CHAPTER 2 | performance
Key strategic achievements
In 2004–05, the ACT Government paid an unaudited total of $878,217 (including GST) to the Ombudsman's office for provision of services. Monies are received directly from the ACT Government under a Memorandum of Understanding. Payments (including GST) were for the purposes of the Ombudsman Act 1989 (ACT) ($413,418) and the Complaints (Australian Federal Police) Act 1981 (Cth) ($464,799).
The principal performance measures for the ACT Ombudsman and ACT Policing comprise:
- numbers of complaints received and finalised
- time taken to finalise complaints
- quality of training and liaison contacts.
Performance against these measures is outlined below. The statistical report in the appendix provides details of complaints received and issues finalised for individual ACT Government agencies and ACT Policing during 2004–05.
As well as handling complaints directly, the Ombudsman's office plays a valuable role in referring people to the most appropriate agency to deal with their concerns. Where a person has an inquiry or complaint outside the Ombudsman's authority, we try to provide relevant information and contact details to assist them.
During 2004–05, staff handled 491 general inquiries about ACT Government agencies (compared to 426 in 2003–04). In some instances, we referred complainants to other review agencies that could more appropriately deal with the issues they raised. These issues included complaints about environment, health and consumer services, as there are special commissioners to deal with these matters. There are also certain matters that we are unable to consider because they are outside our jurisdiction, such as complaints about employment conditions.
The Ombudsman's Law Enforcement Team also receives many inquiries about actions of other police forces, especially where members of the public are uncertain whether they interacted with the New South Wales Police Service or the Australian Federal Police (AFP). In these cases, staff refer the complaint to the relevant State ombudsman.
During 2004–05, the Ombudsman received a total of 902 complaints about ACT Government departments and agencies and ACT Policing, compared to 955 complaints in the previous year. Of the 902 complaints received:
- 459 complaints (51%) were about ACT Government agencies
- 443 complaints (49%) were about ACT Policing.
ACT Government agencies
There was a small increase in complaints received about ACT Government agencies (459 complaints compared to 452 in the previous year). The trend line in total complaints has continued to be fairly stable over the past four years.
Of the 459 complaints received, 83 were about Housing ACT, a decrease of 12% from 2003–04. A significant number of the Housing ACT complaint issues related to maintenance matters (33) and the application process (21), which included waiting lists for public housing.
In 2004–05, the ACT Department of Education, Youth and Family Services was divided into two new departments: ACT Department of Education and Training; and the Office for Children, Youth and Family Support (OCYFS). We received 50 complaints about the OCYFS, with the primary areas of concern being about Care and Protection Orders and actions by staff.
There was an increase in complaints received about ACT Road User Services (ACTRUS) (51 compared to 43 last year) and the ACT Planning and Land Authority (ACTPLA) (44 compared to 29 last year).
The main complaint issues about ACTRUS related to vehicle registration (23) and infringement notices (18). A common theme in complaints about infringement notices related to complainants failing to read information on the back of the notice and missing vital information on matters such as the length of time in which to comply, appeal rights and extensions of time.
Of the 44 ACTPLA complaints received, the most common cause of complaints related to development applications. Other significant causes were adjoining lessee disputes over matters such as fence heights, retaining walls and non-approved structures.
For ACT Policing, there was a 12% decrease in complaints received (443 compared to 503 in the previous year). This continues a general decrease in the number of complaints made about ACT Policing since 1998–99. The fluctuations from year to year do not indicate any significant trend, although it is likely that the decrease in complaints in 2004–05 continues to result from ACT Policing's emphasis on customer service issues.
Figure 1 provides an overview of complaints received about ACT Government agencies and ACT Policing since 1998–99.
FIGURE 1 Complaints received, 1998–99 to 2004–05
ACT Government agencies
During the 2004–05 reporting year, the Ombudsman's office finalised 498 complaints which contained 596 issues about government agencies, compared to 457 complaints and 639 issues in the previous year. Complaints can contain a number of issues, each requiring separate investigation and possibly resulting in different outcomes.
Of the 596 complaint issues that were finalised during the year:
- 15% were finalised by way of preliminary inquiries
- 39% were formally investigated
- 46% were cases we decided not to investigate.
The latter figure of 46% compares with 36% in the previous year and represents a decrease in the number of complaint issues we decided to investigate or finalise by way of preliminary inquiries.
The most common reason for deciding not to investigate a complaint was that the person had not first tried to resolve their problem with the relevant agency. This practice provides an agency with the opportunity to resolve any issues before an external body, such as the Ombudsman, becomes involved.
For those complaint issues we did investigate, remedies included agency explanation (explaining to the complainant why the agency acted the way it did); action to expedite the matter; an apology; reconsideration of an earlier decision; or changes in administrative policy and procedure.
