HIGHLIGHTS

  • Department of Human Services
  • Department of Social Services
  • Department of the Prime Minister and Cabinet
  • Department of Health
  • National Disability Insurance Agency
  • Department of Jobs and Small Business
  • Indigenous
  • Immigration Ombudsman
  • Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
  • Law Enforcement Ombudsman
  • Inspections of covert, intrusive or coercive powers
  • Defence Force Ombudsman
  • Public Interest Disclosure Scheme
  • International Program
  • Postal Industry Ombudsman
  • Overseas Students Ombudsman
  • Vocational Education Training Student Loans Ombudsman
  • Private Health Insurance Ombudsman

Department of Human Services

The Department of Human Services (DHS) has responsibility for delivering a range of social welfare, health, child support and other payments and services to millions of people across Australia. This includes Centrelink payments and services for retirees, the unemployed, families, carers and students, as well as aged care payments to services that are funded under the Aged Care Act 1997 and child support services.

Our role is to investigate complaints about the administration and delivery of these payments, programs and services. The main DHS programs that the Office receives complaints about includes Centrelink and child support payments and services.

In addition to resolving individual complaints, the Office monitors Centrelink programs to identify systemic issues which raise concerns about administration.

Complaints

In 2017–18, our Office received 12,595 complaints about DHS programs. This represents an 8.9 per cent decrease compared to the 13,832 received in 2016–17. This was largely due to a decline in the number of Centrelink complaints following improvement by DHS in alignment with our recommendations about Centrelink's automated debt system.3

Table 2 – DHS Complaints
DHS Programs2018–19
Department of Human Services4 457
Centrelink 10,823
Child Support 1,315
 12,595

Centrelink program complaints

Complaints about Centrelink continue to make up a substantial proportion of the overall complaints made to the Office, representing 28 per cent of the total number of in-jurisdiction complaints. Approximately 32 per cent of issues raised in Centrelink complaints are about disability support pension (DSP) and newstart allowance (NSA). Figure 3 illustrates the main Centrelink issues.

Figure 3 – Complaint issues

Figure 3 – Graph showing the main Centrelink complaint issues

Submissions

The Office made submissions to Parliamentary Inquiries into amending legislation and other matters relevant to payments and programs administered by DHS, including with regard to the:

  • Social Services Legislation Amendment (Welfare Reform) Bill 2017
  • the Senate Finance and Public Administration References Committee Inquiry into the Digital Delivery of Government Services.

Monitoring of systemic issues

The Office continued to monitor a number of systemic issues during 2017–18. As in our 2016–17 Annual Report, the most significant of these continued to be DSP claims processes, Centrelink internal review processes and the data-matching employment income compliance reviews.

In 2017–18, improvements were made in all three areas:

  • DHS instituted a new streamlined process for DSP claims, incorporating our feedback and lessons from our report Accessibility to the DSP for Remote Indigenous Australians.
  • DHS conducted a review of its internal review process. DHS proposed a new internal review model which addresses concerns raised in earlier reports by our Office and incorporates additional feedback provided by the Office during the review process. We will monitor the new claims and internal review processes throughout 2018–19.
  • Debt-data matching complaints have fallen from a peak of 651 in the first quarter of 2017 (January–March), which was prior to the publication of our report into Centrelink's automated debt raising in April 2017, to 208 in the most recent quarter (April–June 2018).

In January 2017, debt-data matching complaints represented 17.5 per cent of Centrelink complaints to the Office. This reduced to 3.5 per cent of Centrelink complaints to the Office in early 2018. In April to June 2018 we received an increase in debt-data matching complaints that corresponded to an increase in DHS debt data matching activity.

Own motion investigations and issues monitoring

In 2017–18, the Office monitored the ongoing administration of the automated debt program and the ongoing implementation of recommendations made in our April 2017 report.

In 2018–19, we will continue to closely monitor the program and offer assistance to further improve administration. In addition to operational level meetings, briefings and system demonstrations that occur on regular and ad hoc bases, senior staff from our Office and DHS continue to meet regularly to monitor and progress administrative improvements.

Child Support program

Our Office has jurisdiction to investigate complaints about DHS' administration of Child Support program functions. This includes child support assessments, registering child support agreements, and collecting and disbursing child support between separated parents and the carers of eligible children.

The number of complaints received about Child Support remained relatively stable in 2017–18, with a 3.5 per cent decrease in complaints. The majority of complaints received in 2017–18 were from paying parents. The main complaint themes were regarding the collection and enforcement of child support liabilities, formula assessments, change of assessments and customer service.

In addition to investigating individual complaints, the Office liaised with DHS on Child Support matters, including the rollout of the new child support Information Technology system and changes to lodging online complaints. We also sought and received briefings on, and monitored the passage of, legislative changes affecting child support assessments. We will continue to closely monitor complaints for issues that may arise when DHS implements these changes.

CASE STUDY

Greg made a complaint to our Office, advising that DHS used a higher income than he actually earned to assess his child support liability. He told us he could not afford the payments DHS was deducting from his wages to repay the child support arrears he owed. Greg advised DHS he was in financial hardship and was concerned he could become homeless.

After we investigated Greg's complaint, DHS advised our Office that in June 2017 Greg's child support liability had increased when the receiving parent applied for a change of assessment in special circumstances. DHS is obliged to give Greg an opportunity to respond to the information provided by the other party, however DHS told us that Greg's response was not considered when deciding to increase the liability. Greg's objection in September 2017 was also not considered as it had not been lodged within the required timeframe and an extension of time had not been sought.

Following our investigation, DHS provided Greg an extension of time to object to the change of assessment decision. DHS reviewed the change of assessment decision and reduced Greg's annual child support liability by approximately $4,000.

To address Greg's financial hardship concerns, DHS significantly reduced his weekly arrears repayment and apologised to Greg for the way his case was handled. DHS also provided feedback to staff on the importance of considering all information when making decisions.

Department of Social Services

Engagement and monitoring of systemic issues

Throughout the year we engaged with the Department of Social Services (DSS) on a number of systemic issues, including the administration of the National Rental Affordability Scheme, accessibility of DSP, effectiveness of legislated garnishee safeguards and use of Indigenous language interpreters.

We also provided input on the establishment of the National Disability Insurance Scheme (NDIS) Quality and Safeguards Commission, and the National Redress Scheme for Institutional Child Sexual Abuse.

Legislated garnishee safeguards

DSS has policy responsibility for the Social Security (Administration) Act 1999, which has safeguards to ensure that certain deposits held by financial institutions are quarantined in the administration of garnishee and garnishee-like orders. However, these safeguards were drafted before technological advances in the banking sector and are less effective in the context of modern banking practices.

In 2017–18, the Office led liaison with DSS to identify solutions to problems with the effectiveness of legislated garnishee safeguards identified in our joint work with the New South Wales (NSW) Ombudsman. DSS acknowledged the issues raised by our Office and is now considering options to address these concerns. We will continue to liaise with DSS on these issues in 2018–19.

The Office will also continue to engage and collaborate across jurisdictions to improve the administration of garnishee orders for vulnerable people and build on previous work done with the NSW Ombudsman. This project will develop and consider options for administrative reform that aim to reduce the risk of financial hardship for social security payment recipients subject to garnishee arrangements.

Department of the Prime Minister and Cabinet

Indigenous language interpreters

In 2016–17 we investigated what steps had been taken to implement recommendations in our December 2016 report on the accessibility and use of Indigenous language interpreters. While there is still work to be done to improve accessibility, there has been progress since the publication of our report, especially among agencies participating in the reconvened Interdepartmental Committee for Indigenous Interpreters.

In December 2017, PMC published a new Protocol on Indigenous Language Interpreting for Commonwealth Government Agencies incorporating all 17 best practice principles proposed in our report.

Community Development Programme

Our Office continued to monitor administration of penalties applied to remote job seekers in the Community Development Programme (CDP).

The programme has also been reviewed by the Australian National Audit Office5 and a Senate Committee Inquiry.6

Our investigations concentrated on administrative issues not already canvassed by other oversight bodies, with a particular focus on the point where administration by the CDP providers and the DHS intersect.

In the complaints we investigated, a number of issues arose including problems with:

  • processes for identifying and recording relevant information (including information about vulnerability, interventions to address job seeker barriers, details about job seekers contact attempts and reasons/excuses provided)
  • the flow of information between providers and DHS
  • barriers to accessing employment services assessment processes
  • wait times on the DHS Participation Solutions Team (PST) telephone line
  • accessibility and use of interpreters.

We also found some examples where administrative processes were failing to identify and adequately address vulnerability and work capacity issues.

The investigation also informed our response to PMC's consultation paper Remote Employment and Participation.

CASE STUDY

John's vulnerability indicator for cognitive impairment had expired in 2013. Despite the information on his file, he was not assessed by DHS as having a partial capacity for work and, instead, was required to participate in full-time Work for the Dole activities in order to receive income support. He was referred for an employment services assessment on numerous occasions, but these were unable to take place as he did not provide the required medical evidence to support the employment services assessment process.

As a result of not meeting these activities, John's lawyer advised us he had incurred numerous penalties and struggled to have his payments restored. John spent nearly five months without income support. He was not offered an interpreter and had difficulty accessing the DHS PST telephone line.

During our investigation we found John's Centrelink record showed significant barriers to work, including language barriers, cognitive impairment, dementia-like symptoms, social withdrawal, disorganised thought patterns, reduced concentration and memory, very low literacy and numeracy and reliance on his partner to speak for him and tell him what to do.

Following our investigation, John was granted the disability support pension, and our Office provided comments and suggestions to both PMC and DHS.

Both agencies responded positively to our comments resulting in numerous administrative changes. Highlights include:

  • PMC is revising its guidelines to improve identification and recording of relevant information. It has increased the weighting of performance targets for supporting job seekers to overcome barriers and proposes to reduce relevant medical evidence thresholds.
  • DHS will stop its practice of 'auto ending' vulnerability indicators such as cognitive impairment indicators where review timeframes expire. It is employing new strategies to address PST wait times and is reviewing its guidelines and training for staff.

Department of Health

The Department of Health (Health) has responsibility for programs and policies delivering health, aged care and sports outcomes.

Complaints

In 2017–18, our Office received 164 complaints about Health. This represents a 198 per cent increase compared to the 55 received in 2016–17. The majority of these complaints were about the My Aged Care program (in particular the Home Care Packages Program) which represented 44 per cent of the total complaints received about Health. We also received complaints about the Aged Care Assessment process and Aged and Community Care which represented 15 per cent of the total complaints received about Health.

The increase in complaints about My Aged Care was attributable to government reforms which took place in February 2017. These reforms were designed to make home care packages more accessible and flexible for consumers.

As a result of the reforms, Health now has the responsibility for assigning a client a home care package in line with the Aged Care Act 1997. The responsibility for paying the government subsidy to the aged care provider, in line with the Aged Care Act 1997, still remains with DHS.

The majority of complaints we received related to two issues:

  • home care packages being withdrawn in error
  • delays in assigning a home care package.

There were also complaints to our Office about the way My Aged Care complaints were handled by Health.

In response to the increase in complaints, the Office has been working closely with Health and providing feedback on its complaint-handling process and the information it makes available to providers and consumers.

In December 2017, Health agreed to a transfer protocol with our Office where we transfer My Aged Care complaints directly to Health to resolve directly with the complainant (see example in the case study below). We have also made a number of comments and suggestions to Health about the administration of the My Aged Care program.

CASE STUDY

Beatrice and Andrew complained to our Office about issues they were experiencing with their parents' home care packages. They advised us they had contacted Health on multiple occasions but the issues had not been fixed. In each case, My Aged Care referred the complainants to DHS to fix the issue. When the complainants approached DHS, they were advised to go back to Health.

Our Office asked Health and DHS for information about their respective responsibilities and ultimately the matters were resolved. However, we were concerned that these complaints demonstrated there was a lack of communication between both departments. In finalising these two complaints, our Office suggested to Health and DHS they consider implementing a 'no wrong door' approach where each department can transfer complaints to the other in relation to My Aged Care matters.

Both departments accepted our suggestion and have created a checklist and a process map to assist staff to ensure all actions are explored before transferring a person to the other department. They are also implementing a warm transfer process between both departments.

National Disability Insurance Agency

The National Disability Insurance Agency (NDIA) administers the National Disability Insurance Scheme (NDIS), a Commonwealth scheme that provides funding to people with a permanent and significant disability to assist them to participate in everyday activities. People who enter the NDIS are known as participants.

The NDIS is being introduced gradually across Australia. There were over 180,000 participants in the NDIS at 30 June 2018 and there will be around 460,000 by the time the national rollout is complete in July 2020. How and when people with a disability are able to access the NDIS depends on the state or territory they live in and whether they have accessed disability services previously.

Our Office handles complaints about the NDIA's administrative actions and decisions. We can also consider complaints about organisations who are contracted to deliver services on behalf of the NDIA, including local area coordinators who conduct information-gathering and pre-planning interviews, and Early Childhood Early Intervention partners.

Complaints

In 2017–18 we received 1,528 complaints about the NDIA, which is a 256 per cent increase on the 429 complaints received in 2016–17. During the same period the number of NDIS participants almost doubled.

Figure 4 – NDIA complaints received

Figure 4 – Graph showing total number of NDIA complaints received 2013-14 to 2017-18

Complaints to our Office in 2017–18 covered many aspects of participants' experiences with the NDIS as well as, to a lesser extent, providers' experiences. The most common complaint issue was the NDIA's handling of reviews of plans and decisions.

Other common complaint issues included:

  • difficulty and delays in having quotes approved for assistive technology, including home and vehicle modifications
  • dissatisfaction with the process and outcome of planning meetings
  • providers having difficulty making service bookings and receiving payment
  • inconsistencies between undertakings provided in planning meetings and the types and amounts of supports included in the final NDIS plan
  • delays in receiving plans following planning meetings
  • confusion about timeframes for receiving an NDIS plan after access to the scheme is granted.

A breakdown of the most common complaint issues7 is provided in Figure 5 below.

Figure 5 – NDIA complaint issues 2017–18

Figure 5 – Graph showing most common NDIA complaint issues 2017-2018

Handling of reviews

In our 2016–17 Annual Report we noted the NDIA's handling of reviews featured prominently in complaints to our Office and suggested the review process was likely to be a focus for us going forward. In 2017–18 just over a third of all NDIA related complaints to our Office were about the NDIA's review process.

In May 2018 the Ombudsman issued a public report8 highlighting a number of issues with the NDIA's approach to handling reviews. More information about the report is included under Reports later in this section.

Accessing assistive technology

Many complaints about the NDIA in 2017–18 highlighted difficulties participants experienced including funding for assistive technology9 in their NDIS plan. The most common complaints about accessing assistive technology included:

  • delays in making decisions
  • lack of clear guidance about how to make a request and what information or evidence is required
  • inconsistencies in advice about who can prepare assistive technology quotes and what they need to include
  • confusion about how and where assistive technology funds can be spent.

In May 2018 the NDIA implemented a new approach to managing requests for assistive technology items, which it considers will simplify and expedite its handling of straightforward requests. We will be monitoring this approach during 2018–19 to identify whether these changes resolve the issues highlighted in complaints to our Office.

CASE STUDY

Andrea, a disability advocate, complained to us about the NDIA's handling of her client Anna's request for home modifications. Andrea explained the NDIA had failed to provide clear information about who is able to provide home modification quotes and what information they must include in their quotes. She complained that, as a result, a decision on Anna's request for home modifications was unreasonably delayed.

Andrea told us Anna's occupational therapist (OT) sent the NDIA a quote for home modifications along with an occupational therapy assessment report, but the NDIA refused to consider the quote because Anna's OT had not completed NDIA training to be able to complete quotes. The NDIA provided Andrea with a list of suitable OTs so a new quote could be obtained.

Andrea then assisted Anna to obtain a quote from an NDIA-trained OT. When Andrea provided the new quote to the NDIA, she was told she needed at least two quotes. However, a month after submitting the second quote, NDIA staff told Andrea they could not accept either quote as they were not itemised.

In response to feedback provided as a result of our investigation, the NDIA undertook improvements to its training material and internal guidance documents for staff. The NDIA also improved its external communications material–for providers and participants–to make the requirements for home modification requests clearer.

Planning process and outcomes

Dissatisfaction with the NDIA's planning process continued to be a theme for complaints this year. Many participants and family members told us they were confused about how and when planning meetings should take place and, in some instances, they felt this prevented them from providing sufficient detail or evidence about the types and amount of support requested.

In other cases, complainants said the goals and supports discussed at the planning meeting were left out of the final plan and it was not always clear whether this was an oversight or the planner had decided these supports should not be funded.

In late 2017 the NDIA commenced a trial of a new approach to planning which sees the participant, local area coordinator and planner meet to jointly develop a plan. Wherever possible, the participant will receive a copy of the plan at the meeting and have the opportunity to discuss any concerns or questions before the plan is finalised.

We consider this is a significant improvement on the current approach, where participants may receive their plan days or weeks after the planning meeting and must lodge a request for internal review if they disagree with the type or amount of supports included. We will monitor the progress of the new planning approach in 2018–19. We will also monitor the development and implementation of the NDIA's approaches tailored specifically for Aboriginal and Torres Strait Islander participants, culturally and linguistically diverse participants and participants with psychosocial disabilities.

CASE STUDY

Lawrence complained to us, on behalf of Christina, about the NDIA's approach to planning for Christina's daughter, Alice. In particular, Lawrence said he thought the NDIA had acted unreasonably by conducting a planning meeting to finalise Alice's plan even though her mother, Christina, had indicated she was obtaining additional evidence relevant to Alice's support needs.

