Part 2: Annual Report Requirements
The role of the ACT Ombudsman
The role of the ACT Ombudsman is to influence systemic improvements in public administration in the ACT, as well as provide assurance that ACT Government agencies (agencies) and other designated entities that fall within our jurisdiction act with fairness and integrity.
The Office also works closely with agencies to ensure they provide accessible and effective complaint handling processes to the public.
We undertake this role through our traditional complaint handling activities, as well as our oversight of:
- the ACT Freedom of Information (FOI) framework
- the ACT Reportable Conduct Scheme
- ACT Policing, and
- the ACT Integrity Commission (as the Inspector).
We also play a support role to the Judicial Council with the ACT Ombudsman as the Principal Officer.
The following sections provide an overview of each of these functions.
For more detailed performance information about these functions during 2020–21, see Part 3 Performance Analysis.
A copy of our organisational chart can be accessed on the ACT Ombudsman website.
Managing complaints about public administration
The Ombudsman receives complaints, including from members of the public who consider they have been treated unfairly or unreasonably by an ACT Government agency or ACT Policing.
Each complaint we receive is assessed to determine the most appropriate course of action. Complaints that are not in our jurisdiction may be referred to an organisation that is in a better position to assist the complainant. Complaints that are within our jurisdiction undergo further assessment to determine if the agency has been told of the issue, if preliminary enquiries might need to be made, or if an investigation of the matter is required. When making these assessments, we focus on resolving the issue for the complainant, while also identifying any potential systemic matters.
There are several outcomes that can help resolve the complaint. These include a better explanation of the action, an apology, a refund, or a change of decision. Sometimes agencies may take further action or expedite a process already underway.
A vital part of complaints management is the ongoing improvement of administrative processes. We provide feedback to agencies to help avoid unfair or unreasonable decisions or actions and to ensure better communication with the public. Ensuring better administration is at the heart of what we do.
Improving complaints processes
An important role for the ACT Ombudsman is to support accessible and effective complaint handling systems in agencies. We work strategically with agencies to develop a healthy complaints culture, which includes valuing complaints as a tool to improve service delivery. The ACT Ombudsman can provide advice and support to Directorates when they are reviewing their complaint management practices.
Own motion investigations and public reports
The Ombudsman may decide to conduct an own motion investigation when assessing a complaint that appears to raise systemic issues or when a matter is brought to our attention in another way. Own motion investigations are usually broader in scope than individual complaint investigations and are more likely to result in a public report, with formal recommendations.
Four own motion reports of relevance to the ACT community were released by the Ombudsman in 2020–21:
- Investigation into the transparency of commercial land valuation decisions in the ACT
- Investigation into the administration of parole by ACT Corrective Services (ACTCS)
- ACT Policing’s administration framework for engagement with the ACT Aboriginal and Torres Strait Islander community, and
- Commonwealth Ombudsman investigation into the Australian Federal Police’s (AFP) use and administration of telecommunications data powers under Chapter 4 of the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act).
The own motion report into commercial land valuation decisions was one where the initial complaint investigation involved issues specific to one block of land, but our investigation identified broader concerns. These concerns were about the ACT Revenue Office’s (ACTRO) failure to document reasons for increases in the Unimproved Value (UV) of commercial property. Therefore, ACTRO was unable to provide property owners with reasons when they were questioned about rate increases, which are based on the UV of a property. This inability goes against the principles of good public administration, which require the reasons for such administrative decisions be recorded and available to the affected person.
We made 9 recommendations for the improvement of decision-making and transparency. ACTRO agreed to all recommendations and now provide more information to ratepayers about valuation decisions. These actions should ensure ACTRO’s processes for future commercial property valuations are fair, transparent and reflect best practice.
In November 2020, we published our own motion investigation into the administration of parole by ACTCS. Human rights principles require that no person be detained for longer than necessary. Delaying a person’s release unnecessarily places added pressure on the strained resources of the Alexander Maconochie Centre (AMC) and the Sentence Administration Board (SAB). Parole facilitates the supported reintegration of detainees back into the community. Sentence management should include preparing detainees for their earliest possible release and aim for a successful transition to living in the community. As the ACT Government recognised in its ‘Building Communities, Not Prisons’ initiative, parole and other rehabilitation programs can help reduce the cost on the criminal justice system and improve community safety outcomes.