In 13% of complaints investigated, we formed the view that there had been a deficiency in the administrative actions by an agency; that is, the relevant agency had not acted fairly, reasonably or in accordance with its legislation, policies and procedures.
In 21% of investigations, we did not find any deficiency in the administrative actions of agencies. In the remaining cases (66%) it was not necessary to form a view as to whether administrative deficiency had occurred, for a variety of reasons, including the provision of a remedy by an agency during investigation or the withdrawal of the complaint by the complainant. A remedy was provided in 53% of cases.
The majority of the ACT Corrective Services issues were about the Belconnen Remand Centre (BRC) and primarily related to the lack of access to exercise and educational facilities. On visits to the BRC, Ombudsman staff noted that there was an increase in the number of 'copy cat' complaints (one in six), where detainees from a specific yard would all complain about the same issue. On investigation, the event or incident complained about apparently related to only one or two individuals. This is reflected in the complaint outcome figures, which show that of the 130 complaint issues finalised, we determined that 85 issues did not warrant further investigation by the Ombudsman's office.
Of the 637 issues finalised this year, a large number (460 or 72%) were referred to the AFP's workplace resolution process for conciliation. A further 45 issues (7%) were subject to some investigative action; we decided not to investigate the remaining 132 issues (21%) on receipt or after making preliminary inquiries. The 'ACT Policing' section later in this report provides further information on investigations, including complaints conciliated through the workplace resolution process.
Of the 45 issues subjected to investigative action, the Ombudsman conducted a special investigation into one complaint about ACT Policing matters. Due to the personal nature of the complaint issues, we did not make the results of the investigation public. The other 44 issues (compared to 69 in 2003–04) were investigated by the AFP and reviewed by the Ombudsman's office. Of these issues:
- four (9%) were substantiated
- two (5%) were incapable of determination
- four (9%) were conciliated
- 27 (62%) were unsubstantiated
- one complaint issue was not pursued as it was withdrawn by the complainant.
The Ombudsman's office decided not to investigate six of the 44 issues, for reasons such as the ability of the complainant to raise the matter with a court or a tribunal, jurisdictional issues or other circumstances.
In reviewing AFP investigation reports, we found most represented a comprehensive investigation and analysis, resulting in reasonable and appropriate recommendations.
There were some occasions where reports were returned to the AFP for further action—such as a quality assurance review of the report or further clarification of a particular issue. We also worked with the AFP to ensure that, where appropriate, the investigation outcome considered organisational issues and a response from the AFP directly to the complainant. Overall, we were satisfied that investigation reports represented robust responses to complaint issues.
'In reviewing AFP investigation reports, we found most ... resulted in reasonable and appropriate recommendations.'
Time taken to finalise complaints
One of our major performance targets for 2004–05 was to finalise 90% of complaints about agencies within three months of receipt.
ACT Government agencies
During the year 498 complaints about government agencies were finalised, of which 85% were completed within three months of receipt. This was a marked improvement over 2003–04, when we completed 81% of complaints within three months of receipt.
Of the remaining complaints, 6% were completed in three to six months and 9% took over six months to complete. Complaints taking more than six months to complete were more complex and usually required extensive involvement of senior staff.
For complaints about the AFP, 53% were finalised within three months of receipt (compared to 68% in 2003–04) and 85% were finalised within six months. The remaining complaints, which extended beyond six months, were characterised by the size and complexity of the investigations.
This year we encountered difficulty in maintaining staffing numbers within our Law Enforcement Team, leading to delays in our review and finalisation of some matters. This led to a marked increase in the percentage of complaints taking three to six months to complete (33% in 2004–05, compared to 22% in 2003–04). The proportion of cases taking more than six months to finalise increased by 5%.
The filling of staffing positions and a workload management strategy implemented in June 2005 will see the backlog of cases reduced by August 2005. We are also continuing to work with the AFP to ensure that delays in AFP responses to complaints are minimised.
Figure 2 provides a detailed breakdown of the time taken to finalise complaints about ACT Government agencies and ACT Policing in 2004–05.
FIGURE 2 Time taken to finalise complaints, 2004–05
Training and liaison
The Ombudsman's office attaches great importance to establishing a cooperative and respectful relationship with government agencies and community sector organisations. This is important in the effective and efficient conduct of our complaint investigation role.
ACT Ombudsman staff participated in a number of formal and informal meetings with ACT Government and other agencies and provided a range of tailored training opportunities for agency staff.
