaint had been closed without any information or contact from Australia Post in response to their complaint. Issues associated with auto-generated emails have also affected complaints transferred from the PIO to Australia Post via our second-chance transfer arrangement, as well as Ombudsman investigations.

We are liaising with Australia Post as it attempts to resolve issues associated with the new MyCustomers system, particularly its use of auto-generated emails.

2. Introduction of new service, ShopMate

In October 2014 Australia Post launched its ShopMate service to assist customers who want to purchase goods from sellers in the USA who do not offer shipping to Australia. Subscribers to the service can shop directly with US merchants and have their goods sent to an Australia Post logistics warehouse in the USA. Australia Post then advises the customer of the cost to forward the purchased goods to a delivery address in Australia and once costs are paid, Australia Post sends the goods to the addressee in Australia.

The PIO received 83 complaints about ShopMate during the year. The key issues related to disputes about the dimensions of the relevant article and whether it exceeded ShopMate's size limits, a lack of clarity regarding pricing calculations and delivery problems that occurred before arrival at Australia Post's warehouse.

PIO investigations have demonstrated that it is often difficult for a customer to know the exact dimensions of an article before purchase, and the customer is most likely uninformed about the manner in which the merchant will pack the goods. The result is that, once Australia Post has received the item in its US warehouse, the customer may be surprised and unhappy with Australia Post's advice regarding the cost of shipping (or, in some cases, the refusal to ship the item to Australia due to it exceeding the ShopMate size limits).

At this point the customer has already paid the US merchant for the goods, but may only be left with the options of paying to have the item destroyed, returning it to the sender or arranging for an alternative method of delivery at their own cost.

We are liaising with Australia Post to develop a better understanding of the key complaint themes and to develop a position regarding issues associated with this new service.

Reforming Australia Post

The growth in electronic communications and changes in consumer behaviour have recently presented Australia Post with significant challenges. In early 2015 Australia Post communicated that the number of letters delivered by household had fallen by one-third since volumes peaked in 2008, resulting in Australia Post's letters business losing more than $300 million a year.

In March 2015 the Federal Government approved Australia Post's request for regulatory reform of its letters service. As a result, it is expected that a two-speed letters service - a priority and a regular service - will be introduced for consumers no earlier than September 2015. The new regular service will provide the cheapest option for consumers and will be delivered two days slower than the current timetable, while the priority service will be appropriate for consumers wanting to send mail at the current schedule. This announcement led to Australia Post commencing a nationwide consultation process, with the aim of engaging employees, customers and government on the implementation of the changes.

We recently participated in an interdepartmental committee chaired by the Department of Communications on the modernisation of Australia Post. Our broad complaint-handling experience across the public sector gives us a unique insight into public administration and we have sought to use that perspective to ensure that the potential impacts on Australia Post's customers are taken into account.

Particular areas of interest for the PIO include the possible increase in complaints and the flow-on effects on the communication between government agencies and their clients, particularly the vulnerable and disadvantaged members of the community. We will continue working with Australia Post during the transition to the new two-tier letters service.

Commitments from 2013-14

In the past we have observed that information provided by Australia Post should help customers understand their rights and responsibilities, and to understand which service is best suited to their needs. In our last Annual Report we identified some issues that could be improved. The progress made in 2014-15 in relation to some of these issues is noted below:

• Adequate packaging - Packaging is a significant factor when deciding whether or not to pay compensation for damage and we are pleased that Australia Post has improved the information it provides regarding how to pack different types of items. In particular, Australia Post revised its Dangerous and prohibited goods and packaging guide in December 2014. However, we will monitor this issue in the coming year as we continue to receive complaints regarding the adequacy of packaging materials.
• Compensation - We have previously noted that there was a potential conflict in information provided by Australia Post about the compensation payable for coins lost or damaged in the post. Australia Post clarified its position on this issue in its terms and conditions and Dangerous and prohibited goods and packaging guide to consistently explain that Australia Post prohibits coins in the International Post and all services within Australia except Registered Post, or a parcel service in conjunction with Extra Cover and Signature on Delivery, where the face value of the coins is A$200 or less in any one consignment.

• Tracking - We sometimes receive complaints that parcels were not fully tracked and therefore complainants are unable to check and confirm lodgement, progress and delivery of an item. While Australia Post aims to scan parcels at key points in the delivery process, we recognise this may not always occur, usually due to infrastructure limitations or human error. In the past we discussed with Australia Post the importance of providing clear public information about the tracking service and what it offers. The situation has improved as Australia Post has rolled out increased infrastructure to support its tracking capabilities, and the information currently provided by Australia Post better explains the scope of tracking.
• Authorisation, signatures and identification - Australia Post's identification checks and verification of authority are common areas of dissatisfaction associated with complaints about unauthorised mail redirections, parcels being released to the wrong person and authorisation to leave signature items at an address. We have previously approached Australia Post with our concerns about its policy and procedures, and we recently pursued this issue further by suggesting that Australia Post consider:
  • clarifying in its procedures manual the nature of possible arrangements that Australia Post may make to release a non-signature item to a regular customer known to staff in circumstances where staff have checked the person's identification in the past
  • clarifying in its procedures manual the principle that that Australia Post accepts signed authorities “in good faith” (given that it is unable to verify the addressee's signature), as well as providing further guidance in relation to how staff can satisfy themselves that an authority is genuine
  • reviewing the information Australia Post records to demonstrate that identification has been checked (as Australia Post does not currently record any identification details)
  • reviewing the information provided in collection cards to ensure they are consistent in regards to authorisation instructions.

Major outcomes

The PIO carries out its functions by investigating individual complaints, identifying and pursuing systemic problems, and acting on emerging issues.

A number of our investigations have resulted in better outcomes for complainants including expedited action, comprehensive searches for lost items, apologies, compensation payments, postage refunds, staff being counselled or disciplined, and the provision of better explanations by Australia Post or our office.

Our investigations and ongoing engagement with Australia Post in relation to key complaint issues has also resulted in improvements to Australia Post's policies, procedures and communications. For example, the PIO was provided with opportunities to comment on Australia Post's proposed updates to its postal guides. In particular, we provided comments in relation to Australia Post's Domestic Parcels Guide, and we are also liaising with Australia Post regarding updates to its General Post Guide.

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Taxation ombudsman

Final Taxation Ombudsman report

In March 2015 the Parliament passed legislation that transferred the Commonwealth Ombudsman's tax complaint-handling function to the Inspector-General of Taxation (IGT), on 1 May 2015.

The Commonwealth Ombudsman is no longer able to investigate new complaints about the Australian Tax Office (ATO) or the Tax Practitioners Board (TPB), except for complaints about freedom of information (FOI) or public interest disclosure (PID).

This Annual Report will be our last report on the activities of the Taxation Ombudsman; however, PID and FOI matters concerning the ATO or TPB may be reported separately.

The handover of the tax complaints function to IGT was successfully completed and with the least possible inconvenience to taxpayers.

Overview

This year marks the 20th anniversary as well as the end of the Taxation Ombudsman role.

The role was established in 1995 to increase the focus on the investigation of complaints about the ATO and since then we have finalised more than 40,000 complaints.

Major events or projects undertaken by the ATO that proved to be sources of complaints during this period related to:

• the ATO's handling of complaints about the settlement process for taxpayers involved in mass marketed investment schemes in 1998-99
• the introduction of the Goods and Services Tax in 2000-01
• the rollout of the ATO's systems upgrade (referred to as the change program') in 2009-10 and the impact of delays on taxpayers
• the Project Wickenby joint taskforce and the ATO's handling of complaints from high-profile taxpayers in 2012-13.

The Taxation Ombudsman completed several own motion investigations during this period, which led to significant change and service improvement including:

• an investigation into ATO complaint handling, published in July 2003. This led to the creation of a whole-of-ATO complaints management system with over 66% of complaints resolved satisfactorily
• the ATO's administration of garnishee action, published in April 2007. As a result the ATO improved its procedural advice and guidance to staff and introduced an internal review process for payment arrangement decisions
• re-raising of written-off tax debt, published in March 2009. The ATO improved its advice to taxpayers to avoid confusion over the debt re-raise process
• resolving Tax File Number compromise, published in September 2010. The ATO changed its identification and response processes to improve outcomes for taxpayers.

Over the past 20 years we worked proactively with the ATO to encourage it to improve its complaint-handling process, learn from complaints and take active responsibility for resolving them. The ATO has been receptive to our approach and adopted many of our suggestions, resulting in an enhanced experience for taxpayers in resolving matters.

This approach resulted in a steady decline of complaints to the Ombudsman about the ATO, and this year the Taxation Ombudsman received the lowest number of annual complaints since the commencement of the role in 1995.

Following is a summary of 2014-15 complaint matters concerning the ATO.

Complaints about the ATO

The majority of complaints to the Ombudsman about the ATO are made by individual taxpayers and small-business owners.

In 2014-15 we received 1118 complaints about the ATO, the lowest number of complaints received in any year since the Taxation Ombudsman was established, and a decrease of around 18% compared to 2013-14 (1369). This reduction is mostly attributed to the fact that we stopped receiving tax complaints about the ATO from 1 May 2015.

Overall, complaints about the ATO accounted for over 5% of the total number of in-jurisdiction complaints received by the Ombudsman during the year.

Complaint themes

During 2014-15 the most common complaints received by the Ombudsman about the ATO related to:

• debt-collection activities
• lodgement and processing of income tax returns
• audits and reviews conducted by the ATO
• superannuation.

Debt collection

Concerns regarding the ATO's debt-collection activities continue to result in a significant number of complaints to the Ombudsman, accounting for over 20% of complaints received about the ATO in 2014-15.

The most common theme raised by complainants related to garnishee action. In some cases complainants were unaware of an ATO debt or the ATO's intention to garnishee a bank account or income tax refund until after the garnishee action was taken.

This issue can arise when a taxpayer has multiple tax accounts with the ATO and may not update new contact details on each account. The ATO enhanced communication to taxpayers regarding the need to update contact details on all tax accounts; however, this remains a persistent cause of complaints.

Lodgement and processing

The annual lodgement of income tax returns and activities involving the ATO's Income Tax Return Integrity (ITRI) program continued to be the subject of a significant number of complaints to the Ombudsman, particularly during tax time. In 2014-15 complaints involving issues with lodgement and processing accounted for around 18% of complaints received about the ATO.

The ITRI program detects income tax returns that may contain missing or incorrect information. This can trigger a review of the income tax return before a refund is issued, which can lead to a delay in issuing a refund even if the ATO ultimately determines that the taxpayer's information is correct.

The ATO has significantly improved taxpayers' experience with the ITRI program following feedback from this office, and continues to improve its communication with taxpayers and agents regarding delays.

Superannuation

In 2014-15 over 10% of ATO complaints we received related to superannuation and unpaid superannuation guarantee payments. Complaints were typically made by individual employees regarding unpaid superannuation, with concerns about delay, lack of information and uncertainty about the ATO's actions the most common complaint themes.

Changes to regulations for Self-Managed Superannuation Funds (SMSF) resulted in a small number of complaints from SMSF trustees, most commonly concerning a refusal by the ATO to approve the registration of the SMSF.

Audit and review

Approximately 8% of tax complaints received by the Ombudsman in 2014-15 involved concerns about the ATO's audit activities, most commonly in relation to income tax returns. When the ATO identifies that an income tax return or GST claim may contain incorrect or incomplete information, it may subject the claim to a thorough review before issuing a refund.

Complainants commonly raised concerns regarding the selection of their income tax return for audit, and the length of time taken to finalise the audit. Other complaint issues included the ATO's decision to extend the scope of audit to previous years, and problems with the volume and types of documentation the ATO has requested in relation to the audit.

