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Review by the Ombudsman

I am pleased to introduce the annual report for the Office of the Commonwealth Ombudsman for

2018–19.

Being the Ombudsman starts with receiving complaints, but goes much further.

My Office takes complaints about the breadth of Australian Government administration, with the exception of matters pertaining to the Australian Taxation Office and the intelligence community. We also take complaints about several private sectors of the economy (such as Private Health Insurance). This year, we received the second largest number of complaints in the Office’s 40+ year history (i.e. 37,388 complaints that fell within our jurisdiction), only slightly down from last year’s record of 38,026.

Growth areas for complaints included the ongoing roll-out of the National Disability Insurance Scheme and complaints from students or former students about debts they incurred under the VET FEE-HELP Scheme. In absolute terms, we received more complaints about the Department of Human Services than any other agency, although these numbers fell from 12,595 to 11,653 compared to last year. Complaints about Private Health Insurers and Australia Post also fell, while complaints from overseas students in our capacity as Overseas Students Ombudsman grew.

Complaints comprise the majority of, but not all, contacts to the Office. This year we received a record number of contacts (i.e. 50,237, compared to 47,557 last year) from members of the public. This number swelled towards the end of the year after our announcement that we would examine an aspect of the administration of the Defence Force Retirement and Death Benefits Scheme, which generated over 3,000 submissions from veterans.

Over the years, as well as receiving complaints about a wide range of entities, we have also assumed a disparate array of other functions where there is a public interest in independent oversight.

As Defence Force Ombudsman we receive reports about alleged abuse in the Australian Defence Force, much of which is historic in nature but each case of which requires careful, trauma-informed engagement. We make recommendations to Defence about reparation payments and provide access to counselling or restorative engagement conferences to reportees. We have also commenced periodic “health checks” of Defence policies and procedures that are aimed to prevent abuse within its ranks and contribute to cultural change.

As Immigration Ombudsman we inspect detention facilities, report regularly and make recommendations to the relevant Minister about long-term detention cases, and take complaints about matters such as delays in visa and citizenship decision-making.

As Law Enforcement Ombudsman, we take complaints about the Australian Federal Police. We also perform a growing portfolio of inspectorial and reporting roles about the way in which Federal and (at times) state law enforcement bodies exercise covert or intrusive powers under Commonwealth legislation. Our work grew in this area in 2018–19 as a result of the passage of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018.

This year too we commenced work as the National Preventive Mechanism Coordinator, pursuant to Australia’s ratification of the Option Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (OPCAT). This work, for the first time, brings us into an area of Commonwealth-State relations under the auspices of the United Nations, as we seek to progress Australia’s implementation of OPCAT. Ratification of OPCAT requires Commonwealth, State and Territory governments to put in place appropriate bodies to undertake independent inspections of places of detention. Building on our long-standing immigration detention inspection role, we began work to enhance our methodologies in that setting, and to scope how we may undertake inspections of places of detention administered by Defence and the AFP. We also undertook extensive engagement with State and Territory inspecting bodies and, at time of writing, are close to finalising a report about Australia’s readiness to implement this important international commitment.

We continue to oversee the Public Interest Disclosure Act 2013 and form part of a wider group of integrity agencies across the Commonwealth.

We play a small but important role in regional capability development, through DFAT-funded programs in Indonesia, Papua New Guinea, Samoa and the Solomon Islands that aim to support the work of Ombudsman-like institutions in those countries.

As a result of a longstanding arrangement between the Commonwealth and ACT Governments, my Office also fulfils the role of ACT Ombudsman, which also brings with it a disparate set of functions.

I report on these matters in a separate annual report to the ACT Legislative Assembly.

It is a privilege to occupy the office of Commonwealth Ombudsman.

As an independent oversight agency, we are not subject to direction by Ministers or the Parliament, except as stipulated by statute. While we report regularly to, and appear before, various parliamentary committees about issues of mutual interest, we have considerable discretion to determine what individual cases or broader systemic issues we examine and report on.

However, being the Ombudsman also brings with it various challenges.

