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Ombudsman Act - Commonwealth Ombudsman and Defence Force Ombudsman - Report - Year - 1983-84


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The Parliament of the Commonwealth of Australia

COMMONWEALTH OMBUDSMAN AND DEFENCE FORCE OMBUDSMAN

Annual Reports

1983-84

Presented 27 February 1985 Ordered to be printed 28 March 1985

Parliamentary Paper No. 116/1985

Commonwealth Ombudsman and Defence Force Ombudsman

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Commonwealth Ombudsman and Defence Force Ombudsman

Annual Reports 1983-84

Australian Government Publishing Service Canberra 1985

© Commonwealth of Australia 1985 ISSN 0814-7124

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Printed by Advocate Press Pty. Ltd., Melbourne 3000.

January 1985

Dear Prime Minister,

I have pleasure in submitting to you for presentation to the Parliament the Seventh Annual Report of the Commonwealth Ombudsman which is for the year ended 30 June 1984 as required by s i 9(1) of the Ombudsman A ct 1976.

In accordance with sl9F(3) the report also constitutes my first report as Defence Force Ombudsman.

For purposes of sl9(3A) there is a separate part dealing with matters relating to the Australian Capital Territory.

As required by s38 of the Complaints (Australian Federal Police) Act 1981 the report deals with complaints made under that Act during the year.

As required by s52D(3) of the Freedom o f Information A ct 1982 the report covers my operations in reference to complaints about the action of agencies under that Act.

(J. E. Richardson)

Commonwealth Ombudsman

The Hon. R. J. L. Hawke, AC, MP Prime Minister Parliament House CANBERRA ACT 2600

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January 1985

Dear Mr Scholes,

I have pleasure in submitting to you, for presentation to the Australian Capital Territory House of Assembly, the Annual Report of the Commonwealth Ombudsman for the year ended 30 June 1984.

Chapter 8 of the report is submitted as required by sl9(l)(b) of the Ombudsman Act 1976, for presentation to the House, and represents my report on the operations of my office relating to action taken by officers in the exercise of powers and the performance of functions conferred by enactments of the Australian Capital Territory.

Yours sincerely,

(J. E. Richardson)

Commonwealth Ombudsman

The Hon. Gordon Scholes, MP Minister for Territories Parliament House CANBERRA ACT 2600

Contents

Page

1. The Seventh Year.........................................................................................................

Complaint trends...................................................................................................1

Targets of complaints...........................................................................................1

Outcome for complainants.................................................................................. 2

Cost of investigating complaints........................................................................5

Complainants..........................................................................................................5

Agencies...................................................................................................................5

Taxation appeals....................................................................................................6

Legislative changes................................................................................................7

Ombudsman Act and Complaints (Australian Federal Police) Act ....... 7 Freedom of Information A ct.......................................................................... 7

Office staff............................................................................................................. 8

Representation in the Northern Territory............................

Consultations during the legislative process........................

National Crimes Authority and the Senate amendment Merit Protection and Review Agency...............................

Australian Protective Service........................................................................10

Administrative Appeals Tribunal..................................................................... 10

Demands for undue attention.......................................................................... 11

International Conference in 1988..................................................................... 11

2. Legislation, Representation and Legal Advice.......................................................

Amendments to the Ombudsman Act 1976.................................................. 13

Oral complaints and oral investigations.....................................................13

Preliminary enquiries..................................................................................... 13

Notification of investigations........................................................................14

Discretion not to investigate......................................................................... 14

Persons in custody.......................................................................................... 14

Power to obtain information and documents........................................... 15

Disclosure of information by the Ombudsman.........................................15

Special reports................................................................................................. 15

Resolution of disputes about jurisdiction.................................................. 16

Advice to a Minister.................................................................. 16

Advisory bodies.............................................................................................. 16

Application of the A ct.................................................................................. 16

Complaints (Australian Federal Police) Act 1981....................................... 17

Notification to agencies of new working procedures................................... 17

Legal assistance for the Ombudsman.............................................................. 17

Crown Solicitor’s advice during an investigation...................................... 18

The Law Society of the Australian Capital Territory.................................. 19

3. Defence Force Ombudsman.......................................................................................

Essential features of DFO function................................................................ 20