Specific activities included:
- conducting a seminar entitled 'Promoting Good Administration' attended by representatives of 34 ACT Government departments and agencies in May 2005
- providing training to new ACT Corrective Services recruits on the role of the Ombudsman and the handling of complaints
- conducting two five-day Integrity Investigation Programs jointly with the AFP in May and June 2005
- participating in the Department of Justice and Community Safety's ACT Prison Project which is oversighting development of the new prison
- participating in the ACT Free Legal Advice Forum and the Complaint Handlers' Forum to discuss topical issues in complaint management
- visiting ACT Legislative Assembly members and their staff to provide advice on the services we provide to the ACT community
- conducting regular meetings with senior staff of the BRC to discuss ongoing complaint issues
- conducting regular meetings with senior managers in ACT Government agencies to provide feedback on complaints received and possible systemic issues
- meeting quarterly with the AFP's Professional Standards team to discuss issues relevant to the operation of the complaints management system, and meeting weekly with Professional Standards staff to discuss individual complaints and investigations
- conducting a range of outreach activities, including visits to community centres, local libraries and Indigenous communities, and participating in the annual National Multicultural Festival
- participating in the Australian National University Criminal Practice workshops with regular discussions about our role in law enforcement
- co-sponsoring a three-year study entitled 'Whistling while they work' on whistleblowing protection laws across Australia
- commenting on a range of ACT Government and agency submissions and discussion papers raising issues of administrative practice.
Members of the Ombudsman's Law Enforcement Team continued to assist other integrity bodies from the Asia–Pacific region through presentations to and training of international delegations, particularly in discussing the key aspects of our relationship with the AFP. We hosted representatives of the Office of the Ombudsmen of Thailand, the Chinese Ministry of Supervision and the Hong Kong Police Force.
Service charter standards
We are committed to providing the best service possible. The ACT Ombudsman Service Charter is available on our website at www.ombudsman.act.gov.au. The Charter outlines the service that can be expected from the office, ways to provide feedback and steps that can be taken if standards are not met.
Where a complainant disagrees with our conclusions and decision on a complaint, they may ask for a review of how the investigation was conducted. A more senior officer not previously involved in the matter will conduct a review, and seek to determine whether the conclusion reached was reasonable, justified and adequately explained to the complainant. Only in exceptional circumstances will more than one review be undertaken.
During the reporting period, we received three complaints about our service delivery and ten requests for reviews of our complaint handling. We finalised seven reviews, with the original decision being affirmed in four complaints. In three cases we conducted further investigation on the basis of new information provided by the complainant. In one of these cases the decision remained unchanged, and in the other two cases some of the issues raised are being further investigated.
ACT Government agencies overview
Each year we receive complaints across a range of issues about many government agencies. Many complaints are resolved quickly, with others requiring detailed examination of agency files and procedures.
During 2004–05, we focused on areas of concern relating to two agencies about which we receive a relatively high number of complaints each year.
- Housing ACT complaints: The areas that most commonly arise in complaints to the Ombudsman are maintenance and the housing application process. As a result of dissatisfaction expressed to us by housing tenants who had complained to the agency during 2003–04, we worked closely with Housing ACT staff in 2004–05 to develop proactive approaches to resolving complaints. There was a marked decrease (12%) in the number of complaints to the Ombudsman during the year.
- Belconnen Remand Centre (BRC) complaints: Complaint issues identified in 2003–04 were overcrowding, length of time in detention, and lack of exercise facilities and access to educational programs. Following discussions between our office and senior staff at the BRC in 2004–05, an activities officer was appointed to conduct educational programs and exercise equipment was installed for detainee use.
Complaint numbers in 2004–05 for the BRC were similar to those for the previous year. We will continue to work closely with senior staff at the BRC and monitor issues arising from detainees.
Common themes identified across agencies during 2004–05 are covered in this section of the report, and include:
- applying best practice in administration
- unclear or inadequate administrative procedures
- agency responsiveness
- falling through cracks in government administration.
Applying best practice in administration
It is expected that agencies will establish clear procedures and policies for the administration of their programs. Sometimes the actual application of procedures falls below what we would consider best administrative practice and mistakes are made. In these cases the Ombudsman focuses on helping the agency to acknowledge the error and develop strategies for avoiding similar errors in the future. Equally, we want to ensure that an agency provides an appropriate remedy for the complainant. Some agencies work hard to take up this challenge, as the Insufficient verification case study demonstrates.
In the Insufficient verification case we were satisfied the agency had recognised the problem and had provided the best solution possible in the circumstances. The complainant had been disadvantaged, but action was taken to minimise the damage. Unfortunately, in other cases, while the agency can take action to avoid a recurrence of a problem, there is little remedy for the complainant. The Validity of extensions case study illustrates this point.
Ms A registered a business name on the ACT Register of Business Names, administered by the Registrar-General's Office (RGO), and commenced business under that name. Six months later, the RGO wrote to Ms A advising the business name would be cancelled because it was similar to a previously registered business name.