Other matters

Social media - the Taxation Ombudsman Facebook page

In August 2014 we launched the Taxation Ombudsman Facebook page to provide taxpayers with real-time information concerning the progress of Tax-Time and other tax complaint information. The Facebook page proved a popular addition with posts shared widely, particularly by individual tax agents.

myGov and the ATO's electronic lodgement process

myGov is a service managed by the Department of Human Services (DHS). It allows users to access a range of Australian Government services with one username and password. From the 2013-14 tax year, taxpayers are required to link their ATO account to myGov in order to lodge their tax return electronically.

While we received some complaints about myGov, the majority raised general concerns with the requirement to register with myGov rather than the operation or use of the service.

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Immigration Ombudsman

Overview

The Immigration Ombudsman has continued its oversight of the Department of Immigration and Border Protection (DIBP) through:

• regular inspection of immigration detention facilities
• monitoring of immigration compliance activities and those detained and later released as lawful non-citizens
• reporting to the Minister for Immigration and Border Protection on the circumstances of people who have been in immigration detention for more than two years
• investigating individual complaints about general immigration matters and detention.

Complaints

We deal with immigration complaints in two streams: general immigration (visas and citizenship) and detention-related matters. We received 1810 complaints about the department in 2014-15, compared with 1771 in 2013-14, an increase of 2%. We investigated 282 complaints, or 16%.

We received 806 complaints about detention-related matters and completed 188 investigations. We received 1004 general immigration complaints and completed 94 investigations. This includes some investigations commenced in the previous financial year.

We have seen the same issues in general immigration complaints as in previous years. The largest category of complaints was delays in visa application processing. The second largest was complaints about delays or the refusal of citizenship applications.

Complaints from people in immigration detention about safety and security have increased, as have those about assault and the use of force.

Medical issues are also a cause of ongoing concern. This includes complaints about the provision of medication and access to specialist medical and dental treatment.

Similarly, property issues are a common area of complaint, including detainees' property going missing or not being transferred when detainees are moved within the detention network, as well as complaints about compensation claims for lost or damaged property. Our detention inspections team continues to focus on this issue as part of its inspection of detention facilities.

The department's response times for complaint investigations continues to be a concern. For the first six months of 2014-15, only 38% of responses were received within the agreed timeframe of 28 days, with 58% taking between 29 and 60 days. There was a marginal improvement in the second six months with 40% taking less than 28 days and 50% taking between 29 and 60 days. Ten percent of complaints took longer than 60 days to receive a response. We are continuing to work with the department to improve this process.

Warm transfer of complaints to the department

Where a person who complains to us, has previously complained to the department and is not happy with the outcome, we offer them a warm transfer' that refers the complaint back to the department, giving it a second opportunity to resolve the matter without investigation by this office. In 2014-15 we transferred 68 complaints to the department.

Stakeholder engagement

We host a series of community roundtables in Australian capital cities to strengthen our engagement with stakeholders in the immigration sphere. These roundtables are an opportunity to inform stakeholders, including representatives from service providers, non-government organisations, advocacy groups and asylum seekers, about the role of the Ombudsman and to listen to any concerns about the administration of the department's functions.

To continue this engagement we have also begun publishing a quarterly e-newsletter to share news about our priorities and issues of interest.

Liaison

In our liaison with the department, we routinely meet at various levels up to and including the Secretary to discuss significant matters, systemic issues and emerging trends. The Deputy Ombudsman and Senior Assistant Ombudsman meet regularly with the Senior Executive of the department, and biannual liaison meetings are held between directors, the Senior Assistant Ombudsman and the department's External Administration section and other relevant areas in the department.

These meetings were irregular during the 2014-15 financial year due to the department's restructure and multiple changes in departmental contacts. We look forward to re-establishing our regular liaison with the department as it settles into its new structure.

Following up recommendations from previous reports

In 2013 we published a report on suicide and self-harm in immigration detention. Of the report's nine recommendations, the department accepted eight in full or in principle and noted one. It has provided updates on the implementation of these recommendations, with eight now being implemented in full.

The status of the final recommendation, that deaths in immigration detention be included in the National Deaths in Custody Program of the Australian Institute of Criminology, remains the subject of ongoing discussion with the department.

As part of our ongoing monitoring of suicide and self-harm by detainees, the department has committed to providing us with six-monthly reports detailing the number and nature of such incidents, as well as health data statistics provided by the detention health services provider.

Compliance and monitoring

In August 2013 we continued an ongoing own motion investigation to oversight the department's compliance activities involving locating, detaining and removing unlawful non-citizens. The investigation provides the government and the public with a degree of assurance that the department's processes are lawful and in accordance with good practice.

This is important as a departmental delegate approves warrants to allow immigration officers to enter and search premises under s 251 of the Migration Act 1958. In 2014-15 we conducted desktop reviews of s 251 warrants and associated documentation. We also examined documentation for removals from Australia, including people removed after the cancellation of their visa under s 501 of the Migration Act due to criminal convictions or character concerns.

We also attended aspects of the department's compliance staff training, presented sessions to compliance staff on the functions of the Ombudsman's office, and observed field compliance operations in the following locations:

• Canberra - 14 August 2014
• Melbourne - 6 to 8 October 2014
• Bairnsdale - 8 October 2014
• Sydney - 30 and 31 March 2015
• Perth - 13 and 14 May 2015
• Brisbane - 9 to 12 June 2015
• Darwin - 17 to 19 June 2015

We noted that the departmental officers we observed in the field acted in a professional manner. We did not identify any areas of significant or systemic concern; however, we identified some areas for improvement. We provided a report on our field compliance observations to the department in October 2014.

People detained and later released as lawful non-citizens

Since 2011 the department has provided this office with six-monthly reports on people who were detained then later released from immigration detention, as they were found to be lawful non-citizens. This reporting system replaced irregular reporting in place since 2007.

In the latter part of 2014 we commenced using the Ombudsman's own motion investigation powers to conduct this oversight. We received one report in 2014-15 for the period January to June 2014.

The department reported that 21 people out of a total of 1673 people detained were later released as lawful non-citizens in the period January to June 2014. The main reason people were released from detention as not unlawful was due to notification deficiencies and case-law-affected issues.

For this period we were satisfied with the department's reporting and that detention was not the result of systemic issues or maladministration. We note that the time people spent in detention before errors were identified and they were released has decreased significantly.

Our analysis for the six-month period to December 2014 is not included as that report was not received until September 2015.

Immigration detention reviews

Statutory reporting (two-year review reports)

After a person has been in immigration detention for two years, and every six months thereafter, the Secretary of the Department of Immigration and Border Protection must give the Ombudsman a report under s 486N of the Migration Act relating to the circumstances of the person's detention.

Section 4860 of the Act requires the Ombudsman to give the Minister for Immigration and Border Protection an assessment of the appropriateness of the arrangements for that person's detention. The Ombudsman also provides a de-identified version of the report to the Minister, which is tabled in the Parliament.

In 2014-15 the number of people subject to reporting under s 486 significantly increased from the previous year. By 13 August 2014 some 2000 detainees who had arrived two years prior were due for reporting, and primarily comprised of families in community detention.

Following the policy directive that people in this cohort would not be advantaged by arriving by boat after 13 August 2012, this cohort was liable for transfer to regional processing centres and those who remained in Australia were subject to a bar prohibiting them from having the claims for protection considered or processed.

In anticipation of a 60% increase from August 2014 to 30 June 2015 in the number of individuals subject to reporting, we worked closely with the department to discuss management and reporting strategies in a climate of decreasing resources.

The department implemented a streamlined tabular format listing a schedule of names by boat arrival, and included health and welfare information where available. In response we introduced a new reporting format which allowed for group rather than individual reporting.

Exceptions were made for people with significant health and welfare issues, unaccompanied minors and certain detainees in restricted detention facilities. In these cases the individual reporting format was used.

We continued to conduct interviews, primarily by telephone, with people in long-term detention, including some of those who had arrived after 13 August 2012. Information from this process provided a valuable insight into individual and systemic issues experienced by people in community detention and in the detention centres.

The office received 1188 s 486N reports from the departmental secretary in 2014-2015, compared with 886 reports in 2013-14, 1118 reports in 2012-13 and 683 in 2011-2012. Of these, 967 were individual reports relating to 1575 people, and 221 were presented in tabular schedule formats relating to 2631 people who arrived by boat after 13 August 2014.

We provided 719 reports to the Minister in 2014-15, compared to 666 the previous year. The 719 reports related to 1748 individual detainees. The number of 486O reports tabled in the Parliament also increased in 2014-15, totalling 767 reports relating to 1689 individual detainees.

Figure 4 Number of reports tabled by year

Figure 5 Asylum seeker arrivals by boat for past 10 years

Trends and issues raised in the two-year reports include:

• the continued detention (in some cases over five years) of people who have been found to be owed protection, but have received an adverse security clearance
• detainees who have been found to be owed protection, but have been waiting for more than two years for their security clearance
• those who are in the cohort of detainees who have been found not to be owed protection, but are unwilling to return to their home country voluntarily
• placement considerations for individuals to be nearer to family support
• cases where delays in resolving immigration status appear to be a result of administrative drift
• cases where incomplete or inaccurate health records may have adversely affected treatment of detainees
• concerns arising as a result of the mix of the detainee population at certain centres.

Immigration Detention Review and Inspections

The Immigration Ombudsman oversights immigration detention and has done so since the introduction of the role in 2005.

During 2014-15 our team visited the immigration detention facilities listed in Table 9.

During this inspection period a number of detention facilities were closed or no longer used to house detainees. They included the Northern, Curtin and Scherger Immigration Detention Centres and the Aqua/Lilac Compounds, Bladin Point, Construction Camp/Phosphate Hill and Darwin Airport Lodge Alternative Places of Detention.

Table 9 Visits to immigration detention facilities 2014-15

Management of detainee property

During this reporting period we continued to monitor the manner in which detainee property was managed. Complaints relating to the management of detainee property continue to be one of the key complaint areas investigated by this office.

We noted a general improvement across the network with particular points of concern relating to:

• a continued absence of CCTV coverage in most facilities to provide coverage of property recording and storage of in-trust and valuable property
• variable compliance with the respective policies, guidelines and procedures manuals
• poor record keeping that fails to clearly describe the items kept in-trust
• inaccurate or inappropriate recording of valuables
• failure to issue receipts for valuables and/or in-trust property.

As well, property that does not accompany detainees on transfer has a significantly higher risk of being lost or not located at the time of a detainee's discharge or transfer to an offshore processing centre.

Access to mobile telephones in immigration detention facilities

We have continued to note the ongoing inconsistency in the policy applied to detainees regarding access to and carriage of mobile telephones. Illegal maritime arrivals are not permitted to have mobile phones in their possession, while all other categories of detainees are.

This generates confusion in those facilities with a mixed cohort, management challenges when moving Illegal maritime arrivals from facilities where they have had access, and supports an active black market.

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Overseas Students Ombudsman

The international education sector is back on a highgrowth trajectory following a major downturn from 2009 to 2011. The Overseas Students Ombudsman (OSO) has been a part of the sector's recovery, established in April 2011 to provide greater consumer protection to overseas students in the private sector, who previously lacked an independent complaints body to hear their complaints and appeals.

We can investigate appeals from students who have a dispute with their private registered education provider. If the provider has not complied with the relevant legislative requirements or its policies, we can recommend the provider to change its decision.

Providers are required to implement our recommendations, which ensures that overseas students have been treated fairly, even if the outcome is not in the student's favour.

We have been operating for four years. In that time we have received more than 2,000 complaints and external appeals from intending, current and former overseas students originating from over 68 countries - more than a third of the 975 private registered providers in our jurisdiction⁴.

Eighty five percent of registered education providers are private and within our jurisdiction. We cover 41.9% of overseas student enrolments across all education sectors from schools to higher education.