This own motion investigation started after we received complaints about the following issues associated with preparation for parole at the AMC:
- the information available to detainees about the parole process
- the level of preparedness of detainees and the support provided to them to participate in this process
- the natural justice afforded to detainees during the parole application process and their access to legal representation, and
- the accuracy and completeness of the information provided to the SAB for it to consider when making decisions on parole applications.
Detainees indicated they were reluctant to make formal complaints about these issues, because of concerns about impacts on their parole outcome. Therefore, an own motion was considered appropriate and was given priority as even small administrative failure can result in a delay to a detainee’s release.
The investigation resulted in 15 recommendations, all of which were accepted by the Justice and Community Safety Directorate (JACS). JACS confirmed ACTCS are committed to developing a holistic Integrated Offender Management (IOM) system that focuses on preparing detainees for release at the earliest opportunity, with due regard for risk and community safety. Most of the recommendations are implemented and we continue to monitor complaints about parole processes to determine if the changes had the expected impact.
The Office also released a report in March 2021 about the administrative framework available to support interactions between ACT Policing and the Aboriginal and Torres Strait Islander community.
The 1991 Royal Commission into Aboriginal Deaths in Custody detailed how police are the most consistent point of contact between Aboriginal people and colonial power. These issues continue to be relevant, with Aboriginal and Torres Strait Islander people greatly overrepresented in interactions with the justice system. For example, while Aboriginal and Torres Strait Islander people make up 1.9 per cent of the ACT population, they make up 21.9 per cent of detainees at the AMC.
ACT Policing publicly committed to achieving justice targets as part of the ACT Aboriginal and Torres Strait Islander Agreement 2019–2028 . These targets are reflected in the Australian Federal Police’s Reconciliation Action Plan 2018–2020 , including a commitment to working with the ACT Aboriginal and Torres Strait Islander community to reduce the arrest and incarceration rates of Aboriginal and Torres Strait Islander people in the ACT. However, while we heard examples of excellent and respectful community policing, we continue to hear examples of poor practice and disrespectful interactions. Guided by these examples, we investigated ACT Policing’s current administrative arrangements for engagement with Aboriginal and Torres Strait Islander people. We assessed whether the programs, policies, procedures and training ACT Policing has in place to manage its engagement with the ACT Aboriginal and Torres Strait Islander community are appropriate. We also considered whether ACT Policing officers are supported by a program and policy framework that enables consistent, appropriate and effective decision-making in a transparent and accountable manner.
We made 9 recommendations aimed at supporting ACT Policing to engage in a positive and respectful manner with the ACT Aboriginal and Torres Strait Islander community. These recommendations relate to 4 themes of good administration:
- a strong governance framework that supports the delivery of program commitments
- policies and procedures that clearly articulate expectations
- transparency and accountability with the community, and
- the ability to measure and evaluate success.
Each of the 9 recommendations provides an administrative solution to assist ACT Policing to bridge the gap between high-level justice targets and day-to-day community policing activities. Five of the recommendations were fully supported, 3 were partially supported and one was noted. Deputy Commissioner Neil Gaughan APM, Chief Police Officer for the ACT, noted the ACT’s Aboriginal and Torres Strait Islander communities would be closely consulted and the implementation of these recommendations would be guided by their response.
On 28 April 2021, the Office of the Commonwealth Ombudsman released a report of direct interest to the ACT community. The report followed the Commonwealth Ombudsman’s investigation into the use and administration of telecommunications data powers under the TIA Act by the Australian Federal Police (AFP).
The investigation was launched in response to the AFP’s identification of compliance issues affecting ACT Policing’s handling of requests for a certain type of telecommunications data – location-based services (LBS), colloquially known as ‘pings’ – ¬dating back to 2007.
The Commonwealth Ombudsman identified the internal procedures at ACT Policing and a cavalier approach to exercising telecommunications data powers resulted in a culture that did not promote compliance with the TIA Act. This contributed to ACT Policing’s non-compliance.
