Section A | Performance and financial management reporting
On this page:
- The organisation
- Outlook for 2010-11
- Analysis of agency performance
- Table 1: Summary of achievements against performance indicators, 2009–10
- ACT Government Agencies–Complaints
- Figure 1: Approaches and Complaints received about ACT Government agencies, 1999–2000 to 2009–2010
- Figure 2: Spread of approaches and complaints received about ACT Government agencies, 2009–2010
- Figure 3: Time taken to finalise approaches and complaints about ACT Government agencies, 2009–2010
- ACT Policing – Complaints
- ACT Policing – Inspections
The office of the ACT Ombudsman was established 21 years ago when self-government came into effect for the ACT. During that time we have assisted the ACT community in resolving complaints about virtually all aspects of government administration. Complaints arise in matters as diverse as public housing, transport, parking, vehicle registration, building applications, policing and correctional services.
Our work operates at two levels - resolving individual grievances and investigating broader or systemic issues that require attention. It is a longstanding feature of Ombudsman work that we resolve individual complaints and also initiate own motion investigations designed to improve public administration.
A change has nevertheless occurred in the style and intensity of the work that is undertaken at those two levels. This is captured in our focus on 'helping people - improving government'.
At the individual level, we have traditionally focused on citizens who had a right to be treated lawfully and fairly by government agencies. Yet people now relate to government in many different ways. We are all citizens with the right to insist that decisions made by an agency are lawful. Yet we are consumers in receipt of or purchasing a service from government, such as legal aid, a driver's licence, or a skills assessment. We may be customers of a government advisory service or a business incentive scheme. People are also clients of government agencies when they receive support and assistance.
In short, we interact with government as citizens, consumers, customers and clients. This has implications for complaint handling. In dealing with a complaint, it is no longer a simple task of enquiring whether the legislative or policy rules were applied correctly and fairly. Nor can each complaint be resolved by pronouncing that the complaint is upheld or dismissed.
Not infrequently, at the heart of the complaint is a soured relationship between an agency and a client on an ongoing basis such as when the person is a public housing tenant. Clarifying a person's understanding of the advice given to them by an agency is another common complaint theme. 'Who is right and who is wrong?' is not always the issue, or at least will not provide a quick and effective resolution of a person's grievance.
That explains why, in the work of the Ombudsman, we have changed our style over the years in the way that we receive and handle complaints. We no longer portray ourselves as a 'last resort' agency that a person can approach with a formal complaint after exhausting other complaint options. We now accept that a major part of our work is to provide assistance, guidance and advice to the public. Allied to that we are developing assisted transfer programs, to transfer a person's complaint to another agency, rather than send the person away to take that action themselves (which often they don't).
Another change is that we do not conclude most investigations by deciding if an agency was at fault. Our primary reporting category is the remedy we provide a person. The remedy can be as straightforward as providing a better explanation or expediting agency action, but it can equally be more hard-edged, such as recommending administrative compensation or a change to a decision.
In addition to that dedicated focus on individual complaint handling, we also work at another level. We devote considerable attention to identifying agency defects that impair good administration. These issues, commonly described as systemic issues, are identified through individual complaints. A chief means of exploring these issues and improving government is to conduct an own motion investigation that culminates in a published report.
The ACT Ombudsman works in liaison with the Commonwealth and State Ombudsmen to ensure a shared vision of complaint investigation and resolution. Further work is being considered to advance our information sharing to provide a simple though more sophisticated process to allow greater integration of the work of Commonwealth and State and Territory complaint agencies. The objective is to improve further access to fair and accountable government administration.
The role of the ACT Ombudsman is performed under the Ombudsman Act 1989 (ACT). The Ombudsman also has specific responsibilities under the Freedom of Information Act 1989 (ACT) and the Australian Federal Police Act 1979 (Cth), and is authorised to deal with whistleblower complaints under the Public Interest Disclosure Act 1994 (ACT).
The Commonwealth Ombudsman, who is appointed under the Ombudsman Act 1976 (Cth), discharges the role of ACT Ombudsman under the ACT Self-Government (Consequential Provisions) Act 1988 (Cth).
Up until 30 December 2006 the Ombudsman also had specific responsibilities in relation to the Australian Federal Police (AFP) under the Complaints (Australian Federal Police) Act 1981 (Cth). Complaints made about the AFP before 30 December 2006 were dealt with under that Act. Complaints made after that date are dealt with under the Ombudsman Act (Cth). In addition, the Ombudsman has a role in monitoring compliance with chapter 4 (Child Sex Offenders Register) of the Crimes (Child Sex Offenders) Act 2005 (ACT) by the ACT Chief Police Officer and other people authorised by the Chief Police Officer to have access to the register. The Ombudsman also has an inspection and reporting role under the Crimes (Controlled Operations) Act 2008 (ACT).