Overseas students studying with private providers in our jurisdiction are in the Vocational Education and Training (VET) sector (85.6%) and English Language Intensive Courses for Overseas Students (ELICOS) sector (78.5%).⁵

Complaint trends and themes

We have experienced a significant increase in complaints and appeals. This may be due to the increasing number of international students studying in Australia⁶ and greater awareness among international students of our role and services.

It may also reflect the growing number of private providers who refer overseas students to our office as an external complaints and appeals body if the student appeals their decision. For all of these reasons, we expect the increase in complaints and appeals to continue into the future.

In 2014-15 we received 689 complaints about private-registered education providers in connection with overseas students. This reflects an increase of 33% from last financial year and follows on from a 14% increase in 2013-14.

We started 238 complaint investigations and completed 239 investigations, compared to 233 investigations started and 244 completed last year. Some investigations commenced in the 2013-14 financial year.

The top four types of complaints the Overseas Students Ombudsman received in 2014-15 reflect the same top four complaint types received each year since we began:

• refunds and fees disputes (237 complaints)
• providers' decisions to refuse a student transfer to another provider under Standard 7 of the National Code (179 complaints/external appeals)
• providers' decisions to report students to the Department of Immigration and Border Protection (DIBP) for failing to meet course progress requirements under Standard 10 (63 complaints/external appeals)
• providers' decisions to report students to DIBP for failing to meet attendance requirements under Standard 11 (61 complaints/external appeals).

Other complaint types include:

• cancellation of enrolment (non-commencement, non-payment of fees, misbehaviour)
• deferrals and temporary suspension of studies
• education agents
• admissions refusals, grades, completion certificates and academic transcripts
• providers' internal complaints and appeals processes.

Some complaints can be investigated and resolved without contacting the education provider to formally investigate. In 2014-15 we closed 441 such complaints, compared to 282 last year, because we:

• formed a view on the basis of the documents provided by the student, or
• referred the student back to their education provider's internal complaints and appeals process, or
• transferred the complaint to another complaint-handling body to deal with the issue more effectively, as provided by s 19ZK of the Act.

Table 10 Number of complaints transferred

In 2014-15 we transferred 81 complaint issues arising from 62 complaints to other complaint-handling bodies (compared to 75 last year) including:

Reports to the regulators

The Overseas Students Ombudsman has the power under s 35A of the Ombudsman Act 1976 to disclose information regarding providers of concern to the national regulators, ASQA and TEQSA.

In 2014-15 we used our power on three occasions to report to ASQA details of complaints where we considered it was in the public interest to advise the national regulator. Last year we reported on five.

On the first two occasions we advised ASQA that we had not formed a view and believed ASQA was better placed to determine if the provider had complied with the legislation applying to Vocational Education and Training (VET) providers.

In the third case we disclosed allegations made in an anonymous complaint to the agencies those allegations related to, including ASQA, the Department of Education and Training, DIBP, the Australian Federal Police and Australia Post.

Once we refer a matter, it is up to the agency to whom we provide the information to decide what regulatory action, if any, it should take. We did not make any disclosures to TEQSA in 2013-14.

Trends and systemic issues

Strategic analysis of our complaints is a key component to identifying systemic issues and trends. The root causes of complaints forms the basis of issues papers that we publish on our website. We did not conduct any own motion investigations in 2014-15 as we were able to use existing complaints data to publish issues papers on the key systemic issues we identified.

Refund complaints and fee disputes (written agreement complaints)

In 2014 we noted the high number of refund complaints and fee disputes we were receiving and the high incidence of non-compliance we were seeing with education providers' written agreements (which include the provider's refund and fee cancellation policies).

After consulting with the sector, we published in March 2015 our Written Agreement Issues Paper and Provider Checklist to help providers ensure they have a compliant written agreement. This helps students understand what can be relied upon when refund and fee disputes arise.

Transfers between education providers (Standard 7)

In February 2015 we presented at the ESOS Reform workshops on the issues we see with providers refusing to release students to allow a transfer to another provider. We also made a submission to the DIBP review of the Streamlined Visa Processing (SVP) arrangements, noting that our office has experienced an increase in provider transfer appeals from students of SVP providers.

Overseas Student Health Cover

In April 2015 we published a summary of the outcomes of the recommendations we made to the Department of Education and Training (DET), DIBP and the Department of Health (DH) in our August 2014 Overseas Student Health Cover (OSHC) issues paper. In response, DIBP produced a fact sheet for education providers, in consultation with DET and DH, outlining providers' responsibilities in relation to arranging OSHC for overseas students, including the importance of ensuring that OSHC begins when the student enters Australia.

DIBP also advised it revised the information it provides to international students when it grants a student visa, to give students clear guidance on the health insurance requirements. The department also published an online blog⁷ directed at prospective and current student visa holders titled Did you know you need to have health insurance to study in Australia?' DIBP advised that through cross-promotion on its social medial platforms and the Study in Australia (Austrade) website⁸, the blog post achieved considerable international reach.

We have discussed the OSHC issues we identified with the Council for International Students Australia (CISA). We have also invited the Private Health Insurance Ombudsman to participate in our complaint-handlers panel at the 2015 CISA conference, to raise awareness among overseas students of their right to receive their OSHC membership card from their provider (where the provider arranged the OSHC cover) and to complain to the relevant Ombudsman if they experience any problems.

Course progress and attendance monitoring and reporting (Standards 10 and 11)

In May 2015 we published an issues paper on course progress and attendance, outlining the common mistakes we see education providers make in monitoring and reporting on overseas students' course progress and attendance. We also published a fact sheet for overseas students to help them better understand their rights and responsibilities and the OSO's role in investigating external appeals from students about to be reported to DIBP for unsatisfactory course progress or attendance.

We will continue to publish quarterly statistics on our website (www.oso.gov.au) highlighting key issues and trends in complaints from overseas students about private registered providers. In 2015-16 we expect to publish a report looking at the key issues and trends arising from our complaints data over the four years we have been operating.

Stakeholder engagement and best practice overseas student complaint handling

In 2014-15 we published three provider e-newsletters and three student e-newsletters, providing advice and tips on best-practice complaint handling and the key issues we see in our complaints.

We organised a complaint-handlers panel at the CISA national conference in July 2014 and provided training to the new CISA Executive in August 2014. We presented at the IDP Brisbane International Students Expo in August 2014. We also held an information stall at the Australian Federation of International Students (AFIS)/Study Melbourne international student information days in August 2014 and April 2015.

We were invited to join the Study Melbourne Advisory Network, which brings together a range of stakeholders to discuss emerging issues and identify potential collaborative action to improve the international student experience.

We delivered five national training webinars to education providers around Australia through EA and ACPET on refunds, fee disputes and written agreements; best-practice complaints handling; and attendance monitoring and reporting.

We presented at the ACPET, EA and NEAS national conferences and attended the Australian International Education Conference (AIEC). We presented at six education provider workshops in Sydney, Brisbane, Canberra and Adelaide, organised by ACPET, Study NSW, the International Student Advisors Network of Australia (ISANA), the Independent Schools Council Queensland (ISCQ) and the Association of Independent Schools of SA. We also attended the NSW Ombudsman's University Complaint Handlers forum, which includes two private universities in the OSO's jurisdiction.

We delivered three presentations at the DET Education Services for Overseas Students (ESOS) Reform workshops in Canberra in February 2015 on course progress and attendance monitoring; student transfers between providers; and refunds, fee disputes and written agreements. We also participated in the workshop on welfare issues relating to under-18-year-old overseas students.

We also continued to hold regular liaison meetings with ASQA, TEQSA, the TPS, DET and DIBP to discuss issues relating to international education and overseas student complaints.

Preparing for the future

As the international education sector continues to grow, we anticipate a continued increase in complaints and external appeals to the OSO. We have trained additional investigation officers to handle increased numbers of overseas student complaints.

We will continue to address the causes of complaints through a range of means, including providing advice and training to education providers, publishing issues papers on key topics and providing information and tips through our provider and student e-newsletters.

In May 2015 we provided submissions in response to the Australian Government's Draft National Strategy for International Education and the Productivity Commission's study into barriers to services exports.

We note in both submissions that our success in providing complaints and appeals services to intending, current and former overseas students could be extended to additional groups of international students by expanding our jurisdiction.

This could include international students studying on a temporary visa other than a student visa (for example, visitor visa, working holiday maker visa) and students studying with Australian private education providers offshore (transnational education).

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Defence Force Ombudsman

The office received 545 complaints about Defence agencies in 2014-15, compared with 518 in the previous year. Defence agencies include the Australian Defence Force (ADF) and cadets, the Department of Veterans' Affairs (DVA), the Defence Housing Authority, as well as the Department of Defence (Defence).

Complaints from serving or former members of the ADF are investigated by the Defence Force Ombudsman. Complaints typically involve ADF employment-related matters including:

• pay and conditions
• entitlements and benefits
• promotions
• discharge.

Defence-related complaints from members of the public are investigated under the Commonwealth Ombudsman jurisdiction. Typically, these matters involve recruitment and the impact of military base activities on members of the public.

We may consider specific requests from Defence to undertake complex or sensitive investigations using the Ombudsman's own motion powers. One such investigation was undertaken by the Ombudsman this year.

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Inspections of covert, intrusive or coercive powers

Figure 6 The independent oversight process

Our oversight activities

The table below gives an overview of our inspection activities in 2014-15.

Table 11 Overview of inspection activities

In addition to our inspection and review activities, in 2014-15 we made four submissions to parliamentary committees and inquiries. Our contribution to these public debates was informed by inspection and review findings. We also regularly responded to requests from agencies for advice about best practices, and requests from other oversight bodies for advice about developing inspection methodologies.

Our approach

We value independence, fairness and transparency. These values support the way we conduct our inspection and reviews and how we engage with the agencies we oversight.

For each inspection and review function we perform, we develop a set of methodologies that we apply consistently across all agencies. These methodologies comprise test plans, risk registers, checklists and templates. They are based on legislative requirements and best-practice standards in auditing, and ensure the integrity of each inspection and review.

We focus our inspections and reviews on areas of high risk and take into consideration the impact of non-compliance; for example, unnecessary privacy intrusion. It is also our practice to regularly review our methodologies to ensure their effectiveness.

We also give required notice to each agency of our intention to inspect their records and provide them with a broad outline of our inspection or review criteria.

To ensure procedural fairness we provide a draft report on our findings to the agency for comment before it is finalised. Depending on our reporting requirements under each function, the finalised report is either presented to the relevant minister or forms the basis of our published reports.

They also inform any briefings we prepare for parliamentary committees. For our published reports, we remove reference to any sensitive information that could undermine or compromise law enforcement.

New oversight function for 2015-16

On 13 October 2015 new laws will come into effect requiring the telecommunications industry to retain certain data (associated with its services) for a mandatory period. Certain law enforcement agencies are able to request such data for investigative purposes, and under the new laws there will be greater certainty as to what type of data will be available and for how long.

A number of important safeguards will be introduced alongside the new mandatory data-retention requirements:

1. The Commonwealth Ombudsman will conduct inspections of enforcement agencies to assess compliance with the laws governing access to such data under Chapter 4 of the Telecommunications (Interception and Access Act) 1979.

2. The number of agencies who may access this data will be restricted.

3. Requests for journalists' data will require a warrant (unlike other requests which can be internally issued).

The new inspection function extends the Ombudsman's current oversight of the Telecommunications (Interception and Access Act) 1979 under Chapter 2 (telecommunications interception) and Chapter 3 (stored communications access).

Before Parliament passed the new laws, our office worked closely with the Attorney-General's Department in drafting the relevant legislation regarding our role. As a result, we are confident that the Ombudsman's legislated functions and powers are sufficient to provide public assurance that agencies are using their powers as Parliament intended.