Lawrence told us the NDIA notified Christina it had scheduled a planning meeting for Alice. Christina asked that the meeting be delayed to allow her to obtain a medical report she considered would more clearly demonstrate the support Alice needed. Despite this request the NDIA proceeded with the planning meeting, telling Christina she could request a review of the plan when she obtained the additional report.

Our investigation of Lawrence's complaint identified the NDIA had processes in place to pause or delay planning in the event of 'personal circumstances'. We concluded, based on Christina's experience, that the NDIA could improve how it communicates this option to staff.

We suggested the NDIA revise its guidance material to widen the range of circumstances in which staff can suspend or delay planning to include situations where a participant requires additional time to prepare or source supporting information.

The NDIA agreed with our suggestion and also apologised to Christina for proceeding with Alice's planning meeting before Christina had a chance to provide additional information.

Stakeholder engagement

Presentations

In 2017–18 staff members presented to:

  • Advocacy organisations funded to assist NDIS participants with internal and external review processes, at forums convened by the Department of Social Services in Sydney, Melbourne, Adelaide and Brisbane.
  • The NDIA's regional complaints officers' forum in January 2018.

These presentations gave us the opportunity to raise awareness of our role in the NDIS Quality and Safeguarding Framework and to share best practice approaches to making and handling complaints.

Western Sydney community round table

In December 2017 staff convened a community round table event in Western Sydney, where we invited local community and government stakeholders to:

  • learn more about the role of the Office
  • talk to us about issues they or their clients experience in dealing with Australian Government agencies, including the NDIA.

We received positive feedback following the event and hope to run similar events in other parts of Australia in 2018–19.

Submissions

In August 2017 we made a submission to the Joint Standing Committee on the NDIS' inquiry into the Provision of services under the NDIA Early Childhood Early Intervention (ECEI) Approach. Our submission highlighted issues raised in complaints and stakeholder feedback, including:

  • delays in developing plans after access was granted
  • a lack of suitable providers in certain areas which, in turn, causes significant delays in accessing services
  • concerns about whether the NDIA's approach to the types and amounts of funded supports is consistent with best practice for early intervention services.

The Joint Standing Committee released its inquiry report in December 2017, making 20 recommendations aimed at improving the effectiveness of the NDIA's ECEI approach. We will continue to work with the NDIA during 2018–19 to monitor its implementation of the recommendations.

Reports

The NDIA's handling of reviews

In May 2018 the Ombudsman issued a public report10 highlighting a number of issues with the NDIA's approach to handling reviews.

These included:

  • Poor communication–for example, review requests not being acknowledged, requests for updates not being responded to and participants being provided with incorrect information about their review rights.
  • Delays–in particular, participants waiting up to nine months for a decision on their review request due to significant backlogs and the absence of timeliness standards for completing reviews.
  • Gaps in staff training and guidance–for example, the absence of clear directions to staff about acknowledging reviews within standard timeframes and ensuring template letters require review officers to provide reasons for their decision.

The report made 20 recommendations for improvement, all of which were accepted by the NDIA. The NDIA's response to the report also advised it had commenced action to implement some of the recommendations. We will monitor the NDIA's progress against the recommendations during 2018–19.

Changes to the quality and safeguarding arrangements for the NDIS

Collaboration with oversight bodies

In July 2018 the NDIS Quality and Safeguards Commission (the NDIS Commission) will commence operation in New South Wales and South Australia. In these states, the NDIS Commission has oversight of NDIS providers and is responsible for:

  • registration and regulation of NDIS providers
  • compliance monitoring, investigation and enforcement action
  • responding to concerns, complaints and reportable incidents
  • oversight of behaviour support, including monitoring the use of restrictive practices, with the aim of reducing and eliminating those practices
  • leading collaboration on the design and implementation of nationally consistent NDIS worker screening
  • facilitating information-sharing arrangements with the NDIA, state and territory and other Commonwealth regulatory bodies.

Prior to the commencement of the NDIS Commission, most of these functions were administered by oversight bodies at the state level. Transferring these functions to the NDIS Commission in New South Wales and South Australia is the first step to implementing a national approach to quality and safeguarding arrangements for the NDIS. The NDIS Commission will start operating in all other states and territories (except Western Australia) from 1 July 2019, and in Western Australia from 1 July 2020.

During the transition from state and territory arrangements to the NDIS Commission, we anticipate NDIS participants and providers may need additional help to understand the options for making complaints about the NDIA and NDIS service providers. We will aim to work closely with the NDIS Commission and the remaining state and territory oversight bodies during 2018–19 to:

  • promote the right to make complaints and provide information about how to access complaint systems
  • reinforce a 'no wrong door' approach to complaints, where oversight bodies assist complainants to make contact with the body that is best placed to handle their complaint.

Complaints about the NDIS Commission

Like all Australian Government agencies, the NDIS Commission is expected to have a robust and accessible process for handling complaints about its services. If the affected person or organisation is not happy with the way the NDIS Commission handles their complaint, they can make a complaint to our Office.

If we decide to investigate a complaint, we may consider the NDIS Commission's handling of the complaint and the administrative actions or decisions about which the person complained.

Department of Jobs and Small Business

The Department of Jobs and Small Business is responsible for national policies and programs that help Australians to find and keep employment and to work in safe, fair and productive workplaces.

Complaints

In 2017–18, the Office received 292 complaints about the Department of Jobs and Small Business (DJSB) programs. This represents a 23 per cent decrease compared to the 382 received in 2016–17. The majority of the DJSB complaints related to the jobactive program, which represented 80 per cent of total complaints. Of the complaints about jobactive, 16 per cent of complaints were about the standard of service. Out of the 292 complaints received, the Office investigated 48.

Jobactive program participants are, in the first instance, encouraged to make a complaint to their provider. Where they are dissatisfied with the outcome of their complaint to the provider, or they have other reasons for not wishing to make the complaint directly to their provider, jobactive participants are able to access the DJSB National Customer Service Line either by phone or email. The DJSB has also a complaint form available on its website.

Stakeholder engagement

Through our investigations, the Office has provided feedback and guidance to the DJSB on complaint-handling practices and policies, improvements to the practices of the National Customer Service Line and suggested process reviews.

The Office has also been sharing the lessons learned from DHS' automated debt system with the DJSB to inform the development of the Targeted Compliance Framework and supporting online systems for use by job seekers and employment services providers. We note that, consistent with the strategies developed by DHS, the DJSB has taken a user-centred design approach to the new system. This system aims to make the reporting and monitoring of job seeker activities as easy as possible.

We will continue to monitor the implementation of the new compliance arrangements throughout 2018–19 and will raise any concerns and issues that arise from complaints received from people subject to the framework.

Indigenous Australians

Reconciliation Action Plan 2018

On 13 February 2018 the Office launched its 2018 Reconciliation Action Plan (RAP). The launch coincided with the 10th anniversary of the National Apology to the Stolen Generations.

Our RAP provides a public commitment to continuing reconciliation. It includes practical steps to build relationships with Aboriginal and Torres Strait Islander peoples and communities, and to increase our understanding of Aboriginal and Torres Strait Islander cultures and histories. The RAP is part of our work to make our services more accessible to Indigenous peoples.

Implementing the Indigenous Accessibility Review recommendations

In our 2016–17 Annual Report we reported that Aboriginal communications company Gilimbaa Pty Ltd had completed a review of the Office's accessibility and inclusiveness of Aboriginal and Torres Strait Islander peoples and communities. The review considered all aspects of the Office's operations and made recommendations to improve our approach to engaging with Indigenous complainants and stakeholders.

During 2017–18 we focused on implementing recommendations from the review to improve our external communication practices. At the launch of our RAP we released a new range of Indigenous communication products including posters and brochures centred on the key message 'Your Story Matters'. We anticipate running a national campaign using these products in 2018–19.

Photo of 2018 Reconciliation Action Plan launch. Left to right: Jaala Hinchcliffe, Russell Taylor, Michael Manthorpe PSM, Charles Turner and Fiona Sawyers

Launch of 2018 Reconciliation Action Plan (RAP). L to R: Jaala Hinchcliffe Deputy Ombudsman, Russell Taylor AM, Michael Manthorpe PSM Commonwealth Ombudsman, Charles Turner Indigenous Manager, Fiona Sawyers Senior Assistant Ombudsman Strategy

Photo Indigenous APY Outreach

APY Outreach

Stakeholder engagement

Engaging with Indigenous communities and organisations

We use a range of media including social media, radio interviews, outreach to rural and remote areas and roundtable discussions to increase awareness of our services, explain the complaint-handling process and highlight the value of complaints to achieve individual and systemic outcomes.

In 2017–18, we:

  • Participated in radio interviews with the Anangu Lands Paper Tracker project11 and the Central Australian Aboriginal Legal Service.12
  • Visited Aboriginal communities in the Northern Territory and the Anangu Pitjantjatjara and Yankunytjatjara (APY) Lands in remote South Australia.
  • Hosted roundtable discussions in Western Sydney.
  • Participated in outreach and complaints clinics in Bunbury and Busselton in Western Australia as part of the Western Australian Ombudsman's Regional Access and Awareness Program.

Engaging with peer organisations involved in complaint-handling

Australia New Zealand Ombudsman Association–Indigenous Engagement Interest Group

Our Office facilitates the Australian and New Zealand Ombudsman Association (ANZOA) Indigenous Engagement Interest Group, which provides opportunities to share information, resources and experiences with a view to improving complaint-handling practices and procedures for Indigenous peoples. The group meets quarterly and includes participants from parliamentary and industry ombudsmen offices from Australia and New Zealand.

Photo National Reconciliation Week 2018 with Brisbane Commonwealth Ombudsman team and Dr Jackie Huggins

Dr Jackie Huggins AM FAFH addressing staff from Brisbane Office of the Commonwealth Ombudsman during National Reconciliation Week 2018

Indigenous Right to Complain Working Group

Our Office provides leadership and support for an Indigenous Right to Complain Working Group. This group includes members from a range of government and non-government organisations at the state, territory and national level.

The working group provides a forum for sharing information, ideas, strategies, contacts and coordinating joint outreach aimed at increasing awareness of complaint rights and options for Aboriginal and Torres Strait Islander peoples and communities.

Both of these groups contribute to building a 'no wrong door' approach to Indigenous complaint-handling across agencies, oversight bodies and community stakeholders. They provide opportunities for agencies to reflect on the effectiveness of their strategies for promoting the right to complain and ensuring complaint-handling systems are accessible and inclusive for our Aboriginal and Torres Strait Islander peoples.

Special events–marking National Reconciliation Week 2018

On 29 May 2018, to acknowledge National Reconciliation Week, the Co-Chair of the National Congress of Australia's First Peoples, Dr Jackie Huggins AM FAFH, attended our Brisbane office to provide an all-staff address. Throughout her address she encouraged staff to learn more about our shared histories and consider how we can individually and collectively contribute to achieving reconciliation.

Issues monitoring

We continue to monitor a number of significant issues of interest related to the delivery of Australian Government services to or for Indigenous peoples. This year, the most significant issues were:

  • Centrelink debts
  • Community Development Program participation penalties and compliance assessments.

Immigration Ombudsman

The Office investigates complaints about the migration and border protection functions of the Department of Home Affairs (the department) and its operational arm, the Australian Border Force (ABF).

The Office, through the Ombudsman's own motion powers, also:

  • monitors the ABF's compliance activities involved in locating, detaining and removing unlawful non-citizens
  • undertakes inspections of immigration detention facilities in Australia and elements of offshore processing centres that are within our jurisdiction.

Under the Migration Act 1958 (Migration Act), the Office also has a statutory role to provide the Minister for Home Affairs an assessment of the appropriateness of a person's detention when that person has been in immigration detention for two years and for every six months thereafter.

Complaints

In 2017–18 we received 1,838 complaints about the department, compared with 2,071 complaints in 2016–17, a decrease of 11.3 per cent. Of these, we investigated 322 (17.1 per cent).

Complaints concerning Citizenship and Migration made up the largest category of the complaints received by the Office followed by complaints about immigration detention. Immigration detention complaints reflected similar themes to those in previous years: loss or damage to detainees' property, placement within the detention network and medical issues such as access to specialist care, appropriate treatment for injuries and illness and delays in the processing of claims for asylum.

In 2017–18 we closed 2,116 complaints compared to 2,382 in 2016–17. In 2017–18 we investigated 322 complaints and achieved 445 remedies for complainants.

Figure 6 – Breakdown of immigration complaints closed in 2017–18

Figure 6 – Graph breakdown of immigration complaints closed in 2017-18

CASE STUDY

In 2015, the department refused Marina's application for an offshore partner visa because it was not satisfied the couple were in a genuine and continuing relationship.

Marina's partner, Ehsan, sought review of the decision by the Administrative Appeals Tribunal (AAT), which remitted the application back to the department for reconsideration with the direction the couple were in a genuine and continuing relationship.

Approximately 10 months after the AAT's decision, the department granted Marina a temporary partner visa. However, the next day, the department notified Marina that her application for a permanent partner visa had been refused as the delegate was again not satisfied of their genuine and continuing relationship.

As Marina had not been able to travel to Australia during the 24 hours her temporary visa was in effect, the AAT could not review the decision. This is because the AAT is only able to review a decision to refuse a permanent partner visa if the applicant is in Australia when they apply for review.

Ehsan complained to our Office because he could not understand how he and Marina could be considered to be in a genuine relationship on one day and then to not be in a genuine relationship the following day.

During our investigation, the department acknowledged the decision to refuse Marina's permanent visa was not a lawful one, and the decision was set aside.

In November 2016, the department told Marina that her temporary visa would be in effect until a fresh decision was made. However, her application for the permanent visa was again refused the following day on the basis that the department remained unsatisfied that the relationship was genuine based on the evidence before the case officer.

The reasons provided included that the delegate would expect to see evidence of the couple making 'firm arrangements' for Marina's arrival in Australia and evidence the couple was taking steps to build a life together. Significant weight was placed on the fact the couple had not provided further evidence supporting their ongoing relationship post the AAT decision in 2015.

During our investigation, we considered that in refusing the application, the delegate relied on outdated and irrelevant information. The couple were not in a position to know when a decision would be made and were not able to make 'firm arrangements' for Marina's arrival in Australia. Also, the couple had not been provided with an opportunity to provide evidence in support of their ongoing relationship prior to the permanent application being refused. We were also concerned the permanent application was again refused within one day of the temporary partner visa being re-enlivened.

In late 2017, the department acknowledged this refusal decision was not lawful and would be vacated. This meant that Marina's temporary visa would be in effect until a fresh decision was made. By now, considerable time had passed since Marina's temporary visa was first granted in 2016.

That visa had an 'entry before date' which required Marina to enter Australia before a specified date, which could not be changed. When Marina's temporary visa was re-enlivened, it was only valid for one more day. However Marina traveled to Australia while her temporary visa was still valid to await the processing of her permanent partner visa application.

Complaints can contain multiple issues, therefore the number of remedies can be greater than the number of complaints investigated.

Table 3 – Remedies achieved for complainants
Remedy2017–18
Explanation 312
Action expedited 42
Decision changed or reconsidered 37
Other non-financial remedy 16
Remedy provided by agency without Ombudsman's intervention 11
Law, policy or practice changed 10
Apology 1
Financial remedy 9
Agency officer counselled or disciplined 7

Stakeholder engagement

The Office continues to engage regularly with officers from the department and the ABF. We have also received briefings on policy changes and issues of interest.

We publish an e-newsletter, Immigration Matters, to share information about our priorities and issues of interest with external stakeholders.

We also host quarterly meetings with the Australian Human Rights Commission, the United Nations High Commissioner for Refugees, the Australian Red Cross and Foundation House.

In 2017–18 we presented to the department on the role of our Office. Office representatives also presented at the ABF's training courses for Compliance and Removal Superintendents and s 251 warrant holders on our compliance monitoring and other immigration activities.

Own motion investigations

During 2017–18, our Office released three own motion investigation reports:

Investigation report on delays in the clearance of International Sea Cargo13

The investigation was prompted by complaints about delays in the processing of containerised sea cargo by the department and the ABF resulting in substantial additional costs for importers. After initial engagement with the ABF, the scope of the investigation was broadened to include biosecurity interventions at the border due to the Department of Agriculture and Water Resource's (DAWR) power to place a border hold on containers independently of the ABF.

Our investigation focused on the efficiency of the administrative systems and the procedures that support the exercise of the ABF and DAWR's powers to hold and inspect cargo.

We identified that while the ABF has well-established administrative processes to manage containerised sea cargo compliance, more could be done to manage backlogs at cargo and container examination facilities (CEFs). This, in turn, could minimise delays and reduce the costs imposed upon industry.

The report concluded that the major reason for these delays was the reduced operational capacity at CEFs during peak times. The requirement for simultaneous inspections and physical examinations at times when staff are unavailable due to surge redeployment was also identified as a significant cause of pre-inspection delays.

The report made 10 recommendations–eight related to the department and the ABF, one to DAWR and one recommendation applying to both agencies. The department accepted six of these in full and three in part. DAWR partially accepted the two recommendations that applied to it.

Investigation into the circumstances of the detention of Mr G, maintaining a reasonable suspicion that a person is an unlawful non-citizen14

In August 2017, the Office investigated the detention of Mr G, who spent nearly four years in immigration detention before being removed to his country of origin. Mr G was originally detained in October 2013 when his partner visa application was refused and his associated bridging visa was ceased. The department later found that an error in the notification of the partner visa refusal meant that the notification was defective and his bridging visa was still valid.