Settling in.............................................................................................................21

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OO OS O s OS

‘Redress of grievance’ procedures................................................................... 21

Level of complaints........................................................................................22

Types of complaints received........................................................................22

4. Freedom of Inform ation............................................................................................

Freedom of Information Amendment Act...................................................24

Staffing.................................................................................................................24

Operation of the FOI Act — general observations........................................25

Complaints........................................................................................................ 26

Representation of persons before the Administrative Appeals Tribunal..........................................................................................28

Access under the Freedom of Information Act to documents in the possession of the Ombudsman’s office............................................ 30

5. Some Departments and Authorities.........................................................................

Australian Broadcasting Corporation.......................................................... 33

Copyright — when is a dealing fair?........................................................33

An ABC department....................................................................................34

Shopping centres.......................................................................................... 34

Australian Postal Commission (Australia Post)......................................... 35

Compensation — Postal By-law 297 .......................................................... 35

Offensive m ail.............................................................................................. 36

Australian Taxation Office............................................................................. 37

Boards of Review and section 6 of the Ombudsman Act....................... 37

Public statements by the Commissioner on matters of interpretation of income tax law.................................................................................... 37

Reimbursement of costs unnecessarily incurred.......................................39

Case: It’s not in your interest................................................................ 39

Imposition of additional tax.......................................................................41

Case: The unkindest cut of all...............................................................41

Part-year rebate for spouse........................................................................ 43

Disputed deduction of income tax instalments........................................ 44

Case: Inference or deduction..................................................................44

Other employer-employee disputes............................................................ 46

Australian Telecommunications Commission (Telecom Australia)......... 47 Privacy and security.....................................................................................48

Telephone interception........................................................................... 48

Misuse of telephone services.................................................................. 49

Silent lines................................................................................................. 49

Release of information............................................................................50

Reliability of the telephone network......................................................... 50

Exchange technology................................................................................50

Fault analysis and service assessment.................................................... 51

Case: A country malpractice...................................................................51

Case: Out o f the mouths of babes........................................................ .52

Case: Location of public telephones......................................................53

Some administrative changes arising from complaints........................... 54

Department of Communications.................................................................... 54

Interference.....................................................................................................54

Case: Interference to television reception in Finley, NSW.................55 Case: Confiscated equipment..................................................................56

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Department of Defence..................................................................................... 56

Case: Four years on....................................................................................56

Some administrative changes arising from complaints.............................57

Defence Service Homes Corporation.............................................................. 58

Department of Education and Youth Affairs................................................59

Fraudulent negotiation of cheques.............................................................. 59

Department of Employment and Industrial Relations.................................60

Case: Training agreement revised............................................................60

Case: Underpayment.................................................................................. 61

Department of Health........................................................................................61

Medifraud investigations................................................................................61

Isolated Patients Travel and Accommodation Assistance Scheme (IPTAAS)...................................................................... 62

Case: Drug taken off ‘free’ list................................................................62

Health Insurance Commission (Medicare and Medibank Private).............63 Retention of original accounts and receipts.............................................. 63

Differing health insurance needs of husbands and wives....................... 64

Department of Housing and Construction.....................................................65

Late applications for Home Savings G rants.............................................. 65

Department of Immigration and Ethnic Affairs........................................... 66

Working holiday-makers................................................................................66

Action of overseas posts................................................................................66

Wedding plans delayed.................................................................................. 66

Charges for overseas students...................................................................... 67

Case: Exempt or misled?.......................................................................... 67

Case: With prejudice.................................................................................. 68

A matter of interpretation.............................................................................69

Administrative changes arising from complaints......................................70

Department of Industry and Commerce.........................................................70

Case: What is art?...................................................................................... 70

Case: When is an owner not an owner?.................................................71

Case: Free flight.........................................................................................72

Case: Buried treasure.................................................................................72

Case: Tusk tusk.......................................................................................... 72

Department of Social Security.........................................................................73

The ‘Social Security Fraud’..........................................................................73

Backdating of certain allowances denied................................................... 73

Delayed recovery of overpayments..............................................................74

Case: Single adopting parents: second class citizens?.......................... 75

Case: Husband as second class citizen................................................... 76

Case: Income by instalment......................................................................77

