Reviews of specific programmes and administrative decision-making

A suite of Commonwealth administrative law mechanisms supports public scrutiny of government decision-making. These mechanisms include the Ombudsman (who is also the Defence Force Ombudsman and the Taxation Ombudsman), external review by 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 1982.²¹ With the exception of the Ombudsman, these processes generally concentrate on administrative decision-making, rather than on the process of service delivery. Many ANAO performance audits of specific government programmes 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 Ombudsman are discussed below.

ANAO performance audits

ANAO’s performance audits examine and report to Parliament on the economy, effectiveness and efficiency of the administration of many Australian government agencies. As noted above, broad themes for the 2004–05 audit work programme included growing interconnectivity and changing service delivery through ICT and evolving governance structures, including higher community expectations for strong management and appropriate governance.²² In 2004–05, ANAO tabled several performance audit reports which addressed the theme of service delivery in the context of the delivery of specific programmes or components of programmes.²³

Recommendations stemming from these reports related specifically to the programmes audited, but key themes included the need to have:

• basic systems and controls to promote the quality and transparency of service delivery and improved integrity and transparency of processes
• adequate guidance and training available to agency employees required to deliver services
• measurement and control frameworks related to administration of services delivered
• up-to-date guidelines and documentation for both employees and service users and effective strategies to promote services to users
• improved performance management and reporting, including by enhancing the range of performance indicators and the means of measuring performance and monitoring of service user satisfaction with services
• appropriate protocols and procedures to advise service users of their rights and obligations as part of their interaction with agencies
• effective management of service user and outsourced services, including clear expectations of the level and/or quality of services to be delivered and mechanisms to protect the Australian Government’s interests.

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

Role of the Commonwealth Ombudsman

During 2004–05, the Ombudsman investigated complaints made about 105 Australian Government departments and agencies. The complaints ranged across the spectrum of government activity. Building on the experience and insights gained from handling complaints, the Ombudsman is in a good position to develop a broad perspective on the systemic issues affecting the overall effectiveness of service delivery in the APS, and some of the practical challenges facing agencies.

Information in this section has been provided directly by the Ombudsman, and includes statistics also included in the Ombudsman’s 2004–05 annual report and additional analysis of systemic issues facing the APS.

Own motion investigations

The Ombudsman undertakes a number of own motion investigations each year. In 2004–05, the Ombudsman published reports on six own motion and major investigations relating to APS agencies. One of the investigations (which related to ATO) was completed and provided to the agency in 2003–04, and was reported in last year’s report. Of the remaining five reports finalised and released publicly in 2004–05, two related to the Australian Defence Force (ADF), two to DIMIA, and one to the Australian Crime Commission (ACC).²⁴

Reports on two other own motion investigations concluded during 2004–05. One investigation looked at administrative matters relating to Defence’s dealings with young people. The other examined the quality of Freedom of Information processing by Australian Government agencies.

The Ombudsman also commenced own motion investigations into the policy underpinning the administration of marriage-like relationships under the social security law, and an own motion investigation into DIMIA’s administration of visa cancellations under section 501 of the Migration Act 1958 in relation to long-term Australian residents.

In addition, the review commenced by the Ombudsman in 2003–04 on the complaint- handling mechanisms employed by DoTARS continued during 2004–05. This was due to DoTARS developing new complaint procedures within its Vehicle Standards Safety Branch and also initiating a review of internal complaint-handling procedures in other areas during the year.

Complaints to the Ombudsman

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

The total number of complaints received by the Ombudsman in 2004–05 was 17,310, a decrease of 1% over the previous year.²⁵ Of these, 14,143 complaints were related to APS agencies, a decrease of 1.6% over the 14,380 received in the previous year.

This year’s decrease was spread across most agencies; however, it was offset by an increase in complaints received about DEWR (up 19% from a small base) and the CSA (up 7%).

In 2004–05, the Ombudsman did not initially investigate 67% of complaints received— an investigation rate similar to that for the previous three years. The complaints that are investigated by the Ombudsman about the activities of APS agencies tend to involve more complex and difficult issues.

Centrelink remains the APS agency about which the most complaints are received, due to its primary role in the delivery of a large number of Australian Government programmes to the Australian public. Complaints about Centrelink finalised during the year fell by 4% to 7719, accounting for 54% of complaints finalised about APS agencies. The Ombudsman chose not to investigate over two-thirds of complaints received about Centrelink, instead referring 70% of these complaints to Centrelink’s internal complaint or review processes. Of the 2696 Centrelink issues investigated, the Ombudsman identified an arguable administrative deficiency or error in 415 issues (15%). Remedies were achieved for 2024 of issues investigated.