In response to the Office's investigation, the department advised that an error in the partner visa refusal notification process was not known at the time of Mr G's initial detention. This error came to the department's attention five months after his detention in March 2014.

While the department undertook a review of cases that may have been affected by the error in the notification process, Mr G's case was not identified in that process. Subsequent monthly reviews of his case also failed to identify the issue with the visa refusal notification.

In our report, we expressed concern regarding the department's review processes for maintaining a reasonable suspicion that an individual continues to be an unlawful non-citizen and as a result should continue to be held in immigration detention.

The department accepted all four of the Ombudsman's recommendations, noting that the implementation of three of them depended on the outcome of ongoing litigation relating to other individuals that raised similar concerns.

Delays in processing of applications for Australian citizenship by conferral15

In July 2016, the Office commenced an own motion investigation into the then Department of Immigration and Border Protection's (DIBP) processing of applications for Australian citizenship by conferral that require enhanced identity and integrity checks. This was in response to increasing complaints to our Office from people who were subject to enhanced integrity and identity checks that resulted in extended processing times for their citizenship applications.

In 2016–17 DIBP received 201,250 applications for citizenship by conferral. Given some people had applications pending for over 18 months, without having been referred for identity and integrity checks, we considered that a systemic investigation into these issues was more appropriate than commencing a series of individual complaint investigations.

The report made four recommendations to DIBP aimed at improving the quality of information in the Australian Citizenship Instructions (ACI) in order to achieve greater certainty and timeliness in complex identity and character assessments. DIBP accepted all recommendations in this report. We will continue to monitor the implementation of the recommendations.

Current own motion investigation

'Investigation into the implementation of the Thom review recommendations'

In March 2017, the department identified that it had wrongfully detained two Australian citizens for 97 and 13 days respectively. Immediately following the identification of the two Australian citizens in detention, all detainees were reviewed and no further cases of Australian citizens were found. The department then engaged Dr Vivienne Thom to conduct a review of the circumstances of the detention of these individuals. Dr Thom is an independent consultant who conducts inquiries and reviews and advises agencies about governance and integrity matters.

Dr Thom made four recommendations in her review. Some focused on discrete issues including training and decision-making tools, while others looked more broadly at the implementation of recommendations by previous external reviews and quality assurance processes. The department accepted all recommendations made by Dr Thom and has been implementing responses to the recommendations.

In February 2018, we commenced an own motion investigation to examine the immigration detention process holistically and the department's implementation of Dr Thom's recommendations to prevent this situation from occurring again.

The investigation focuses on critical points across the immigration detention process, spanning visa cancellation to release from detention. The investigation is ongoing.

Compliance monitoring

Our Office monitors and inspects the compliance activities of the department and the ABF under our own motion powers.

The Office's oversight occurs through:

  • conducting desktop reviews of warrants issued under s 251 of the Migration Act, which allows a warrant to be issued to search premises for unlawful non-citizens and their travel documents and associated documentation
  • examining a sample of s 501 removal cases
  • observing compliance and removal operations
  • analysing six monthly reports on those detained and later released as lawful non-citizens.

Field compliance observations

In 2017–18 the Office observed compliance and removal operations in the following cities:

  • Leeton (NSW) 30–31 August 2017
  • Sydney 13–15 March 2018
  • Melbourne  19–22 March 2018

We observed that ABF officers carry out their duties professionally. However, several issues raised previously with the ABF remained ongoing including officers not properly itemising, receipting or securing the valuables of those detained.

To address our concerns the ABF has been providing its staff with guidance through weekly updates. These updates have included instructions on the receipting of detainee valuables in the field and guidance for interviews. The ABF's Immigration Compliance Branch has also incorporated some of the issues raised by our Office into their new Procedural Instructions.

People detained and later released as 'not-unlawful'

The department provides the Office with six-monthly reports on people who were detained and later released with the system descriptor 'not-unlawful'. This descriptor is used when a detained person is later identified by the department to be holding a valid visa. This can occur due to a number of different factors including, by operation of case law or because of notification issues surrounding visa cancellation or refusal decisions.

For the first half of the 2017 calendar year, the department reported that 13 out of a total of 3,931 people detained (0.33 per cent) were later released as lawful non-citizens compared to 14 out of the 3,679 people detained (0.38 per cent) between 1 July and 31 December 2016. One person was detained for 436 days. The report also detailed the case of two Australian citizens who were unlawfully detained. In response, the department commissioned an independent review into the circumstances that led to the detention of the citizens. The Office is currently investigating the department's implementation of the recommendations arising from this review.

Immigration Detention Reviews

Statutory reporting (two-year review assessments)

Under s 486N of the Migration Act, the Secretary of the department is required to send a report to the Ombudsman regarding each individual that has remained in immigration detention for two years and every six months thereafter. These reports provide details regarding the circumstances of a person's detention including their detention history, case progression, health and welfare, family information and, if relevant, any criminal or security concerns.

Under s 486O, the Office assesses the appropriateness of the detention arrangements of each individual. For the purposes of preparing an assessment, the Office may choose to interview a detainee to gather further information regarding individual and systemic concerns.

The assessments under s 486O can include any recommendations that the Ombudsman considers appropriate. A de-identified version of the assessment is tabled in Parliament by the Minister for Home Affairs with a statement responding to any recommendations. This is subsequently published on our website.

In 2017–18 a total of 1,088 s 486N reports were received from the department, compared to 1,238 in 2016–17. A total of 943 s 486O assessments were tabled, relating to 1,281 individual detainees. Our Office made recommendations in 340 assessments.

These recommendations included both generic recommendations that applied to a cohort of detainees as well as recommendations that were specific to the individual detainees.

Generic recommendations included matters such as the uncertainty associated with the immigration status of individuals who have been returned to Australia from Regional Processing Centres for medical treatment and who, under current policy settings, are not able to have their claims for protection assessed in Australia.

Recommendations that were specific to individual detainees included matters such as placement within the detention network, access to family or support networks, access to appropriate medical treatment, expediting the assessment of an individual's immigration status, consideration of the grant of a visa and consideration of placement in the community.

Issues raised in s 486O assessments

Assessments under s 486O raised a number of issues, including:

  • The continued detention (in some cases over seven years) of individuals who have been found to be owed protection and were previously subject to adverse security assessments, who have since been issued qualified security assessments.
  • Instances where assessments provided by the International Health and Medical Services (IHMS) provide inaccurate or inconsistent information.
  • The continued placement of individuals in immigration detention facilities who have significant vulnerabilities or mental and physical health concerns.
  • The impact of family separation on individuals, both within Australia and between Australian and Regional Processing Centres.
  • The provision of adequate financial and health care support for individuals released on Final Departure Bridging visas.
  • The movement and placement of detainees within the detention network that can impact on their ability to attend specialist medical or court appointments, as well as their access to family support and legal representation.

Detention inspections

The Office undertakes oversight of immigration detention facilities. During 2017–18 we inspected the immigration detention facilities listed in Table 4.

Table 4 – Immigration detention facility inspections
Immigration Detention or Regional Processing FacilityLocationTiming
Adelaide Immigration Transit Accommodation Adelaide SA Sept 2017
May 2018
Brisbane Immigration Transit Accommodation Brisbane QLD Jul 2017
Mar 2018
Manus Island Regional Processing Centre Papua New Guinea Aug 2017
April 201816
Maribyrnong Immigration Detention Centre Melbourne VIC Nov 2017
Jun 2018
Melbourne Immigration Transit Accommodation Melbourne VIC Nov 2017
Jun 2018
Nauru Regional Processing Centre Nauru Dec 2017
Apr/May 2018
Christmas Island Immigration Detention Centre Christmas Island WA Jul/Aug 2017
Jan 2018
Perth Immigration Detention Centre Perth WA Jan 2018
Villawood Immigration Detention Centre Sydney NSW Sept 2017
Feb 2018
Yongah Hill Immigration Detention Centre Northam WA Oct 2017
Feb/Mar 2018

Our inspection function is undertaken under the provisions of the Office's own motion powers, in accordance with our jurisdiction to consider the actions of agencies and their contractors.17

The Office provides feedback to each facility after a visit, including any observations and suggestions. We also submit a formal report to the department at the end of each inspection cycle (every six months). The level of cooperation with our Office across the immigration detention network is generally high, with all staff having a reasonable understanding of the role of our Office.

The issues that arose over this reporting period included:

  • security-based models in administrative detention
  • restrictive practices within detention
  • use of force and the Continuum of Force
  • placement of detainees in the detention network
  • management of internal complaints
  • introduction of a service provider operational electronic records management system
  • programs and activities
  • management of detainee property
  • access to mobile phones.

Security-based model of administrative detention

The Migration Actenables the detention of unlawful non-citizens, such as those who enter or remain in Australia without a valid visa. Detention has been mandatory for all unauthorised maritime arrivals since 199418 and for people whose visas have been cancelled on character grounds since 2014.19

While placement in an immigration detention facility is mandatory for certain cohorts, it is administrative in nature–an individual is detained for the purpose of conducting an administrative function rather than as an end state of the criminal justice system.

The operations of an immigration detention facility are not supported by a legislative framework. The reliance on an administrative rather than a legislative framework to underpin the operations of the immigration detention network remains a concern for our Office.

During 2017–18 we noted an increasing emphasis on a security-based operational model. While the increasing numbers of detainees with histories of violent or antisocial behaviours require an increased focus on safety and security, we remain concerned that this may be at the expense of a focus on the welfare of detainees. This is not to imply that welfare should be the primary consideration when determining the management program for a detainee, but rather, both welfare and security need to be in balance to achieve a fair and reasonable outcome for all concerned.

Security-based operational models such as the 'controlled movement model' are the most restrictive of all operational models. Detainees can be restricted to accommodation areas and unable to move freely between common areas. Whilst there are circumstances where this model is appropriate, such as in high security compounds, facilities where detainees are vulnerable to coercion or intimidation, or immediately following periods of unrest, this model should not be the first preference for an administrative detention environment.

Placement of detainees within the network

The Australian Government, through the ABF and its respective facility Superintendents, has a duty of care to all detainees.20 In order to fulfil the duty of care, detainee placements within a facility and the broader network should be made by considering the full set of circumstances of a detainee.

The Office remains concerned that placement decisions do not apply adequate weighting to detainee circumstances such as court appearances, specialist medical treatment and family considerations. We acknowledge that the risk assessment of a detainee is a significant consideration, however it would appear that on occasions little consideration is given to other factors.

While placement will be driven by operational needs, in particular bed space in East Coast facilities, this should not be the sole basis for placing a detainee on Christmas Island or at Yongah Hill. Where the facility is remote and isolated, it is essential that placement decisions take account of all relevant considerations and information.

Of equal concern to the Office is an inaccurate risk assessment or a poorly analysed assessment that is applied without consideration of individual circumstances.

Determining that all detainees who have a criminal history involving violence exhibit high-risk behaviour, can result in unfair outcomes. Good decision-making requires consideration of relevant factors such as the type of behaviour, the age of the detainee at the time of the incident, the passage of time since the incident, the circumstances that generated the behaviour and the relevance to the current environment. Positive reinforcement of good behaviour is negated in an environment where the negative behaviours of the past consistently dictate the use of restraints or placement in remote facilities.

Towards the end of this reporting period, we have noted an increasing willingness to provide a more thorough analysis to the information upon which the risk assessment is based. The improvement in the provision of information held externally to the department has assisted in this, and the ABF continues to work with these sources to maximise the effectiveness and accuracy of the risk assessments. We have been advised that the placement tool used by the department is intended to address these issues and take into account the detainee's personal circumstances, family and community linkages and legal or medical circumstances.

As the placement processes, including the application of the revised placement tool, have evolved during this reporting period, we have noted that the decisions relating to the placement of a detainee within the network have improved, with decisions being made in a somewhat more holistic manner. We will continue to monitor this throughout 2018–19 as the placement modelling and risk assessment processes continue to evolve.

Restrictive practices in detention

The department and its service providers have a duty of care to both detainees and their staff to protect them from violent or aggressive behaviours and the ongoing risk of damage to people or property.

We acknowledge that there are occasions where for the good order, security and welfare of the facility, a detainee may need to be placed in restraints or moved to a more restrictive environment. Since the implementation of the Minister for Immigration and Border Protection Direction 65, and the subsequent increase of detainees with histories of violent or antisocial behaviours, we have noted an increasing use of these restrictive practices across the immigration detention network.

Without a legislative framework to underpin these practices, the department must rely on its administrative framework to support operating in this environment. We are concerned that the administrative processes underpinning these practices are not as robust as they should be and have identified shortfalls associated with the:

  • use of mechanical restraints when transferring detainees
  • use of the controlled movement operational model as the standard operational model
  • placement of detainees in behaviour management programs.

Where there is no legislative framework to support the use of restraints or placement in contained environments, the administrative framework must support the principles of procedural fairness, provide independent points of review and appeal, as well as the appropriate mitigation against the risk of such practices becoming punitive in nature.

We acknowledge that the ABF has taken steps to tighten the administrative frameworks surrounding the use of high care accommodation. The ABF has also adopted practices that provide procedural safeguards for detainees placed in behaviour management regimes. We consider that this area provides a significant risk to the department and we encourage them to continue to strengthen the administrative framework that supports these critical operational areas.

Use of Force and the Continuum of Force

Over the inspection cycles during 2017–18, we have noted an increasing use of unplanned force21 by the department when dealing with detainees. While it is accepted that use of force can be necessary to protect the individual, other people or property, we are concerned that the review of incident management records did not reflect the use of de-escalation techniques prior to the application of force.

On occasions, we perceived that some operational staff considered the application of physical force to address non-compliant behaviour as the start-point rather than the mid-point of the continuum. This suggests a continued need for training in this area.

In facilities where additional training in negotiation and de-escalation skills have been undertaken, the Office has observed an overall improvement in the method of engaging with detainees. That is, the first option is to approach a situation with a view to achieving a negotiated outcome first, with the use of force only considered as a last resort.

Management of internal complaints

One of our primary focuses for 2017–18 was the management of internal complaints by the ABF and its service providers. Good complaint-handling requires a systematic approach that is timely, appropriate and responsive.22 Overall, the standard of complaint-handling across the immigration detention network was reasonable with the suggestions made by the Office for improvements being implemented in a number of facilities.

During 2017–18 we undertook a detailed assessment of the internal complaint-handling practices across the immigration detention network. Despite an overarching standard operating procedure for the management of complaints being introduced by the ABF in September 2016, we have noted that an inconsistency in the manner or methods applied to the management of complaints made against the department and/or their service providers remains. We will continue to closely monitor this issue throughout 2018–19.

Programs and activities

Where detainees fail to engage with programs and activities, it is more than likely that they will experience deteriorating levels of mental health and an increased likelihood of self-harm or other non-compliant behaviour.23

Engagement with programs and activities should be meaningful and involve activities that the detainees wish to undertake, rather than simply being carried out to alleviate boredom. We noted that activities that focused on physical fitness, life skills (such as cooking, resume-writing and job interview skills) and adult art and craft, were more likely to be considered meaningful by detainees and attract higher participation rates. Activities that were considered to be juvenile appeared to generate participation that was based on avoiding boredom rather than enjoyment.

We acknowledge there has been a significant change in the types of activities offered to meet the needs of the changing cohorts within centres. However, additional effort needs to be made to address the needs of people who have been educated in the Australian education system.

Introduction of service provider operational electronic records management system

In November 2016, Serco Immigration Services introduced an electronic record-keeping and process management tool. The system was introduced to streamline and capture operational activities such as welfare checks, attendance at activities, detainee property management and the compilation of incident management documents.

Despite a number of ongoing connectivity and other operation alignment issues, we have noted an overall improvement in the quality of record-keeping with the use of this system. We will continue to monitor the impact that this system has on the quality of reporting within the immigration detention network, especially in those areas where the tool does not reflect the current departmental or service provider policies. This is apparent in the management of detainee property where the tool has generated a process that is not reflective of the current guidelines.

Management of detainee property

The management of detainee property is a key area of interest for the Office. During this reporting period we noted an overall general improvement across the network. The introduction of an electronic record-keeping and process management tool has improved the overall management of detainee property, however we have noted a number of inconsistencies that will be addressed as the property management guidelines are amended to include the new electronic management system.

There are outstanding complaints and associated issues relating to the compensation for items lost or damaged in the November 2015 unrest on Christmas Island. During the unrest, the secured storage facility used for the storage of detainee intrust property was ransacked and detainees' personal property removed. This incident and the subsequent difficulties that the department has experienced in compensating detainees for the loss of their intrust property reinforces the importance of detainee property being accurately recorded.

The new electronic property management system that includes both photographs and a detailed written description should address a number of the issues arising from this incident including:

  • correctly identifying lost property
  • providing appropriate levels of compensation for items that cannot reasonably be returned to a detainee on departure.

Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT)

What is OPCAT?

Australia ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in December 2017. OPCAT is an international agreement aimed at preventing torture and mistreatment through the use of a proactive inspection regime in places where people are deprived of their liberty.

Compliance with OPCAT involves the inspection by state and territory inspectorate bodies of places of detention including prisons, juvenile detention centres and psychiatric facilities. The implementation of OPCAT is occurring over a three year period.

The National Preventive Mechanism Coordinator

Our Office has been appointed as the National Preventive Mechanism (NPM) Coordinator to facilitate and coordinate the Commonwealth, state and territory oversight arrangements. This function commenced on 1 July 2018.

The Commonwealth NPM for Commonwealth Primary Places of Detention

Our Office has also been announced as the NPM Body for Commonwealth places of detention including immigration detention facilities, Australian Federal Police cells in the External Territories and military detention facilities.

