Chapter 11: Working with the Australian community

Abbreviations

A list of the abbreviations used in this report is available in the Glossary

Review of administrative action and decision-making

For more than two decades the APS has been operating in an environment where citizens are able to access information that agencies hold about them, and to have government decisions affecting them reviewed. A suite of Commonwealth administrative law mechanisms supports public scrutiny of government decision-making and action. These mechanisms include the Ombudsman (who is also the Defence Force Ombudsman and the Taxation Ombudsman), external review by the Administrative Appeals Tribunal (AAT) and other specialist tribunals, review under the Administrative Decisions ( Judicial Review) Act 1977 (Cwlth), and access to documents under the Freedom of Information Act 1982.¹⁰

With the exception of the Ombudsman, the focus of these mechanisms is on external scrutiny of administrative decision-making, rather than on the broader processes of administrative action, including service delivery. Increasingly, agencies (especially service delivery agencies such as Centrelink and the ATO) are developing their own sophisticated complaint management systems which allow them not only to respond to individual complaints, but to identify systemic issues that need to be addressed. Nevertheless, external scrutiny of government decision-making is an important aspect of Australia’s democratic system of government. This section concentrates on lessons from the Ombudsman in relation to systemic issues, freedom of information and private contractors, in addition to the Ombudsman’s own motion investigations.

Role of the Commonwealth Ombudsman

The Ombudsman’s core activity is to handle complaints and enquiries from members of the public about government administrative action. This objective is captured in the Office of the Commonwealth Ombudsman’s outcome—administrative action by Australian Government agencies that is fair and accountable.

In 2005–06, the Ombudsman and staff investigated approaches and complaints made about 104 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 identify systemic issues affecting the overall effectiveness of service delivery in the APS, and some of the practical issues in administration facing agencies.

Information in this section has been provided directly by the Ombudsman, and includes statistics included in the Ombudsman’s 2005–06 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 2005–06, the Ombudsman published reports on seven own motion and major investigations relating to APS agencies. Four of the investigations related to DIMA, one to ATO, one to ADF, and one to the quality of freedom of information processing by Australian Government agencies.

Several own motion investigations currently in progress will be completed in 2006–07. These include investigations into:

issues relating to the implementation of the marriage-like relationship policy
the administration of the Pension Bonus Scheme
complaint-handling procedures available in airports
the quality of the notification of reasons by DIMA for decisions and review rights for refused visa applicants.

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 Ombudsman is more likely to accept a complaint without the matter first being handled by the agency in the following circumstances: the relationship between the person and the agency is difficult; the person is unable effectively to manage their own complaint, whether because of agency resistance or the person’s inability to articulate their problem; or it is doubtful that the complaint will be handled adequately by the agency, due to the nature of the complaint or the effectiveness of the agency complaint mechanism.

In 2005–06, the Ombudsman received 17,384 approaches and complaints within jurisdiction (compared to 17,310 in 2004–05). Of these, 14,125 approaches and complaints were concerned with APS agencies, compared to 14,143 received in 2004–05.

The majority of approaches and complaints received about Australian Government agencies (11,687 or 83%) related to ATO, Centrelink, CSA, and DIMA.

There was an increase in approaches and complaints received about DIMA (up 43%), DEWR (up 12% from a small base), DVA (up 25% from a small base), and DFAT (up 66% from a small base).

In 2005–06, the Ombudsman did not initially investigate 65% of approaches and complaints received (compared to 67% in 2004–05). The complaints that are investigated by the Ombudsman about the activities of both APS and non-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 delivering a large number of Australian Government programmes to the Australian public. Approaches and complaints about Centrelink finalised during the year fell by 5% to 7338.

The Ombudsman received 1891 approaches and complaints about CSA, a decrease of 10% on last year.

DIMA was another substantial source of complaints received by the Ombudsman during the year, with 1250 approaches and complaints received within jurisdiction, an increase of 43% on last year. The Ombudsman investigated 45% of complaint issues arising from complaints about DIMA, against the general average of 35% across all Australian Government agencies.

The number of approaches and complaints received about ATO continued to decline (1451, down 11% on last year). This was previously attributed to the bedding down of the new tax system and the resolution of many of the mass-marketed schemes issues that dogged ATO in the late 1990s and early 2000s. The Ombudsman believes the continuing decline in the number of tax complaints this year, is due to improvements in ATO administration, and particularly to the increasing effectiveness of ATO’s internal complaints process.