We will also use our expertise and experiences gained in our other oversight activities to ensure robust oversight. Our first report on the results of these inspections will be tabled in the Parliament in late 2016.

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Law Enforcement Ombudsman

When performing functions in relation to the Australian Federal Police (AFP), the Ombudsman may also be called the Law Enforcement Ombudsman. We have a comprehensive role in the oversight of the AFP, in addition to our inspections of its use of covert powers, which includes:

• investigating complaints about the AFP
• receiving mandatory notifications from the AFP regarding complaints about serious misconduct involving AFP members, under the Australian Federal Police Act 1979 (AFP Act)
• annual statutory reviews of the AFP's administration of Part V of the AFP Act.

In 2014-15 we received 288 complaints about the AFP, compared to 227 in 2013-14. Of these we investigated 28. We conducted two reviews of the AFP's administration of Part V of the AFP Act and published one report on the results of those reviews.

We also regularly engaged with the Professional Standards area of the AFP in relation to integrity awareness and education, including participating in recruit training programs.

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Public Interest Disclosure

Commencing on 15 January 2014 the Public Interest Disclosure Act 2013 provides a mechanism for current and former public officials of Australian Government agencies to lawfully report suspected wrongdoing that impacts on public administration.

The PID Act provides disclosers with immunities from the criminal and civil consequences of disclosure when made in accordance with the scheme. In addition, the Act mandates protection from reprisal action that may occur as a result of making a disclosure.

This is the first comprehensive disclosure-protection scheme for current and former public officials belonging to Australian Government agencies.

The Commonwealth Ombudsman and the Inspector-General of Intelligence and Security (IGIS) have an oversight and awareness-raising role under the Act.

Last year our annual report focused on the period leading up to the commencement of the PID Act and made observations about its operation in the first five-and-a-half months. The Ombudsman has now had a full12 months of operational experience with the scheme.

During this time, and in conjunction with IGIS, we have observed and oversighted its operation in the 190 agencies it covered for the reporting period. With the PID Act placing responsibility on Australian Government agencies to have procedures in place to proactively manage, investigate and take action in relation to disclosures, and to support and protect public officials from reprisal action as a result of a disclosure being made, we have actively supported agencies and officials to meet these obligations in the reporting period.

Overview of the Public Interest Disclosure scheme

The PID scheme aims to promote integrity and accountability within the Commonwealth public sector by:

• placing responsibility on Australian Government agencies to proactively manage public interest disclosure issues
• encouraging and facilitating disclosure of suspected wrongdoing in the public sector
• ensuring that public officials who make public interest disclosures are supported and protected from adverse consequences
• ensuring that disclosures by public officials are properly investigated and dealt with.

Under the Act, responsibility rests with agencies to ensure that suspected wrongdoing is appropriately investigated and, to the extent possible, resolved.

It requires that agencies effectively facilitate reporting of wrongdoing; receive, allocate and investigate PIDs; support and protect disclosers; and comply with a set of notification and reporting requirements.

Role of the Ombudsman

The PID Act identifies a number of roles for the Ombudsman including:

• setting standards relating to:
  • procedures for principal officers of agencies to follow when dealing with internal disclosures
  • conducting investigations under the Act
  • preparing reports of investigations under the Act
  • agencies providing information and assistance to the Ombudsman
  • keeping records.
• providing assistance to principal officers, authorised officers, public officials former public officials and IGIS
• conducting awareness and education programs for agencies and public officials
• receiving, allocating and investigating disclosures about other agencies
• receiving notifications of allocations and decisions not to investigate, or not investigate further
• determining extensions of time for the investigation of disclosures, following requests from agencies and informing disclosers of our decision where we have decided to grant an extension
• reporting annually to the Minister for tabling of the report in the Parliament on the operation of the scheme.

The Ombudsman can also investigate complaints concerning an agency's investigation of a PID and conduct own motion investigations under the Ombudsman Act. The Ombudsman is also required to handle disclosures made about its own former and current public officials.

Role of the Inspector-General of Intelligence and Security

IGIS performs a similar role to the Ombudsman in respect of the six intelligence agencies that are prescribed under the Inspector-General of Intelligence and Security Act 1986. These roles include:

• providing assistance to principal officers, authorised officers, public officials, former public officials and the Ombudsman
• conducting awareness and education programs for intelligence agencies and their public officials
• receiving, allocating and investigating disclosures about intelligence agencies
• receiving notifications of allocations and decisions not to investigate, or not investigate further in relation to the intelligence agencies
• determining extensions of time for the investigation of disclosures by the intelligence agencies.

Role of agencies

Agencies play a central role in the operation of the PID Act and its ongoing success. The Act requires that principal officers of agencies fulfil a number of key obligations including:

• establishing procedures for facilitating and dealing with disclosures, including assessing risks that reprisals may be taken against the discloser and providing for confidentiality of the investigative process
• taking reasonable steps to protect public officials who belong to their agency from detriment or threats of detriment
• ensuring the number of authorised officers are readily accessible and that public officials who belong to their agency are aware of the identity of each authorised officer within their agency
• ensuring appropriate action is taken in response to recommendations, or other matters raised, following a disclosure investigation report.

It is only through strong agency commitment that public officials will have the confidence to trust and use the scheme and make disclosures.

Many of the agencies to which the Act applies are Commonwealth agencies that operate under the Australian Public Service (APS) framework and are familiar with the responsibilities and accountability mechanisms associated with it.

However, the Act also applies to many small authorities, committees and Commonwealth companies that have a separate legal identity, but obtain many of their resources, such as staff, from a larger agency.

As we noted in last year's Annual Report, some of these smaller agencies initially struggled with some aspects of implementation of the PID scheme. However, it is pleasing to note that many proactively sought to manage these issues by requesting our assistance. Our communities of practice also give smaller agencies the opportunity to learn from the experiences of other Commonwealth PID practitioners.

Initially we noted some feedback from a number of agencies that while there may have been some initial doubts regarding the value of the PID scheme, events have shown that the scheme has been instrumental in the disclosure of important information that may not have otherwise come to light. This has been acknowledged by senior managers as having been beneficial to the administration of their agency.

The PID landscape

Section 76(1) of the PID Act requires the Ombudsman to prepare a report on the operation of the Act during the financial year. To collect information on the operation of the Act, and in conjunction with IGIS, we asked all PID agencies to complete a survey on their activities under the Act during the 2014-15 financial year.⁹

We would like to acknowledge the assistance provided by these agencies in completing this survey, the results of which have provided invaluable information for the first full year of operation of the PID scheme.

Types of disclosures

A total of 639 PIDs were reported as being received in the reporting period, with 58 of 185 agencies¹⁰ receiving one or more PIDs.

The matters we have categorised as PIDs are those disclosures that met the threshold requirements for the information to be an internal disclosure in accordance with s 26 of the PID Act, including satisfying at least one of a number of categories of disclosable conduct' under s 29.

Figure 7 details the kinds of disclosable conduct contained within the PIDs reported as being received. It should be noted that one PID may contain allegations relating to more than one kind of disclosable conduct.

Furthermore, the data in Figure 7 reflects the information provided by the discloser and identified by agencies during the assessment process, rather than the result of any investigation. It should also be noted that not all PIDs will result in an investigation.

Figure 7 Kinds of disclosable conduct within PIDs

Just over half of the disclosures were classified by agencies as allegations about conduct that could amount to a contravention of a law of the Commonwealth, state or territory.

This is a broad category that can incorporate wrongdoing in the other categories, including maladministration or a breach of the Code of Conduct under the Public Service Act 1999. Code of Conduct disclosures could range from incorrectly recording hours of attendance on a flex sheet to other more serious matters.

A disclosure that alleges a contravention of a law does not frequently relate to criminal behaviour, although as we note later in this report, 20 PID investigations completed by agencies in the reporting period recommended a referral to the police.¹¹

Consistent with last year's figures, agencies that reported the most disclosures were the Department of Defence, with 370 disclosures, and the Department of Immigration and Border Protection (DIBP), with 40.

Both these agencies have a large number of public officials. Defence includes departmental staff, members of the Australian Defence Force (ADF), reservists and cadets. DIBP includes a large number of contracted service providers.

Some of the largest Commonwealth agencies reported receiving very low numbers of PIDs. While this may seem like a positive result, we have often expressed the view in relation to the Ombudsman's general complaints function that low numbers of complaints do not necessarily lead to a conclusion that there are no issues of concern for the agency to address.

Similarly, low PID numbers may relate to such things as a lack of information about an agency's PID scheme or accessibility of an agency's authorised officers, or in broader terms indicate an agency culture that complaint information is not a valuable resource for improving performance.

Consequently, high figures of reported PIDs may be attributed to the knowledge of staff in relation to the PID Act and proactive steps taken by agencies to successfully implement the PID scheme, such as the placement of an accessible network of authorised officers and well informed supervisors; or a culture where speaking up about wrongdoing is exemplified by management.

Types of disclosers

Of the 58 agencies that received PIDs in the period, 54 recorded information about the types of individual disclosers¹². Based on this information as provided by agencies, 643 individual disclosers submitted information that was assessed as a PID¹³.

Seventy four percent of the disclosers were current public officials, 8% were former officials and 18% percent were taken to be (deemed) public officials. Of the public officials making PIDs, agencies reported that approximately 2% were contracted service providers.

The percentage of disclosures made by persons deemed to be a public official (18%) was markedly higher in 2014-15 than in 2013-14 (11%). A significant proportion of those deemed' public officials are likely to have made anonymous disclosures, and the deeming decision would have been based on the fact that the person receiving the disclosure could not confirm whether the person was in fact a public official.

In other cases the discloser will have gained inside information” by virtue of their close connection with an agency, through a personal relationship with an employee, or as a volunteer, or an employee in a grant-funded organisation. A decision to deem a potential discloser as a public official so that their information can be investigated is consistent with the spirit of the PID Act.

Ten agencies recorded the instances where a PID was made by a person who was a public official by virtue of being a contracted service provider or an employee/staff member of a contracted service provider.

Figure 8 represents a breakdown of the types of disclosers¹⁴.

Figure 8 Types of disclosers whose disclosure was assessed as a PID

Disclosures that did not meet the PID Act requirements

Forty-eight agencies reported that they had recorded the number of disclosures that were assessed as not meeting the threshold requirements for their information to be considered an internal PID. The total figure of 520 disclosures were reported in this category. Figure 9 summarises the reasons the disclosures were determined not to meet the PID threshold.¹⁵

Figure 9 Reasons for a disclosure not meeting the PID threshold

In considering the above figures, it should be noted that there are essentially three criteria that need to be considered when determining whether a disclosure meets the threshold to be considered a PID. They are:

• the disclosure is made by a person who is or has been a public official
• the recipient is an authorised internal recipient
• the information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct, engaged in by an agency, contracted service provider or official (as those terms are defined by the PID Act).

Nonetheless, agencies indicated in 9% of matters other reasons existed for not meeting the threshold test. This means there may still be a number of instances where irrelevant considerations are leading to incorrect decisions regarding the classification of a disclosure as a PID.

This is an issue we will consider further in the coming year, together with looking at large agencies that have reported very low numbers of PIDs.

Where a decision has been made not to allocate a disclosure because it does not meet the threshold criteria for an internal PID, agencies are required to inform the discloser of the reasons the matter was not allocated and alternative avenues to have their matter dealt with.

All agencies should therefore be capturing this information, and recording it in a readily accessible form, in order to be able to report on it and thus properly reflect the resources devoted to receiving and assessing matters under the Act.

We also consider that the practice of recording all such approaches, and the reasons that some are not considered to be PIDs, can be a valuable source of information for individual agencies.

This information can help agencies ensure their authorised officers are complying with the requirements of the Act. Additionally, over time the data may highlight misunderstandings with certain aspects of the Act and identify future training and guidance needs.