The ACT Ombudsman is an independent statutory officer who considers complaints about the administrative actions of government departments and agencies. The Ombudsman aims to foster good public administration by recommending remedies and changes to agency decisions, policies and procedures. The Ombudsman also makes submissions to the ACT Government and the ACT Legislative Assembly on policy and legal reform.
The office investigates complaints in accordance with detailed written procedures, including relevant legislation, a service charter and a work practice manual. It carries out complaint investigations impartially, independently and in private.Complaints may be made by telephone, in person or in writing (by letter, email or facsimile, or by using the online complaint form on our website). Anonymous complaints may be accepted.
The key values of the ACT Ombudsman are independence, impartiality, integrity, accessibility, professionalism and teamwork.
Our clients and stakeholders cover all people who may be affected by the administrative actions of ACT Government agencies and of the AFP in carrying out their ACT Policing role. A services agreement between the ACT Government and the Ombudsman covers the provision of services in relation to ACT Government agencies and ACT Policing.
In 2009-10 the Ombudsman delegated day-to-day responsibility for operational matters for the ACT Ombudsman to Senior Assistant Ombudsman Helen Fleming, and responsibility for law enforcement, including ACT Policing, to Senior Assistant Ombudsman Diane Merryfull. Both Senior Assistant Ombudsmen are supported by a team of specialist staff (the ACT Team and the Law Enforcement Team respectively) in carrying out these responsibilities for the Ombudsman. The Ombudsman and Deputy Ombudsmen maintain an active involvement in the work of these two teams.
Summary and complaint statistics
Complaint handling remains the core of the ACT Ombudsman's role. In 2009-10 we received 676 approaches and complaints about the actions of ACT Government agencies (507) and ACT Policing (169). This was down marginally on 2008-09 when the office received 722 approaches and complaints (546 about ACT Government agencies and 176 about ACT Policing).
Housing ACT and ACT Corrective Services (ACTCS) continue to be the agencies that are the subject of the largest number of government agency complaints that we receive (106 and 151 respectively in 2009-10). The numbers of complaints about these agencies are not necessarily an indication that they are not performing well, but a reflection of the nature of the role and responsibilities of each agency in the community.
During the period we finalised 559 of the approaches and complaints receved, 490 of which were about ACT Government agencies and 169 about ACT Policing.
Detailed analysis is provided in the Performance section of this report under the headings 'ACT Government agencies - Complaints' and 'ACT Policing - Complaints'.
Submissions and major investigations
An important role of the Ombudsman is to contribute to public discussion on administrative law and public administration and to foster good public administration that is accountable, lawful, fair, transparent and responsive.
To achieve this outcome, we made submissions to, or commented on, a range of administrative practice matters, cabinet submissions and legislative proposals during the year. These included:
- a submission to the Standing Committee on Administration and Procedure inquiring into the appropriate mechanisms to coordinate and evaluate the implementation of the Latimer House Principles in the governance of the ACT
- an additional submission following our 2008-09 submission to the ACT Department of Justice and Community Safety on the review of the Victims of Crime Act 1994 . Our views were sought on the proposed amendments to the Act in regard to complaint handling.
The office continues to participate in the Australian Research Council Linkage Project, awarded to Monash University - Applying human rights legislation in closed environments: a strategic framework for managing compliance. The project aims to advance human rights in 'closed environments' such as prisons, psychiatric institutions, mental health and disability facilities, community residential units and immigration detention centres. Objectives are to:
- assess the readiness of 'closed environments' in Australia to incorporate and apply human rights obligations in their daily operations
- evaluate the likely impact of human rights legislation on the functioning of closed environments
- develop practical strategies to facilitate compliance with human rights obligations in closed environments.
In 2008-09 we reported that we were conducting an 'own motion' investigation into an incident that had occurred at the Belconnen Remand Centre involving an altercation between detainees and custodial staff. We have decided to cease that investigation because we are satisfied with the outcomes of individual complaint investigations.
We continue to work closely with ACTCS in its new environment at the Alexander Maconochie Centre (AMC), building a more productive relationship for dealing with the issues as they arise. The AMC is currently in a transition phase as a remand centre and a sentencing facility. Given that there is ongoing development and review of policies and procedures, it is our view that complaint investigation remains an effective strategy for providing feedback to the agency at this time.
Organisational planning and environment
The 2010-13 strategic plan for the office of the Commonwealth Ombudsman sets out strategic objectives for that period. Each year the Ombudsman and Deputy Ombudsman review the plan and establish the priorities for the next year.