Stakeholder engagement

While the implementation towards OPCAT will occur over a three year period, we are engaging with existing oversight bodies domestically and considering best practices from overseas. We are also engaging with the civil society, including participating in conferences and forums.

Churchill Fellowship

In October 2017, Mr Steven Caruana was awarded a Winston Churchill Memorial Trust Fellowship. This enabled him to research best practice inspection methodologies for oversight bodies with a focus on OPCAT. As part of the Fellowship, he visited the United Kingdom, Denmark, Norway, Switzerland, Malta, Greece and New Zealand to meet with inspection agencies, leading academics and notable anti-torture non-government organisations.

The learnings and insights arising from research undertaken as part of the Fellowship will assist our Office in its role as the NPM Coordinator.

Law Enforcement Ombudsman

The Office has a comprehensive role in the oversight of the Australian Federal Police (AFP). When performing functions in relation to the AFP, the Office of the Commonwealth Ombudsman may also be called the Law Enforcement Ombudsman.

These functions include:

  • assessing and 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)
  • statutory reviews of the AFP's administration of Part V of the AFP Act.

Complaints

In 2017–18, we received 258 complaints about the AFP, which was an 11 per cent decrease from 2016–17, of which we investigated 36.

In the majority of cases we declined to investigate complaints if the person had not first complained to the AFP. In those instances, we referred them back to the AFP.

Other reasons for not investigating included:

  • another oversight body being the more appropriate agency to handle the complaint
  • the matter had already been to court
  • the complaint lapsed due to the complainant not providing us with certain information
  • the complainant had insufficient interest in the matter, or
  • complaint withdrawal.

When we investigate a complaint we first look at how the AFP handled the issue and assess the particulars of the matter against the relevant law, policy and practice.

Four of the complaints we investigated were finalised because an appropriate remedy was provided by the AFP. However, the majority of complaints were finalised on the grounds that further investigation was not warranted given circumstances. This usually meant that the issue, actions and decisions of the AFP were open to be made and not unreasonable.

In resolving and finalising nine complaint investigations in 2017–18, we made suggestions to the AFP with a view to remedying individual complaints and for future improvements.

Our Office also conducted two reviews of the AFP's administration of Part V of the AFP Act and published a report on the results of previous reviews.

As part of this process we engaged with the AFP Professional Standards (PRS) to discuss a number of reforms that are being implemented across PRS. We also met with representatives from the AFP Safe Place team to discuss their management of complaints under Part V of the Act. This area was established to provide support to complainants and to investigate sexual harassment and abuse, following an independent review of the organisation by former Sex Discrimination Commissioner, Elizabeth Broderick.

Inspections of covert, intrusive or coercive powers

Oversight activities

In 2017–18, the Office performed oversight functions under the Telecommunications (Interception and Access) Act 1979, the Surveillance Devices Act 2004, Part IAB of the Crimes Act 1914, the Fair Work (Building Industry) Act 2012 and the Building and Construction Industry (Improving Productivity) Act 2016. This legislation grants intrusive, and often covert, powers to certain law enforcement agencies. Our role is to assess agencies' compliance with the above legislation.

We are required to inspect the records of enforcement agencies and report to the relevant Minister (who is responsible for administering the Commonwealth Acts we oversee) on the activities agencies have undertaken pursuant to each Act. Reports to the Minister are subsequently tabled in Parliament.

Figure 7 – The independent oversight process

Figure 7 – Image showing independent oversight process for our inspections of covert, intrusive or coercive powers

Law Enforcement agencies subject to inspections by the Office

  • Australian Commission for Law Enforcement Integrity
  • Australian Competition and Consumer Commission
  • Australian Criminal Intelligence Commission
  • Australian Federal Police
  • Australian Securities and Investments Commission
  • Western Australia Corruption and Crime Commission
  • Crime and Corruption Commission of Queensland
  • Department of Home Affairs
  • Independent Broad-based Anti-Corruption Commission (Victoria)
  • New South Wales Independent Commission Against Corruption
  • South Australia Independent Commissioner Against Corruption
  • Law Enforcement Conduct Commission (NSW)
  • New South Wales Crime Commission
  • New South Wales Police Force
  • Northern Territory Police Force
  • Queensland Police Service
  • South Australia Police
  • Tasmania Police
  • Victoria Police
  • Western Australia Police

Non-law enforcement agencies subject to inspections by the Office

  • Australian Building and Construction Commission
  • Fair Work Ombudsman
Table 5 – Oversight activities in 2017–18
Function Number of inspections or reviews
Inspection of telecommunications interception records under the Telecommunications (Interception and Access) Act 1979 6
Inspection of stored communications–preservation and access records under the Telecommunications (Interception and Access) Act 1979 18
Inspection of metadata records under the Telecommunications (Interceptions and Access) Act 1979 20
Inspection of the use of surveillance devices under the Surveillance Devices Act 2004 10
Inspection of controlled operations conducted under Part IAB of the Crimes Act 1914 6
Review of Fair Work Building and Construction's use of its coercive examination powers under the Fair Work (Building Industry) Act 2012 3
Review of the Australian Building and Construction Commission's use of coercive examination powers under the Building and Construction Industry (Improving Productivity) Act 2016 8
Total71

Reports

During 2017–18 we produced seven public reports. All of our published reports are available on our website.24 The reports published in 2017–18 included two quarterly reports under s 65(6) of the Building and Construction Industry (Improving Productivity) Act 2016 andtwo reports on agencies' compliance with the Surveillance Devices Act 2004.

We also completed a report on the results of our inspection of the Australian Federal Police under the Telecommunications (Interception and Access) Act 1979 (TIA Act)in response to the AFP disclosing that it had accessed a journalist's telecommunications data without a journalist information warrant. The content of this report is discussed in detail under the case study titled 'AFP Metadata Breach'.

A list of reports finalised during 2017–18 is set out below.

Report Date published
Report to the Attorney-General on agencies' compliance with the Surveillance Devices Act 2004 – For the period 1 January to 30 June 2017 September 2017
A report on the Commonwealth Ombudsman's inspection of the Australian Federal Police under the Telecommunications (Interception and Access) Act 1979 – Access to journalist's telecommunications data without a journalist information warrant October 2017
Annual report by the Commonwealth Ombudsman under s 13(1) of the Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 – For the period 1 July 2015 to 30 June 2016 November 2017
Report to the Attorney-General on agencies' compliance with the Surveillance Devices Act 2004 – For the period 1 July to 31 December 2017 March 2018
A quarterly report by the Commonwealth Ombudsman under s 65(6) of the Building and Construction Industry (Improving Productivity) Act 2016 – For the period 1 July 2016 to 31 March 2017 March 2018
Quarterly report by the Commonwealth Ombudsman under s 65(6) of the Building and Construction Industry (Improving Productivity) Act 2016 – For the period 1 April 2017 to 30 June 2017 March 2018
A report on the Commonwealth Ombudsman's activities under Part V of the Australian Federal Police Act 1979 – For the period 1 July 2016 to 30 June 2017 June 2018

Although we produced a number of reports, we were not able to complete all annual inspections reports within 2017–18. For example, our annual report on inspections of controlled operations under Part IAB of the Crimes Act 1914, was not completed during 2017–18, as inspection results were still being finalised. This report will be finalised during 2018–19.

Our annual reports on inspections under Chapter 3 (stored communication) and Chapter 4 (metadata) of the TIA Act during this period were also not completed, as we had not finalised all relevant inspections results. These will be finalised and published in 2018–19.

Two quarterly reports under s 65(6) of the Building and Construction Industry (Improving Productivity) Act 2016 were also not completed. These will be finalised and published in 2018–19.

For context, as a part of our inspections process, in order to ensure procedural fairness, we provide each agency with an opportunity to comment on inspection findings, before the results are finalised.

The delays in finalising our reports were primarily caused by our reporting process, which slowed down the Office's ability to report to individual agencies on inspection results. This legacy process has now been removed, and our process has been simplified and tailored to each inspection. This has substantially reduced the turnaround time required to finalise inspection findings and the associated annual reports. In some cases, we are now able to finalise inspection results within a matter of weeks, which would not have been possible using the previous process.

We are now in a much better position to complete our annual inspections reports in a timely manner and this will be reflected in the Office's output during the coming year.

Other activities

In 2017–18 we appeared before the Parliamentary Joint Committee on Intelligence and Security to discuss a review of police stop, search and seizure powers, the control order regime and preventative detention order regime. We also appeared before the Senate Standing Committee of Privileges to discuss Parliamentary Privilege and the use of intrusive powers. We briefed the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity (ACLEI) regarding the ACLEI's controlled operations.

We also regularly responded to requests from agencies for advice about best practice in compliance and requests from other oversight bodies for guidance in developing inspection methodologies.

Our approach

Our Office values independence, fairness and transparency. These values inform the way we conduct inspections and reviews, and how we engage with the agencies.

For each of these inspections and review functions, we have established methodologies that are applied consistently across all agencies. These methodologies comprise of 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 on areas of high risk and take into consideration the effect of non-compliance, such as unnecessary privacy intrusion. It is our practice to regularly review our methodologies to ensure their effectiveness.

We also give notice to agencies of our intention to conduct an inspection and provide them with a broad outline of criteria against which we assess compliance.

Depending on our reporting requirements under each function, the final report is either presented to the relevant Minister or forms the basis of our published reports.

For our published reports we remove reference to any sensitive information that could undermine or compromise law enforcement activities.

Fair Work Ombudsman oversight

A new oversight function relating to the Fair Work Ombudsman (FWO) took effect from 31 March 2018. Sections 712E and 712F of the Fair Work Act 2009 require the FWO to notify our Office when a FWO examination notice is issued by the Administrative Appeals Tribunal (AAT) and to provide a report following an examination of a person under a FWO notice. In June 2018 we received three notifications from the FWO that a notice had been issued. These three reviews will be conducted in 2018–19.

Stakeholder engagement

During 2017–18, we participated in, and presented at, various forums and workshops held by the law enforcement community. We provided advice on best practice in achieving compliance with relevant legislation and working productively with our Office at the following forums:

  • the Australian Public Sector Anti-Corruption Conference 2017
  • the Police Technology Forum 2018
  • meetings and workshops with specific agencies, including the Australian Federal Police, the Queensland Crime and Corruption Commission and the Australian Criminal Intelligence Commission.

Overall we are satisfied that law enforcement entities which we inspect take their responsibilities to observe the relevant laws governing covert and intrusive activities very seriously.

However our inspections continue to identify administrative deficiencies from time to time. We will remain alert to, and report on, these matters as appropriate and continue to work with the relevant agencies to ensure compliance.

CASE STUDY

In April 2017 the AFP voluntarily advised our Office that a breach of the Telecommunications (Interception and Access) Act 1979 (TIA Act) had occurred within the AFP.

The breach involved access to a journalist's metadata for the purpose of identifying the journalist's source without a warrant.

Metadata is information about a communication which does not include its content. For example, in a phone call, metadata may include the phone numbers of the two parties to the conversation, the duration, date and time of the call but not what was said.

Journalist Information Warrant provisions were introduced into the TIA Act as a higher threshold for instances where metadata is being sought in relation to a journalist for the purpose of identifying that journalist's source. This was a way to balance the public interest in protecting journalists' sources while ensuring agencies have the investigative tools necessary to protect the community.

After our Office was notified of the breach, we conducted an inspection at the AFP focusing on how the breach occurred and to assist the AFP to mitigate the risk of future breaches.

As a result, we made a recommendation that the AFP immediately review its approach to metadata awareness raising and training, to ensure that all staff involved in exercising metadata powers have a thorough understanding of the legislative framework and their responsibilities under Chapter 4 of the TIA Act.

We also made a number of suggestions to the AFP regarding how it can strengthen its existing controls to prevent another breach of a similar nature.

In response to our recommendation, the AFP advised that it is finalising an online mandatory training package that all AFP authorised officers will need to undertake annually to maintain their authorised officer status.

The AFP also advised that it has already implemented some of our suggestions and will turn its attention to implementing all of them.

For all future AFP metadata inspections, we will monitor the AFP's implementation of our recommendation, particularly in relation to how it ensures that all authorised officers have completed the training. We will also monitor how the recommendation is applied to all staff involved in the exercise of metadata powers, not just authorised officers.

Our final report was published in October 2017 and can be found on our website.25

Defence Force Ombudsman

The Commonwealth Ombudsman is also the Defence Force Ombudsman. As part of this role, the Office has two primary functions. The first is to receive and investigate complaints from serving and former members of the Australian Defence Force (Defence) about administrative matters related to their Defence service. Complaints can be made against any Defence agency, which include:

  • Australian Defence Force or one of the three Services (Navy, Army and Air Force)
  • Department of Defence
  • Department of Veterans' Affairs (DVA)
  • Defence Housing Australia (DHA)
  • Inspector-General of the Australian Defence Force (IGADF).

The second function is to receive reports of serious abuse from serving and former members of Defence who, for whatever reason, feel unable to report through internal Defence complaint mechanisms.26

We continue to offer reportees, whose report of serious abuse has been accepted, a range of support options, including participation in a Restorative Engagement conference or facilitating a referral to counselling services.

Since 15 December 2017, following the Australian Government's announcement of its reparation payment framework for the most serious forms of abuse and matters which include unlawful interference involving an element of indecency, we can recommend to Defence, in some circumstances, that a reparation payment be made.

Administrative complaints

Complaints

In 2017–18, we received 653 complaints about administrative matters, compared to 635 in 2016–17. The main issues of complaints were:

  • decisions relating to discharge of a member
  • career advancement
  • DVA entitlements
  • offsetting of DVA payments
  • DVA service delivery
  • access to healthcare.

We also work closely and collaboratively with Defence agencies on emerging and systemic issues which we identified through complaint trends. The main areas of focus for 2017–18 were:

  • offsetting of DVA entitlements
  • the effect of Commonwealth Superannuation Corporation (CSC) payments on DVA benefits
  • cadet jurisdiction
  • Defence Housing jurisdiction
  • working with vulnerable veterans
  • transition services for Defence members who are discharging from service.

A priority focus for the year was the publication of a report following a major investigation into the actions and decisions of DVA in relation to a particular individual (Mr A). The report was published on our website in July 2018.27

Issues monitoring

Working with advocacy and community organisations

To enhance our understanding of the experience of veterans and members in engaging with DVA and other Defence agencies, we consulted with over 20 veteran, service and ex-service organisations during 2017–18. As a result of this consultation, we are better placed to understand the fundamental issues the wider Defence community is facing at the service delivery level. By understanding these issues it has enabled us to influence continual improvement in administration and complaint-handling processes within the Defence agencies.

We have begun, and will continue, to work with the Defence Community Organisation (DCO) through its Transition Seminars, to provide transitioning members with information about our complaints and reporting functions.

Stakeholder engagement

In October 2018, the Office attended the 9th International Conference of Ombuds Institutions for the Armed Forces, co-hosted by the Geneva Centre for the Democratic Control of Armed Forces and the United Kingdom Service Complaints Ombudsman for the Armed Forces in London. We accepted an invitation to share our experiences with respect to Defence abuse, and in particular our Restorative Engagement program, as part of the conference theme of how ombuds institutions can play a role to contribute to 'The Moral Compass of the Armed Forces'.

Submissions

We are often invited to provide submissions to parliamentary and other public inquiries, relating to our role overseeing Defence and Defence agencies. In 2017–18, we made one submission, in response to the Productivity Commission Inquiry on Compensation and Rehabilitation for Veterans.28

Reports of abuse in Defence

Our abuse reporting function is based around trauma-informed principles that establish safety and trust. Dedicated Liaison Officers provide support to reportees, enabling them to report their experiences of abuse and participate in processes that may be able to address the harm they have suffered.

"I would like to express my thanks... for handling my case in a sensitive and timely manner and thus facilitating a successful outcome for me. In particular, I am also very appreciative of all the assistance that you have extended to me over the time that you have been handling my case...I think that the Commonwealth Ombudsman's motto 'Influencing systemic improvement in public administration' is a very worthy description of what has occurred in processing my report of serious abuse." [Reportee]

After receiving a report, we assess it against the Ombudsman Regulations 2017 to determine if it can be accepted as a report of serious abuse in Defence.

In 2017–18, we received 457 reports of serious abuse within Defence, with 368 received since the Government's announcement of its reparation payment framework on 15 December 2017.

"...I would like to take this opportunity to sincerely thank you for the professional manner in which you handled my matter and the empathy and kindness you displayed throughout the entire process." [Reportee]

"...All I ever wanted was for my case to be accepted, treated fairly and with dignity. I believe this has been accomplished. I would like to thank you all for your assistance, as you have made this process so much easier for me. It is such a positive step that I can finally put the past under lock and key and move on with my life." [Reportee]

In 2017–18, we completed the assessment process on 230 reports, with 151 reports accepted, whether wholly or in part, noting that some reports contain multiple incidents of abuse. The remaining 79 reports were assessed as out of jurisdiction and not accepted.

A report of abuse can be accepted where our Office is satisfied that:

  • the report constitutes serious abuse
  • the report is reasonably likely to have occurred
  • the reportee, at the time of the alleged abuse, was an employee of Defence
  • the alleged abuser was an employee of Defence
  • there is/was a connection between the alleged abuse and the reportee's employment in Defence.

Reasons why a report may be assessed as out of jurisdiction can include:

  • the report was already dealt with by the Defence Abuse Response Taskforce (DART)
  • the reportee, at the time of the alleged abuse, was not an employee of Defence
  • the alleged abuser, at the time of the alleged abuse, was not an employee of Defence
  • there was no connection between the conduct and Defence employment, or
  • the Ombudsman's delegate is not satisfied that the conduct meets the required threshold of serious abuse that is reasonably likely to have occurred.