Recording disclosures through external contractors

We note that some agencies reported using systems for the reporting of wrongdoing that engage the services of external contractors who are not authorised officers under the Act. In most instances these systems were established before the implementation of the PID scheme, and already an important tool for the agency in its integrity processes and in identifying and reporting wrongdoing.

Reports through these channels do not meet the requirements of a PID, primarily because the contracted personnel are not authorised officers or supervisors of the agency. Nonetheless, some agencies have adopted a practice of assessing all such reports against the criteria for a PID under the Act, and referring those that appear to identify disclosable conduct to an authorised officer.

This practice may result in some agencies reporting higher than required numbers of matters assessed as potential PID approaches. It nonetheless reflects agencies' willingness to act in the spirit of the Act.

PID investigations

There are four ways in which a PID can be handled after allocation:

• Not be investigated (or not be investigated further) for one of the reasons in s 48 of the Act
• Be investigated under a separate investigative power (Ombudsman and IGIS only)
• Be investigated with findings regarding the disclosable conduct, with or without consequent recommendations
• Be investigated considering s 47(3) of the Act and an investigation under another Commonwealth law be recommended.

The last two of these approaches are required to be completed in compliance with s 51 of the Act, resulting in a report under that section.

During the reporting period 41 agencies reported that they conducted 386 investigations. These agencies further reported that in 99 of those investigations, a finding of disclosable conduct was made.

Matters not investigated (s 48)

There were 235 instances where agencies decided not to investigate disclosable conduct (or investigate further) based on a reason contained in s 48 of the Act.¹⁶

As can be seen from Figure 10, the most commonly used reasons were that the information did not concern serious disclosable conduct (27%); that the information was being, or had been, investigated under another Commonwealth Law (26%); or that the discloser did not wish to pursue the matter (16%).

Figure 10 Reasons for not investigating

What these figures tend to show is that a number of disclosures did not concern serious disclosable conduct.

As we noted in last year's report, there was a tendency for agencies to apply the test of seriousness as part of the initial assessment of whether the matter met the threshold of a PID.

These figures show that this test is being applied in many instances at the correct point in the process; that is, after the matter has been allocated for investigation.

Nonetheless, enquiries to our office indicate that many agencies are still considering the seriousness' of the disclosable conduct in the initial assessment phase.

The 24% of instances where it was impracticable for the disclosure to be investigated were made up as follows:

• The discloser's name and contact details were not disclosed (17 instances)
• The discloser did not, or had been unable to, assist the investigation (32 instances)
• The information provided was too old (12 instances).

It is interesting to note that there are only 17 instances reported where the non-disclosure of the discloser's details made it impracticable to investigate. This number is small in comparison to the data we collected from allocation notifications, which showed 140 PIDs were allocated where some form of anonymity was applied.

This ranged from complete anonymity to the use of an alias and provision of contact information. This means that anonymity has not provided a barrier to investigation in many instances.

Many agencies did not make a distinction in their recording between matters that had been investigated under another law of the Commonwealth or those that were being currently investigated.

What is important to note is that this reason for ceasing an investigation is only available where the conduct has been or is being investigated, and not where another kind of investigation is considered to be more appropriate. In the last case the consideration of an investigation under another Commonwealth law in the circumstances described below is applicable.

Consideration of an investigation under another law of the Commonwealth (s 47(3))

Section 47(3) of the Act enables an investigator to consider whether a different investigation should be conducted under another law of the Commonwealth.

Such considerations should be recorded in an investigation report after the substance and merits of the disclosable conduct have been considered. Figure 11 summarises the different investigations considered and recommended in PID investigations.

Figure 11 Types of investigations recommended having considered s 47(3) of the PID Act

Based on the information provided, there were 266 instances where consideration was given to investigating under another Commonwealth law. The three most common areas were:

• Defence Force legislation (169, 64%)
• Public Service Act 1999 (50, 19%)
• reference to an Australian police force under s 56 of the PID Act (20, 8%).

These figures support our view that the PID scheme provides an entry point for information relating to wrongdoing to be received, without limiting the range of options available for the investigation of this information.

So long as agencies have given consideration to the substance and merits of the information being disclosed, it is appropriate for agencies to use the PID process to recommend investigations such as those provided for by specific legislation, or the criminal law.

We note that the high figures for Defence relate to the broad spectrum of officials covered by the PID Act in that agency, including ADF personnel.

Completed investigations

Figure 12 details the kinds of disclosable conduct found to have been engaged in as a result of PID investigations. Of the 41 agencies that completed investigations, four did not record the details of the disclosable conduct that was found.

Action taken in response to investigation recommendations

The Public Interest Disclosure Standard 2013 requires agencies to provide certain information to the Ombudsman including the:

• number of PIDs received during the year
• kinds of disclosable conduct in those PIDs
• number of PID investigations completed
• action taken during the relevant financial year in response to recommendations in reports relating to disclosure investigations'.

Figure 12 Findings of disclosable conduct17

Table 15 summarises the information that agencies provided about the actions taken in response to the recommendations in PID reports.

As noted above, s 47(3) of the PID Act enables an investigator to consider whether a different investigation should be conducted under another law of the Commonwealth. This consideration can result in a recommendation that another investigation take place.

The data in Table 15 includes the data from agencies where such a recommendation was made and the action taken in response. In many instances the action consists of instigating the further investigation as recommended in the investigation report. As a general rule, in such circumstances we would consider this to be appropriate action.

Agency promotion of PID

The promotion of the PID scheme can take many forms. However, the PID Act imposes specific obligations on principal officers to establish procedures for facilitating and dealing with PIDs relating to the agency.

Based on the agency responses, 154 (86%) agencies reported that they have PID policies and procedures in place, with 104 (68%) of those agencies having their policies and procedures available on their external websites.

The availability of information on the internet is important as it may be the main source of PID information for former public officials and, in some cases, contracted service providers.

One hundred and fifty-two (85%) of agencies reported that they had conducted PID awareness raising or training with staff, which most commonly involved:

• information on agency website pages and intranet sites
• inclusion of PID scheme information in staff training and induction materials
• staff emails or circulars.

Forty nine agencies (27.5%) reported that they had engaged in awareness raising or training with contracted service providers, with the types of activities engaged in including:

• information included as part of procurement or contracting materials
• training and induction materials
• information on the internet and/or the agency intranet.

Ninety-three agencies reported not engaging in awareness raising or training activities for contracted service providers, while 10 agencies reported that it was not applicable to them.

Agencies reported the following kinds of PID awareness training for staff:

Table 12 Promotion of the PID scheme

In considering the agency responses, we noted that some of the biggest users of contracted service providers did not indicate in their surveys that they conducted PID awareness raising or training with contracted service providers.

Complaints to the Ombudsman and IGIS

Under s 76(2)(b) of the PID Act the Ombudsman's report must contain a statement about the number and nature of complaints made to the Ombudsman during the reporting period about the conduct of agencies in relation to PIDs.

Anyone affected by action taken by an agency in relation to a PID, or suspected PID, can make a complaint to our office, or the IGIS in relation to the intelligence agencies.

Investigations of such complaints are conducted under the Ombudsman Act 1976 or the Inspector-General of Intelligence and Security Act 1986.

Generally, before the Ombudsman or IGIS investigate the complaint, an agency would have completed its investigation.

In the reporting period we received 53 complaints about agencies' handling of PIDs. Predominantly complaints to us were made by a discloser at the conclusion of a PID either following a decision under s 48 of the Act not to investigate or investigate further, or upon receipt of the investigation report under s 51 of the Act.

The key issues identified in complaints were:

• failure to keep discloser informed or a delay in completing the investigation
• dissatisfaction with outcome of the PID investigation for reasons that included:
  • the investigation process was flawed because of a conflict of interest
  • insufficient enquiries were made including failure to interview the discloser or key witnesses
  • the investigator reached the wrong conclusion based on the evidence
• decision not to investigate for one of the reasons in s 48 of the PID Act
• decision not to treat a matter as a PID
• reprisal action
• breach of confidentiality.

We made comments or suggestions in relation to two complaints that we investigated where we considered shortcomings had been identified or there was scope for agencies to improve their administrative practices. These shortcomings were acknowledged by the agencies concerned and steps taken to remedy the matters identified.

IGIS received no complaints about the handling of PIDs received by the intelligence agencies in the period.  However, IGIS did report receiving a complaint that arose as a consequence of a PID investigation that was investigated under the Inspector-General of Intelligence and Security Act 1986.

Complaints about reprisal

We have noted a trend in complaints relating to allegations of reprisal action. While a discloser's remedies in relation to reprisal lie with the courts, we focus on the public administration aspects of reprisal risk assessment and mitigation, and any systemic issues that might become apparent.

We investigate complaints about reprisal by examining an agency's internal procedures relating to assessing and addressing reprisal risk, and any evidence of the risk assessment carried out at the time of the allocation of the disclosure.

We are likely to look at the documented procedures an agency has in place, how an agency has supported a discloser and how any wider workplace conflict or safety issues have been assessed and addressed.

At the conclusion of an investigation the Ombudsman may comment on whether actions that an agency has taken in a particular instance are fair and reasonable, and may make recommendations in relation to particular matters.

We have also identified a trend for some disclosers who are disappointed with the outcome of a PID investigation to make complaints about alleged reprisal actions.

In some instances disclosers may also make an internal disclosure to the Ombudsman about conduct of the agency in connection with the handling of their PID. These allegations usually revolve around issues of maladministration of the PID scheme.

When these matters arise we have investigated under the Ombudsman Act in the context of a complaint. We have, however, identified this as an area for potential misuse by disclosers seeking to re-agitate issues that have already been dealt with by the agency and/or the Ombudsman.

Managing discloser expectations

The PID Act obliges agencies to communicate certain information to disclosers throughout the allocation and investigation processes.

We have continued to receive complaints from disclosers that they have not been kept informed of the progress of the investigation of their disclosure; in particular, where an investigation has been completed in accordance with s 52 of the Act within the 90 days (or further period of time as extended by the Ombudsman or IGIS), but the discloser has not yet received a copy of the report.

This arises because, under the Act, a disclosure investigation is completed' when the principal officer has prepared the report. However, a further period is required to prepare the copy for the discloser including any redactions permitted by the Act.

In those instances agencies are encouraged to manage a discloser's expectations by communicating that the report has been prepared and the expected timeframe in which the discloser can receive a copy, as well as the reasons for the additional time.

The Act requires the report to be given to the discloser within a reasonable period after it has been prepared. This period will depend on the length and nature of the report and redactions that might be required. However, it would normally be expected that this could be completed within 14 days.

We have continued to give feedback to agencies centred on improving communication with the discloser and managing expectations.

Complaints are a valuable source of information for the office in exercising its oversight and awareness functions as illustrated by the following case study:

Issues arising from the interpretation of the PID Act

Application of the Act to contracted service providers

Enquiries to our office indicate uncertainty about the application of the Act to organisations in receipt of grant funding administered under a contract with an agency.

While each contract must be assessed on its own terms, if necessary with the assistance of legal advice, we take the view that as a general principle an organisation that is party to a contract that prescribes the terms for grant funding is not a contracted service provider for the purposes of the PID Act.

Consequently, their officers and employees are not public officials and their actions cannot be disclosable conduct under the Act, nor are their disclosures covered by the Act.

The fact that the Act may not apply to conduct on the part of recipients of grant funding does not mean agencies should not have systems in place to collect information that might be relevant to the conditions and administration of grants.

As a significant aspect of the Act relates to protecting disclosers, it is important that agencies consider other ways of protecting and supporting individuals who may be important sources of information about how funded organisations are meeting their obligations.