Case: ‘A rather sorry record’................................................................... 77

Case: Pension whereabouts unknown.....................................................78

Case: Imposing circumstances..................................................................79

Department of Veterans’ Affairs.....................................................................80

Retention of documents.................................................................................80

Deceased mental patients.............................................................................. 80

6. Exercise of Commonwealth Purchasing Power...................................................

Purchasing procedures....................................................................................... 83

Case: Missed the boat (former Department of National Development and Energy).....................................................................83

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Page

Case: Forms of confustion (Department of Industry and Commerce)............................................................................................... 83

Case: No thoroughfare (Department of Housing and Construction)........................................................................................... 84

Case: A matter of hours (Department of Housing and Local government)..................................................................................84

Case: ‘Medicards’ (Health Insurance Commission — Medicare)..................................................................................................85

Case: In hot water (Department of Housing and Construction............................................................................................ 85

Case: Flexibility or uniformity (Department of Science and Technology, Public Service Board)..............................................86

Case: One lump or four? (Department of Defence Support)....................................................................................................86

Department of Administrative Services.......................................................... 87

Period contracts..............................................................................................87

7. Matters of Jurisdiction..............................................................................................

Commonwealth employment............................................................................ 88

Exclusionary clause........................................................................................ 88

Difficulties encountered................................................................................ 88

Legal advice.....................................................................................................89

Application of the legal advice.................................................................... 89

Merit Protection and Review Agency........................................................ 90

Broadcasting and television..............................................................................90

Australian Broadcasting Corporation: the continuing struggle..............90 Jurisdiction over program decisions....................................................... 90

Obfuscation..................................................................................................92

Special Broadcasting Service: wearing the same mantle..........................92

8. Complaints against the Australian Federal Police................................................

Statistical overview............................................................................................ 95

Visits to AFP regional headquarters............................................................... 95

Quality of investigation.................................................................................... 96

Minor complaints...............................................................................................97

Case: Unprofessional investigation..........................................................98

Arrest procedures...............................................................................................98

Arrest or summons?......................................................................................98

Arrest by threat............................................................................................. 99

Access to solicitors and friends while in police custody.......................... 100

Malicious complaints........................................................................ 100

Conspiracy to abuse Complaints Act........................................................... 100

Absence of penalties for malicious complaints........................................... 101

AFP members’ reaction to Complaints Act.................................................101

Case: Fair investigation........................................................................... 103

9. Report on the Australian Capital Territory..........................................................

Statistics..............................................................................................................105

Basis of the ACT report............................................................................. ...106

What the future holds.................................................................................... 106

Current office arrangements........................................................................... 106

Educational issues..............................................................................................107

Child welfare......................................................................................................108

A health problem............................................................................................... 108

Child abuse........................................................................................................ 109

Property............................................................................................................... 109

The root cause............................................................................................... 109

Landfill............................................................................................................ 110

Motor vehicles.................................................................................................... I l l

Car window tinting problems..................................................................... I ll

Annoying taxi................................................................................................ I l l

Time limits..........................................................................................................112

Design and siting...............................................................................................112

Own motion investigation................................................................................ 113

10. Activities involving other Ombudsmen....................................................................

Seventh Conference of Australasian and Pacific Ombudsmen................. 114 The Chief Minister........................................................................................ 114

The Chief Justice...........................................................................................114

Leadership Code and the Papua New Guinea Ombudsman Commission................................................................................................ 114

Intersystem railway complaints.................................................................. 115

Commonwealth-State investigations — effect of Commonwealth LOI...............................................................................................................115

Eighth Conference........................................................................................ 116

Ombudsman forum at the International Bar Association.....................116 Canadian Legislative Ombudsmen’s Conference.........................................116

International Ombudsman Institute.............................................................. 117

Third International Ombudsman Conference, Stockholm.........................118 International Ombudsman Seminar at Helsinki.......................................... 119

Visits to Britain — Parliamentary Commissioner...................................... 120

11. Internal Administration.............................................................................................

Office organisation............................................................................................121

Staffing................................................................................................................ 121

ADP proposal.................................................................................................... 122

Publicity and prom otion.................................................................................122

Expenditure........................................................................................................ 123

Top structure chart.......................................................................................... 125