The investigation also found the AFP and ACT Policing missed several opportunities to identify and address these issues earlier. The Commonwealth Ombudsman was not satisfied the scope of the breaches was fully identified by the AFP, nor the potential consequences, and considered it is possible that breaches occurred in parts of the AFP other than ACT Policing.
The Commonwealth Ombudsman’s report made 8 recommendations to assist the AFP in addressing these issues and to implement processes to prevent them from reoccurring. The AFP accepted all 8 recommendations.
In September 2020, the Office of the Commonwealth Ombudsman released another report that is of relevance to the work of the ACT Ombudsman’s Office. The report is titled ‘Did they do what they said they would?’. It demonstrated the importance of crafting recommendations that clearly define and prioritise the actions to be taken to influence systemic change in public administration. It also highlighted the value of making the implementation of recommendations part of the ongoing dialogue we have with agencies.
2 Community Services Directorate, ACT Aboriginal and Torres Strait Islander Agreement 2019–2028, viewed 28 July 2021, www.communityservices.act.gov.au/__data/assets/pdf_file/0015/1323132/ACT-Aboriginal-and-Torres-Strait-Islander-Agreement-2019-2028.pdf
3 Australian Federal Police, Australian Federal Police Reconciliation Action Plan 2018–2020, Published 2018, viewed 28 July 2021, www.afp.gov.au/sites/default/files/PDF/afp-reconciliation-action-plan.pdf
Complaints Education Program
The Office’s education activities were predominantly delivered online in 2020–21, due to the ongoing risk of COVID-19.
In 2020–21, the Office delivered 2 webinar sessions on handling complaints during COVID-19 to complaint handlers, including staff from agencies.
In February 2021, the Office published the updated Better Practice Complaint Handling Guide, a resource to help agencies have effective and user-centred complaint handling systems.
The Office’s annual complaints handling forum was delivered online for the first time in May 2021. More than 400 participants attended the forum’s 4 sessions, including staff from agencies. Sessions included keynote presentations, a workshop on managing unreasonable persistence and a panel discussion facilitated by the Deputy Ombudsman with complaints handling experts from government agencies and industry bodies.
Complaints Assurance Program
The Complaints Assurance Program (CAP) is a tool we use to help agencies improve complaint handling processes. This collaborative program allows agencies to self-assess their complaint policies and practices and provide a random sample of complaints to the Office for analysis. It enables us to provide targeted recommendations for improvement to participating agencies. The CAP supports agencies to use complaints to improve service delivery and allows us to share best practice initiatives.
Housing ACT participated in the CAP in 2020, with 5 high-level recommendations for improvement to their complaint handling processes. The Community Services Directorate (CSD) is currently using these recommendations, along with other information from a Directorate wide audit, to reassess and reform complaint management practices.
Reportable Conduct Scheme
The ACT Reportable Conduct Scheme (the Scheme) is in its fourth year of operation.
Under the Scheme, which is set out in Division 2.2A of the Ombudsman Act 1989 (the Ombudsman Act), the Office oversees how designated entities prevent and respond to allegations of child abuse and child-related misconduct by employees.
In addition to reporting to ACT Policing, Child and Youth Protection Services (CYPS), and/or any other relevant professional or regulatory bodies, organisations covered by the Scheme must:
- report to the Office allegations, offences or convictions relating to child related misconduct by employees, including volunteers and contractors, in the context of their professional or private activities 5 , and
- have practices and procedures in place to prevent reportable conduct, respond to such allegations and convictions, and to handle and share information in accordance with provisions in the Children and Young People Act 2008 (CYP Act).
Our role is to:
- receive and assess organisations’ responses to reportable conduct allegations, including whether there was appropriate action by the organisation in its response and the adequacy of any investigation carried out by the organisation, and
- monitor the above practices and procedures an organisation has in place to meet its obligations under the Scheme.
The Scheme does not replace or interfere with police investigations.
To enhance organisation-based child protection outcomes and encourage best practice, we may also:
- monitor an investigation carried out by the organisation
- investigate any reportable allegation or conviction or the response of an organisation to a reportable allegation, and
- disclose information about investigations to a child, parent and carer, the Office of Fair Trading and other entities specified in the CYP Act.
More information about our work under the Scheme in 2020–21, including trends in reports received from organisations and investigation outcomes, is set out in Part 3 Performance Analysis.
