Part 1: Review by the Ombudsman

We are pleased to present the annual report for the Office of the Commonwealth Ombudsman for 2020–21.

The year featured challenges and achievements for the Office.

Undoubtedly, the largest challenge for our organisation, and so many others, was to continue delivering our diverse array of functions in the context of COVID-19. Through remote working and frequent adjustments to the emergence of COVID-19 cases in different locations, we managed to keep our workforce safe and abide by the various health directions while still delivering our core functions.

We needed to regularly adjust the way we do some of our work, and we are continuing to grapple with these challenges as 2021–22 begins. For example, for parts of the year and in various locations, we were unable to conduct physical inspections of law enforcement agencies’ records or immigration detention facilities and devised innovative ways to replicate this work remotely, at least partially. Our international work program with Indonesia and parts of the Pacific moved to a completely virtual platform in the absence of international travel.

As always, our work focused on assisting people who come to us for help, holding agencies to account through fair but effective oversight and accounting for our activities and engaging with the Parliament.

This year we received 36,731 contacts, representing a 28 per cent decrease on the previous year. Consistent with previous years, public service complaint volumes were highest in relation to the large Commonwealth service delivery agencies, such as Services Australia, the Department of Home Affairs and the National Disability Insurance Agency. Overall, we observed that complaint numbers fell during the early stage of COVID-19 and have not returned to pre-COVID-19 levels.

Similarly, complaints in our industry jurisdictions, such as our Overseas Students and Private Health Insurance Ombudsman functions, were lower than before COVID-19. Complaints about Australia Post were higher than in previous years, reflecting the heavy reliance on postal services during lockdowns and the logistical challenges it confronted. Nevertheless, during the second half of the year, complaints about the post office began to fall. The largest number of complaints to our industry functions concerns the historic Vocational Education and Training (VET) Fee Help Scheme. We continue to work to resolve thousands of cases of inappropriate debts raised by VET providers under the scheme.

In addition to our high-volume complaint services, we continue to deliver assistance to people who suffered abuse in the Australian Defence Force (ADF). The reparation scheme, which provides financial acknowledgement of serious abuse, was extended beyond its original end date of 30 June 2021, and we will continue to support reportees and work with the Defence portfolio to progress claims for reparation or other support.

Our ongoing work in relation to law enforcement oversight is expanding. We conduct regular inspections of law enforcement agencies’ use of covert and intrusive powers, and this year we also conducted an own motion investigation into particular compliance issues concerning access to a form of telecommunications data by the ACT Policing arm of the Australian Federal Police (AFP). Our report on this issue was published on 12 March 2021.

That report was one of several diverse publications about systemic issues in public administration. Other reports focused on matters, including:

• the remediation of debts by Services Australia, following legal action about the use of ‘averaging’ to determine income support debts
• the administration of requests for assistive technology by participants in the National Disability Insurance Scheme
• the adequacy or otherwise of the AFP’s decision to cease investigating allegations relating to the Hon Angus Taylor MP, Minister for Energy and Emissions Reduction
• the effectiveness of the ADF’s behavioural training
• the administrative policies and procedures that guide the AFP’s engagement with the ACT Aboriginal and Torres Strait Islander community
• reporting on the conditions and management of immigration detention facilities.

We are pleased that in most cases, and in relation to the above reports and other matters, the agencies we oversee accepted most or all of our recommendations to improve administration.

In addition, during the year, we published – for the first time – a report about whether agencies that accepted our recommendations in a series of earlier reports had, in fact, implemented those recommendations 2 years down the track. In most cases, we were satisfied they had done so, which was positive reinforcement of the enduring importance of effective oversight.

We also conducted a second survey of agency satisfaction with our role, which – like the first such survey 2 years before – demonstrated that the larger agencies we oversee respect our independence and the constructive contribution we make to continuous improvement.

We engaged with a range of Parliamentary Committees and inquiries during the year, particularly in relation to law enforcement reforms and an inquiry by the Senate Defence, Foreign Affairs and Trade Committee on the historic administration of the Defence Force Retirement and Death Benefits Scheme (DFRDB). The Joint Committees with responsibility for the AFP, Australian Commission for Law Enforcement Integrity (ACLEI) and other law enforcement bodies took an ongoing interest in our oversight work, and we made submissions and appearances around the technical design of oversight arrangements in areas of legislative reform. Additional funds of around $8m over 4 years were allocated to the Office to assist us in delivering ongoing expanded functions in relation to law enforcement oversight. With respect to the DFRDB, our submissions largely related to the background, findings and reasoning of our report on the information provided to scheme members, which we published in 2019.

We continue to play an active role as a part of a wider group of independent oversight bodies. During the year we:

• hosted a virtual meeting of State, Territory and New Zealand Ombudsmen institutions
• hosted a virtual meeting of State, Territory and New Zealand Information Commissioners
• hosted a meeting of inspectors of corruption bodies from around Australia, and
• participated in international dialogue through the quadrennial conference of the International Ombudsman Institute, which occurred virtually because of COVID-19.

The year ahead will see further work on the enduring matters canvassed above, as well as new work to expand our law enforcement oversight role, and work to progress Australia’s implementation of the Optional Protocol to the Convention Against Torture and other cruel, inhuman or degrading treatment or punishment (OPCAT). Following Australia’s ratification of OPCAT in 2017, Australia is required to establish its network of National Preventive Mechanisms (NPMs) to provide independent oversight of places of detention by January 2022. As Commonwealth NPM and the NPM Coordinator, we look forward to working with all relevant parties to progress OPCAT implementation in Australia.

In relation to law enforcement, we also look forward to playing a constructive role in relation to reforms of electronic surveillance arrangements, following the Richardson Review of the National Intelligence Community.

For completeness, it is worth noting that we also undertake a range of functions within the ACT, as the ACT Ombudsman, by longstanding arrangement between the Office and the ACT Government. These activities are subject to a separate annual report, to be tabled in the ACT Legislative Assembly.

None of the Office’s achievements would be possible without the dedication and hard work of our executive team and all our staff, whom we thank sincerely for their efforts, particularly in the setting of COVID-19.

During the preparation of this report, Michael Manthorpe PSM retired as the Ombudsman, and the process for the selection of a replacement commenced. Penny McKay will continue to act in the position until a new Ombudsman is appointed.

Michael Manthorpe PSM
Commonwealth Ombudsman

Penny McKay
Acting Commonwealth Ombudsman