Appendixes Appendix A: Text of letter notifying principal officers of amendments to Ombudsman Act.........................................................................126

Appendix B: Statistical Tables: Ombudsman Act.............................................. 129

Appendix C: Statistical Tables: Complaints (Australian Federal Police) A ct......................................................................................... 144

Appendix D: Text of letter about Ombudsman institution for a self-governing Australian Capital Territory.......................................................... 146

Page

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1. The Seventh Year

Complaint trends

Last year Γ recorded the receipt of some 16,000 new complaints. This year the approaches to my office have exceeded 20,000 for the first time. The growth area continues to be the making of complaints orally and, of course, their consequent resolution also by way of oral enquiries by my office. Nevertheless

there was also an increase in the number of written complaints made under the Ombudsman Act 1976, the figure being 3,053 as against 2,887 in 1982-83. It is interesting to note that the steady increase in the workload of this office represents far more than the increase in population. In 1979-80, when I first extracted these

figures, the rate of complaint to my office was 76.8 per 100,000 of Australia’s mean population for that year. In 1983 the figure climbed to 129.71. The rise reflects, I think, an increasing awareness of my office among the public — which is gratifying, because we have been forced to discontinue some of our earlier means of promoting

knowledge of the office such as the making of regional visits in outback areas. Staffing restraints have dogged us for several years. To some extent the increase in complaints reflects the widening scope of the Ombudsman’s jurisdiction as discussed in Chapters 3 and 4 of this report: for example,

following the introduction of the Freedom o f Information A ct 1982 we now receive complaints about the refusal of authorities to produce documents to an applicant. An accretion to the functions of the office which occurred in December 1983 when 1 became the Defence Force Ombudsman, has also added a handful of complaints

to the list. It is too early yet to assess the significance of the defence force jurisdiction but I expect there will be a settling-in period until the availability of my office to service personnel becomes more widely known. Unlike the low public profile we have adopted in relation to the FOI functions conferred upon us, which I describe in

Chapter 4 of this report, we are taking steps to spread the word about the DFO function, since we have obtained staffing recognition of the fact that the function cannot be performed without additional staff being allocated to my office. Another notable growth area during the year was in complaints against the

Australian Federal Police. These are separately identified in our overall statistics because, in almost all cases, responsibility for investigation of complaints, at least in the first instance, rests with the Internal Investigation Division of the AFP. The number of complaints received rose from 279 in 1982-83 to 360 this year.

Targets of complaints

There are risks in comparing too closely apparent trends from year to year in the number of complaints we receive about alleged actions of particular departments and authorities. Not only are such bodies abolished and created from time to time by the government of the day, but even without change of name, their functions can

be varied from year to year or within a year, while major government initiatives administered by a body can precipitate sudden surges in the rate of complaint to the Ombudsman.

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Nevertheless, one can note, without attempting too closely to interpret, some apparent changes during the year under report:

• some decline in the number of complaints about the Department of Social Security, following a large increase in the previous year; • while oral complaints against Australia Post increased, written complaints fell and the total number of complaints received was 374 compared with 351 last

year. This is less than expected because opinions about breakdowns in mail deliveries and so forth are freely ventilated publicly and during the year my own office suffered both predictable and unpredictable delays in the transmission and receipt of letters sent through the ordinary mail; • a decrease in complaints against Telecom (1,653 compared with 2,146 in

1982-83); • a steep increase in complaints against the Department of Immigration and Ethnic Affairs (836 in 1983-84; 637 the year before; and 678 in 1981-82); and • continued increase in complaints against the Australian Taxation Office (1,677

in 1983-84; 1,393 the year before; 1,109 in 1981-82).

Other bodies sharing the increase in business for my office in 1983-84 were the Australian Legal Aid Office, the Department of Aviation, the Department of Defence (reflecting the new DFO jurisdiction) and the Department of Foreign Affairs. On the other hand, apart from those mentioned above, decreases in complaints were registered by the Departments of Administrative Services, Industry and Commerce, Territories and Local Government and Veterans’ Affairs.

Outcome for complainants

Table 4 in Appendix B shows that, as usual, my office found in complainants’ favour more often when looking into complaints lodged orally than when investigating written complaints. This is now an established pattern and is a basis for my firm belief that the public is best served by my office through its unique system of informal enquiry.

