Chapter 5: The Values and relations with the Public

Reviews of administrative decision-making and service delivery

A suite of Commonwealth administrative law mechanisms supports public scrutiny of government decision making. These mechanisms include the Ombudsman (who is also Defence Force Ombudsman and Taxation Ombudsman), internal review by some agencies, external review by certain specialist tribunals and the Administrative Appeals Tribunal (AAT), review under the Administrative Decisions (Judicial Review) Act 1977 (Cwlth), and access to documents under the Freedom of Information Act 1991 (Cwith).²⁰ With the exception of the Ombudsman, these processes generally concentrate on administrative decision making, rather than on the process of service delivery. Many of the ANAO’s performance audits of specific government programs also deal with issues related to service delivery and accuracy of decision making. Information from ANAO audits on service delivery issues and the activities of the Commonwealth Ombudsman are discussed below.

ANAO performance audits

In 2002–03, the ANAO tabled several performance audit reports which addressed the theme of service delivery in the context of the delivery of specific programs or components of programs.²¹ Recommendations stemming from these reports related specifically to the programs audited, but key themes included the need to:

• improve performance management and reporting, including by enhancing the range of performance indicators and means of measuring performance
• better track the processing of claims and the management of appeals to improve issues of timeliness
• improve documentation
• increase the accountability of staff for their decisions and advice, and improve quality assurance and consistency of decision-making.

In each case, the agency concerned agreed to the ANAO's recommendations.

Complaints from the public to the Commonwealth Ombudsman

The nature of the complaints and investigations dealt with by the Ombudsman provides an insight into the overall effectiveness of service delivery in the APS, and practical issues facing particular agencies. Information in this section has been provided directly by the Ombudsman, and includes statistics included in the Ombudsman’s 2002–03 annual report and additional analysis of systemic issues facing the APS.

Own motion investigations

During the year, the Ombudsman completed investigations on his own motion and reviews of the complaint-handling mechanisms of two major agencies, issuing public reports including recommendations for changes and improvements.²² These reports involved the complaint-handling activities of the ATO and DEWR (including Job Network provider complaints mechanisms). In general, the Ombudsman found that these agencies had effective policies and procedures for dealing with customer complaints. However, a range of improvements were suggested, most of which have already been implemented by the agencies concerned.²³

A further own motion investigation remains in progress, involving complaint-handling by DIMIA (including the handling of complaints within detention centres managed by private contractors). A common theme in the Ombudsman’s reports is the importance of using complaint handling mechanisms to provide systematic input into agencies’ program management and policy review processes. This role, going beyond the treatment of individual complaints, is central to sustained improvement in customer service.

Complaints to the Ombudsman

Many large agencies such as the ATO, DEWR and Centrelink have established effective mechanisms for reviewing decisions, handling complaints and obtaining customer feedback to support improvements to services. This means that the Ombudsman does not initially investigate many of the approaches made by members of the public but advises the person about utilising agency mechanisms for complaint handling and review. Complainants may subsequently request the Ombudsman’s assistance if the agency does not resolve the issues.

In 2002–03, the Ombudsman did not initially investigate two thirds of the complaints received, a similar rate to that for the previous year. The upshot is that complaints that are investigated by the Ombudsman tend to involve more complex and difficult issues.

The total number of complaints received by the Ombudsman in 2002–03 rose to 19,850, an increase of three per cent over the previous year.²⁴ While it is difficult to establish a clear reason for the overall increase in complaint numbers, the Ombudsman advises that there has been a long-term trend for his office to receive more complaints in the middle years of the election cycle, and fewer in years in which an election is held.

Centrelink remains the APS agency about which the most complaints are received, probably due to its role in the delivery of a large number of Commonwealth programs to a wide cross-section of the Australian public. Complaints about Centrelink finalised during the year rose by almost 10% to 9696, accounting for 58% of complaints about APS agencies. In two-thirds (67%) of complaints about Centrelink, the Ombudsman did not investigate the complaint, in most cases (80%) because the complainant was referred to Centrelink’s internal complaint or review processes. Of the 2631 Centrelink issues investigated, the Ombudsman identified an arguable administrative defect in 734 issues (28%). Remedies were achieved for 2161 issues.²⁵

The number of complaints received about the ATO continued to decline (1909, down by 27% on 2001–02), perhaps reflecting the bedding down of the major changes to the taxation system over the past 2–3 years. Complaints about the ATO represent 11% of complaints about APS agencies. This translates to the level of complaints received by the Ombudsman about the ATO prior to the introduction of the new tax system.

The Ombudsman received 2432 complaints about the CSA, representing almost 15% of complaints about APS agencies and an increase of 21% on CSA complaints received last year. The bulk of this increase has been attributed to issues about the CSA’s collection enforcement and most probably relates to a change to CSA processes with respect to the interception of tax refunds.