Ms A wrote to the Ombudsman to complain that she had invested a considerable amount of money on signage, stationery and advertising and her business had established a client base. She felt she had been seriously disadvantaged by the RGO's actions.
We contacted the RGO to ask why the business name registration had been approved given that a similar name already existed, and why it had taken so long to detect the error.
The RGO acknowledged that an error had occurred during registration of Ms A's business name, and committed to tightening its verification procedures. The RGO also apologised to the complainant and offered reasonable compensation to cover the costs incurred.
Mr B complained to the Ombudsman about a two-storey development occurring next door to his property. The former Commissioner for Land and Planning had granted the developer approval to commence construction within 12 months and to complete construction within 24 months.
The developer had not commenced construction until 21 months later and had not sought an extension on the commencement date until 17 months after the approval date. The ACT Planning and Land Authority (ACTPLA) had also approved several other extensions in addition to this extension.
We questioned the validity of extensions of time granted by ACTPLA, as its legislation did not allow for extensions. We pointed out that the practice of granting extensions was based on a misconception that had wide-ranging implications for development approvals generally.
ACTPLA accepted that its practice was legally questionable and agreed to seek a legislative amendment to clarify the power to grant extensions. In the circumstances, we decided this was a satisfactory outcome, even though no appropriate remedy could be provided to the complainant.
Unclear or inadequate administrative procedures
The responsibilities of an agency to the public are defined by its legislation and internal administrative policies and procedures. During the year, we received a number of complaints that highlighted instances where agencies had made decisions in accordance with relevant administrative procedures, yet the procedures were either ambiguous, insufficiently comprehensive or incorrectly interpreted, resulting in problems for the complainant. The Inconsistency in policy application case study is one example.
A number of NSW parents complained to the Ombudsman about the out-of-area enrolment procedures for a particular ACT high school. The parents complained that the oral undertaking by the high school's principal led them to believe that the school would continue its long-standing practice of giving priority to out-of-area students who meet one of three criteria: living in the surrounding rural areas; being a sibling of a current student; or being enrolled in a special program.
The criteria given in the oral undertaking by the principal were not followed, and priority enrolment was refused to some children who had been accepted into the special programs and to some children who had siblings at the school. The parents complained that: the advice given by the principal was misleading; there was no advice on right of appeal; and the appeal period was too short.
Our investigation determined that the school's enrolment policy and the oral advice given to parents were inconsistent with the Department of Education and Training's policies and guidelines. In addition, parents were not advised of their right to appeal and there was limited time in which to lodge an appeal. Of the booklets provided to Ombudsman staff about specialist programs, only one booklet indicated that acceptance into a specialist program did not guarantee enrolment into the school.
The school's principal accepted responsibility that the oral advice given had raised the expectations of parents and students. The Department instituted an appeal process to deal with the numerous complaints about the enrolment policy, allowing parents the opportunity to challenge the enrolment refusal. The Ombudsman suggested that the school's out-of-area enrolment policy be brought into line with the Department's policy and the seven-day timeframe for appeals be extended.
A big challenge for agencies across the ACT Government is to be responsive to complaints, both in timeliness and in making an extra effort. Many of the complaints we receive arise where a client has asked for information or action from an agency, and the agency has not acknowledged the request or provided an explanation for a delay in responding. The Delayed responses case study is an example of a readily avoidable complaint, where the agency could have saved itself (and our office) extra work.
Responsiveness is a critical aspect of good administration, which we constantly draw to the attention of agencies. We have seen excellent examples where agencies have responded positively once a problem has been brought to their attention, as the Inappropriate comments and Unfinished action case studies demonstrate.
Ms D complained to the Ombudsman after the Office for Children, Youth and Family Support (OCYFS) did not respond to several of her letters.
In response to our inquiries, OCYFS acknowledged that it had not answered Ms D's letters. OCYFS subsequently wrote to Ms D apologising and providing answers to her queries.
Ms E complained on behalf of her 14 year old son about discrimination and inappropriate comments from an ACTION bus driver. Her son had a school term bus ticket that allowed him to catch any bus on any route. On several occasions when he tried to catch a public bus, as opposed to a school-designated bus, the ACTION driver directed him to get off the public bus and catch the school bus.
Ms E complained to ACTION. The bus driver subsequently made comments to her son that Ms E found inappropriate and discriminatory.
Following our inquiries, ACTION acknowledged the error and agreed to re-educate all its drivers on the policy that a student holding a term ticket is entitled to catch any bus. ACTION's Customer Service Manager spoke to the driver involved in the incident. In addition, all ACTION bus drivers were reminded of the appropriate manner expected by ACTION when engaging with customers. ACTION sent a written apology to Ms E and her son.