Although the Office has grown significantly in recent years, as government or Parliament has vested more functions in us, the sheer volume of complaints means that we cannot investigate all of them.

Even where we do, and although we have strong powers to access material and people to enable us to investigate, under the Ombudsman Act we cannot direct agencies to change administrative decisions and nor can we investigate the actions of Ministers. Our focus is more on maladministration rather than policy.

It is undoubtedly the case that in many instances we can achieve a positive outcome for individual complainants – a change in decision by an agency, the removal of a debt, a payment of compensation or reparation, a quick decision when there had been a delay, an apology, or even just a plain English explanation of a decision. However, in many instances, a formal investigation may not be the best course of action. Many times, the best assistance we can realistically provide is to refer complainants back to the agency that is subject to their complaint, to provide the agency the opportunity to deal with the issue. Even then, in some cases the relevant agency cannot change its decision in relation to a matter because it has in fact upheld the law.

Given all of these operating parameters, I have spent 2018–19 contemplating these questions: What is the best we can do? How can we achieve meaningful systemic influence? What can we aspire to achieve for people who seek our help? How will we know when we get there? And how might our work contribute in some way to arresting the much-reported slide in public trust in institutions?

In response to these questions, we have sought to take a more strategic approach to when we allocate scarce resources to systemic investigations. While we cannot investigate every individual complaint, we can sometimes draw on individual matters to produce reports and recommendations that have systemic impact. During the year we produced reports on the administration of the Department of Veterans’ Affairs, the Department of Human Services and the Department of Home Affairs on topics that illustrate this point, and more work is underway pertaining to the NDIS, Defence and elsewhere. We also worked hard with the Department of Education and Training to identify a systemic remedy for many people who have incurred debts under the VET FEE-HELP program, and we are now working through the very large caseload of complainants to identify which cases are eligible for the remedy, i.e. a waiver or remittal of the debt.

Because we are unable to investigate every individual matter that comes to us, this year we also stepped up our efforts to gain assurance about the way in which agencies to whom we refer complainants deal with them. This has taken the form of increased education and training of complaint-handling areas of major agencies; the commencement of a “complaint assurance project” where we work with agencies to assess the effectiveness of their complaint-handling activities; the development of “feedback loops” so that for certain cohorts of complainants we seek feedback on the outcome of complaints from agencies when we refer complainants back to them; and we have commenced work to survey complainants and agencies of their experience of dealing with the Office.

We have also undertaken a re-examination of our performance measures which, among other things, concluded that to be as effective as we can be, we need to build and maintain the confidence of people who contact us; the agencies we oversee; and the Parliament. Ideally, all three of these groups would perceive that we are independent and professional; that our interventions are timely and useful; that our recommendations are balanced and evidence-based. From next year, we will seek to capture performance information against those broad goals, and report accordingly.

As our role has expanded, we are also placing a renewed focus on our internal corporate capability, to ensure that our internal technology, people, financial, security and property services and settings are supporting all that we do. This year, for example, we have introduced a new wellbeing program for our staff, whose work often requires difficult conversations about confronting subject matter. We have successfully increased the representation of Aboriginal and Torres Strait Islander people in our workforce and we have taken other steps to enhance inclusion. I am very pleased that our annual staff survey results have placed us in the top quartile of APS agencies on staff engagement and wellbeing.

Looking forward, we have a busy year ahead.

We have noted the re-elected government’s commitment to service delivery and will look to identify opportunities that we see in complaints to make recommendations about how service delivery can be improved.

We will work with relevant agencies to oversee the implementation and administration of the National Disability Insurance Scheme Service Guarantee.

As part of a wider network of integrity agencies, we will look for opportunities to play a constructive role in advancing systemic integrity including – potentially – in the context of the creation of a new Commonwealth Integrity Commission.

And we will continue working on all of the other matters I have mentioned above.

Of course none of our work, last year or in the year ahead, would be delivered without the commitment and dedication of the Office’s hard-working staff. I thank them sincerely for their efforts.

Michael Manthorpe PSM

Commonwealth Ombudsman