Given the nature of the subject matter, the Office has a strong focus on staff wellbeing. During 2017–18, our Office took a proactive approach to ensure relevant staff members had access to the resources and support they needed to maintain good mental health and wellbeing and be able to support reportees. Similar arrangements will continue into 2018–19 for staff in identified high-risk roles.

Available responses to accepted reports

Restorative Engagement

Participation in the Restorative Engagement program provides an opportunity for reportees to participate in a meeting that allows their personal account of abuse to be heard and acknowledged by Defence. A secondary objective of the program is to enable a broader level of insight into the impact of abuse and its implications for Defence. This insight is critical to building cultural change strategies in Defence.

"I felt it was very cleansing... The apology from Defence was particularly moving and appreciated." [Reportee]

In 2017–18, we held 37 Restorative Engagement conferences throughout Australia. Any reportee whose report has been accepted can request a conference.

"Understanding the very personal and profound impact the abuse has had on victims over the following decades. This understanding has been particularly useful to me as a commanding officer...." [Defence representative]

"I felt like the conference went well and that the reportee conveyed the issues and treatment they received and the after-effects on their life in an incredible way. Again, I was humbled by the experience of being able to sit and listen to this story. I can only hope that in some small way, through an apology, the reportee can move on in their life and believe that what happened was not their fault...." [Defence representative]

All participants receive feedback surveys and these are an important component in monitoring the benefits of participation in the program. A majority of program participants have returned feedback surveys–88 per cent of reportees and 77 per cent of Defence representatives have provided feedback through the survey.

Feedback surveys are designed to measure whether reportees felt:

  • they were involved in, and consulted about decisions related to their participation
  • they were able to say what they wanted to, in a way that was safe for them
  • that their story was heard and believed by the Defence representative
  • that the Defence representative acknowledged the personal impacts of the abuse and expressed regret for this through apology and being accountable to the reportee for the ongoing impacts of the abuse.

"I personally found the conference was conducted in a respectful manner by myself, the Defence representative and the facilitator. I feel the venue was excellent and provided a safe place to talk about hard and difficult issues. The conference gave me a once in a lifetime opportunity to communicate my experience in the Australian Defence Force..." [Reportee]

To date, the feedback received from all reportees has been positive, with an overwhelming number reporting they felt well prepared, supported and safe during the conference process. In their feedback, many reportees (more than 90 per cent) felt they were able to say what they wanted to say and that the Defence representative believed their story and acknowledged that what happened to them was wrong.

"Overall I feel that the conference went very well and truly exceeded my expectations. To have my story heard and sincerely received was a very humbling and profound experience. The Commonwealth Ombudsman's Office and in particular [the liaison officers] went to great lengths to ensure my wellbeing during their facilitation of this process, and for that, I am truly grateful...." [Reportee]

Defence representative responses indicated that they felt well prepared and that the conference built an understanding of workplace abuse and its impacts (more than 95 per cent). All Defence representatives who responded to the survey provided expressions of regret, sorrow and apology, and felt they were accountable for what should have happened and what will happen in the future.

Counselling

Another response to accepted reports is our ability to facilitate referral to counselling services. In 2017–18, we facilitated 28 referrals to counselling with the Veterans and Veterans Families Counselling Service (VVCS).

Reparation payments

On 15 December 2017, the Australian Government determined that for the most serious forms of abuse and/or sexual assault, the Ombudsman may recommend Defence make a reparation payment. There are two possible payments which we may recommend:

  • a payment of up to $45,000 to acknowledge the most serious forms of abuse
  • a payment of up to $20,000 to acknowledge other abuse involving unlawful interference, accompanied by some element of indecency.

If our Office recommends one of these payments, an additional payment of $5,000 may also be recommended where we are satisfied that Defence did not respond appropriately to the report of abuse.

As reparation payments are limited, as set out above, not all reports of abuse will meet the parameters set out in the framework.

Since the announcement of this reparation framework, we have sent 66 reparation payment recommendations to Defence. To 30 June 2018, Defence considered and accepted in full 51 recommendations, and none have been declined.

All reportees who have a report of abuse that has been assessed to be within jurisdiction can request a referral to the Restorative Engagement program or a facilitated referral to counselling with VVCS regardless of whether or not a reparation payment is recommended.

Public Interest Disclosure Scheme

The Office oversees the operation of the Public Interest Disclosure (PID) Scheme (the scheme), established under the Public Interest Disclosure Act 2013 (PID Act).

The scheme forms part of the Commonwealth anti-corruption ('whistleblower') framework. It allows for the investigation of wrongdoing in the Commonwealth public sector and protects public officials who make disclosures.

The Office has three primary functions under the scheme:

  • allocation of disclosures and investigation of complaints
  • delivery of education and awareness programs
  • annual reporting on the scheme's operation.

The Inspector-General of Intelligence and Security (IGIS) has oversight of the six intelligence agencies subject to the scheme29 and has the same allocation, investigative and education functions.

Key elements of the scheme

Image showing key elements of the PID Scheme. Designed to be accessible, Low threshold for reporting wrongdoing and protects disclosers

The scheme is designed to be accessible. The low threshold for making a disclosure is intended to encourage officials to come forward and report wrongdoing.

To receive protections, a disclosure must:

  • be made by a current or former public official
  • be made to an authorised recipient
  • involve 'disclosable conduct'.

'Public official' is broadly defined and includes contracted service providers and subcontractors. Similarly, 'disclosable conduct' captures a broad range of conduct, such as the breach of a law or of the Australian Public Service (APS) Code of Conduct. These broad definitions mean the scheme attracts reports of wrongdoing across a wide cross section of agencies and activities.

Agencies must investigate a PID unless certain circumstances apply, such as the matter having previously been dealt with through another process. At the conclusion of an investigation, agencies must provide disclosers with an investigation report that explains the findings of the investigation, and any actions taken or recommendations made. Disclosers can make a complaint to the Office or IGIS if they are dissatisfied with an agency's handling of their PID.

Disclosures at a glance

2017–18 saw an increase in disclosures, consistent with previous years, from 684 to 737.

Figure 8 – 2017–18 Disclosures at a glance

Figure 8 – Image showing 2017-18 Disclosures

A single allegation, such as fraud or bullying, may generate multiple types of disclosable conduct. Of the 737 disclosures this year, 894 possible instances of disclosable conduct were identified.30 As with previous years, the most identified types of disclosable conduct are broad-based, such as breach of a law or maladministration, which can capture a large range of actions.

Figure 9 – 2017–18 Allegations of disclosable conduct

Figure 9 – Graph showing 2017-18 allegations of disclosable conduct

This year, 354 PIDs did not meet the PID threshold and were not allocated for investigation. As with previous years, a substantial number of these disclosures were reported by Australia Post. Australia Post has strong processes in place for publicising the scheme on its public-facing website, which results in a higher proportion of members of the public, who are not public officials, seeking to access the scheme. Two hundred disclosures to Australia Post did not meet the PID threshold as the discloser was not a public official.

Agencies may also decline to investigate a disclosure, or decline to further investigate, for a range of reasons. This year, agencies declined to investigate 147 disclosures, most commonly because the disclosure did not concern serious disclosable conduct or because it had already been investigated.

Disclosure outcomes

The scheme continues to generate outcomes which improve the integrity and accountability of Commonwealth agencies. A total of 313 PID investigations were finalised this year. Of these, 81 investigations resulted in one or more findings of disclosable conduct and 207 recommendations were generated.

Agencies reported a range of outcomes and actions following investigation, including:

  • improved safeguards for procurement processes
  • improvements to recruitment documentation and review practices
  • direction for performance improvement issued to a contracted service provider
  • formal warning and disciplinary action following inappropriate conduct
  • counselling and transfer following allegations of bullying and abusive behavior.

Agencies advised that on four occasions they notified the police of disclosures on the basis that there were reasonable grounds to suspect that a disclosure was evidence of an offence.

Figure 10 – 2017–18 Findings of disclosable conduct

Figure 10 – Graph showing 2017-18 findings of disclosable conduct

CASE STUDY

A discloser alleged that an agency had engaged in maladministration on the basis of discrepancies in the information provided by the agency to the Australian Taxation Office. The discloser did not consent to their name and contact details being provided to the agency's Principal Officer and the disclosure was allocated anonymously, with redactions to the discloser's documentation.

Initially, the agency believed it could not investigate the alleged discrepancies without knowing the identity of the discloser. However, the agency subsequently decided to conduct a full audit of their processes for the relevant period of time to identify any discrepancies and ensure it had followed correct procedures.

The scheme also enables agencies to recommend investigation under another law. Common areas for referral include the Public Service Act 1999 (for investigation of Code of Conduct matters), Defence Force legislation, Public Governance Performance and Accountability Act 2013 (for fraud matters) and Workplace Health and Safety legislation. This year, 81 recommendations for referral were made, reflecting the types of matters the scheme attracts.

For full details of the number of public interest disclosures received, the kinds of disclosable conduct, the number of disclosure investigations and the actions taken in response to recommendations, see Appendix 8.

Figure 11 – 2017–18 Referrals to other investigative mechanisms

Figure 11 – Graph showing 2017-18 referrals to other investigative mechanisms

Access and training

As the number of disclosures increase from year to year, awareness of the scheme is expanding and agencies are becoming more confident handling and responding to disclosures. However, there are some areas of lower take-up where barriers to access, or lack of education and awareness, may be a factor.

Who is using the scheme?

The majority of disclosures were made by current or former public officials, consistent with previous years, with this cohort amounting to 84 per cent of all disclosures. The number of deemed public officials accessing the scheme remains fairly constant at 12 per cent.31 The number of disclosures by contracted service providers appears relatively low at 4 per cent.

Figure 12 – Who disclosures were made by

Figure 12 – Image showing percentage of who disclosures were made by

The number of contracted service providers subject to the scheme is difficult to accurately assess. The scheme extends to both employees and subcontractors of contracted service providers, and in practice the number of public officials captured by contracted service providers may be comparable to or greater than employee figures. Accordingly, it is reasonable to conclude that contracted service providers are under-represented in the overall numbers of disclosures.

Training

Agencies reported providing a variety of PID-related information and training to employees. The mix of PID training and education varies from agency to agency, and includes mandatory induction programs, intranet or employee handbook materials, all staff communications, or a component of an agency's fraud awareness training. Around a third of agencies provide formal PID training on a yearly basis, with 68 per cent of agencies providing either no formal training or providing training only upon request.

Figure 13 – Comparison of training opportunities

Figure 13 – Graph showing percentage comparison of PID training opportunities for various agencies

Most agencies report providing no formal PID training to contracted service providers. Many agencies however report providing PID information to contracted service providers via other means, such as during the procurement and contracting process, via access to the agency's intranet, or through informal distribution of information. The Office will be exploring ways to encourage greater engagement by, and education of, contracted service providers in relation to the scheme over the next year.

Authorised officers

A public official may only make a disclosure to an authorised officer,32 to their supervisor or to the agency's principal officer. This year, as with previous years, the substantial majority of disclosures were made to authorised officers (88 per cent), with 5 per cent and 7 per cent of disclosures made to principal officers and supervisors respectively.

For the most part, agencies report having a reasonable number and distribution of authorised officers. The average number of authorised officers for all agencies is four, with the majority (55 per cent) being appointed in agencies' business or line areas.

Table 6 – Average number of authorised officers
Staff numbers Average number of authorised officers
< 50 2
50–250 3
250–1,000 4
1,000–10,000 5
Over 10,000 12

It is notable, however, that some agencies have a relatively small number of authorised officers proportionate to their size. For example, one agency with over 10,000 staff reports a total of four authorised officers.

The substantive level of authorised officers across the scheme is relatively high. Just over 50 per cent of authorised officers are appointed at Senior Executive Level or equivalent and 40 per cent are at Executive Level. Agencies may have sound reasons for appointing senior staff to the authorised officer role in view of the complex and sensitive matters it attracts, however placing authorised officers in more senior roles may also create a barrier to access for less senior staff.

As part of our education activities this year, we will be encouraging agencies to ensure they have appropriate numbers of authorised officers appointed at varying levels and locations.

Timeliness

The PID Act imposes a 90 day timeframe on investigations, subject to possible extension from the Office or IGIS where there are reasonable grounds. If an investigation is not completed in time and an extension is not granted, the discloser may in certain circumstances seek redress by disclosing the information externally.

This year, over 65 per cent of investigations were completed within the 90 day timeframe.

The PID Act recognises that agencies may require more than 90 days to complete an investigation. This year, the Office received 125 requests for extension of time, of which 119 were granted. Agencies commonly sought additional time due to the complexity of investigations and the requirement for additional time to interview witnesses.

Figure 14 – Investigation timeframes

Figure 14 – Graph showing percentage breakdown of PID investigation timeframes (less than 90 days, 90 to 181 days and greater than 180 days)

In 2018, we published new guidance material to assist agencies and disclosers to understand the circumstances in which extensions may be granted. The policy encourages agencies to apply for an extension well before the 90 day timeframe is complete, and to keep disclosers informed of the progress. We anticipate this approach will reduce the number of declined applications and assist disclosers to understand the possible causes of delay.

Reporting

Agencies can use internal reporting of public interest disclosures as a tool to identify and mitigate areas of risk.

Just over a quarter of agencies report on public interest disclosures as part of their internal reporting processes, with reporting varying from weekly to quarterly or 'as required'. Several agencies told us they do not complete any PID reporting on disclosures as they have not received any disclosures or because disclosure numbers are so few that they are always shared with the reporting audience.33

However, as part of our broader education activities during 2018–19, we will be encouraging agencies to consider the benefits of monitoring and reporting on staff engagement with the scheme for early identification and mitigation of risks.

Reprisal

Disclosers who believe they have been subject to reprisal are encouraged to raise the issue with their agency. Agencies are expected to investigate claims of reprisal and, if appropriate, refer the matter to the police or other oversight agency. Disclosers may also contact the Office if they are dissatisfied with the agency's handling of their reprisal claim.

This year, Commonwealth agencies reported a total of 16 claims of reprisal.

Of these reprisal claims, agencies reported that, following investigation, three were substantiated and actions included referral for Code of Conduct investigation or to the police.

The Office also received 12 enquiries or complaints directly from disclosers raising concerns about reprisal, which included concerns about:

  • the agency not keeping the disclosure confidential
  • the agency's subsequent or concurrent handling of the discloser's Comcare claim
  • the discloser being the subject of disciplinary action or receiving a conduct warning
  • non-renewal of the discloser's employment
  • termination of the discloser's employment.

When contacted about allegations of reprisal, we assist in educating disclosers about the options available to them under the scheme. In our experience, disclosers commonly elect to make a PID regarding the reprisal action, make a complaint to the Office or await the outcome of the agency's investigation report.

Table 7 – Claims of reprisal
Nature of reprisal/detrimental action
43 % Bullying and harassment 21 % Employment disadvantage 14 % Unreasonable management, performance managed 8 % Other 7 % Damage to or loss of property 7 % Termination

Complaints

The Office and IGIS can review agencies' handling of PIDs to assess whether their actions are reasonable and whether agencies are complying with the PID Act and their own PID procedures.

This year the Office received 44 complaints about agencies' handling of PIDs, an increase of 29 per cent from the previous year. The majority of complaints related to the process and outcome of disclosure investigations.

Of the 44 complaints about agencies' handling of disclosures, the Office investigated 17 matters. Some common complaint themes were:

  • reasonableness of the outcome, including concerns over the investigation process, such as adequacy of enquiries made and perceived conflicts of interest or bias
  • agencies declining to investigate, including disputes about conduct that was previously investigated
  • agencies not accepting disclosures, including disputes about whether or not conduct is disclosable
  • delays associated with the investigation, including failures to keep disclosers informed.

CASE STUDY

A discloser complained that an agency failed to investigate one aspect of their disclosure, relating to false and misleading statements. Upon investigation, the agency informed our Office that the particular allegation did not meet the threshold of disclosable conduct and the agency had therefore not allocated it for investigation. The agency had not informed the discloser of this assessment.

Our investigation concluded that the agency should have informed the discloser of its decision not to allocate the allegation, even though it allocated the remainder of the issues for investigation. We suggested that in the future the agency provide the discloser with reasons for a decision not to allocate a disclosure, or an aspect of a disclosure, and that they inform the discloser of any other action available. The agency accepted our suggestions.

Ombudsman investigations

The PID Act enables disclosers to make a disclosure directly to the Office if they have reasonable grounds to believe the Office should investigate. Generally speaking, the agency to which the disclosure relates is best-placed to investigate a disclosure. However, the Office may consider investigating a matter directly if satisfied that the agency is unable to properly investigate or respond to the disclosure.

This year, the Office received 78 disclosures about other Commonwealth agencies, the majority of which were allocated to the relevant agency. We accepted allocation of six disclosures relating to other agencies for investigation. We also allocated four disclosures to the Australian Public Service Commission as the disclosures fell within its jurisdiction under the Public Service Act 1999.

We completed 15 disclosure investigations this year, with a number of these having commenced in the previous reporting period. Of the investigations completed, none resulted in a finding of disclosable conduct, however the Office made comments and suggestions to agencies in five cases and referred one matter to the Australian Federal Police. Suggestions focused on quality of record-keeping, reminding staff of their statutory obligations when handling disclosures under the PID Act, providing agency staff with information about PID and ensuring extension requests are made within the time limits prescribed.