Ms F was a Housing ACT tenant. She had informed Housing ACT that she wished to cancel direct debits from her bank account for her rental payments, opting to pay in cash at the post office instead.
While Ms F's housing manager confirmed this changed arrangement in writing, Housing ACT did not cancel the direct debit. As a result, continued attempts to direct debit Ms F's account left her with over $300 in bank charges incurred when there were insufficient funds in her account to cover the debit.
In response to our inquiry, Housing ACT acknowledged that an error had occurred, apologised to Ms F and reimbursed bank fees arising from the incorrect debits.
Falling through the cracks
During the year, we found a number of instances where issues raised by complainants crossed the administrative responsibilities of more than one agency or organisation. Unfortunately, complainants can find themselves caught between the agencies, with each agency believing the problem is not theirs. The result can be frustrating for complainants whose main objective is to find a resolution to their problem.
Understandably, they may see government, including non-government utilities, as a single entity that should be able to deal with their problem in a coordinated way. The Lack of coordination case study is one example of such a problem brought to the Ombudsman's office. We intend to focus on improving responses in these situations over the next year.
Mr G complained to the Ombudsman about the ACT Planning and Land Authority (ACTPLA) and ActewAGL. Mr G had lodged a development application with ACTPLA to build a home. The application was approved and building commenced.
ActewAGL objected soon after, stating that the new plans would interfere with utility infrastructure (in this case aerial electricity lines). ActewAGL advised Mr G that it would cost nearly $7,000 to have the electricity lines rearranged; alternatively, Mr G could submit amended plans that would have meant lengthy and costly delays. Mr G decided to pay to have the electricity lines rearranged.
Mr G's complaint arose from a lack of coodination between ACTPLA and ActewAGL about development requirements. This resulted in considerable inconvenience and expense to Mr G. The Ombudsman is still pursuing the issue with the two organisations.
Dryandra Street own motion investigation
The Ombudsman conducted an own motion investigation into Traffic Infringement Notices (TINs) issued in a residential street in the suburb of Lyneham. The investigation was conducted in association with the AFP, and came to light during a related own motion about the AFP's administrative processes associated with the adjudication of TINs. The investigation resulted in the withdrawal of over 470 TINs issued to motorists. In view of the significant number of ACT residents affected by this investigation, we have provided a detailed report on its conduct below.
On 1 June 2003, the ACT Government introduced 'neighbourhood speed limits'—a default 50 kilometres per hour (kph) speed restriction to apply on all ACT roads unless signs indicate otherwise. A short while later, ACT Policing began receiving an unusually high number of requests for withdrawal of TINs for Dryandra Street, Lyneham, following detection of speeding infringements by mobile speed cameras. Without exception, the requests for withdrawal cited the reason as a lack of speed restriction signs (causing ambiguity and, it was argued, a lack of fairness).
Responsibility for ACT road signs and the mobile-speed-camera policy rests with the Department of Urban Services (DUS). While the Ombudsman had not received complaints directly, we were mindful that the implementation of the speed-camera policy in the ACT and other jurisdictions had been a matter of public interest. Questions had been raised in public discussion about the technology used to detect potential infringements at a high volume and low cost, leaving government open to accusations of 'revenue raising'.
Consequently, the Ombudsman considered it was appropriate to conduct a separate own motion investigation into the Dryandra Street issues to ensure DUS was properly administering its speed-camera policy. DUS cooperated readily and agreed not to issue further TINs while the investigation was being conducted.
The investigation established that the majority of the TINs in question resulted from detected speeds between 51 kph and 65 kph, lending credibility to the assertions of motorists that they mistakenly believed that they were travelling in a 60 kph zone. Site inspections were conducted with the AFP and DUS to determine possible ambiguity in the speed limit for the street. Our investigation established that the DUS policy document on speed limits had not been updated to take account of the introduction of the 50 kph default speed limit.
DUS agreed that there were special factors about Dryandra Street that might have led some motorists to be confused about the applicable speed limit. DUS also agreed that ensuring fairness is an important concern when mobile speed cameras are used.
The outcome of the investigation was that DUS withdrew approximately 470 TINs, refunded applicable penalties and reinstated the demerit point balances of the affected motorists. DUS also erected signs on Dryandra Street to remind motorists that the 50 kph default speed limit applies.
ACT Policing overview
The Australian Federal Police (AFP) and the Ombudsman's office share responsibility for investigating complaints about the AFP's ACT Policing. AFP members provide policing services for the ACT in areas such as enforcing traffic law; maintaining peace and order; undertaking crime prevention activities; responding to critical incidents; and investigating serious crime.