In 2010-11, the Ombudsman's office will continue its focus on significant systemic issues arising from complaints, inspections and monitoring. We will continue our endeavours to improve structures and processes to deliver efficient, practical, higher quality and more consistent responses to complaints. The strategic priorities of the office are to:
- improve quality assurance and review of complaint handling
- build on the work practices and system changes to deliver improved quality, efficiency and consistency in managing complaints
- develop an enhanced approach to social inclusion and effective interaction through social media
- target outreach, relevant publications and communication activities to key stakeholders, particularly through intermediaries
- be responsive to areas of need in allocating resources.
Detailed reporting on a range of office-wide initiatives against the priorities for 2009-10 is provided in our Commonwealth Ombudsman Annual Report, available online at www.ombudsman.gov.au from early November 2010.
We distribute a bi-monthly newsletter, The Ombudsman News which is emailed to ACT Government contact officers and features tips on complaint handling and news on upcoming events and Ombudsman initiatives.
In May 2010 the ACT Ombudsman website was redesigned including the provision of a new online complaint form. The form helps people understand the role of the Ombudsman and is a step by step guide to assist complainants when lodging a complaint.
There is also information on other government agencies which may assist, and website hyperlinks. In addition the new website allows for supporting documents to be uploaded.
The Public Contact Team (PCT) provides professional first line contact for members of the public making enquiries and lodging complaints with the ACT Ombudsman's office. The team sustains a complaint intelligence gathering function with which to support the ACT Team.
The main role of the PCT is to:
- provide professional initial interaction with members of the public via telephone and in person
- respond to incoming documents we receive via email, internet, fax and normal post
- resolve enquiries and out of jurisdiction complaints.
The ACT Team provides training sessions to new PCT staff on the role and jurisdiction of the ACT Ombudsman. The ACT Team also supplements the PCT's ongoing training program to ensure that approaches to the office are efficiently and effectively handled in the first instance. In circumstances where an approach is not within jurisdiction, the PCT provides guidance and contact details for other agencies that may assist the complainant, such as the Children and Young People Commissioner.
Periodically the office undertakes surveys of complainants and agencies, as this is one way to measure our performance and to identify areas for improvement in service delivery. Such surveys also provide information that helps us better target our outreach activities. Planning is underway for public awareness and agency surveys in late 2010.
Partially as a result of the previous survey undertaken in 2007-08, we are implementing a range of strategies to further improve our services. They include:
- incorporating more communication training in our core training modules
- reviewing our template letters
- redesigning our internet sites
- reviewing how we manage approaches to the office.
We have also introduced a comprehensive quality assurance program to complement the oversight which directors give to the handling of complaints. A panel of experienced directors from across the office, led by a Deputy Ombudsman or Senior Assistant Ombudsman, audits a sample of complaints closed each month. This panel provides feedback to the staff who handled the complaints and, where necessary, their manager. The panel produces a report identifying areas for improvement in complaint handling, as well as best practice examples they have seen. This is part of a more comprehensive quality assurance process that includes normal supervision, a capacity to require more senior sign-off as part of the complaint management system, peer or supervisor checking of all correspondence, our system of case reviews and the complaint and feedback processes (including complainant surveys).
Public administration and complaint handling
The ACT Ombudsman continues to contribute to improvements in public administration by participating in specific projects, investigating and resolving complaints from individuals and by identifying systemic problems in public administration.
The Commonwealth Ombudsman continues to promote the Better Practice Guide to Complaint Handling as published in April 2009. The guide builds on previous Ombudsman publications by defining the essential principles for effective complaint handling, and is being used by ACT Government agencies when developing or evaluating their complaint-handling systems.
We continued to have regular liaison with ACT agencies, and with agency contact officers. These meetings assist in maintaining a good working relationship with agencies which is important for timely and effective resolution of complaints.
We have provided significant input into ACT Government initiatives during the year, including participation in the following projects organised by the Department of Justice and Community Safety:
- the ACT Prison Project
- contribution to the content for the ACT Justice publication for the ACT Aboriginal and Torres Strait Islander community
- the Victims of Crime Reference Group.
We also provided feedback to the Department of Justice and Community Safety (JCS) on the implementation of the Foundation for Effective Markets and Governance recommendations. This project was initiated in 2004 to review the system of statutory oversight of government in the ACT.
Under s 40XA of the Australian Federal Police Act 1979 (Cth), the Ombudsman, as Commonwealth Ombudsman, has a responsibility to review the administration of the AFP's handling of complaints, through inspection of AFP records. This includes records of the handling of complaints about ACT Policing. Further details are in the 'Performance' section of this report under the heading 'ACT Policing - Complaints'.
Outlook for 2010-11
We will continue our program of contact officer forums for ACT Government agencies' complaint contact officers with a focus on the Better Practice Guide to Complaint Handling.