Comparison of outcomes of complaints this year is complicated by a change in the internal definition my office has used of the ‘outcome’ of a written complaint. Previously, we have based this measurement on the concept of whether the result was wholly or partly in favour of the complainant. This, however, while measuring how often there may have been defective administration leading to complaint to me, tended to overstate the role of my office in rectifying the problem. Often, of course, departments and authorities themselves recognise and mend defects in their administrative action independently of our enquiries. Thus, although there may have been defective administration, I believe my office should not claim an involvement in its repair where the agency concerned has found and fixed the fault itself.

Thus, since November 1983, we have based our recording of findings ‘for’ complainants on the answer to the question ‘was the complainant’s grievance rectified or modified demonstrably as a result of complaint to the Ombudsman?’ I believe this is a more useful formulation; but because it was adopted during the year under report, the ‘outcomes’ tables in Appendix B should not be taken as directly comparable with those for previous years. There will be a further resultant effect in the statistics for ‘outcomes’ in my eighth annual report in which the ‘new’ definition will have been used consistently throughout the year for the first time.

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The following charts show how written and oral complaints have fared during 1983-84:

Fig 1 — outcomes of written complaints finalised

Resolved Totally or Substantially in Complainant’s

Resolved Partially in Complainant’s Favour

Resolved in Department’s or Authority’s Favour

Withdrawn or Lapsed

Fig 2 — outcomes of oral complaints

Written Complaint Advised

Resolved in Department’s or Authority’s Favour

Resolved Partially in Complainant’s Favour

Resolved Totally or Substantially in Complainant’s Favour

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Fig 3 — remedies for written complaints finalised Other Remedies Action

Expedited Admission of Error & Apology

Reversal or Significant Variation of Original Action

Reversal or Significant Variation of Original Action

Compensation or Act of Grace Payment

Action Expedited

Resolved totally or Resolved partially in substantially in complainants’ favour complainants’ favour

Other Remedies

Compensation or Act of Grace Payment Admission of Error & Apology

Fig 4 — remedies for oral complaints

■ Other Remedies

Reversal or Significant Variation i of Original Action I _

Admission of Error & Apology

Compensation or Act of Grace Payment

Action Expedited

* : !

Action Expedited

Reversal or Significant Variation of Original Action

Other Remedies

Admission of Error & Apology X Compensation or Act of Grace Payment

Resolved totally or Resolved partially in substantially in complainants’ favour complainants' favour

Cost of investigating complaints

Dividing the total actual expenditure of the office (we do not pay rent for most of the premises we occupy) by the number of complaints within jurisdiction and resolved, the direct cost of dealing with each case averaged $273 in 1977-78, $252 in 1980-81,

$301 in 1981-82, $256 in 1982-83 and $326 this year.

Complainants

For the most part complainants continue to be ordinary private citizens concerned about personal matters such as the performance of their telephone service, the way in which provisions of the Income Tax Assessment Act apply to them, or their entitlement to Commonwealth benefits of one kind or another. Many complaints

also arise from engagement in commercial activities, for example, restraints and duties imposed on the importation of goods for commercial purposes or the application of Commonwealth rules and policies in the various areas of transport. It also seems that solicitors are becoming more aware of the possibility of utilising the various

measures of administrative accountability, including the Ombudsman, rather than sending their clients away empty-handed. It is only rarely, however, that we receive a complaint from big business interests even though it is obvious, even from reading the newspapers, that matters are raised directly with departments and Ministers in

which the services of the Ombudsman could be used. If it is true that large scale enterprises believe they are capable of looking after themselves, then the Ombudsman need not be concerned at the lack of their patronage. At the other end of the scale our services are still not being used to the extent

expected by under-privileged groups in society. Experience throughout the world shows that this is a common problem with ombudsman offices. We lack the resources to evolve and implement effective means of communicating with the under-privileged; but, as will be seen in Chapter 11, last year we began a series of seminars in the States

to attract representative organisations to learn about our operations and make suggestions as to the things we might do to help achieve a broader understanding of the Ombudsman’s operations. When the Ombudsman Act was being drafted fears were expressed, in particular

by the then Department of Immigration, that to give the Act an extra-territorial operation would be to open the way to an influx of complaints from abroad which would impose most onerous workloads on relevant subject agencies. This has never

occurred and in fact in 1983-84 we received only 20 complaints from overseas. I am quite sure that a principal reason is lack of knowledge of the Ombudsman’s operations. We have not, for example, attempted a distribution of Ombudsman pamphlets through Australian posts overseas. One ambassador suggested to me at the close of the year

that he thought injustices were occurring and that we would receive complaints if there were an awareness of the Ombudsman facility. It is a question which will engage our attention during the coming year. The question of notification of appeal rights is also on the work program of the Administrative Review Council.