Systemic issues

Complaints about APS agencies continue to raise common themes. Following an established trend, the majority (58%) of the complaint issues finalised by the Ombudsman’s office under the Ombudsman Act 1976 this year related to the correctness or propriety of a decision or action of an agency. The remainder of the complaint issues finalised were about procedural matters, such as the accuracy or completeness of advice given by agencies (10%), the timeliness of agency action (8%), the application of a policy to the complainant’s circumstances (6%), or the conduct of officers in agencies (5%).

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 a decision is flawed. Investigation of such complaints is often complicated due to poor record keeping 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.

Alleged defects in agency administration lay behind many complaints, but not all, to the Ombudsman. Many complaints stemmed from the complexity of legislation and administrative schemes, especially when applied to the different circumstances of thousands of government clients. The changing face of government, as programmes and structures evolved to deal with new social challenges, also gave rise to unexpected problems. Sometimes, government agencies were slow to adapt to unanticipated issues, did not communicate effectively with clients, or failed to recognise the administrative burden that government requirements can impose on people.

Freedom of information

In March 2006, the Ombudsman released a report titled Scrutinising Government: Administration of the Freedom of Information Act 1982 in Australian Government Agencies. The report examined freedom of information (FOI) administration by undertaking a case study analysis of how FOI requests were handled in 22 Australian Government agencies. Some major problem areas were identified, including excessive delays in processing FOI requests, a lack of consistency among agencies in acknowledging FOI requests in a timely manner, delay in notifying charges and inconsistencies in their application, and variable quality in the standard of decision letters, particularly regarding the explanation of why documents were exempted from access.

The report also acknowledged that there was a clear commitment to FOI in some agencies, and a high degree of compliance with the spirit and detailed requirements of the FOI Act. Drawing from these examples of good and bad practice, the report set out guidelines for achieving better FOI practice. These include clear procedures on FOI processing, close monitoring of incoming correspondence, quality control of FOI correspondence, and open communication between the agency and FOI applicants.

Two findings stand out: there is an uneven culture of support for FOI among Australian Government agencies; and the vitality and success of the FOI scheme depend heavily on the way the FOI Act is administered within agencies. The report recommended that agency heads indicate a clear commitment to sound FOI practice and the objectives of the FOI Act, having regard to the kinds of good and bad practice identified in the Ombudsman’s report.

New Ombudsman role

During 2005–06, the Office of the Commonwealth Ombudsman acquired some new functions and titles. Most relevant to the APS, the Office was designated as the Immigration Ombudsman, in relation to immigration matters, including immigration detention. A new statutory role of the Ombudsman is to provide a report to the Minister for Immigration and Multicultural Affairs that is to be tabled in Parliament in relation to each person who has been in immigration detention for two years or more (cumulative); a further report is provided at six-monthly intervals if a person remains in detention. The Government also asked the Ombudsman to investigate 248 individual cases of people who had been held in immigration detention but later released on the basis that continued detention had not been authorised.

Private contractors

Under changes made to the Ombudsman Act 1976 in December 2005, the Ombudsman has jurisdiction to investigate the actions of ‘Commonwealth service providers’ as if those actions had been made by the relevant department or authority. A Commonwealth service provider is a contractor or subcontractor that provides goods or services for, or on behalf of, an Australian Government agency, to a person other than an agency.

This extended jurisdiction of the Ombudsman is relevant to immigration oversight, as a private company under contract from the Government undertakes the administration of immigration detention centres.

The extended jurisdiction will also be relevant to the Welfare to Work initiatives, implemented in July 2006, that draw together a number of Australian Government agencies as well as contracted service providers. A large proportion of elements of Welfare to Work will be delivered by community-based agencies such as Job Network providers, job capacity assessors, financial case managers and welfare agencies. These agencies will make decisions and recommendations that will affect the lives of people claiming income support payments. The complexity of the process of complaint investigation by the Ombudsman is expected to increase because of the significant role played by non-government agencies.

The availability of review mechanisms varies depending on a range of factors, including the specific legislative context. For a comprehensive listing of online administrative law resources refer to the Department of the Parliamentary Library, <http://www.aph.gov.au/library/intguide/law/adminlaw.htm>