AFP members, including those assigned to ACT Policing, are subject to the provisions of the Complaints (Australian Federal Police) Act 1981 (Cth) (the Complaints Act). Approximately 65% of all complaints we receive about the AFP relate to ACT Policing. The remaining complaints relate to the AFP's corporate, national and international roles and are reported in the Commonwealth Ombudsman Annual Report 2004–05.
It is natural that a high number of complaints are made about ACT Policing because of the level of public interaction involved in community policing work.
The AFP's Professional Standards team investigates most complaints about AFP members; and formally investigates serious complaints about police actions, with involvement from Ombudsman staff. We receive briefings on the progress of investigations, and work with AFP investigators to ensure appropriate management of systemic issues and contact with complainants. We review all investigation reports and are generally satisfied that investigations are comprehensive and robust. The Ombudsman conducts independent inquiries and investigations, if appropriate.
'We work with AFP investigators to ensure appropriate management of systemic issues and contact with complainants.'
For some investigations conducted during 2004–05, we requested the AFP to reconsider certain aspects of, or responses to, complaints. The AFP's responses to our requests were invariably professional and helpful, which is illustrative of the mature relationship between this office and the AFP.
The Ombudsman will generally conduct an investigation when:
- practices and procedures are the central elements of the complaint
- it is not appropriate for the AFP's internal investigation area to investigate the complaint
- the investigation is initiated under the Ombudsman's own initiative powers.
An overview of the Ombudsman's complaint handling is provided below.
In 2004–05, we received 443 complaints about ACT Policing compared to 503 in 2003–04. As stated earlier in this report, there has been a general decrease in the number of complaints made about ACT Policing over the past seven years, with a 12% decrease this year. Complaints can contain a number of issues, each requiring separate investigation and possibly resulting in various outcomes.
This year, we continued to observe that many complainants remained dissatisfied with the explanations for police actions provided to them through the conciliation process. We did not observe many cases where we felt that the conciliation did not represent an adequate approach to the complainant's concerns. Despite dissatisfaction from the complainant, we decided that further consideration by our office was not warranted in 214 unsuccessful conciliations.
In 2003–04, the Ombudsman assessed that it is unproductive and an ineffective use of limited Ombudsman staff resources to investigate a matter if the complainant is not committed to using the conciliation process or the nature of the complaint has not been properly detailed. The requirement to allocate our resources to matters where there was a reasonable prospect of an investigative or conciliated outcome saw an increase in the number of issues we decided not to investigate on receipt or after making preliminary inquiries—132 or 21%, compared with 17% in 2003–04 and 12% in 2002–03.
The majority of complaints about the AFP's ACT Policing role are handled through workplace resolution. Most complaints are of a relatively minor nature and concern the alleged conduct of police, such as incivility or rudeness. The Complaints Act allows the AFP to conciliate these complaints directly with the complainant and senior operational staff through its workplace resolution process.
Many complaints are effectively resolved with the complainant receiving an explanation of police powers and reason for priorities, or acknowledgment of a minor mistake by a member. When a complaint is finalised through the workplace resolution process, the AFP provides a report to the Ombudsman explaining how it managed or investigated the complaint.
'Most complaints are of a relatively minor nature and concern the alleged conduct of police, such as incivility or rudeness.'
The workplace resolution process also:
- allows members of the public to provide feedback about their experience of interaction with police
- provides AFP members with the opportunity to acknowledge and learn from minor mistakes
- facilitates a more timely and flexible response to complaint issues than formal investigation.
Conciliation remained an important aspect of dealing with customer service and minor complaints, with 460 issues (72%) being managed through the workplace resolution process, as shown in Table 1.
A significant proportion of complaints concerning ACT Policing were assessed as suitable for conciliation using the workplace resolution process, as shown in Figure 3.
TABLE 1 AFP—issues raised in complaints to the Ombudsman
managed and resolved by conciliation, 2000–01 to 2004–05
FIGURE 3 ACT Policing—method of handling complaints issues finalised, 2004–05
Discretionary decision making
As in previous years, a significant number of complaints about ACT Policing in 2004–05 related to Traffic Infringement Notices (TINs)—specifically, to rudeness or bias on the part of the officer issuing the TIN. It appears that members of the public did not feel they were treated respectfully, or that the AFP officer issuing the TIN was not prepared to consider exercising the discretionary powers available to the officer. These concerns were echoed to a lesser extent in other areas where AFP members also have a degree of discretion, notably the granting of bail and decisions to arrest on summons.
We continued to emphasise that decisions by AFP members, which impose a financial penalty on a person (for example, through the issue of a TIN or a defect notice) or deprive a person of their liberty (through arrest or refusal to grant bail), should include consideration of any available discretionary powers.