IGIS investigations

Throughout the year the IGIS provided assistance and advice to officials within the intelligence agencies. Our office assisted the IGIS, where needed, on the operation of the scheme and the performance of their functions under s 63 of the Act.

The IGIS received seven direct disclosures, all of which related to Australian intelligence agencies. Of these, one was allocated to an intelligence agency for investigation, with six remaining with the IGIS for investigation. Of these disclosures, the agency exercised discretion not to investigate, or investigate further under s 48 in one case. During the year, six investigations were completed under the Inspector General of Intelligence and Security Act 1986 (IGIS Act).

The six security and intelligence agencies which form the Australian Intelligence Community34 received seven PIDs. These agencies exercised discretion not to investigate, or not investigate further, in three cases and completed three investigations under s 51 of the PID Act.

Education and awareness

Since the scheme's inception four years ago, uptake has increased and agencies' understanding of, and compliance with, the scheme has matured. This year our education focus has been to help agencies improve PID outcomes and discloser experiences with a view to reducing PID handling complaints and the need for subsequent disclosures. Drawing from the issues raised by disclosers in their complaints, we have emphasised the themes of trust, communication and action.

Figure 15 – The three core themes delivered at the Authorised Officers forums

Figure 15 – Image showing the three core themes delivered at the PID Authorised Officers forums. Trust, Communication and Action.

Discloser dissatisfaction with the PID process can sometimes arise as a result of a discloser not being properly informed of the nature of the investigation being undertaken, or not understanding the possible outcomes of a PID investigation, as opposed to other remedies which may be available. Accordingly, we encourage agencies to view PIDs as a tool within a broader range of complaint resolution and integrity mechanisms, and to ensure that public officials are properly informed about the full range of options available to them.

We delivered authorised officer forums to 131 representatives from a large cross section of agencies. Focusing on these three core themes, agencies are encouraged to build trust with disclosers, and to ensure a clear understanding of the issues being investigated, through regular and responsive communication.

"...provided insight into complex issues/concerns."

Feedback from attendees this year was very positive.

Throughout the year we also delivered tailored briefings to SES-level staff at agencies, promoting best practice in the handling of PIDs.

Our publication of guidance materials and our PID hotline assist agencies and disclosers to navigate the scheme and promote positive engagement across the Commonwealth.

"...an enabling platform that re-enforces the value of the scheme."

"...addressed challenges faced in the administration scheme."

"...benefits gained through shared experiences."

This year, the Office responded to 289 telephone and email enquiries from agencies and disclosers, a nine per cent increase from last year, and we received 18,453 visits to our content pages on our website. We have also added to our online resources this year, publishing a new information sheet designed to assist public officials to understand their options and achieve a meaningful remedy when reporting wrongdoing, together with a set of frequently asked questions (FAQ) for requesting extensions. In the coming year, we will be examining ways to further improve the accessibility and relevance of the information on our website.

"...offered new initiatives (steps towards better outcomes)."

The Office is a research partner for the Whistling While They Work 2 project led by Griffith University, which aims to improve managerial responses to whistleblowing in the private and public sectors. We also maintain a presence in the online PID community through the Whistling Wiki–an initiative which the Office jointly administers with the NSW and Queensland Ombudsman offices, and we actively engage with the Commonwealth's broader integrity framework across the Commonwealth public sector.

International Program

Image showing map of the countries we engage with to deliver our international program in the Asia-Pacific region. Left to right: Indonesia, Australia, Papua New Guinea, Federated States of Micronesia, Republic of Marshall Islands, Solomon Islands, Vanuatu, Tonga, Samoa and New Zealand

In 2017–18, the Department of Foreign Affairs and Trade (DFAT) continued to fund the Office's delivery of an International Program in the Asia-Pacific region. The program supported regional ombudsmen and allied integrity bodies through the delivery of technical assistance, promoting best practice and enhancing regional cooperation.

The International Program delivered three programs in 2017–18 with our partners across the Asia-Pacific region:

  • a partnership program with the Ombudsman Republik Indonesia
  • a twinning program with the Ombudsman Commission of Papua New Guinea
  • the Pacific Integrity Network with seven Pacific Island countries.

Indonesia

Our partnership program with the Ombudsman Republik Indonesia (ORI) continues to go from strength to strength, through the delivery of targeted activities supporting the sharing of best practice and knowledge across the two agencies. Through ongoing engagement, the two agencies have built a successful program that has produced tangible and long term outcomes.

The 2017–18 program delivered six activities, focusing on the priority areas of building staff capacity in complaint-handling, leading public sector reform on integrity matters and building relationships with Indonesian government agencies. Senior leaders attended industry conferences to build ORI's regional networks which included ORI's annual regional training event – training 107 staff members from 33 regions on managing unreasonable complainant conduct. Our Office also hosted 10 ORI staff members to undertake an intensive two week internship to explore best practice complaint-handling and investigation processes.

Papua New Guinea

In 2017–18, the twinning program with the Ombudsman Commission of Papua New Guinea (OCPNG) supported the delivery of 11 activities, including training, internships and technical support.

The program supported the OCPNG to develop effective complaint-handling capability within PNG's public sector agencies, including at a workshop held in June 2018. At the workshop, participants from Papua New Guinea Government agencies shared their complaint-handling initiatives and experience, and participated in a practical training session. These activities complemented best practice complaint-handling guidelines developed by an OCPNG officer during a placement with our Office in 2016–17.

In November 2017, the OCPNG Chief attended the Australian Public Sector Anti-Corruption Conference in Sydney and the OCPNG Ombudsman attended the Australasian and Pacific Ombudsman Region (APOR) Conference. These visits supported the OCPNG to share best practice approaches and engage closely with ombudsmen and integrity agencies in the Asia-Pacific region.

Four OCPNG staff representatives, together with ORI officers, also completed an Australian Ombudsman internship program, exchanging information on best practice complaint-handling and investigation processes.

Papua New Guinea Conflict of Interest Training in Port Moresby

During October and November 2017, the program supported Conflict of Interest Training for Port Moresby based OCPNG officers. A Public Law specialist facilitated a series of workshops, incorporating both theoretical and practical ways to deal with conflict of interest issues.

Over 80 staff members attended the workshops, including junior and management level officers across operational and corporate areas.

Participants were highly engaged and commented on the quality of the workshops and relevance to the Commission's work, which was the first of this kind to be delivered under the twinning program.

Image of conflict of interest training and technical support for Ombudsman Commission of Papua New Guinea staff, delivered under the PNG Twinning Program in Port Moresby, November 2017

Conflict of interest training and technical support for OCPNG staff, delivered under the PNG Twinning Program in Port Moresby, November 2017.

Pacific Integrity Network

The Pacific Integrity Network (PIN) supports ombudsmen and allied integrity bodies across seven countries: Papua New Guinea, the Federated States of Micronesia, Republic of the Marshall Islands, Samoa, the Solomon Islands, Tonga and Vanuatu.

In 2017–18, the activities included training to enhance the leadership and management capacity of middle management staff, five flexible funding projects targeted at enhancing public awareness of integrity functions and professional development for staff.

In September 2017, the Office launched a shared web platform, pacificintegritynetwork.com, where integrity bodies can access resources, share technical material and participate in online practitioner forums.

In October 2017, in partnership with the United Nations, we delivered Advanced Investigations Training in Tonga for 40 practitioners from 23 Pacific integrity bodies. We also delivered Administrative Skills Investigation training to the Vanuatu Police and the Ombudsman of Vanuatu in June 2018. The training strengthened cooperation between the two agencies and helped build a consistent, best practice approach to administrative investigations.

On 30 June 2018 funding for the Pacific program ceased. During 2017–18 our Office supported a PIN working group to develop a transition strategy and succession plan to support ongoing collaboration between Pacific integrity agencies. The succession plan focused on networking, sharing best practice and improving technical capacity and cooperation.

Our Office will continue to participate in Pacific integrity agency regional networks. In place of the PIN program, the Office will have smaller scale bilateral partnership programs with the Solomon Islands and Samoa over 2018–19.

CASE STUDY

In March 2018, a group of 10 Ombudsman Republik Indonesia officers from nine different regions participated in a customised internship hosted by the Office to explore best practice complaint-handling and investigation processes. They undertook training in our Canberra and Melbourne offices and participated in tailored sessions with our staff. Their internship was complemented by two training sessions hosted by the New South Wales Ombudsman in Canberra and by the Victorian Ombudsman at its head office in Melbourne.

Over the two week period, the interns gained technical experience in effectively managing difficult and complex complaints and built upon their professional skills as investigation officers. The interns reported the presentations and workshops broadened their knowledge and helped them to think critically about their own business processes and where they can influence change.

Postal Industry Ombudsman

The Office investigates complaints about postal and similar services provided by Australia Post and Private Postal Operators (PPOs) under the Postal Industry Ombudsman (PIO) Scheme. We also investigate complaints about administrative actions and decisions taken by Australia Post.

Australia Post is a mandatory member of the PIO Scheme, while PPOs may choose to voluntarily register. As at 30 June 2018, there were five voluntary members on the Private Postal Operator Register.

Complaints

Our Office values the complaints we receive from the community about postal services and uses this feedback to promote best practice complaint-handling for postal operators.

In 2017–18, we received 3,790 complaints, representing a 10 per cent decrease from 2016–17 (4,213).

Table 8 – Complaints received and finalised 2017–18
Postal Operator Complaints received Complaints finalised35
Australia Post and StarTrack 3,772 3,990
Other Postal Operators 18 18
Total3,7904,008

Figure 16 – Postal Industry complaint numbers

Figure 16 – Graph of Postal Industry complaint numbers received from 2007-2018

CASE STUDY

Daphne returned a painting to an interstate art gallery via Parcel Post. Daphne purchased Extra Cover and requested Signature on Delivery. The art gallery claimed not to have received the painting so Daphne had to pay the full cost of the lost painting.

Daphne complained to Australia Post, who advised Daphne that the delivery contractor reported the art gallery did not want parcels to be 'safe dropped', so Daphne's parcel was returned to the depot. However, no collection card was left with the art gallery to notify them to collect the parcel.

Unsatisfied with this outcome, Daphne made a complaint to our Office. We contacted Australia Post who conducted an internal investigation and deemed that the parcel was not appropriately delivered. Australia Post apologised to Daphne and agreed to compensate her for the cost of the painting and postage.

The Office has continued to explore methods to improve our operational efficiency and effectiveness to deliver faster complaint resolution for consumers.

In 2017–18 we trialed a new process for referring complaints to Australia Post that we assessed Australia Post should be able to resolve quickly with a customer. Australia Post would advise us of the outcome and then we would consider if further investigation of the complaint was required.

We referred 10 per cent of complaints via this process, which proved effective in providing a timely resolution of a postal dispute with a consumer. This process also reduced the number of detailed investigations required by the Office.

Complaint issues

In 2017–18 complaints about loss, delivery issues and delay continued to generate significant numbers of complaints to our Office, with the main focus on particular delivery processes like carding.

Figure 17 – PIO complaint issues in 2017–18

Figure 17 – Graph showing Postal Industry Ombudsman complaint issues in 2017-18

Outcomes

Some key outcomes from investigations in 2017–18 were:

  • the faster resolution of complaints, with the average time taken to finalise investigations reducing by 10 per cent compared to last year
  • the provision of better explanations by our Office and postal operators
  • apologies to complainants by the postal operator
  • the provision of financial remedies including compensation, refunds, goodwill payments and in-kind services
  • feedback to postal operator staff.

Reports

In 2008 and 2010 we published three reports concerning delivery issues:

  • use of notification cards (carding) (December 2008)36
  • determining levels of compensation for loss or damage of postal items (February 2010)37
  • 'Safe Drop' program–a review of the first year (March 2010).38

These reports resulted in our Office making a total of 13 recommendations and observations to assist Australia Post in addressing customer dissatisfaction and complaints, and to improve customer service. Australia Post implemented some of the recommendations and provided a detailed response concerning those not implemented.

In June 2017, we commenced an own motion review into the abovementioned reports focusing on complaints about delivery, loss and damage, and compensation. The own motion report was published on 3 April 2018.39 The report recognised that the postal environment has changed rapidly in the last decade and that Australia Post has embraced a number of technology solutions and implemented reforms to improve its performance. However, in the area of complaint-handling, it was our view that greater focus and attention were required on the part of Australia Post to improve its complaint-handling performance.

The report highlighted a number of areas Australia Post should focus on to improve the complaint experience, such as making it easier for customers to make a complaint and escalating complaints early on to appropriately trained staff to resolve complaints quickly.

The report made six recommendations to Australia Post on carding, Safe Drop, compensation and complaint-handling. Australia Post also committed to a number of actions and activities to address issues in the report.

We will monitor Australia Post's implementation of the report recommendations during 2018–19.

Additional reporting under s 19X of the Ombudsman Act

The Office has a number of requirements that it is required to report on in its annual report under s 19X of the Act:

  • There were no occasions where a complaint or part of a complaint was transferred from the Postal Industry Ombudsman to the Commonwealth Ombudsman under s 19N (3).
  • The Office did conduct an investigation in 2017–18 under s 19S, which examined three previous reports the Office made in 2008 and 2010. This investigation was finalised with the publishing of a report on 3 April 2018 titled, 'Review of Australia Post complaints about carding, Safe Drop and compensation'.

Overseas Students Ombudsman

The Office investigates complaints from intending, current and former international students about problems with private education providers.

Complaints

In 2017–18, we received 999 complaints, which is similar to the number received in 2016–17 (981).

Of the completed investigations, 48 per cent were resolved in support of the provider and 29 per cent in support of the complainant. In 23 per cent of cases our investigation outcome supported neither party because the case was otherwise finalised, for example the provider fixed the problem quickly before we needed to fully investigate or we decided after starting an investigation that the issue would be better dealt with by another complaint-handling body.

Not all complaints received are investigated. We finalised 675 complaints in 2017–18 without investigating (compared to 635 in 2016–17).

Figure 18 – Complaints received by year

Figure 18 – Graph showing Overseas Student Ombudsman complaints received by year 2010-2018

Table 9 – Complaints received and investigations commenced and finalised
Year Complaints received Investigations commenced Investigations completed40
2017–18 999 305 298

Figure 19 – How complaint issues were finalised in 2017–18

Figure 19 – Graph showing how Overseas Students complaint issues were resolved 2017-18

Table 10 – Complaints transferred to other complaint bodies
Complaint Body Complaints transferred in 2017–18
Tuition Protection Service (TPS) 34
Australian Skills Quality Authority (ASQA) 28
Office of the Training Advocate, South Australia 13
Tertiary Education Quality and Standards Agency (TEQSA) 2
Other 2
Total79

Complaint issues

The top five complaint issues represented 76 per cent of all issues raised in complaints received in 2017–18:

  1. written agreements (fees and refunds)
  2. monitoring attendance, progress and course duration
  3. transfer between education providers
  4. grades/assessment
  5. provider complaints and appeals processes.

Reports

Reports to the regulators and use of s 9 powers

The Office may, under s 35A of the Ombudsman Act 1976 (the Act), disclose information of concern about a provider's actions to the relevant regulator. In 2017–18 the Office made 14 disclosures to the Australian Skills Quality Authority (ASQA). The disclosures concerned:

  • provider failures to take action on outcomes of our investigations
  • provider non-cooperation with investigations
  • serious and/or repeated breaches of the Education Services for Overseas Students (ESOS) legislative framework.

We did not use our s 9 powers to obtain information or documents in 2017–18.

Reports on trends and systemic issues

Below is a list of submissions, issues papers and stakeholder materials produced by the Office during 2017–18:

  • a submission to the Department of Education and Training (DET) review of English Language Intensive Courses for Overseas Students (ELICOS) National Standards, made in August 2017
  • a submission to the Victorian Registration and Qualification Authority on updated guidelines for the enrolment of overseas students aged under 18 years, made in February 2018
  • a submission to the Joint Standing Committee on Migration relating to the efficiency of regulation of migration agents, made in May 2018
  • an issues paper on the framework for regulating the behaviour of education agents engaged in Australia's international education sector, published in June 2018
  • four quarterly reports highlighting key issues, trends and outcomes
  • three e-newsletters for private education providers, published in September and December 2017, and May 2018.

Stakeholder engagement

Conferences and forums

Representatives from the Office presented at, or participated in, the following events:

  • National Overseas Student Complaint-Handling Forum, hosted by the Commonwealth Ombudsman, in October 2017
  • ISANA International Education Association Inc. professional development session in Sydney in November 2017
  • Joint conference of ISANA International Education Association Inc. and the Australian and New Zealand Student Services Association in December 2017
  • ISANA International Education Association Inc. knowledgebase workshops on the updated National Code for Providers of Education and Training in Melbourne in December 2017
  • TPS provider information sessions in Sydney, Melbourne, Brisbane, Perth, Adelaide and Canberra in February and March 2018
  • Presentation to Study Canberra's international student ambassadors in February 2018, and a presentation at the Australian Federation of International Students information day in March 2018
  • International Education Association of Australia, compliance and admissions workshop on 4 May 2018
  • Presented at the Council for International Students Australia (CISA) national conferences in Canberra in July 2017 and in Cairns in June 2018.

Liaison activities

  • The Office held regular liaison meetings with the regulators, ASQA and the Tertiary Education Quality Standards Agency (TEQSA), as well as the TPS, DET and the Department of Home Affairs to discuss issues relating to international education and overseas student complaints.
  • Representatives from our Office participated in the Commonwealth, state and territory International Education and Training Forums (CSTIETF).
  • Representatives from our Office organised and chaired regular conferences with a network of ombudsmen and similar overseas student complaint-handlers.
  • In February 2018, representatives participated in a meeting with the Federation of Ethnic Community Councils Australia.
  • Representatives from our Office participated in a meeting of International Education Stakeholders organised by DET in February 2018.