We will also promote the Better Practice Guide to Managing Unreasonable Complainant Conduct in the ACT Government sector as a valuable tool for helping agencies to resolve difficult situations in the most efficient and effective matter possible.
We actively encourage agencies to seek our participation in their internal training sessions. As a result of closer involvement in training programs, this office will be able to develop training aids that target the information needs of ACT Government agencies about the functions of the Ombudsman. We will also be able to target information sessions based on the specific issues relevant to the individual agencies.
We will continue our focus on improving web based services, particularly centred on our new online complaint form which has been highly successful in our Commonwealth Ombudsman role. Indications are it will be equally successful in the ACT context.
Finally, there will be continued pressure on our resources. We need to continue to improve both the efficiency and effectiveness of our complaint handling and broader work.
Analysis of agency performance
Summary of performance
In 2009-10, the ACT Government paid an unaudited total of $998,435 (including GST) to the Ombudsman's office for the provision of ACT Ombudsman services.
The Ombudsman is funded under a services agreement with the ACT Government which was signed on 31 March 2008. Payments including GST) were for the purposes of the Ombudsman Act 1989 (ACT) $470,010 and for complaint handling in relation to ACT Policing ($528,425).
The office's performance against indicators is shown in Table 1 and provided in more detail under the headings 'ACT Government agencies - Complaints', 'ACT Policing - Complaints' and 'ACT Policing - Inspections'. The statistical report in Appendix 1 provides details of complaints received and finalised, and remedies provided to complainants, in 2009-10.
The categories of approaches and complaints to this office range from simple approaches that can be resolved with minimal investigation to more complex matters requiring the office to exercise its formal statutory powers. In all approaches that require investigation, we contact the agency to find out further information about the complaint and to provide the agency with an opportunity to respond to the issues raised in the complaint. Often an approach from this office to the agency assists in resolving the complaint in the first instance.
Where a complaint involves complex or multiple issues, we conduct a more formal investigation. The decision to investigate a matter more formally can be made for a number of reasons:
- a specific need to gain access to agency records
- the nature of the allegations made by a complainant require records to be provided
- if there is likely to be a delay in the time taken by an agency to respond to our request for information
- the likely effect on other people of issues raised by the complainant
- the agency requests that formal powers are used in an investigation.
Not all of the approaches we receive are complaints that are within the jurisdiction of the Ombudsman. We refer people to other oversight agencies that are established to handle specific types of complaints such as the Human Rights and Discrimination Commissioner and the Children and Young People Commissioner.There are some issues that are not within the jurisdiction of the Ombudsman, such as employment-related matters or decisions of courts or tribunals. In these cases, we inform the person of the role of the Ombudsman and associated limits of our jurisdiction. We try to assist them by providing relevant information and contact details.
|Performance indicators||ACT Government agencies||ACT Policing|
|Number of approaches and complaints received||507 approaches and complaints (546 in 2008-09)||169 approaches and complaints (176 in 2008-09)|
|Number of approaches and complaints finalised||490 approaches and complaints (537 in 2008-09)||167 approaches and complaints (205 in 2008-09)|
|Time taken to finalise complaints||86% of all complaints finalised within three months (93% in 2008-09)||89% of complaints finalised under the Ombudsman Act (Cth) within three months (96% in 2008-09)|
Liaison and training
This office aims to develop a better understanding by the public and by agency staff of the role and responsibilities of the Ombudsman. We engage in community outreach activities that assist to promote this better understanding. In 2009-10 this included:
- promoting the ACT Ombudsman role to students during Orientation Week activities at The Australian National University, the University of Canberra and the Canberra Institute of Technology
- participation in training for ACTCS recruits on the ACT Ombudsman's role
- promoting the role of the Ombudsman at the ACT Multicultural Festival
- liaison with the ACT Ambulance Service on complaint-handling best practices
- an address to the Rotary Club of Canberra on the role of the ACT Ombudsman
- participation of representatives from ACT Government agencies in the NSW and Commonwealth Ombudsman's focus group on unreasonable complainant conduct.
Ombudsman staff participated in formal and informal meetings with ACT Government agencies and conducted information and training sessions throughout the ACT Government sector. This liaison and training is important for the effective and efficient conduct of our complaint investigation role. Activities included:
- information sessions as part of the induction of ACTCS custodial staff
- regular meetings with senior staff in ACT Government agencies to provide feedback on complaints received and to ensure smooth handling of complaints
- input into a publication produced by JCS for the Aboriginal and Torres Strait Islander community about the complaint-handling role of the ACT Ombudsman.
Service charter standards
The ACT Ombudsman Service Charter sets out the standard of service that can be expected from this office, explains how complainants can assist us to help them and provides them with an opportunity to comment on our performance.