The reality of operational policing is that AFP members are required to make decisions in pressured circumstances and often when dealing with people who are agitated or aggressive. While the focus is on maintaining appropriate control of the situation and circumstances, it is also important that AFP members allow people to explain their actions and to request the application of police discretion.
'We continued to emphasise that decisions by AFP members ... should include consideration of any available discretionary powers.'
Custody in the watch house
The management of people in custody continues to remain a strong focus for the Ombudsman's office. Complaints relating to the City Watch House varied during the year. Some of the issues related to rough handling, minors being detained without notifying their parents, requests for medical assistance going unanswered and failure to follow procedures relating to the management of intoxicated people. The Detention of a minor case study demonstrates one example.
For several years the AFP has assured the Ombudsman that a new digital recording system will be installed in the City Watch House. Complaints received this year again demonstrate the need for effective video surveillance to assist in resolving complaints, particularly relating to the use of force in restraining and moving people, and the standard of care provided in custody. These issues are the core sensitivities for the public relating to police custody.
It remains vital to ensure that monitoring of police conduct, and the investigation of complaints, is supported by a video recording system.
In one complaint matter, existing video evidence corroborated the AFP member's account, disproving a complainant's allegations about the excessive use of force when he was being moved from one cell to another.
The development of an effective and reliable video system as an important accountability tool was demonstrated in the investigation of a complaint where a watch house staff member intentionally struck an intoxicated person, as outlined in the Use of force case study.
In other complaints, video evidence would have provided assistance in resolving complaint allegations. In one example, a complainant claimed that his watch was broken and water was refused while he was in custody. The complainant's cell was not monitored by video surveillance and the lack of corroborative evidence prevented a conclusion being reached about his allegation.
The Ombudsman has asked watch house staff to advise him immediately of all video failures as they occur until a new system is installed.
Ms S contacted the Ombudsman's office to complain that the AFP had not notified her about the arrest of her son, T (a minor). Although T was intoxicated at the time of his arrest, he claims that his request to call his parents was denied. Ms S was not contacted by the AFP and heard from T only when he was released from custody the next morning.
An investigation substantiated Ms S's claim that she was not notified about her son's arrest and detention. This was in breach of AFP guidelines for dealing with young people, which require a parent or guardian to be notified as soon as practicable after the arrest or detention of a young person. It is also contrary to the recommendations made in the Ombudsman's June 2001 own motion investigation report about the management of intoxicated people—Review of the AFP's use of powers under the Intoxicated Persons (Care and Protection) Act 1994 (ACT).
Although this matter was conciliated with Ms S and her son, the Ombudsman's office recommended that the AFP alter some of its procedures to ensure parents or guardians are more promptly advised of the arrest or detention of a young person.
Ms U complained that an AFP member had struck her in the face while she was intoxicated and being held in custody, and that some jewellery had been damaged. Due to the serious nature of the complaint, the Ombudsman's office requested that the City Watch House provide all relevant video footage for viewing. Examination of the footage showed that Ms U had been struck with an open hand and that a necklace had been pulled from her neck.
The subsequent internal investigation of these actions substantiated the complaints of excessive use of force and damage to the necklace. Action was taken in relation to the AFP member's conduct and judgement, including action to prevent recurrence of such an incident.
The video footage also identified that some AFP members, who were present at the watch house during this incident, did not consider the actions of the particular AFP member to be excessive. The video footage provided a basis on which to take remedial action to remind these members of their professional standards obligations.
Access to the watch house video footage was pivotal in allowing the Ombudsman and the AFP to reach clear opinions, and remove any ambiguity, about what happened. Ombudsman staff were satisfied the AFP responded appropriately to the issue, and will continue to monitor the outcomes of this incident.
Family Violence Intervention Program
We continued to take a special interest in family violence complaints in 2004–05. There was a decrease in complaints about police responses to family violence issues, suggesting that the AFP's Family Violence Intervention Program is an effective management tool in dealing with these difficult issues. Where complaints were received or investigated, the issues tended to concern the decisions made by AFP members about an arrest or the nature of charges that would be laid.
Cooperative working relationships
Following a fatal high-speed pursuit in 2004, ACT Policing initiated a review into the guidelines for conducting high-speed pursuits. Based on research and information gathered from complainants, the Ombudsman made a number of suggestions that the AFP took into account when finalising the revised guidelines.
Ombudsman staff have been working collaboratively with the AFP since 2003 on a project to improve administrative processes associated with the adjudication of TINs. The project was initiated because of the high level of complaints over a number of years about the AFP's traffic adjudication responsibility.
The project has led to changed administrative practices, including those relating to the AFP's role in deciding whether individual TINs should be withdrawn or disputed in court. The Ombudsman is confident the changes will reduce complaints about the AFP in this area. The results of the project were provided to the AFP Commissioner in early July 2005.