The Office also collaborated with VOIS Magazine, a student-run publication which produced a student video highlighting a problem about provider fees faced by one overseas student and his strategy for resolving the problem (including contacting our Office).

CASE STUDY

Celia commenced a Diploma of Business with a private education provider and was concurrently studying at Bachelor's level with a different education provider. She was not satisfied with the quality of teaching in the diploma course, claiming that the teacher did not give any lectures and encouraged students not to attend class. She stopped attending classes after one semester and did not pay further fees.

The private education provider continued to bill Celia for fees relating to the remaining semesters of the diploma course and later cancelled the student's Confirmation of Enrolment (CoE) for non-payment. During this period the provider did not send her any notification regarding her attendance or course progress.

The provider engaged a debt collector who billed Celia over $6,000 in fees, which she paid. The provider later billed Celia for an additional amount, which was when she made a complaint to our Office.

We investigated the complaint over course fees owed. The issues around course quality were transferred to the regulator, ASQA.

Our investigation found that the provider had not entered into a valid written agreement with Celia. Therefore, after examining the provisions relating to student default in the Education Services for Overseas Students Act 2000, the Office recommended that the provider repay her around 75 per cent of the amount paid, within 28 days.

The provider did not repay the amount within this timeframe. As a result we advised the provider that we would disclose the matter to the appropriate regulator ASQA, as this constitutes a breach of the National Code of Practice for Providers of Education and Training to Overseas Students.

The provider then refunded Celia and ceased pursuing for additional course fees.

VET Student Loans Ombudsman

Our Office investigates disputes between students and their Vocational Education and Training (VET) loan scheme providers under the VET Student Loans Ombudsman function.

We also deliver best practice complaint-handling advice and training to VET loan scheme providers to help improve their ability to manage complaints, which results in better outcomes for students and providers.

If required, we have powers to compel VET loan scheme providers to attend meetings, and we can make recommendations to other Australian Government agencies in relation to systemic issues about provider practices uncovered through our investigations.

Complaints

In 2017–18, we received 6,397 complaints from students disputing their debts or other issues with their VET loan scheme provider.

In the fourth quarter of 2017–18, we observed an earlier than anticipated increase in complaints. We received on average 135 complaints per week during 2017–18, however, in the last three weeks of the year this increased to 209. We believe this is due in part to complainants receiving correspondence from the Australian Taxation Office (ATO) about their obligation to make student loan repayments.

Complaint issues

In 2017–18 we closed 3,049 complaints, of these the top issues raised by students included:

  • Unknown debt or enrolment–complaints about VET FEE-HELP where the complainant does not recall signing up for a course or was not aware there was a student loan associated with the course.
  • Post census re-credit requests–complaints about withdrawal after the census date, where a student has enquired about or applied for a re-credit of their VET FEE-HELP, including in special circumstances.41
  • Enrolment information issues–complaints about inaccurate, incomplete or unclear information a provider or broker gave a prospective student about eligibility for VET FEE-HELP or VET Student Loans, fees for the course or the amount of the loan prior to enrolment.
  • Loan amount dispute–complaints about the provider's calculation of the loan amount or advice from the provider relating to the loan amount.
  • Unsolicited contact to enrol–complaints about cold-calling, approaching a person in a shopping centre or public space and other similar approaches.
  • Course cancellation due to provider closure–complaints about course cancellation due to the provider closing.
  • Pre-census date withdrawal–complaints about the provider's handling of a pre-census date withdrawal request.
  • Inducements to sign up for study–complaints about providers or brokers offering a prospective student something of value such as a laptop, tablet or money in exchange for enrolling in a course and taking out a loan.
  • Agent or associate conduct–complaints about a broker or agent and their conduct when enrolling the student in a course.

Figure 20 – VET Student Loans and VET FEE-HELP closed complaints and top issues for 2017–18

Figure 20 – Graph VET Student Loans and VET FEE-HELP closed complaints and top issues for 2017-18

Investigations

Due to the high number of complaints received in the first half of 2017–18 we focused on the initial screening and preliminary assessment of complaints. Where possible we referred complainants to their provider or another oversight body in the first instance, to secure a timely and positive outcome. This included referring complainants to their provider or another oversight body. This triaging of complaints allowed us to resolve those complaints that had an immediate available remedy ahead of those that required in-depth assessment or investigation.

In the second half of 2017–18, we received fewer complaints than we received in quarters one and two. As such, we moved to in-depth assessments of complaints allowing us to commence and finalise more investigations.

In 2017–18, we commenced 186 investigations and finalised 40 investigations that included 70 issues. Complaints can include multiple issues therefore there are more issues (70) than total complaints closed following investigation (40). The outcome of the issues for our finalised complaints were:

  • No remedy required (29)–the investigation did not result in a re-credit or other remedy for the complainant. Typically, in these cases, the Office was satisfied with the provider's explanation of its actions and decided not to investigate further.
  • Debt waived or reduced (24)–a provider actioned a full or partial re-credit of a loan debt as a result of our investigation.
  • Other non-financial remedy (6)–there was no re-credit made as a result of our investigation, but another remedy was offered by the provider such as extending a student's study period without charge, issuing a student's completion certificate, or issuing a decision letter to a student.
  • Provider undertook to reconsider the matter (6)–due to our investigation, the provider agreed to reconsider their decision and/or action. For example, the provider agreed to conduct a fresh review of the complaint.
  • Action expedited (1)–as a result of our investigation, the provider expedited an action, such as a loan debt re-credit.
  • Remedy provided by the agency without our Office intervening (1)–the provider had already given an appropriate remedy to the complainant, outside of our investigation.
  • Better explanation by agency (3)–the provider gave our Office a better explanation about the decision it made and our Office was satisfied with the provider's actions.

ATO deferments

We have an arrangement with the ATO where complainants' compulsory student repayments can be deferred while we investigate their complaints if there is sufficient evidence of provider misconduct. The complainant is made aware that the deferment is temporary, the debt remains and indexation continues to accrue unless the debt is re-credited or otherwise cancelled.

As at 30 June 2018, we referred 1,844 complainants to the ATO for deferment of their loan repayments. In July 2018, we contacted all complainants that were eligible for a rollover of existing deferments for the new financial year and provided advice on how to do this.

Reports

We publish four quarterly updates for the VET Student Loans Ombudsman function, which provide detailed data and analysis of complaints and issues handled by our Office. These quarterly reports are available on our website.42

CASE STUDY

Tony engaged with a job search agency in 2014. The job search agency suggested that he should enrol in an online course to further his skills. Tony considered enrolling in a diploma level course, but decided not to. Instead, he signed up to an external job search website, where he uploaded his resume.

Later on, Tony received a call from a person who he believed was from his job search agency, but was instead a broker for VET providers. The person spoke to him about enrolling in a diploma level qualification. Tony explained that he believed he wasn't suitable for the course, as he had left school before year 10 and didn't maintain good grades throughout his schooling. Tony was under the impression that if he did not enrol, he would be in breach of Centrelink requirements and would lose his welfare benefits.

A month after that phone call, Tony found a job and no longer required welfare payments, so he called the broker and told them he wanted to withdraw from the course.

In 2017, Tony discovered he had a loan debt for two diploma level courses with a provider. Tony unsuccessfully attempted to have the debt remitted through the provider's complaint-handling process before contacting our Office.

Following assessment of Tony's complaint, our Office requested further information from the provider, including a response to the issue of unsolicited contact and suitability for the course.

The provider responded by offering to re-enrol Tony into the same course, with additional support in the form of extensive language, literacy and numeracy training.

In response to the issue of suitability, the provider advised our Office that the life skills Tony had, and his former job in a trade, contributed to their assessment of his ability to complete the diploma level qualifications.

The provider also stated that when Tony signed up to the external job search website he ticked a box agreeing to receive information about training courses.

However, the provider's assessment of Tony's eligibility did not reflect that Tony did not hold a trade certificate and his particular circumstances meant he did not have relevant life skills. It also appeared that Tony did not meet the provider's requirements to be enrolled in either course and was therefore unsuitable.

As a result of our investigation, the provider agreed to remit both debts in full.

Stakeholder engagement

In 2017–18 we undertook engagement work with government agencies, community and legal bodies to increase awareness of the VET Student Loans Ombudsman function. The focus of this work was to establish and develop relationships with agencies that interact with people who have a VET student loan debt they wish to dispute and to assist complainants in approaching our Office.

Agencies and bodies we have worked with include the Department of Education and Training (DET), Department of Finance (DoF), the Australian Taxation Office (ATO), the Australian Competition and Consumer Commission (ACCC), the Australian Skills Quality Authority (ASQA), TAFE Directors Australia (TDA), the Australian Council for Private Education and Training (ACPET), the South Australian Training Advocate, the Queensland Training Ombudsman, Legal Aid and the Consumer Action Law Centre.

In 2017–18, we presented to or participated in:

  • a Velg Training webinar about the VET Student Loans function in July 2017
  • ACPET conference in Brisbane in August 2017
  • Networked TAFE Conference hosted by TDA in Adelaide in September 2017
  • 2017 National VET Conference hosted by Velg Training in Sydney in September.

Looking forward

We consider a provider is 'unavailable' when it has closed and there is no representative available to discuss individual complaint matters. In 2017–18 it was difficult to progress investigations of complaints that related to unavailable providers due to the lack of available information and evidence to support or contradict complaints. To overcome these issues, we have been working with government agencies and liquidators of closed providers to obtain student records to assist with our investigations. Through a procurement process late in 2017–18, we obtained access to over 400,000 records relating to the enrolments of students at a large unavailable provider. In 2018–19 we will use these records to assess and investigate complaints received about this provider and in our assessment of systemic issues.

In 2018–19, we will also be working with providers to deliver best practice complaint-handling training and providing advice by:

  • meeting individually with providers
  • participating in provider workshops
  • providing information packs to providers about complaint-handling and informing students of our services.

Private Health Insurance Ombudsman

The Office investigates complaints about health insurance arrangements. Our role is to protect the interests of consumers in relation to private health insurance. Our Office is an independent body that acts to resolve disputes about private health insurance at all levels within the private health industry. We also report and provide advice to industry and government about these issues.

Complaints Overview

In 2017–18 complaints to our Office declined 21 per cent to 4,553 which was a significant reduction compared to 5,750 in 2016–17. The number of private health insurance complaints received has increased significantly over the last decade as shown in Figure 21. In 2016–17, we received 5,750 complaints, compared to 4,416 in the previous year – an increase of over 1,300 complaints. This was the largest increase we have experienced over the past 10 years. Although complaints have moderated in 2017–18, there remains a steady increase in trend terms.

The level of overall satisfaction as reported by complainants to our Office was 81 per cent, compared to 84 per cent in 2016–17. The results show that 78 per cent of survey respondents were happy with the time taken to resolve their complaints, compared to 80 per cent in the previous year – our Office will prioritise the timeliness of complaint-handling in the year to come.

The number of consumer information enquiries received by the Office relating to private health insurance reduced by 21 per cent in 2017–18. We received 2,956 enquiries, of which 65 per cent were received through the consumer website privatehealth.gov.au.

Figure 21 – Total complaints and enquiries by year

Figure 21 – Graph Private Health Insurance Ombudsman total complaints and enquiries by year, 2008-2018

Complaints about Private Health Insurers

The following table illustrates the number of complaints and disputes received about registered private health insurers and compares these to their market share. A high ratio of complaints or disputes compared to market share usually indicates either a less-than-adequate internal dispute resolution process, especially for complex issues, or an underlying systemic or policy issue.

Table 11 – Complaints or disputes about registered private health insurers
 Complaints Percentage of ComplaintsDisputes Percentage of Disputes Market Share
ACA 0 0.0% 0 0.0% 0.1%
Australian Unity 209 5.4% 28 5.9% 3.0%
BUPA 909 23.5% 145 30.8% 27.0%
CBHS Corporate Health 0 0.0% 0 0.0% <0.1%
CBHS 54 1.4% 7 1.5% 1.5%
CDH (Cessnock) 1 0.0% 1 0.2% <0.1%
CUA 29 0.7% 5 1.1% 0.6%
Defence 52 1.3% 6 1.3% 2.0%
Doctors 8 0.2% 3 0.6% 0.3%
Emergency Services Health 0 0.0% 0 0.0% <0.1%
GMHBA 118 3.0% 12 2.5% 2.3%
Grand United Corporate 35 0.9% 4 0.8% 0.4%
HBF (incl. GMF/Healthguard) 271 7.0% 23 4.9% 8.0%
HCF (Hospitals Contribution Fund) 574 14.8% 75 15.9% 10.4%
HCI (Health Care Insurance) 8 0.2% 0 0.0% 0.1%
Health.com.au 40 1.0% 14 3.0% 0.6%
Health-Partners 13 0.3% 3 0.6% 0.6%
HIF (Health Insurance Fund of Australia) 32 0.8% 4 0.8% 0.9%
Latrobe 18 0.5% 0 0.0% 0.7%
Medibank (AHM) 945 24.4% 59 12.5% 26.9%
Mildura 2 0.1% 1 0.2% 0.2%
MyOwn 0 0.0% 0 0.0% <0.2%
National Health Benefits (Onemedifund) 0 0.0% 0 0.0% 0.1%
Navy 5 0.1% 1 0.2% 0.3%
NIB 357 9.2% 51 10.8% 8.3%
Nurses and Midwives 3 0.1% 0 0.0% <0.1%
Peoplecare 19 0.5% 2 0.4% 0.5%
Phoenix 11 0.3% 3 0.6% 0.1%
Police 5 0.1% 0 0.0% 0.3%
Queensland Country Health 3 0.1% 0 0.0% 0.4%
Railway and Transport 27 0.7% 5 1.1% 0.4%
Reserve 2 0.1% 0 0.0% <0.1%
St Lukes 8 0.2% 0 0.0% 0.5%
Teachers Health 76 2.0% 15 3.2% 2.3%
Teachers Union 16 0.4% 2 0.4% 0.6%
Transport 15 0.4% 1 0.2% 0.1%
Westfund 9 0.2% 1 0.2% 0.7%
Total3,874 471  

Complaint Issues

Benefits

Complaints: 1,641

Issues:

  • hospital exclusions and restrictions
  • general treatment (extras or ancillary benefits)
  • delay in payment.

The main issue of concern was hospital policies with unexpected exclusions and restrictions. Some basic and budget levels of hospital cover exclude or restrict services that many consumers assume are routine treatments or standard items. Delays in benefit payments and complaints about insurer rules that limited benefits also represented a significant proportion of complaints received.

CASE STUDY

Mandeep was admitted to hospital via emergency after suffering abdominal pain. Tests confirmed he was suffering appendicitis and required immediate surgery.

He had chosen to go to a private hospital because he was covered for emergencies and appendectomies by his health insurer. During the admission process the hospital contacted his private health insurer to check his cover and confirmed he was eligible for the planned surgery.

During the surgery, the surgeon found that the issue was more complex than the tests had initially indicated. The surgeon had to remove part of Mandeep's bowel in order to treat his condition.

It is relatively common for procedures to be varied once surgery has commenced and this can present a problem if a person is only covered for a limited number of procedures–as it turned out Mandeep was. Two weeks later, his hospital claim was rejected by his health insurer. The reason cited by the insurer was that the hospital claim form showed that the surgery was not an appendectomy, but was a more complex procedure which was not covered by his policy. The claim needed to be for the specific Medicare item number the hospital had used to check his policy upon admission.

As the health insurer refused to pay, Mandeep received a bill of $7,000. After receiving no satisfaction from complaining to his health insurer and the hospital, Mandeep contacted our Office for assistance.

Following an investigation, our Office's view was that it was reasonable for Mandeep and the hospital to rely on the result of the eligibility check which confirmed that he would be covered for the appendectomy. It was not his or the hospital's fault that the nature of the surgery changed when Mandeep was on the operating table, nor was there any further reasonable action that he or the hospital could have taken to prevent the situation from arising.

Rather, Mandeep's situation was a result of poor product design from the insurer, as the policy would cover an appendectomy but would not cover a very similar surgery, when the underlying condition for both surgeries was still appendicitis. Our Office's view in these type of cases is that health insurers should exercise flexibility, especially when the patient and the hospital have made all reasonable attempts prior to admission to check that the person will be covered.

As a result of our investigation, the insurer agreed to cover the cost of Mandeep's admission.

Membership

Complaints: 867

Issues:

  • cancellation
  • clearance certificates.

Membership complaints typically involved policy administration issues, such as processing cancellations or payment of premium arrears. Delays in the provision of clearance certificates when transferring between health insurers was also a major cause of complaint.

CASE STUDY

Tessa held both hospital and general treatment cover with insurer JKL. She decided to keep her general treatment policy with JKL, as she was satisfied with her dental and physiotherapy benefits, but to transfer her hospital insurance to insurer PQR.

Three months later, Tessa had a dental appointment so she contacted JKL to check the benefits under her general treatment policy. On calling the insurer, she was surprised to find her JKL general treatment policy had been cancelled at the same time as her hospital policy. Tessa had not received any arrears notices or cancellation letters from JKL nor had she been contacted by the insurer in the previous three months. The insurer would not assist her in reversing the cancellation so Tessa then contacted our Office for assistance.

We contacted JKL and asked why they had cancelled both Tessa's hospital and general treatment policies. JKL stated they had received a cancellation request from PQR which did not specify whether the cancellation was for the hospital policy or both. Therefore JKL cancelled both policies and refunded the excess premiums to Tessa's bank account.