We regularly monitor our performance against the service charter standards and assess ways to promote further improvement. This feedback enables us to improve our service. The service charter is available at www.ombudsman.act.gov.au
As previously reported in 2008-09, we analysed the results of the previous client satisfaction survey conducted in late 2007-08, and put in place a range of initiatives to deal with the issues identified through that survey and other forums. A similar process will be undertaken again following the public awareness and agency surveys planned for late 2010.
If a complainant disagrees with the conclusions about a complaint, they can request a review. The reasons for seeking a review should be provided as this assists the office to fully understand the complainant's concerns.
Late in 2008-09 a new approach to dealing with requests for reviews was adopted. A central team now considers whether a review should be undertaken and then conducts the review if required. In some cases, the person may just need a clearer explanation of information we have already provided, or, they may have misunderstood our role, and further investigation is not necessary. The aim of our new approach is to provide greater consistency and timeliness of reviews.
It is important to assess the likeihood of a better outcome for a complainant should a review proceed. This helps ensure that the office's resources are directed to the areas of highest priority. If, as a result of a review, investigation or further investigation is required, the review team provides the complaint to a senior staff member to decide who should undertake the investigation or review.
During 2009-10 we dealt with nine requests for reviews. Five related to ACT Government agencies and four involved ACT Policing. In seven cases the original decision was affirmed. In two cases, the complaint was referred back to the relevant team for investigation or further investigation.
Over the reporting period we saw continuing pressure on resources and timeliness of complaint handling, with a minor increase in the time taken to resolve complaints. This has been a reflection of the complexity of cases and reporting processes, highlighting the importance of sustaining positive working relationships with agencies to enable the smooth exchange of information. Increasing our very tight turn-around to that achieved previously will be a focus for the coming year.
Accordingly, we will continue to review processes, training and technical support to find the means to improve timeliness. We are also negotiating with the ACT Government about resourcing levels.
ACT Government agencies - Complaints
Complaint handling remains the core of the ACT Ombudsman's role. In 2009-10 we received 507 approaches and complaints about the actions of ACT Government agencies, 39 less than the previous year.
Significantly, ACT Corrective Services (ACTCS) accounted for 151 (up from 119) and Housing ACT accounted for 106 (down from 135). Figure 1 provides a comparison of approaches and complaints received about ACT Government agencies for the ten-year period 1999-2000 to 2009-10. (Figure 2 over the page, provides an illustration of the spread of approaches and complaints received across ACT Government agencies.)
ACTCS and Housing ACT are responsible for almost 40% of complaints that we receive, which is predominantly a reflection of the nature of the roles and responsibilities of each agency in the community.
Changes to an agency's role can affect complaint statistics. For example, the increase in ACTCS complaints may be largely attributed to the agency's discharging its functions as both a remand centre and sentencing facility at the Alexander Maconochie Centre (AMC). Prior to September 2008 ACTCS was responsible for remanded detainees but not sentenced detainees who were held at interstate correctional facilities.
The higher number of approaches and complaints about corrective services is largely due to the establishment of the AMC. The majority of complaints came from detainees accommodated at this sentencing facility and related to:
- access to organised activities
- access to programs and study opportunities
- access to telephone accounts
- rolling lockdowns impacting on freedom of movement within the AMC
- detainee's personal property lost as a result of internal cell transfers within the AMC.
During the year we noted that there had been an increase in the number of complaints received about detainees being locked in their cells. We arranged with the ACTCS to be kept informed of scheduled lockdowns in the AMC, which has assisted us in managing the detainee complaint load that arises as a result of rolling lockdowns.
We noted an increase in minor complaints and these would have progressed more efficiently if the detainees could have complained directly to the Official Visitor. The Official Visitor acts as an advocate for detainees and can negotiate practical outcomes and provide advice to detainees. He also has an investigation and reporting role to the ACT Government.
However, the position of Official Visitor remained vacant from September 2009 until February 2010, and this placed further pressure on this office to resolve minor complaints.
Housing complaints have decreased and the majority of these relate to housing allocations, transfer applications and requests for maintenance work to be carried out.
We consider that this office plays an important role in ensuring the agency meets the needs of vulnerable members of our community with fairness and consistency. As a result of our investigations Housing ACT advised that it has implemented specific strategies for checking tenants' satisfaction with maintenance requests. These include monthly audits and improved procedures for managing requests.
We made recommendations that Housing ACT provide reasons and better explanations for its decisions to its clients and maintain proper records. Further recommendations were made about the benefits of improving its procedures for reviewing decisions and establishing quality assurance measures across its assessment processes.
During 2009-10 we closed 490 approaches and complaints about ACT Government agencies, compared to 537 in 2008-09. This year we investigated 23% of the complaints we closed, compared to 30% last year.