It is also important that agencies assist potential disclosers by identifying other appropriate avenues for bringing forward information about wrongdoing if their disclosure does not meet the requirements of a PID.

Application of the secrecy provisions

Enquiries to our office indicate that the interpretation of s 20 of the Act relating to protecting the identity of the discloser, and s 65 in relation to protected information obtained under the Act, presents interpretative challenges to agencies and officials.

Section 20 prohibits the use and disclosure of information obtained by a person as a public official that is likely to identify another person as someone who has made a public interest disclosure.

As criminal penalties apply, officials must be sure that any use or disclosure comes within the exceptions permitted by s 20. Importantly, the exceptions include use or disclosure for the purposes of the PID Act or a law of the Commonwealth, or use and disclosure with the consent of the discloser. Section 65 contains similar exceptions, save for the law of the Commonwealth exception.

We acknowledge that the issue is complicated by s 44, which requires the discloser to consent to their name and contact details being disclosed to the principal officer upon allocation of a PID. The Act also explicitly provides that a PID may be made anonymously.

Consideration of these factors leads some agency officials to be confused over whether there exists a category of discloser who, while not anonymous, cannot be identified in any circumstances because they have not consented to the disclosure of their name and contact details in accordance with s 44, or to the disclosure of any information that might identify them as a discloser in accordance with the exception in s 20.

At a first glance this appears problematic in circumstances where any steps in an investigation of the disclosable conduct are likely to identify the discloser. For instance, the discloser may be the only person, or one of a few people, who could be aware of the information disclosed, and therefore their identity is likely to become evident once an investigation is instigated.

Another important consideration may be that a proper investigation requires the disclosure of identifying information to provide a person the subject of an allegation with procedural fairness. This particular issue falls into focus for disclosable conduct relating to allegations of bullying or harassment.

The object of the PID Act is not to supplant normal standards required of administrative investigations by public officials. The Act does not override the requirement that an investigator make appropriate enquiries and gather relevant evidence, apply procedural fairness, and ultimately apply the appropriate weight to the evidence as the basis of findings or conclusions.

We take the view that difficulties around managing the identity of a discloser are best addressed by agencies explaining in their procedures and awareness raising the reason for seeking a discloser's consent to the disclosure their identity at the outset.

This needs to be reinforced by assurances regarding protection from reprisal action, supported by clear action and a commitment to supporting disclosers.

Nonetheless, agency procedures and authorised officers should also make it clear that, notwithstanding the seeking of consent to the disclosure of identity (both to the principal officer upon allocation and/or more generally as the source of the disclosure to an investigator), the Act permits the use and disclosure of identifying information for the purposes of the Act. Importantly, this may include for the purposes of a PID investigation.

Finally, it should be noted that s 48 of the Act provides that a basis for not investigating, or not continuing to investigate, a disclosure is that the investigation is impracticable because the discloser's name and contact details have not been disclosed, or the discloser refuses to give the investigator information or assistance as requested.

Agencies have also expressed concern about whether the secrecy provisions in the PID Act limit their capacity to brief an agency head or portfolio minister about the receipt or handling of an internal disclosure.

While the law relating to parliamentary privilege remains undisturbed, agencies need to be aware that including protected information' in a briefing will still need to fit within the categories of exception permitted by s 65 of the Act.

The broadest exception is most likely to be for the purposes of, or in connection with, taking action in response to a disclosure investigation. Information that is likely to identify the discloser must not be included unless permitted by an exception in s 20 of the Act.

Similarly, agencies are concerned that the secrecy provisions in the Act may impede their capacity to respond to a media enquiry or questions following an external disclosure about the same subject matter.

Again, the release of any information protected by the secrecy provisions in the Act needs to be covered by one of categories of exception permitted by s 65 of the Act, and information that is likely to identify the discloser must not be divulged unless permitted by an exception in s 20.

Scope and threshold of disclosable conduct

Enquiries to our office indicate an over-representation of PIDs that are about conduct relating to relatively minor personal grievance matters, many of which are employment related and/or have already been the through other processes available to the discloser.

The Commonwealth PID scheme is not alone in this regard as other Australian PID oversight bodies have observed a similar trend with schemes in other jurisdictions.

Under the PID Act, disclosable conduct includes conduct engaged in by a public official that could, if proved, give reasonable grounds for disciplinary action against the public official¹⁸.

We are also frequently asked by agencies whether a minor breach of the Code of Conduct that has resulted, or could result, in counselling or mediation, but not the application of sanctions under the Public Service Act 1999, falls within this category.

We acknowledge there are differing views of this issue and that each case needs to be treated on its own facts. Nonetheless, we take the view that counselling or mediation action is not disciplinary', and therefore in the absence of any of the other categories of disclosable conduct, such conduct does not meet the threshold.

In relation to members of the ADF, the term disciplinary action' has a broad definition, as members can be subject to disciplinary action for matters not generally considered in this category outside the Defence Forces.

A related issue, which we noted in last year's report, is the approach of some agencies to inappropriately combine their assessment of whether the information disclosed meets the threshold for disclosable conduct with the exercise of the discretion whether to investigate that disclosure.

Commonly, this confusion arises in respect of disclosures about conduct that could, if proved, result in disciplinary action, but that concern a minor breach of the Code of Conduct (or similar), as discussed above.

It is only once a disclosure is allocated that the PID Act allows an investigation officer to exercise discretion not to investigate it on the basis that the information does not concern serious disclosable conduct'¹⁹.

Another related trend that we have noted from enquiries is for agencies not to allocate a disclosure that otherwise meets the threshold because another investigation process has already taken place or is considered to be more appropriate.

However, this may only be considered after the disclosure is allocated for handling under the Act. At that stage the investigator may decide under s 48 not to investigate the matter if the conduct is substantially the same as what has already been investigated.

As we noted in last year's report, some agencies may be placing undue emphasis on the application of s 47(3) as a separate category of decision making, contrary to the spirit and the requirements of the Act.

In our view s 47(3) of the Act may only be used once the PID has been allocated, and does not form part of the authorised officer's deliberations at the allocation stage. It allows an agency to consider whether a different investigation should be conducted under another law of the Commonwealth after it considers the substance and merits of the information being disclosed.

In the coming year we intend to issue a revised version of our Agency Guide to the Public Interest Disclosure Act with expanded guidance about assessing disclosures against the threshold criteria in the Act, and applying the discretionary grounds for deciding whether to investigate a disclosure.

Unintended consequences in the application of the PID Act

Through our contact with agencies seeking clarity about the PID scheme's scope and application, we note that the two areas of confusion identified in last year's report as unintended consequences of the application of the PID Act remain. These are the role of supervisors and the role of former public officials who seek to represent others.

In our view a strict application of the Act in these circumstances may lead to an unintended expansion of the scheme and possibly undermine the protections for public officials who identify and report suspected wrongdoing.

We continue to provide support and clarification to agencies to assist them to sensibly navigate through these issues. However, in order to provide greater certainty, we believe these issues should be explored and considered for possible legislative amendment.

In last year's report we described in some detail the issues that arise from the application of s 60A of the Act, which obliges a supervisor to pass on to an authorised officer any information they receive from any public official they supervise, if they believe on reasonable grounds that the information could concern disclosable conduct.

The mandatory nature of the supervisor's obligations can trigger the reporting of a matter as a PID in circumstances where the discloser is not in need of protections provided by the Act but, rather, is discussing information with their supervisor relevant to the normal duties of their position (for example, in a fraud or integrity unit).

However, we remain concerned that there is a lack of knowledge on the part of supervisors and managers about their obligations under the Act and, consequently, significant under-reporting.

In this regard we note that only 87 of the 1191 matters assessed against the criteria to determine if they were a PID were reported from the survey data as disclosed initially to a supervisor. This appears to be a very low figure across the 64 agencies that reported receiving PIDs or potential PIDs.

The second unintended consequence that we noted in last year's report is that it remains open for public officials or former public officials to make a disclosure under the Act in relation to information obtained from someone else.

This may occur when the official seeks to act in an advocacy or representative role. This tends to undermine the intended operation of the Act, in that the official making the disclosure obtains the protections of the PID Act, while the person who made the disclosure to them, and who is likely to have obtained the information in connection with their duties, does not.

Operational themes

This year we received just over 300 PID-related approaches²⁰ through our dedicated telephone line and email address. Of the 185 enquiries, 157 were from agency representatives, 22 from public officials and six from either non-government organisations or members of the public. Dealing with enquiries provided insight into the day-to-day operational issues faced by agencies and officials.

Investigative processes

One emerging theme for agencies has been the manner in which the PID process incorporates administrative law principles of general application, such as procedural fairness.

This issue has most often arisen in the context of an enquiry regarding the formulation or interpretation of an agency's internal PID procedures. It has also been a theme in the course of an investigation where the report makes a finding or draws an adverse inference.

For some officials, particularly those who are not familiar with administrative investigations, the requirements of the PID Act and the Ombudsman Standard appear to indicate a different kind of investigation.

However, notwithstanding some additional procedures that the Act applies to a PID investigation, we remind agencies that the usual principles of an administrative investigation apply.

Department of Veterans' Affairs (DVA) is a department of approximately 1900 employees, with a primary focus on delivering government programs and administering entitlements for war veterans, members of the ADF, members of the Australian Federal Police and their dependants.

During a roundtable meeting with DVA's authorised officers we became aware that some of DVA's functions created an unintended operational challenge in administering the PID scheme.

Most DVA clients meet the definition of current or former public official as they are either serving or former members of the ADF. This raised the possibility of DVA clients activating the PID Act by directing their complaints about a general service matter, or their grievances about the actions of the ADF, DVA or DVA's contracted service providers to an authorised officer.

DVA was concerned about being obliged to handle these matters under the Act and how the triggering of protections under the Act might impact on decisions about entitlements.

We provided advice to DVA focusing on a commonsense and practical approach to the issue. In our advice we identified that while the client cohort had been correctly identified as public officials who could make a disclosure under the Act, the structure of DVA's network of authorised officers meant there would be limited opportunities for information about actions which met the definition of disclosable conduct to reach an authorised officer in the ordinary course of business.

In exploring the issue it was clear that DVA's internal complaint-handling mechanism available to clients was used to handle most grievances and complaints without the complaints finding their way to an authorised officer and thus triggering the application of the PID Act.

We confirmed with DVA this meant complaints could be handled in the usual way via their normal complaint-handling procedures.

We suggested raising awareness of the Act to assist in identifying occasions where it might be appropriate to refer a matter to an authorised officer. In particular we emphasised the importance of DVA focusing on its obligations to enable its employees and contracted service providers (or former staff and contractors) to access the PID scheme, as these were the most likely source of an internal disclosure.

The case highlighted that not all disclosures by a current or former public official would need to be treated as a PID.

In this instance a complaint made by a person external to DVA, such as a current or former member of the ADF, about the conduct of a member of the ADF to a DVA employee would not be considered a PID, even if made to an authorised officer of DVA. A disclosure of this type would not meet the criteria of an internal disclosure.

While only 10 disclosures were received by DVA in the last reporting period, a review of its internal procedures was undertaken by DVA to address their concerns and to clarify what types of disclosures could be made to an authorised officer in DVA and by whom.

Multi-agency disclosures

Complaints and enquiries have highlighted instances where a discloser has made a series of the same or similar disclosures to a number of agencies, all or some of which may be implicated in the disclosable conduct.

This issue is highlighted where a disclosure is made about conduct of staff belonging to a number of agencies who are co-located, particularly in overseas posts.

While s 43(4) enables an authorised officer to make enquiries of another agency for the purposes of determining the allocation, this does not in our view explicitly enable consultation between agencies about the best way to investigate a disclosure about interconnected administration, or facilitate cooperation where this is appropriate.