Agencies

It is my pleasure to record once more that we have maintained, with only a handful of exceptions, very satisfactory working relationships with departments and prescribed

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authorities falling within the scope of the Ombudsman Act. To some outsiders the existence of a cordial relationship between a department and my office may seem ground for doubt whether the Ombudsman will investigate a complaint objectively if it should militate against the continuance of an harmonious relationship. Such a view is a complete misconception.

Our record of enquiries and investigations resulting in complaints being wholly or partially upheld, I believe, speaks for itself. Success for the Ombudsman’s office does not depend on bludgeoning agencies into submission but on demonstrating, through our investigations, that there is defective administration which a well-run agency will recognise; then seeking, as far as possible, to avoid recurrence of similar defective action in the future. Thus, I have not, in seven years, found it necessary to make a report to the Parliament because an agency has refused to take adequate and appropriate action to give effect to our recommendations. Only rarely have I had to resort to the intermediate step of making an approach to the Prime Minister under s 16 of the Ombudsman Act.

Significantly for my office and departments and authorities to which the Ombudsman Act applies, the Prime Minister, Mr Hawke, recently wrote to a ministerial colleague about a particular case saying:

‘1 believe that it is only in the most exceptional circumstances that a recommendation by the Ombudsman should be set aside and that, in this case, we should regard the fact that a recommendation has not been given effect as a failure in administration.’ As to the exceptions, I have not always found it easy to deal with the Treasury but fortunately the number of complaints about its activities are not large and in the long run I have been able to resolve the complaints made. Among the statutory authorities the most notable exception continues to be the Australian Broadcasting Corporation which, throughout the year, quarrelled incessantly about the extent of my jurisdiction though professing to offer me co-operation. The co-operation ceases at the point where it is unwilling to do something I wish it to do to resolve a complaint.

Taxation appeals

Through the receipt of complaints and the contact I have with professional groups of accountants and lawyers, I am in no doubt that a serious problem has emerged in the administration of the Income Tax Assessment Act. Taxpayers dissatisfied with a decision of the Commissioner of Taxation may seek review of his decision by a Board of Review (of which there are three) or a court. For most taxpayers, resort to a court is not a reality and Boards of Review handle the bulk of the contested cases. Delays occur in the Boards of Review but my office has become increasingly aware of the inability of the Taxation Office to process cases for transmission to the Boards of Review within a reasonable time.

I first expressed concern in my fifth annual report to the Parliament in 1981-82 but it did not attract any comment. At that time 25,569 applications for review were awaiting transmission to Boards of Review. The Commissioner expressed the view that the number of applications for reference to the Boards may have peaked but as at 30 June 1983 the figure had increased to 34,225 and at 30 June 1984 there was a further increase of some 19,000 cases to a total of 53,611 applications awaiting transmission. For various reasons, many will never be contested but many should or will be contested and as things stand taxpayers may have to wait several years in many instances for their cases to be determined. The tightening up of the tax laws in the recently enacted Taxation Laws Amendment A c t 1984 will probably result in

further exacerbation of the position. For most taxpayers liability to taxation is the most onerous obligation they incur to the state and the amount of taxation paid materially affects their standard of living.

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The Commonwealth has a fundamental obligation to treat all taxpayers fairly but whilst the position continues, it is failing to do so. In terms of the Ombudsman Act, delays to taxpayers who complain to my office are unreasonable and unjust but the deficiencies which we identify are, I believe, largely beyond the control of the Taxation Office because it has insufficient resources to perform the job on hand.