We encourage complainants in the first instance to approach the agency that is the subject of the complaint. This provides the agency with an opportunity to deal with the approach using their complaint handling procedures and to resolve the issue.
During 2009-10, 55% of the complaints we closed were finalised within one week and 86% within three months (see figure 3). This is slightly lower than in 2008-09, when we finalised 56% within one week and 93% in three months.
Of the remaining approaches and complaints, 9% were completed in three to six months and 5% took more than six months to complete.
Complaint themes 2009-10
Improving internal complaint handling systems
Our Better Practice Guide to Complaint Handling focuses on how government agencies can improve systems to deal with internal complaints and this has helped agencies to commit to effective complaint resolution. Many practical benefits result, which include better client relations, an enhanced reputation and more timely and consistent complaint handling.
To manage complaints well agencies need to integrate complaint handling into their core business. To do this we have identified five important elements:
- culture: agencies must value complaints as a means of strengthening their administration and improving their relations with the public
- principles: an effective complaint-handling system must be modelled on principles of fairness, accessibility, responsiveness, efficiency and integration
- people: complaint-handling staff must be skilled and professional
- process: the seven stages of complaint handling should be clearly outlined - acknowledgement, assessment, planning, investigation, response, review, and consideration of systemic issues
- analysis: information about complaints should be examined as part of a continuous process of organisational review and improvement.
Skilled staff and good systems are major components for achieving effective results, along with adequate review procedures and quality assurance measures.
The following case study (Ms A) demonstrates how the effects of inadequate procedures and record-keeping can reduce an agency's capacity to resolve complaints. In this case misplaced documents and staff turnover combined to substantially delay the resolution of the complaint.
In the case of Ms B, agency staff deviated from the written policies and procedures, and as a result the complainant was required to wait an unreasonable length of time for a remedy.Further, the complainant was required to lodge a Freedom of Information request, which should not have been necessary.
In conducting investigations we ask that agencies provide us with copies of complaint-handling policies and procedures. Our review of policies and procedures and our feedback to agencies can help to identify potential weaknesses.
The case study (Mr C) on the following page demonstrates how difficult it can be to identify where a problem occurred when policies and procedures (requiring proper documentation) do not exist or if they do, are not followed. The agency was unable to explain to the complainant why it had taken so long to address the complaint.
It is important that agencies consider complaints in accordance with the correct legislation and that all decisions are made by officers with appropriate delegation. In the case study below (Mr D), the handling of the complaint was delayed by confusion regarding its nature.
Agencies need to evaluate and monitor complaint handling systems to ensure that they are working well and are an effective means of improving administrative functions. A commitment to officer training is essential to ensure officers have a sound understanding of policies and procedures to apply when making decisions.
Supporting agency decision making
We encourage government agencies making decisions that impact on members of the community to provide reasons and explanations that are clearly articulated.
Some problems that give rise to complaints are inevitable. Decisions about complex technical matters can be difficult to get right particularly where discretion is required.
It is important that decisions are documented, supported by legislation and consistent with policy. Officers need to consider all the facts and any discretionary powers need to be applied fairly and impartially (with appropriate delegation).
In the case study of Ms E, problems occurred where an assessment of an application for transfer from a Housing ACT property was declined by an assessing officer. The assessing officer failed to consider relevant information in the application and other errors occurred when records were not updated adequately.
The willingness of agencies to correct errors when they are discovered can reduce the adverse impact on the complainant. It can be difficult for a complainant to identify that an error has been made particularly if the agency has provided inconsistent responses and proposed different courses of action.
The next case study (Ms F), demonstrates that the failure of the agency to have any policy related to an issue can result in a poor decision and a complainant being given inconsistent information.
The case study of Ms G on the following page demonstrates that not all situations can be addressed by a policy. In such cases agencies need to be responsive to a situation and apply problem solving strategies, rather than relying on previous decisions based on different facts.
ACT Corrective Services
In March 2010, the Alexander Maconochie Centre (AMC) completed its first year of operation as a centre for remanded and sentenced detainees. ACTCS has commissioned an independent review of the operation of the AMC. This office is providing assistance to the consultancy by submitting complaint trends and statistical data, and providing broader input on key issues.
ACT Policing - Complaints
In the ACT, the Australian Federal Police (AFP) undertakes community policing governed by an agreement between the Commonwealth and ACT Governments. The AFP provides policing services to the ACT in areas such as traffic law, crime prevention, maintaining law and order, investigating criminal activities and responding to critical incidents.
Complaints made about the AFP and its officers acting in their ACT Policing role are dealt with by the Law Enforcement Ombudsman under Commonwealth jurisdiction and through an agreement with the ACT Government.