The Act provides generally that an investigation is conducted as the person thinks fit', and that information can be obtained, and enquiries made as the principal officer or his delegate thinks fit'.²¹ Also, a public official (of any agency) has an obligation to assist in the conduct of a PID investigation.²²

Nonetheless, agencies act cautiously, with concern about investigators breaching the secrecy provisions of the Act, when they initiate enquiries with another agency.

A risk that arises from this is the possibility of more than one agency investigating the same disclosure, albeit the different aspects of the disclosure that relate to their agency, without knowing that the other agency is also conducting an investigation. This leads to the possibility of contradictory findings or conclusions being arrived at by the different agencies.

In our view this area could benefit from some legislative clarity.

Where agency clients are also public officials

We have identified situations where an official or former official may make a PID relating to information they have obtained in their personal capacity; for example, as a former APS employee now a client of Centrelink or a former ADF member now a client of the Department of Veterans' Affairs.

Commonly, this might be a complaint or grievance about the payment of benefits or delivery of services.

We work collaboratively with agencies to manage these issues with practical solutions as illustrated in the following case study.

Ombudsman and IGIS monitoring role

The majority of potential disclosers who have approached us to make a disclosure (rather than direct to their agency) often state they have done so because of fear of reprisal action and mistrust of the agency concerned.

We have also noted a number of instances where disclosers who are engaged in multiple complaint/investigation processes with their home agency seek to make a disclosure about these matters to the Ombudsman in an attempt to have a more comprehensive or interconnected investigation take place.

This provides our office the opportunity to explain to disclosers some important aspects of the PID Act including the benefits of making a disclosure directly to the agency concerned, the key role that agencies play in the operation of the Act, an agency's obligation to investigate and, most importantly, the protection against reprisal that the Act provides.

We have also received feedback from some agencies that the possibility of a PID being made has led to more rigour being applied to their other internal investigation processes.

IGIS continued to serve as a central coordination point for the intelligence agencies on PID-related matters. It performed this function by providing the intelligence agencies with periodic updates on relevant PID issues and external developments, responding to PID-related queries from the AIC agencies, providing feedback to interested government agencies on the operation of the Act, and liaising with us to produce a consolidated intelligence agency response to our annual report PID survey.

The intelligence agencies provided IGIS with prompt notification of PID complaints that had been allocated to them for investigation, and advice on the outcome where those matters had been allocated but were pursued under a different law of the Commonwealth. Investigation reports were also readily provided to IGIS.

Number of disclosures received by the Ombudsman

This office received 73 approaches from people wishing to make a PID about another Commonwealth agency. In 51 of those we determined that the matter did not meet the threshold requirements of an internal disclosure for it to be considered a PID.

This decision was made for a variety of reasons. In 28 of those matters we determined they did not meet the threshold requirement because the Ombudsman (or Ombudsman authorised officers) was not an authorised internal recipient.

Largely this determination was made because, under the Act, an additional requirement for making an internal disclosure to the Ombudsman is that the discloser must hold a belief on reasonable grounds that the matter should be investigated by the Ombudsman.

Where the discloser has not been able to provide reasonable grounds, we have determined that the disclosure has not been made to an authorised internal recipient and therefore the matter does not meet this threshold requirement of an internal disclosure.

In this respect we have taken the view that, for example, if a discloser is clearly aware of the limitations on the Ombudsman's jurisdiction to investigate employment-related matters as prescribed by the Ombudsman Act 1976, there is no reasonable grounds for the discloser to believe that it would be appropriate for the Ombudsman to investigate.

In such cases we have suggested that the person approach an authorised internal recipient (for example, their supervisor or an authorised officer) within the relevant agency.

In 17 of the 51 approaches that we determined did not meet the threshold requirements of an internal PID, we decided the information disclosed did not amount to disclosable conduct, in four cases we determined that the discloser was not a public official and in two cases the conduct related to a body not covered by the PID Act.

We assessed 18 disclosures to meet the threshold requirements for the matter to be an internal disclosure. Of these, 12 were allocated to the agency to which the information related and six were allocated to the Ombudsman for investigation. We also received a further PID that was allocated to the Ombudsman by another agency.

The seven matters that were allocated to the Ombudsman's office were either matters that would have raised a conflict of interest if allocated to the relevant agency, or the PID involved a number of agencies.

At the end of the reporting period four matters were under current assessment to determine if they were internal disclosures.

Number of disclosures received by IGIS

IGIS allocated one disclosure to an intelligence agency for investigation and allocated two disclosures to IGIS for investigation. One disclosure made to IGIS was not allocated on the basis that it did not meet the PID threshold.

Notifications received by the Ombudsman and IGIS

The PID Act requires that agencies inform the Ombudsman or IGIS of:

• a decision to allocate a disclosure for investigation
• a decision, after allocation, not to investigate, or not investigate further
• a request for an extension of time to complete an investigation.

Table 13 sets out the number of notifications and requests for extension received by the Ombudsman and IGIS.

Table 13 Number of notifications and requests for extensions

These figures reflect slightly more than twice the number of allocation decisions compared with last period, noting that the scheme had only been operation for five-and-a-half months last reporting year.

The notifications of decisions not to investigate has quadrupled, possibly reflecting a better understanding of agencies of the options available under s 48 of the Act and more confidence to make more decisions at an earlier stage.

The requests for extension have increased considerably as well, even taking into account the longer period of operation of the Act. However, we think this probably reflects the higher number of PIDs being received by agencies with the maturing of the scheme.

The Act does not prescribe a time in which agencies must inform the Ombudsman or IGIS of their notification decisions. However, we have asked that agencies provide this information within 10 working days of the decision being made.

We have asked agencies requesting an extension to lodge their applications for extension 21 days before the expiration of the 90-day investigation period.

We also note that the Act does not require agencies to notify the Ombudsman when an investigation is completed, thus leaving a gap in the Ombudsman's ability to oversight the entire course of a matter where a disclosure investigation is completed with a report under s 51.

Prescribed investigative agency

As we noted in last year's report the Act envisaged that other investigative agencies could be prescribed by the PID Rules. No PID Rules exist and this has resulted in some specialist agencies (for example, the Australian Commission for Law Enforcement Integrity, the Australian Human Rights Commission, the Australian Public Service Commission and the Parliamentary Service Commissioner) not being given the power to investigate matters under the Act within their specialist jurisdictions.

Administration of the Ombudsman's functions

We have a dedicated telephone line and email address for agencies and public officials to facilitate enquiries concerning the PID scheme.

This year we received more than 300 PID-related approaches to those channels (not including mandatory notifications), of which approximately 50% were made from agency representatives, 23% from disclosers or potential disclosers and 17% from disclosers making a complaint about the handling of their PID.

The other approximately 10% was made up of individual officials, members of the public, non-government bodies and anonymous persons. Responding to enquiries from agencies and disclosers has enabled us to provide assistance as well as gain an insight into the issues faced by agencies and disclosers.

We have published a number of resources to help agencies and public officials understand the scheme. In the past year we received more than 13,880 unique page views²³ to our PID website. In April 2015 we launched a revised version of our PID webpages, with expanded and clearer material and links.

The number of people visiting the website, along with feedback from agencies, indicates that the resources and the activities we have conducted have been well received.

As part of our internal audit processes we commissioned a review by external consultants of our statutory monitoring and oversight role under the Act. A survey was conducted as part of this review and sent to 25 agencies, including key agencies identified by size and PID numbers.

Eighteen agencies responded, providing representation from a range of entity sizes. These responses indicated a high level of satisfaction with the services being provided by us.

The review recommended a number of internal actions and procedures designed to enhance our delivery of the function, and expressed an overall assessment that the office was carrying out its functions well. The enhanced survey sent to agencies for reporting purposes reflects recommendations from the review of the Act.

One of the gaps identified in our materials was a simplified guide to the PID scheme. In July we published our new reference guide, which can be found on the website.

Stakeholder engagement

This year we have continued to take advantage of the momentum generated from the introduction of the PID scheme, and have engaged with agencies and officials to deliver our legislated oversight and educative role for the scheme.

As part of continuing education we delivered more than 40 PID presentations to public officials in a range of agencies located in Canberra, Sydney, Melbourne, Brisbane, Perth, Darwin and Alice Springs.

On four occasions in the reporting period we presented a segment on the PID scheme for Department of Human Services (DHS) staff completing the Diploma in Government (Fraud Control) program. We are now doing this on an ongoing basis, as well as contributing to similar programs at teaching institutions.

We took a leadership role in organising 10 community of practice roundtables which took place in Canberra, Sydney, Melbourne, Brisbane and Perth. These were attended by officials and PID practitioners including lawyers and members of organisations who deal with the public sector.

Communities of practice provide an important avenue for practitioners to share their experiences of the practical application of, and technical issues with, the PID Act, as well as, at a higher level, considering how the objects of the Act have been achieved since its commencement.

These sessions helped inform us of emerging issues for PID practitioners in relation to the operation of the Act, as well as interpretation and implementation. In addition, the sessions provided an opportunity for us to reinforce key issues for implementation of the PID scheme.

Feedback from these forums indicated a high level of satisfaction with the information and assistance being given by our office in relation to the application of the Act.

The PID Oversight Forum in April 2015 hosted by the Commonwealth Ombudsman brought together all the major state and territory bodies with oversight responsibilities for public interest disclosure schemes throughout Australia.

Representatives attended from NSW, Queensland, Victoria, Western Australia, the Northern Territory and the ACT, as well as from IGIS. The forum provided an opportunity to discuss and compare key legislative issues and emerging trends for bodies with PID oversight responsibilities.

We committed to considering and comparing the effect of key legislative provisions in all the relevant Commonwealth, state and territory legislation, as well as working towards standardising important data collected about the operation and effectiveness of public interest disclosure schemes in all the jurisdictions.

The following day we invited PID practitioners in Commonwealth agencies to come and learn from the experience of Australia's PID oversight bodies across different jurisdictions at a Canberra PID community of practice event.

This year saw the establishment within the Govdex framework of the Whistling Wiki', a collaborative online community for PID practitioners and oversight bodies. The wiki is jointly administered by the Commonwealth, NSW and Queensland Ombudsmen and creates a platform for authorities and PID practitioners to discuss challenges and best practice in the various PID schemes, and to share research and information and relevant media information. Over 550 individuals and entities have been invited to subscribe to the site.

One of the most important aspects of our education and assistance role is to meet directly with agencies to discuss emerging challenges and approaches to the PID Act. This year we held over 30 meetings with more than 15 agencies, lawyers and other PID practitioners. In some instances we assisted agencies by reviewing their internal PID procedures, and PID information for staff and contractors.

Our experience of this role coupled with the more than 180 enquiries that we received from agencies and individuals seeking guidance in relation to the Act has helped us update and refine our own guidance material, which we had developed in anticipation of the implementation of the PID scheme. A current list of our materials is available at Appendix 4.

Apart from our contribution to forums directly related to the PID scheme, we also participated in the broader discussion of ethics, integrity and public administration in the public sector. In this regard we presented to the Australian Public Service Commission Ethics Contact Officer Network, the Institute of Internal Auditors (Australia), the Institute of Public Administration Australia, the Attorney-General's Fraud Liaison Forum and the Australian Strategic Policy Institute.

Consultations

We have been able to play a role in helping agencies shape their advice and PID processes. We were formally consulted by the Australian Public Service Commission in developing their most recent guidance on official conduct.

We have consulted extensively with the Department of Prime Minister and Cabinet in relation to refining the operation of the PID Act and addressing the operational, interpretative and unintended consequences that we have identified above.

Section 82A of the Act requires the Minister to cause a review of its operation to be undertaken two years after its commencement. This will be due in January 2016 and must be completed within six months.

With our experience to date in oversighting and reporting on the operation of the Act and from providing assistance to agencies, we will be well placed to contribute to any review.