4Organisations covered by the Scheme include all ACT Government directorates, health services, kinship and foster care organisations, residential care organisations, government and non-government schools, education and care services including after school care, and religious organisations.
5 ACT Ombudsman’s Office, ACT Ombudsman Practice Guide No. 2 Identifying Reportable Conduct, February 2018, viewed 16 July 2021, www.ombudsman.act.gov.au/__data/assets/pdf_file/0009/81000/No.-2-Identifying-Reportable-Conduct.pdf
Freedom of Information
The Office oversees the ACT Freedom of Information Act 2016 (the FOI Act) and promotes its objects by:
- conducting independent merits review of decisions on access applications
- publishing guidelines to assist Freedom of Information (FOI) practitioners who make access decisions
- granting extensions of time to decide access applications
- investigating complaints about an agency’s or Minister’s actions under the FOI Act, and
- monitoring the compliance of agencies and Ministers with their open access obligations.
In reviewing a decision, the ACT Ombudsman can confirm or vary the original decision or set it aside and substitute it with a new decision. The Ombudsman review decisions are binding and may be appealed to the ACT Civil and Administrative Tribunal (ACAT).
We resolve review matters informally where possible. For example, by facilitating a compromise where an agency and applicant agree to some additional information being provided to the applicant and the review application is withdrawn.
We also work closely with agencies through regular forums, to support them to build capability and to meet their obligations under the FOI Act.
More information about our work under the FOI Act is set out in Part 3 Performance Analysis in this report. The Office also publishes a separate report every year on the operation of the FOI Act. This report is available on our Reports webpage on our website.6
The Office monitors ACT Policing’s use of covert and intrusive powers through inspections conducted under the Crimes (Controlled Operations) Act 2008, and the Crimes (Surveillance Devices) Act 2010, as well as compliance with Chapter 4 of the Crimes (Child Sex Offenders) Act 2005.
The Office also has an oversight role regarding the ACT Policing’s use of Crimes (Assumed Identities) Act 2009 and compliance with Part 3.11 of the Crimes (Child Sex Offenders) Act 2005.
The Office did not conduct an inspection in the 2020–21 reporting year of ACT Policing’s compliance with the Crimes (Assumed Identities) Act 2009 and Part 3.11 of the Crimes (Child Sex Offenders) Act 2005 because ACT Policing did not use these powers during the reporting period.
Information about our inspections in 2020–21 is set out in Part 4 of this report.
ACT Integrity Commission
The ACT Ombudsman is the Inspector of the ACT Integrity Commission (the Commission), which commenced full operations on 1 December 2019.
To help improve public confidence, the Inspector was set up to ensure the Commission operates within its legislative powers. The Inspector can:
- investigate and assess complaints about the Commission and its staff
- make recommendations to the Commission, and
- assess and report on the Commission's compliance with the Integrity Commission Act 2018 (IC Act).
The Inspector must prepare a separate annual operational review and annual report under the IC Act.
This report is available on our Reports webpage on our website.
The Office provides support to the ACT Judicial Council (the Council).
The Council is a separate entity established under the Judicial Commissions Act 1994 with powers to receive and examine complaints about the conduct or capacity of ACT judicial officers (judges and magistrates). The Council has 4 members who include:
- the Chief Justice of the ACT Supreme Court
- the Chief Magistrate of the ACT Magistrates Court
- an appointed legal practitioner member, and
- an appointed member of the community.
The Ombudsman is the Council’s Principal Officer. Together with nominated staff, the Ombudsman is responsible for:
- receiving the Council’s enquiries and complaints
- assisting the Council to conduct preliminary inquiries and other examinations, and
- facilitating communication between the Council, complainants and judicial officers.
Staff also perform secretariat services for the Council.
The Council issues its own annual report to the ACT Attorney-General, published on the ACT Judicial Council website at actjudicialcouncil.org.au. 8
7 ACT Ombudsman’s Office, Reports webpage, viewed 4 September 2021, https://www.ombudsman.act.gov.au/publications/reports
8 ACT Judicial Council, Annual Report webpage, viewed 16 July 2021, https://www.actjudicialcouncil.org.au/annual-report