Before 30 December 2006, complaints about the AFP were handled by the AFP and oversighted by the Ombudsman under the Complaints (Australian Federal Police) Act 1981 (Complaints Act). The final two complaints under the Complaints Act were closed in 2009-10. (This is a correction of advice provided in the 2008-09 Annual Report indicating that all complaints had been closed in the 2008-09 year).
Complaints about the AFP made since 30 December 2006 are dealt with by the AFP under the Australian Federal Police Act 1979 (AFP Act) and may also be investigated by the Ombudsman under the Ombudsman Act 1976 (Cth). The Ombudsman does not oversight the handling of every complaint, but is notified by the AFP of complaints it receives which are categorised as serious conduct issues (Category 3 issues).
In 2009-10 we received 169 complaints about AFP members acting in their ACT Policing role. The most common complaints were about:
- police conduct on duty, including customer service, inappropriate action and use of force
- the adequacy of investigation, failure to act and excessive delays.
In 2009-10, we finalised our oversight role under the Complaints Act by closing the last two complaints. We also closed 167 approaches and complaints under the Ombudsman Act.
We referred 109 of the 167 finalised Ombudsman Act approaches and complaints back to the AFP as the complainants had not previously approached the agency. We advised seven complainants to pursue their complaints elsewhere - we referred five complainants to another advice or oversight body, one to a court and one to the Minister.
We declined to investigate 23 of the 167 approaches and complaints, for reasons such as:
- investigation was not warranted in all the circumstances
- the matter had been considered by a court
- the matter was out of jurisdiction
- the matter was over 12 months old before the complainant approached the Ombudsman.
We investigated 21 matters about the way that ACT Policing had investigated complaints referred to it. These included complaints relating to:
- conduct on duty.
We made findings critical of the AFP in four complaints. In seven matters we found that the appropriate remedy had been provided by the police. Seven investigations found no action was necessary having regard to all the circumstances. Other complainants were advised to pursue their matter elsewhere.
Review of complaint handling
The Ombudsman has a responsibility under s 40XA of the AFP Act to inspect records and review the administration of the AFP's handling of complaints. The Ombudsman reports to the Commonwealth Parliament annually, commenting on the comprehensiveness and adequacy of the AFP's complaint handling, particularly regarding conduct and procedural issues, as well as its handling of enquiries from the Commonwealth Minister responsible for the AFP.
The most recent report to the Parliament, covering review activities conducted during 2008-09, was tabled in December 2009. The report referred to two inspections and the finalisation of a review (Review 3) during the period. The report noted that the AFP had put considerable effort into making improvements in the timeliness of the handling of minor complaints (Category 1 and 2 cases), the need for complaint handling to be 'customer focused', and for the AFP to accept organisational responsibility for complaints in order to generate systemic change.
We noted that the capacity of the technology used for complaint management remained an issue, as did timeliness in complaint resolution, particularly as it related to minor complaints. Timeliness remains a focus for our attention. Since that report was written, the AFP has improved the functionality of the complaint management system. However, timeliness remains an issue.
During 2009-10 there was considerable activity by the office in its reviews of AFP complaint handling. Review 4 for the period 1 August 2008-31 January 2009 was finalised in September 2009; Review 5 for the period 1 February 2009-31 July 2009 was finalised in June 2010; and Review 6, an ad-hoc review conducted under s 40XB of the AFP Act for the period 1 August 2009-28 February 2010 was completed but not finalised. We will report on that review in our next annual report.
Review 4 made two recommendations that the AFP should:
- continue to focus on improving the outcome letters to complainants to provide details of the findings made and the reasons for those findings
- give more attention to maintaining regular contact with the complainants during the course of an investigation where a matter will not be finalised within the prescribed benchmarks, and provide a report to the complainant that outlines the progress.
Review 5 made three recommendations that the AFP should:
- conduct further analysis to determine the causes of delay in finalising complaints in all categories
- explain the complaints process clearly to a complainant and record this in the Complaint Recording and Management System (CRAMS)
- advise the complainant they have the right to complain to the Commonwealth and Law Enforcement Ombudsman who can investigate complaints about the actions of AFP members and about AFP policies, practices and procedures. The complainant should also be advised of how they can contact the Ombudsman.
ACT Policing component of the reviews
AFP complaints are categorised under the AFP Act as follows:
- Category 1 - Conduct matters involving minor issues of conduct, rudeness, and failure to provide adequate customer service
- Category 2 - Conduct matters involving minor misconduct and unsatisfactory performance and fall between minor Category 1 matters and more serious matters requiring formal investigation
- Category 3 - Conduct matters involving serious misconduct, conduct giving rise to consideration of employment termination, breaches of the criminal law, or serious neglect of duty
- Category 4 - Corruption matters that are referred to the Australian Commission for Law Enforcement Integrity.