The matters we have discussed in this report including those issues raised by agencies will inform any submission that the Ombudsman may make.

Table 14 Number of disclosures received and kinds of disclosable conduct

Table 15 PID investigations completed and actions taken in response to recommendations

Table 16 Agencies that have not reported receiving PIDs

1. AAF Company
2. Australian Curriculum, Assessment and Reporting Authority
3. Aboriginal Hostels Limited
4. Albury Wodonga Development Corporation
5. Anindilyakwa Land Council
6. Army and Air Force Canteen Service
7. Asbestos Safety and Eradication Agency
8. ASC Pty Ltd
9. Australia Council for the Arts
10. Australian Aged Care Quality Agency
11. Australian Bureau of Statistics
12. Australian Business Arts Foundation Limited
13. Australian Centre for International Agricultural Research
14. Australian Commission for Law Enforcement Integrity
15. Australian Commission on Safety and Quality In Health Care
16. Australian Electoral Commission
17. Australian Film, Television and Radio School
18. Australian Grape and Wine Authority
19. Australian Hearing Services
20. Australian Human Rights Commission
21. Australian Institute of Aboriginal and Torres Strait Islander Studies
22. Australian Institute of Criminology
23. Australian Institute of Family Studies
24. Australian Institute of Health and Welfare
25. Australian Institute of Marine Science
26. Australian Law Reform Commission
27. Australian Maritime Safety Authority
28. Australian Military Forces Relief Trust Fund
29. Australian National Audit Office
30. Australian National Maritime Museum
31. Australian Organ and Tissue Donation and Transplantation Authority
32. Australian Pesticides and Veterinary Medicines Authority
33. Australian Public Service Commission
34. Australian Radiation Protection and Nuclear Safety Agency
35. Australian Reinsurance Pool Corporation
36. Australian Renewable Energy Agency
37. Australian Research Council
38. Australian River Co Limited
39. Australian Skills Quality Authority
40. Australian Sports Anti-Doping Authority
41. Australian Sports Foundation Limited
42. Australian Strategic Policy Institute
43. Australian Transport Safety Bureau
44. Bundanon Trust
45. Cancer Australia
46. Central Land Council
47. Clean Energy Finance Corporation
48. Clean Energy Regulator
49. Climate Change Authority
50. Coal Mining Industry (Long Service Leave Funding) Corporation
51. Commonwealth Grants Commission
52. Commonwealth Superannuation Corporation
53. ComSuper
54. Corporations and Markets Advisory Committee
55. Cotton Research and Development Corporation
56. CrimTrac Agency
57. Department of Communications
58. Department of Education and Training
59. Department of Health
60. Department of Infrastructure and Regional Development
61. Department of the House of Representatives
62. Department of the Senate
63. Director of National Parks
64. Export Finance and Insurance Corporation
65. Fair Work Commission
66. Family Court and Federal Circuit Court
67. Federal Court of Australia
68. Fisheries Research and Development Corporation
69. Food Standards Australia New Zealand
70. Future Fund Management Agency
71. General Practice Education and Training
72. Grains Research and Development Corporation
73. Great Barrier Reef Marine Park Authority
74. Health Workforce Australia
75. High Court of Australia
76. IIF Investments Pty Ltd
77. Independent Hospital Pricing Authority
78. Indigenous Business Australia
79. Infrastructure Australia
80. Inspector-General of Taxation
81. IP Australia
82. Medibank Private Limited
83. Migration Review Tribunal - Refugee Review Tribunal
84. Moorebank Intermodal Company Limited
85. National Archives of Australia
86. National Australia Day Council
87. National Blood Authority
88. National Capital Authority
89. National Competition Council
90. National Disability Insurance Agency
91. National Film and Sound Archive of Australia
92. National Health Funding Body
93. National Health Performance Authority
94. National Mental Health Commission
95. National Portrait Gallery of Australia
96. National Transport Commission
97. National Water Commission
98. Northern Land Council
99. Office of Parliamentary Counsel
100. Office of the Auditing and Assurance Standards Board
101. Office of the Australian Accounting Standards Board
102. Office of the Australian Information Commissioner
103. Office of the Commonwealth Director of Public Prosecutions
104. Old Parliament House
105. Outback Stores Pty Ltd
106. Parliamentary Budget Office
107. Private Health Insurance Administration Council
108. Private Health Insurance Ombudsman
109. Productivity Commission
110. Professional Services Review
111. RAAF Veterans' Residences Trust
112. RAAF Welfare Recreational Company
113. RAAF Welfare Trust Fund
114. RAN Central Canteens Board (Trading as Navy Canteens)
115. RAN Relief Trust Fund
116. Rural Industries Research and Development Corporation
117. Safe Work Australia
118. Screen Australia
119. Special Broadcasting Services Corporation
120. Sydney Harbour Federation Trust
121. Telecommunications Universal Service Management Agency
122. The Royal Australian Mint
123. Tiwi Land Council
124. Torres Strait Regional Authority
125. Tourism Australia
126. Workplace Gender Equality Agency
127. Wreck Bay Aboriginal Community Council

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International Program

Since 2001-2002 the office has received funding from the Department of Foreign Affairs and Trade (DFAT) to design and manage aid development programs that encourage good governance and accountability in the Asia-Pacific region. We have built a dedicated series of programs to improve government administration by encouraging best practice in complaint handling.

In 2014-15 we managed the following five programs: Indonesia, Papua New Guinea, the Solomon Islands, the Pacific Ombudsman Alliance Governance and Anti-Corruption in the Pacific.

Indonesia

The Indonesian program is funded under DFAT's Government Partnerships Fund. Our program supports the Ombudsman of the Republic of Indonesia (ORI) to provide the Indonesian people with greater access to a more effective and sustainable complaint-handling service. The main challenge is reaching a larger proportion of Indonesia's geographically and culturally diverse population of 252 million people.

Since 2006 our program has assisted ORI to expand and decentralise. This regional expansion promotes good governance at the emerging local level.

In 2014-15 the office continued to strengthen ORI's capacity through training and mentoring in investigations, leadership and corporate functions.

Twinning program with Papua New Guinea

Our twinning program with the Ombudsman Commission of Papua New Guinea (OCPNG) has been in place since 2006. Our activities are designed to engage with the leadership and at the operational level of the organisation, and has built a mutually supportive and trusting relationship between the Commonwealth and PNG Ombudsman's offices.

In collaboration with our office, the OCPNG decides which activities the twinning program will support, in accordance with its organisational priorities. Activities under this program in 2014-15 included the development and promotion of a strategic plan for the OCPNG, implementation of an anti-harassment and bullying framework, creation of a practical mechanism to improve communication across the different levels of the OCPNG, and providing formal accredited investigations training to OCPNG staff.

Through short-term placements to Australia in 2014-15, OCPNG staff have continued to gain confidence, knowledge and the skills to drive change from within the organisation.

ICT support to the Solomon Islands

While the Office of the Ombudsman Solomon Islands (OOSI) and Leadership Code Commission are part of the Pacific Ombudsman Alliance, since 2010 our office has run an additional program of activities under an institutional partnership underpinned by a memorandum of understanding (MoU) between the Commonwealth Ombudsman and OOSI.

In 2014-15 the focus of our support activities was developing and implementing an MoU between OOSI and the Solomon Islands government ICT services provider. We assisted in a review of security options over electronic records and an overall review of the security and management of the ICT environment including development of an ICT plan for OOSI.

These activities support the longer term goal of improved governance and public sector service delivery in the Solomon Islands.

The Pacific Ombudsman Alliance

Since 2008 the office has provided secretariat support to the Pacific Ombudsman Alliance (POA), a strong regional network of ombudsmen and allied integrity offices. POA is governed by a board of seven members, of which the Commonwealth Ombudsman, Colin Neave, is the current Chair.

Some of the activities that POA supported in 2014-15 were attendance at the National Investigations Symposium in Sydney, mentoring through a complaint management activity for staff from the Vanuatu Ombudsman office, detention inspections in Samoa as part of its National Human Rights function, placement of a New Zealand Ombudsman officer with the Ombudsman of the Cook Islands, and supply of ICT equipment to the newly established Ombudsman of Tuvalu.

Governance and anti-corruption program in the Pacific region

A new governance and anti-corruption program, focusing on the role of ombudsmen and complaint-handling systems in the Pacific, began in 2014-15. Its aim is to build on the work of POA by using the existing ombudsmen offices to strengthen integrity systems in the Pacific region.

The office is working with individual ombudsmen to identify anti-corruption mechanisms and is developing protocols for a practical and sustainable integrity framework for each country.

The program began with a workshop to bring together ombudsmen and other integrity institutions in the Pacific. The aim of the workshop was to enhance participants' understanding and awareness of corruption, and provide a platform to build a network to share knowledge and explore methods of addressing corruption.

From this we will develop a program to support ombudsmen staff to develop skills in the areas of financial and administrative investigations and writing briefs and reports.

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Footnotes

1 Department of Human Services' Annual Report 2013-14, page 2

2 J Rob Bray, Matthew Gray, Kelly Hand and Ilan Katz, Evaluating New Income Management in the Northern Territory: Final Evaluation Report, September 2014, p241

3 See for example submissions number 1 and 2 by the Australian Council of Social Service (ACOSS) and UnitingCare Australia, respectively: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Social_Services_No_2/Submissions

4 According to PRISMS data as at 1 October 2014.

5 According to PRISMS data as at 1 March 2015.

6 In 2014 the number of international students in Australia increased by more than 10 per cent on 2013 levels. www.pc.gov.au/research/completed/international-education

7 Available at www.migrationblog.immi.gov.au

8 www.studyinaustralia.gov.au

9 Information was obtained from the survey responses of 178 agencies, including a consolidated response from the intelligence agencies.

10 These figure include the Ombudsman, IGIS and the consolidated response from the six intelligence agencies.

11 Table 15

12 Two agencies were unable to report on the number of disclosers as the information had been de-identified to the state that this was not possible. A further three agencies reported that they did not record information on the types of individual disclosers.

13 These figures do not take into account duplication that may be caused by disclosers having made PIDs to more than one agency

14 Note that in two instances agencies over-reported on the number of instances where a discloser was deemed to have been a public official.

15 Note that there may be more than one reason why an individual disclosure was not assessed as a PID.

16 Noting that there may be more than one reason for not investigating a PID, or an instance of disclosable conduct contained in a PID.

17 Note that other' refers to the categories of disclosable conduct that encompass the grounds relating to perverting the course of justice, abuse of public trust, misconduct in relation to scientific research, abuse of public office and wastage of Commonwealth resources.

18 Section 29(2)(b) Public Interest Disclosure Act 2013

19 Section 48(1)(c)

20 Aggregating all enquiries, complaints and disclosures/potential disclosures (but not including mandatory notifications)

21 Section 53 PID Act

22 Section 61 PID Act

23 Unique page views are the number of visits during which the specified page was viewed at least once. Where a person views the same webpage from the same computer more than once, this will only be counted as one unique page view.

27 A public interest disclosure is information that has been assessed as meeting all the requirements under s 26(1) of the PID Act. These statements do not include reference to disclosures that were received under the PID Act but not assessed as meeting the s 26 requirements.

28 This column details each kind of disclosable conduct within the PIDs referred to in Column 1, as reported by agencies, noting that an individual PID may contain allegations of instances of more than one kind of disclosable conduct. It should also be noted that this table lists the disclosable conduct alleged by the discloser, but does not represent the findings made at the conclusion of any investigation of the PID.

29 This column details the number of disclosure investigations that agencies completed during the 2014-15 financial year. This includes investigations that commenced in the previous financial year but were not completed until the 2014-15 financial year.

30 Noting that a disclosure investigation may or may not result in recommendations being made, and the actions taken may or may not occur in the same financial year that the disclosure investigation was completed.