In our 2003–04 annual report, we indicated that we would work with the AFP to develop critical incident guidelines. The forecast reform of law enforcement integrity systems has resulted in a review of our role in these matters. While we will continue to provide probity reviews of investigations into critical issues, we will not pursue an active involvement in critical incidents, as we believe that the AFP is best placed to respond to these events.
Special investigation of AFP member
Following the receipt of a complaint, Ombudsman staff conducted a special investigation into the circumstances of an AFP employee who had been investigated by the AFP under both disciplinary and criminal regimes. The decision to proceed by way of special investigation (as opposed to the usual practice of referring the matter for Professional Standards investigation) was made because of the unique circumstances of the employee involved and the fact that the complaint concerned members of the Professional Standards team.
The investigation was finalised with no criticism from the Ombudsman of the AFP's administrative practice or individual members of the AFP. However, it was suggested that the AFP consider developing guidelines for managing information about AFP members who are arrested.
The ACT Ombudsman is working collaboratively with the ACT Human Rights Commissioner to review conditions at the Belconnen Remand Centre and Quamby Youth Detention Centre.
Consistent with ensuring that human rights standards are incorporated into agency administrative procedures, the Ombudsman's office has worked closely with senior staff at the Belconnen Remand Centre to address issues of overcrowding, lack of exercise and lack of access to educational facilities. We have also monitored compliance with the standing orders established for the operation of the centre. Where there have been concerns about non-compliance the Ombudsman has raised these with senior management at ACT Corrective Services.
We are continuing to participate in the Justice and Community Safety ACT Prison Project, which has been established to ensure that the new ACT prison conforms to human rights standards. The experience that the Ombudsman's office can bring from its work involving complaints about immigration detention facilities is also relevant to this project.
The Ombudsman recognises the importance of the Access to ACT Government Strategy in ensuring equality of access to the services of the ACT Ombudsman for people with disabilities and in eliminating discriminatory practices by staff. The office endeavours to meet its obligations under this strategy through implementation of a Disability Action Plan.
The Ombudsman's Disability Action Plan was reviewed during 2004–05. A revised plan is in place for the three-year period July 2005 to June 2008.
The plan commits the Ombudsman's office to ensuring that people with disabilities are not disadvantaged when attempting to access the services provided by our organisation. It outlines the various approaches we are taking, such as:
- being accessible, with the minimum of formality, to all people who believe they have been adversely affected by defective ACT Government administration, regardless of ethnic or cultural background, sex, language differences or disability
- identifying, and overcoming where possible, barriers which might prevent ready access to the Ombudsman's information and services
- ensuring that the office identifies and understands the priorities and needs of the community (particularly those facing disadvantage).
The implementation of the plan is being monitored through the office's Occupational Health and Safety Committee.
Staff from the ACT Ombudsman Team and the Law Enforcement Team engaged with the ACT community in a variety of ways. This aspect of our work is important in raising public awareness of the right to complain to the Ombudsman and building confidence in the role of the Ombudsman in managing and investigating complaints about ACT Government agencies and ACT Policing.
During 2004–05, we identified key organisations and events in the ACT to target as part of our outreach program. Significant activities included:
- ACT Government Contact Officers Seminar—around 40 staff from ACT Government agencies attended our office's seminar, entitled 'Promoting Good Administration'
- ACT Legislative Assembly—a presentation on the services we provide was given to new members by the Deputy Ombudsman
- Contact Canberra 2005 (part of the National Multicultural Festival)—an information booth from the Ombudsman's office attracted 127 enquiries
- presentations were made to local libraries, youth centres, community organisations and ACT Government shopfront staff.
We recognise that Indigenous and ethnic communities face significant barriers to obtaining fair and equitable access to government services. With this in mind, we have been active in promoting our services to local Indigenous and non-English speaking community groups. This has included visits to the Wreck Bay community, where Ombudsman staff met with Indigenous leaders and elders to discuss the issues facing their communities.
Members of the office's ACT Ombudsman Team and Law Enforcement Team visited the Symonston Temporary Remand Centre, Quamby Youth Detention Centre and Belconnen Remand Centre to work with administrative staff to look at and address detainees' concerns. Ombudsman staff also provided induction training for new ACT Correctional Services officers.
We will continue to develop this program in 2005–06 through participating in community events and forums, hosting and participating in seminars and workshops, and visiting ACT Government agencies and community, business and professional organisations. We will also engage with local media, where appropriate, to support our outreach program.
The Ombudsman provides information sheets on how to make a complaint in 26 community languages, including Arabic, Chinese, Farsi, Filipino, Greek, Italian, Korean and Vietnamese, to name a few. The information sheets are available via a link on our website homepage at www.ombudsman.act.gov.au.