No separate analysis of ACT Policing complaints was undertaken in review 4. Review 5 covered closed complaints from 1 February 2009-31 July 2009 and a preliminary analysis was made of the outcome of complaints. Of the 126 Category 1 complaints we examined, 63% were about ACT Policing of which 89% were not established by the AFP investigation. Of the 305 Category 2 complaints, 43% were about ACT Policing of which 85% were not established. Of the 29 Category 3 complaints, 59% were about ACT Policing of which 59% were not established.
The AFP notifies the Ombudsman of all critical incidents involving the actions of AFP officers. Critical incidents are incidents in which a fatality or significant injury has occurred, or where the AFP has been required to respond to an incident on a large scale, as might occur during a public demonstration. Usually we do not become actively involved in the investigation of critical incidents unless the AFP requests our involvement.
During 2009-10 one critical incident was reported. In July 2009 an AFP officer discharged his firearm during an incident involving the attempted interception of a stolen car on Northbourne Avenue in Canberra. Although the AFP officer was struck by the stolen vehicle, there were no serious injuries to the officer or other people.
Own motion investigation
An investigation was conducted following a complaint against a senior officer in the AFP. It was alleged that the officer misused his position in the AFP to send three ACT Police officers to intervene on a relative's behalf in a property dispute.
This investigation did not find any evidence to support the allegation, but did identify specific deficiencies in:
- the AFP's investigation of the original complaint
- the policy and procedure for dealing with complaints against AFP senior officers
- the practice of police attending when property is removed or locks changed where there is a dispute about property rights.
Unlawful arrests due to incorrect information in AFP systems
We looked at three individual complaints about ACT Policing in relation to arrests for breach of bail conditions. The three cases raised similar issues about whether decisions to make arrests for breach of bail conditions were being made on the best available information. In two cases, the complaints were that two juveniles had been wrongly arrested for breach of their bail conditions. In the other case, the complaint was that a person who should have been arrested for breach of bail conditions, had not been arrested.
In each of these cases when making a decision about whether to arrest or not, the police officer relied on AFP information which was not accurate as it did not reflect the most recent court action and, therefore, the decision was wrong. The cases showed failures with ACT Policing procedures and communication between ACT Policing and the ACT Magistrates Court and Supreme Court.
While we understand that since these incidents occurred different arrangements have been put in place to improve the accuracy of information exchange between the police and courts, it was not clear from our investigations that the revised arrangements addressed the problems that these cases revealed.
The Ombudsman wrote to both the AFP Commissioner and the JCS about his findings in these cases.
The two case studies on the following page are examples of other investigations conducted during the year.
ACT Policing - Inspections
ACT Child Sex Offenders Register
A Child Sex Offenders Register was established in the ACT as a requirement of the Crimes (Child Sex Offenders) Act 2005 (ACT) (the Act). The Register must contain up-to-date information relating to the identity and whereabouts of persons residing in the ACT who have been convicted of sexual offences against children. Information in the register comes principally from offenders, who must report any changes in their circumstances (such as a change of address) within seven days, and in any case must contribute details to the register or confirm existing details on the register at least once a year. One of the ACT Ombudsman's functions is to inspect the register to ensure that it is maintained accurately by ACT Policing.
This office has conducted four inspections of the register since its introduction in late 2005. The fourth inspection of the register was conducted in June 2010 and the report of that inspection is in the process of being finalised. The June 2009 inspection report was provided to the Minister for Police and Emergency Services and the ACT Chief Police Officer during the current reporting period. The Ombudsman found that ACT Policing is generally compliant with the relevant provisions of the Act and that the register is being maintained appropriately.
Nonetheless, we raised a concern with the Minister that the legislation may not be achieving its aim of reducing the likelihood of offenders reoffending. The Act does not prohibit offenders having contact with children, nor does it give police powers to monitor offenders. In NSW, NT, Qld and WA, additional legislation has been passed to prohibit offenders engaging in certain conduct under specified circumstances. We have recommended to the Minister that he consider amendments to legislation to enable police to monitor offenders and take action when they identify a child at risk.
ACT Controlled Operations
On 19 August 2008 the (ACT) Crimes (Controlled Operations) Act 2008 came into effect. This Act allows ACT Policing to conduct controlled (covert) operations in the ACT and gives oversight to the Ombudsman.
We conducted one inspection of ACT Policing in relation to controlled operations on 20 October 2009. We found ACT Policing to be compliant with the legislative requirements and noted that record keeping was of a high standard.
The ACT legislation closely follows the model laws on controlled operations (that were developed by the Standing Committee of Attorneys-General and Australasian Police Ministers Council Joint Working Group on National Investigation Powers), which were designed to ensure high levels of accountability and aid scrutiny by oversight agencies.