DIMIA was another significant source of complaints received by the Ombudsman during 2002–03, with 1121 complaints received, just 23 (2%) higher than last year. Against the general average of 29% across all Commonwealth agencies²⁶, the Ombudsman investigated 47% of complaint issues arising from complaints about DIMIA, the higher investigation rate perhaps reflecting the more limited availability of alternative review for DIMIA’s complainants. Nevertheless, of the 578 DIMIA issues investigated, the Ombudsman identified arguable administrative defect or error in only 127 issues (22%). This compares favourably with the Commonwealth average of 29%.

Systemic issues

Changes to the family assistance system implemented in July 2000 resulted in many complaints to the Ombudsman about Centrelink, FaCS and the ATO. The Ombudsman conducted an own motion investigation of systemic issues surrounding the delivery of the payments and issued a public report during the year.²⁷ Two major themes that arose involved the implications of the income estimate process (on which benefits are calculated) and the methods used to recover overpayments. The report found that some families with fluctuating income patterns incurred unavoidable overpayments or were underpaid. It further highlighted some of the problems with strict enforcement of recovery procedures, including the withholding of tax refunds. The Ombudsman made a range of recommendations to improve the policies and processes supporting the system, and continues to negotiate with FaCS on their implementation.

The Ombudsman also issued a public report on the application of breach penalties by Centrelink and FaCS, again arising from an own motion investigation triggered by a continuing stream of complaints from Centrelink clients about breaches for some benefit categories.²⁸ The agencies involved have now implemented all of the recommendations made by the Ombudsman to ameliorate any harsh application of activity tests and penalties for relatively minor breaches.

The Ombudsman conducted an own motion investigation into reporting of incidents in detention centres, concluding that there was a need to develop mandatory standards for such reports, quality control and tracking, and the implementation of a database to facilitate systemic analysis.²⁹ In particular, there should be better linkage of complaints handling and incident reporting. Over the coming year, the Ombudsman has advised that he will review progress towards a more accountable framework within detention centres. The Ombudsman also commenced an own motion investigation into the ATO’s use of entry and search powers, as recommended by the Scrutiny of Bills Committee in 2000.

There continue to be a large number of complaints that, in the Ombudsman’s view, indicate the presence of other systemic issues in APS agencies. Many complainants are concerned about agency decisions that directly affect them, and complain that they have not been given sufficient reasons or that the decisions are flawed. Investigation of such complaints is often complicated due to poor recordkeeping by agencies or failure to record oral advice. This latter issue is of particular importance, given the widespread use of customer contact centres to respond to queries in large service delivery agencies. Complaints about call centres arise particularly in relation to Centrelink, CSA and ATO. The other major area that continues to result in complaints to the Ombudsman is delay by agencies in taking actions or making decisions, including delays in handling freedom of information requests and issuing documents. Other matters raised include:

• harsh or unreasonable use of statutory powers to gather information or enter premises
• unreasonable debt recovery policies and practices
• failure to coordinate decisions and actions between agencies
• inadequate, misleading or ambiguous information in publications or on websites
• loss of correspondence.

The Ombudsman is reviewing the manner in which his office coordinates the investigation of many thousands of individual complaints about APS agencies with the much smaller number of very complex or systemic investigations. It is likely that new structures and processes will be introduced in 2003–04 that will lead to greater consistency in complaint handling and outcomes.

 

20 The availability of review mechanisms varies depending on a range of factors, including the specific legislative context.
For a comprehensive description of Commonwealth administrative law see; M Allars, Australian Administrative Law: Cases and Materials, Butterworths, 1997, or refer to the website of the federal Attorney-General at http://www.law.gov.au/www/agdHome.nsf

21 ANAO, Audit Activity Report: July to December 2002, No. 29 and Audit Activity Report: January to June 2003, No. 2.

22 The Ombudsman Act provides the Ombudsman with an extensive range of powers to investigate actions following complaints or on his own motion.

23 Full copies of the reports are available from the Ombudsman's website on http://www.comb.gov.au

24 Complaints received in all jurisdictions, including Defence Force, Australian Federal Police complaints and ACT. In 2002-03, 16 635 complaints about the Commonwealth agencies that comprise the APS were finalised, a rise of 3% over the 16 250 completed in the previous year.

25 In addition to addressing an administrative defect, remedies could include for example addressing unreasonable delays, explanations, or apologies.

26 Commonwealth and Defence Force complaints (excludes Australian Federal Police complaints).

27 Commonwealth Ombudsman, February 2003, Own Motion Investigation into Family Assistance Administration and Impacts on Family Assistance Office Customers, see http://www.comb.gov.au

28 Commonwealth Ombudsman, October 2002, Social Security Breach Penalties-Issues of Administration, see http://www.comb.gov.au

29 Commonwealth Ombudsman, March 2001, Own Motion Investigation into Immigration Detainees held in State Correctional Facilities, see http://www. comb.gov.au