The Ombudsman received 2094 complaints about CSA, representing almost 15% of complaints received about APS agencies and an increase of 7% on CSA complaints received last year.

The number of complaints received about ATO continued to decline (1633, down by 5% on last year), perhaps reflecting the bedding down of the major changes to the taxation system over the past four years. Complaints about ATO represent 12% of complaints received about APS agencies. This suggests a return to greater stability in ATO complaint numbers comparable with the period prior to the introduction of the new tax system and the difficulties over the tax treatment of mass-marketed investment schemes.

DIMIA was another substantial source of complaints received by the Ombudsman during the year, with 873 complaints received, compared to 865 complaints received last year.

The Ombudsman investigated 43% of complaint issues arising from complaints about DIMIA, against the general average of 33% across all Australian Government agencies.²⁶ The higher investigation rate perhaps reflects the more limited availability of internal review for DIMIA’s complainants. Of the 427 DIMIA issues investigated, the Ombudsman identified arguable administrative deficiency or error in only 41 issues (10%). This compares favourably with the average for APS agencies of 13%.

Systemic issues

There continues to be a large number of complaints about APS agencies that consistently raise common themes. Many complainants are concerned about agency decisions that directly affect them, and complain that they have not been given sufficient reasons for the decision or that the decisions are flawed. Investigation of such complaints is often complicated due to poor record keeping by agencies or a 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 many complaints to the Ombudsman is delay by agencies in taking actions or making decisions. Other matters 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; loss of correspondence; and inadequate, misleading or ambiguous information in publications or on websites.

Private contractors

Some aspects of the role of the Ombudsman have changed over the years because of developments in the way agencies go about their business. As more agencies ‘contract out’ some of their operations, the Ombudsman tries to ensure that proper accountability is retained, either by treating the contractor’s actions as those of the agency (if that can lawfully be done) or by examining the way in which the agency dealt with a complaint about the contractor.

The limits of government responsibility and responsiveness are tested by complaints that stem from the failure of private entities to meet their obligations to government, with consequent injury to others. An example is complaints about the Superannuation Guarantee. Where an employer fails to pay superannuation contributions in respect of employees, ATO can pursue the employer for the unpaid superannuation. However, ATO is limited to using the recovery mechanisms established by law. If an employer goes into insolvency, there is often little scope for ATO to recover the monies owed to the employees. In such cases, it is difficult for the Ombudsman to go beyond investigating with a view to reassuring complainants all has been reasonably done under the law to assist in the recovery of their lost entitlements.

Tax complaints received by the Ombudsman reveal similar issues. Tax agents play an increasingly important role in our taxation system, with almost 75% of individual tax returns prepared by agents. Although there is some scope for administrative discretion, the ultimate responsibility for the return rests with the taxpayer. Where an agent makes a mistake in a return, or fails to lodge a return, the taxpayer will generally carry the burden for those errors. One line of investigation that can be pursued is to consider whether ATO has taken account of all the facts and been prepared to exercise any available discretion to assist the taxpayer. Beyond that, taxpayers are advised of their right to take the matter up with either the relevant Tax Agents’ Board or the appropriate professional body.

Action taken by government contractors that affects members of the public is another area where the Ombudsman has cause to examine the limits of government responsibility. This has been a particular theme this year in relation to complaints about actions occurring in immigration detention facilities managed by a private service provider under a contracted arrangement with DIMIA; the department retains an overall duty of care for detainees, and the Immigration Detention Standards provide the framework for how detainees are to be managed and treated. DIMIA may nevertheless decline responsibility for actions taken by independent contractors, such as medical practitioners.

The Ombudsman also deals with the complex and difficult area of complaints about the way agencies conduct tenders and administer contracts to provide services. Most agencies have developed effective internal complaint and review systems. While sound internal complaint management can reduce the number of complaints that the Ombudsman needs to consider, the effect is commonly that the Ombudsman deals with a higher proportion of more complex or intractable matters.

21 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 refer to the federal Attorney-General’s Department website <http://www.ag.gov.au>

22 ANAO, Audit Activity Report: July to December 2004, Audit Activity Report No. 23, January 2005, <http://www.anao.gov.au>

23 ANAO, Performance Audit Report Nos. 14, 19, 24, 32, 37, 43, 50, 51, 58, published in 2004–05, <http://www.anao.gov.au>

24 To the extent possible, the Ombudsman’s reports on own motion investigations are published in full or in an abridged version on the Ombudsman’s website at <http://www.ombudsman.gov.au>.

25 Complaints received in all jurisdictions, including ADF, Australian Federal Police (AFP) and ACT.

26 Commonwealth and ADF complaints (excludes AFP and ACT complaints).

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