Following our referral, JKL restored Tessa's general treatment policy from the date it had been incorrectly cancelled. She was able to continue her cover and receive benefits for her upcoming dental appointment.

Our advice to insurers is they should take note to include specific instructions when sending cancellation requests to reduce the number of these kind of complaints. The insurer who is losing the customer also has the responsibility to provide confirmation of cancellation to the former member, so that if an error has been made it can be reversed as quickly as possible.

Service

Complaints: 675

Issues:

  • service delays
  • premium payment problems
  • general service issues.

Service issues are usually not the sole reason for complaints. The combination of unsatisfactory customer service, untimely responses to simple issues and poor internal escalation processes can cause policy-holders to become more aggrieved and dissatisfied in their dealings with the insurer, until the service itself becomes a cause of complaint as well as the original issue.

CASE STUDY

Silvana paid her health insurance premiums by monthly direct debit from her bank account. In September, she noticed an additional debit of over $200 with the name of her insurer on it. She made a complaint to her insurer within a few days of the debit and was told the insurer would investigate and call her back.

She was still waiting for a response from the insurer when there was again another debit of over $200 the following month. She repeated the process of contacting the insurer and was again told the insurer would investigate and call her back.

After waiting another three weeks with no response from the insurer, Silvana contacted our Office for assistance.

Following our escalation of the matter with the health insurer, the insurer refunded both payments and the money was received by Silvana within one week.

This was a simple matter which could have been dealt with by the insurer directly, had the matter been escalated internally. However, the delays in processing the refund and the lack of response from the insurer to Silvana caused her to approach our Office to lodge a formal complaint.

Information

Complaints: 476

Issues:

  • verbal advice
  • lack of notification.

Information complaints usually arise because of disputes or misunderstandings about verbal or written information provided by an insurer. Generally, verbal advice is the cause for more complaints than any other sub-issue and these can be particularly complex if the insurer has not kept a clear record or call recording of its interaction with the member.

CASE STUDY

Shu Chen noticed unusual debits being taken from her bank account so she contacted her insurer for assistance. She went to a retail centre where she was told the direct debits would be put on hold while the insurer investigated the issue, and that she would not have to pay for the insurance while the investigation was being conducted. The retail centre staff member said it would take about ten days for the problem to be corrected.

Shu Chen contacted the insurer on several occasions to check the status of her policy and was told the investigation was ongoing.

Four months later, Shu Chen was advised by the insurer that the issue had been fixed. However, the insurer also advised that she was now four months in arrears and would need to make an immediate lump sum payment for her policy to continue. Shu Chen then contacted our Office for assistance.

On investigating the matter, we found that there had been no records of the initial discussion between Shu Chen and the retail centre staff member. There was also no written, email or other notification made to Shu Chen about the arrears due on her membership throughout the period. Furthermore, when she called the insurer two months after the debits ceased, she was merely told the matter was ongoing–no advice was given that she was in arrears and needed to take action to resume payments to continue her policy or risk cancellation.

Our Office examined the records provided by the insurer and identified a number of interactions that had occurred, where it was likely a staff member would have noticed the arrears were increasing on Shu Chen's policy. However, at no point was this communicated to Shu Chen, nor did the insurer keep any record of the advice provided. On raising this issue with the insurer, they agreed to waive the four months of arrears due to the inadequate recordkeeping at the branch and the lack of notifications provided to Shu Chen over the investigation period.

Table 12 – Complaint issues
ISSUE Sub-issue2015–162016–172017–18
BENEFIT1,3591,7401,641
Accident and emergency 49 43 70
Accrued benefits 3 5 14
Ambulance 66 86 76
Amount 67 166 91
Delay in payment 142 237 136
Excess 56 68 65
Gap – Hospital 53 75 69
Gap – Medical 151 151 138
General treatment (extras/ancillary) 194 214 282
High cost drugs 13 12 7
Hospital exclusion/restriction 276 308 397
Insurer rule 131 152 120
Limit reached 14 18 25
New baby 6 22 17
Non-health insurance 9 9 9
Non-health insurance – overseas benefits 3 2 0
Non-recognised other practitioner 22 35 11
Non-recognised podiatry 15 14 8
Other compensation 14 15 18
Out of pocket not elsewhere covered 15 25 17
Out of time 15 18 22
Preferred provider schemes 32 54 37
Prostheses 11 8 8
Workers compensation 2 3 4
CONTRACT284343
Hospitals 18 23 22
Preferred provider schemes 8 17 20
Second tier default benefit 2 3 1
COST149146120
Dual charging 2 8 3
Rate increase 147 138 117
INCENTIVES143275241
Lifetime Health Cover 121 222 206
Medicare Levy Surcharge 11 10 14
Rebate 9 41 18
Rebate tiers and surcharge changes 2 2 3
INFORMATION599599476
Brochures and websites 34 55 48
Lack of notification 90 70 50
Oral advice 430 408 341
Radio and television 1 1 1
Standard Information Statement 6 9 4
Written advice 38 56 32
INFORMED FINANCIAL CONSENT846873
Doctors 35 25 15
Hospitals 36 36 54
Other 13 7 4
MEMBERSHIP8451159867
Adult dependents 15 25 35
Arrears 106 114 67
Authority over membership 16 21 25
Cancellation 315 399 379
Clearance certificates 196 310 159
Continuity 114 190 101
Rate and benefit protection 32 17 10
Suspension 51 83 91
OTHER232216202
Access 3 2 0
Acute care certificates 2 7 15
Community rating 1 0 2
Complaint not elsewhere covered 54 73 63
Confidentiality and privacy 11 21 14
Demutualisation/sale of health insurers 1 1 1
Discrimination 4 0 2
Medibank sale 1 1 1
Non-English speaking background 0 0 0
Non-Medicare patient 2 9 5
Private patient election 6 9 5
Rule change 147 93 94
SERVICE7041,370675
Customer service advice 106 137 113
General service issues 234 298 219
Premium payment problems 211 494 271
Service delays 153 441 72
WAITING PERIOD363380475
Benefit limitation period 1 5 1
General 29 28 49
Obstetric 51 31 35
Other 14 23 23
Pre-existing conditions 268 293 367

Complaints about hospitals, health practitioners, brokers and others

Most complaints (82 per cent in 2017–18) are about health insurers. However, complaints can also be about providers including hospitals, health practitioners, health insurance brokers and other practitioners (such as dentists).

Table 13 – Number of complaints about insurers, hospitals, health practitioners and brokers
 2015–162016–172017–18
Health Insurers 3,849 5,057 3,874
Hospitals 47 48 57
Overseas Visitors Insurers 321 470 441
Doctors & Practitioners 58 30 25
Health Insurance Brokers 75 75 83
Other43 66 70 73
Total4,4165,7504,553

Overseas Visitors Health Cover

Each year we help consumers with complaints about Overseas Visitors Health Cover (OVHC) and Overseas Student Health Cover (OSHC) policies for visitors to Australia. These complaints are counted separately from complaints made against domestic health insurance policies.

The most common issues for overseas visitors were complaints about the pre-existing condition waiting period (92 complaints), complaints about policy cancellation and refunds (90 complaints) and complaints about delays in receiving benefit payments (28 complaints).

Table 14 – Overseas Visitors Health Cover complaints
Insurer2015–162016–172017–18
Allianz (Lysaght Peoplecare) 69 96 101
Australian Unity 12 20 17
BUPA 119 176 184
CBHS 0 1 0
GMHBA 0 3 4
GU Health 0 3 0
HBF 1 2 4
HCF 1 2 2
HIF 3 2 3
Medibank Private (AHM) 73 107 72
NIB 43 58 54
Total321470441

Complaint-handling procedures and categories

In 2017–18, 80 per cent of complaints were resolved as 'Problems'. In most instances we refer a complaint directly to a nominated representative of the insurer or service provider, on behalf of the complainant. This approach ensures a quicker turnaround and our client satisfaction survey confirms that complainants have a high satisfaction rate with this method of resolution.

Approximately six per cent of complaints were classified as 'Grievances'. These cases are dealt with by investigating the issues of grievance and providing additional information or a clearer explanation directly to the complainant, without the need for a report from the health insurer or health care provider.

Approximately 14 per cent of complaints were classified as 'Disputes' (a slight increase from 12 per cent in 2016–17). In these cases, we request a detailed report from a health insurer or other object of a complaint.44 The report is then reviewed and a decision is made on whether the initial response was satisfactory or further investigation is warranted.

Complaint outcomes

We regularly carry out a postal survey of randomly selected private health insurance complainants. Each fortnight, we send survey forms to a sample of complainants whose cases have been closed during the previous period. In 2017–18 we received 139 responses (25 per cent)–a reasonable participation rate for a postal survey of this kind.

Overall, 81 per cent of clients who responded were satisfied or very satisfied with the handling of their complaint, compared to 84 per cent the previous year.

Table 15 – Client survey for private health insurance complaints
 2015–162016–172017–18
Overall satisfaction 85% 84% 81%
Agreed that staff listened adequately 93% 90% 88%
Satisfied with staff manner 90% 85% 84%
Resolved complaint or provided adequate explanation 81% 85% 83%
Thought the Office acted independently 86% 86% 83%
Would recommend our Office to others 86% 85% 80%
Happy with time taken to resolve complaint 79% 80% 78%

Reports

During the year, we published Quarterly Bulletins, reporting on complaint statistics and key issues and trends.45 The Bulletins included topics such as pre-existing condition complaints, ambulance bills, Lifetime Health Cover (LHC), the mental health treatment waiting period and OSHC.

The State of the Health Funds Report, relating to the financial year 2016–17, was published in March 2018.46 Section 20D(c) of the Omubdsman Act 1976 (the Act) requires that we publish the report after the end of each financial year to provide comparative information on the performance and service delivery of all health insurers during that financial year. The purpose of this report is to provide consumers with additional information to assist them to make decisions about private health insurance.

We published a report on Bupa Health Insurance Hospital Policy Changes in June 2018.47 Some of Bupa's changes affected consumers holding basic and mid-level hospital policies from 1 July 2018, while changes to its medical gap scheme affected all Bupa hospital policyholders from 1 August 2018. The report discusses the detrimental impacts of the changes on consumers, particularly those in regional Australia. The report also considers the appropriateness of communications that Bupa provided to policyholders about the changes. The report made two recommendations to improve how changes are communicated by Bupa to their policyholders, both of which were accepted by Bupa.

To supplement the information provided in this report, additional information on private health insurance complaint statistics and trends in 2017–18 will be published on our website.48

Consumer website: privatehealth.gov.au

Our Office manages privatehealth.gov.au which is Australia's leading source of independent information about health insurance for consumers.

In 2017–18 we received 1,924 individual enquiries via the consumer website, which we responded to with written consumer information and advice.

Website usage has continued to grow annually since the website's launch in 2007, with 1,319,130 visits in 2017–18.

Private Health Insurance reforms

In 2017–18 the Government announced significant reforms to private health insurance. A key aim of the reforms is to make health insurance simpler for consumers to understand by introducing common health insurance terms and classifying policies into simpler categories. The consumer website privatehealth.gov.au will be updated and improved throughout 2018–19 as part of these reforms. We have commenced the project to upgrade the website which is expected to be available from April 2019.

Footnotes

3 http://www.ombudsman.gov.au/__data/assets/pdf_file/0022/43528/Report-Centrelinks-automated-debt-raising-and-recovery-system-April-2017.pdf

4 Complaints about payments and services that DHS delivers that are not part of the Centrelink or Child Support programs. For example, Medicare, the early release of superannuation benefits, and the MyGov website.

5 Australian National Audit Office (ANAO), Design and Implementation of the Community Development Programme, ANAO Report No 14 2017–18, 31 October 2017, https://www.anao.gov.au/sites/g/files/net5496/f/ANAO_Report_2017-2018_14a.pdf

6 Senate Finance and Public Administration References Committee, Appropriate and effectiveness of the objectives, design, implementation and evaluation of the Community Development Program (CDP), (December 2017, https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Finance_and_Public_Administration/CDP/Report)

7 A single complaint may reflect more than one issue.

8 Commonwealth Ombudsman report 03|2018, Administration of reviews under the National Disability Insurance Scheme Act, released 15 May 2018. http://www.ombudsman.gov.au/__data/assets/ pdf_file/0029/83981/NDIS-NDIA-Final-report-on-administration-of-reviews-under-the-Act.pdf

9 Devices or systems that assist people with everyday living activities. This can include: aids for daily living like modified eating utensils, sensory aids for vision/hearing impairment, seating and positioning aids, mobility aids, recreational aids like audio descriptions and captioning, home/workplace modifications, communication devices, prosthetics and orthotics, computer access aids and environmental control systems.

10 Commonwealth Ombudsman report 03|2018, Administration of reviews under the National Disability Insurance Scheme Act, released 15 May 2018. http://www.ombudsman.gov.au/__data/assets/pdf_file/0029/83981/NDIS-NDIA-Final-report-on-administration-of-reviews-under-the-Act.pdf

11 Broadcast to the Anangu Pitjantjatjara and Yankunytjatjara peoples in remote South Australia.

12 Broadcast to the Alice Springs and Barkley Tableland region of the Northern Territory.

13 http://www.ombudsman.gov.au/__data/assets/pdf_file/0027/84555/Investigation-into-delays-in-processing-inbound-Containerised-Sea-Cargo.pdf

14 http://www.ombudsman.gov.au/__data/assets/pdf_file/0018/83520/Investigation-into-the-circumstances-of-the-detention-of-Mr-G.pdf

15 http://www.ombudsman.gov.au/__data/assets/pdf_file/0032/78980/Citizenship-own-motion-investigation-report.pdf

16 Our visit in April 2018 was a scoping visit not an inspection.

17 Ombudsman Act 1976 s 5(1)(b)

18 Migration Amendment Act 1992

19 Direction No. 65 Migration Act 1958 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA dated 22 December 2014.

20 Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; 219 CLR 486; 208 ALR 271; 78 ALJR 1056 (6 August 2004) Gleeson CJ at para [21].

21 Unplanned force is defined as the use of force that has not been given prior approval to be used. For example, transferring a detainee with a high flight risk will generally include the pre-approved use of force in the form of mechanical restraints and the application of certain escort holds.

22 www.ombudsman.gov.au/docs/better-practice-guides/onlineBetterPracticeGuide.pdf

23 www.ombudsman.gov.au/__data/assets/pdf_file/0022/30298/December-2013-Suicide-and-self-harm-in-the-Immigration-Detention-Network.pdf

24 http://www.ombudsman.gov.au/publications/inspection-reports

25 http://www.ombudsman.gov.au/__data/assets/pdf_file/0021/78123/Commonwealth-Ombudsman-AFP-JIW-report-PDF-FOR-WEBSITE.pdf

26 This function commenced on 1 December 2016.

27 http://www.ombudsman.gov.au/__data/assets/pdf_file/0022/86305/Investigation-into-the-Actions-and-Decisions-of-DVA-in-Relation-to-Mr-A.pdf

28 Submission by the Commonwealth Ombudsman, Productivity Commission Inquiry into Compensation and Rehabilitation for Veterans. http://www.ombudsman.gov.au/__data/assets/pdf_file/0027/88272/Ombudsman-Submission-to-Productivity-Commission-A1628586.pdf

29 Australian Security Intelligence Organisation, Australian Secret Intelligence Service, Australian Signals Directorate, Australian Geospatial-Intelligence Organisation, Defence Intelligence Organisation and Office of National Assessments

30 This refers to allegations of disclosable conduct prior to an investigation being undertaken.

31 Agencies may deem a person to be a public official in certain circumstances. Agencies generally use this approach to investigate PIDs from non-public officials who may have special or inside information about wrongdoing in an agency.

32 A person appointed by an agency's Principal Officer to receive disclosures. Principal Officers are required to ensure there are sufficient numbers of authorised officers to ensure they are readily accessible to public officials in their agency.

33 One hundred agencies reported receiving no public interest disclosures this financial year.

34 Australian Security Intelligence Organisation, Australian Secret Intelligence Service, Australian Signals Directorate, Australian Geospatial-Intelligence Organisation, Defence Intelligence Organisation and Office of National Assessments.

35 Not all complaints are finalised in the same financial year in which they are received.

36 http://www.ombudsman.gov.au/__data/assets/pdf_file/0013/26302/investigation_2008_14.pdf

37 shttp://www.ombudsman.gov.au/__data/assets/pdf_file/0026/29771/aust_post_determining_levels_of_compensation.pdf

38 http://www.ombudsman.gov.au/__data/assets/pdf_file/0025/29329/austpost-safe-drop_one-year-review.pdf

39 http://www.ombudsman.gov.au/__data/assets/pdf_file/0025/82618/20180220-Final-Report_For-publishing.pdf

40 Some investigations commenced late in 2016–17 and were finalised in 2017–18.

41 The census date is the last day a student can withdraw from a course without incurring a cost.

42 http://www.ombudsman.gov.au/about/vslo

43 In a small number of complaints, the person makes a general complaint about the private health insurance system, without specifying their health insurer or health provider.

44 Hospital, medical or other practitioner or health insurance broker.

45 http://www.ombudsman.gov.au/about/private-health-insurance/private-health-insurance-publications

46 http://www.ombudsman.gov.au/publications/state-of-the-health-funds-report

47 http://www.ombudsman.gov.au/__data/assets/pdf_file/0029/84791/Bupa-Health-Insurance-Hospital-Policy-Changes-June-2018.pdf

48 http://www.ombudsman.gov.au/about/private-health-insurance/private-health-insurance-publications