Generally, my office does not investigate complaints where there are well established, specific alternative avenues of review such as Boards of Review in the taxation system. However, where a complaint from a taxpayer about a delay in having his case heard seems to revolve primarily around issues of fact, in a matter of serious consequence to the complainant, my office will be prepared to undertake an

investigation with a view to making findings and recommendations which may turn out to be acceptable to the Commissioner arid the complainant. Nevertheless if we were to receive complaints in large numbers my office similarly would lack resources to tackle the task.

It is said that justice delayed is justice denied and this is as true in the executive area of government today as it is in the traditional courts of law.

Legislative changes

Ombudsman Act and Complaints (Australian Federal Police) Act

As noted in my sixth annual report, amendments were enacted in the latter half of 1983 to the Ombudsman A ct 1976 and the Complaints (Australian Federal Police) Act 1981. I described the main thrusts of these amendments in my fifth annual report, the most important being the creation of the office of Defence Force Ombudsman

— but since their parliamentary gestation has proven somewhat extended, a summary of the main provisions appears again at Chapter 2 of this report. Further changes of detail to the Complaints (AFP) Act were enacted in June 1984; these are also discussed in Chapter 2.

Freedom of Information Act

Changes to other legislation during the year have had very nearly as profound significance for my office as those mentioned above. Most importantly, the Senate amended the Government’s Freedom o f Information Amendment Bill 1983 to include a significantly greater role for the Ombudsman than originally proposed: I believe

I am now the only Ombudsman in the world to have the formal status of counsel before a statutory tribunal; for the most noteworthy single feature, from my perspective, of the Freedom o f Information Amendment Act 1983 was to allow persons who have sought review by the Administrative Appeals Tribunal of decisions taken by agencies under the Act to seek representation by my office before the Tribunal.

At the close of the year under review, I had granted only one such request, for reasons that are discussed, along with the scheme of the Act’s new Part VA, in Chapter 4 below. The impact of freedom of information legislation on my office during the year has been substantial and unexpected in its dimensions.

During the drafting of the FOI Act my office was advised that the Act would have little application in connection with the basic work of the office of investigating complaints. The Ombudsman Act prohibits all of us from disclosing information acquired during the course of any investigation except for purposes of the performance

of our functions under the Act; we are also required to conduct investigations in private. Our understanding was that we would obtain the protection of s38 of the Freedom of Information Act which makes documents exempt where secrecy provisions

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of enactments apply. However, the Federal Court in March 1984 decided to the contrary and it seems that the Freedom of Information Act is being accorded a judicial construction which has the substantial effect of re-writing the Ombudsman Act. A full analysis of the effects of FOI and its implications appears in Chapter 4. The Act requires that I should designate one of my Deputies as Deputy Ombudsman for

freedom of information matters: I have so designated Mr Hunt. Unlike other agencies expected to have substantial FOI involvement, my office did not receive additional staff although our own involvement has proved to be quite substantial — principally in connection with our own subjection to the FOI Act. The additional functions conferred by the 1983 amendment compounded our difficulties and I sought once more to obtain a small increase of staff from the Prime Minister but I regret to say that my request was refused. It is not possible, without postponement of urgent work on the investigation of complaints, to perform the whole range of functions and duties which I now have under the FOI Act. Already I have had to decline several requests from persons wishing my office to represent them in AAT proceedings because of lack of resources. As the year progressed I was experiencing increasing difficulties in meeting statutory and AAT requirements as to time and so forth and I expect that the position will become worse in the

forthcoming year. I am ill at ease in not being able to perform the range of functions which the Parliament has vested in me and so I intend to approach the Prime Minister once more.

Office staff

I wish again this year to pay tribute to the dedication and calibre of the staff whose work has engendered confidence in my office. I thank Deputy Ombudsmen Hunt and Kerr for their unstinting support, and welcome as Deputy Ombudsman (Defence Force) Air Vice-Marshal J. C. Jordan AO (Ret.), who was appointed to office in January 1984.

Representation in the Northern Territory

Since 1980, I have been represented in the Northern Territory by a part-time investigation officer. While this allowed my office to have a visible presence in the Territory, and provided some capability to make ‘on-the-spot’ enquiries, most of the more complex enquiries — those needing the written medium — have in practice been handled by my Canberra staff.

Following discussions during the year with my confrere in the Northern Territory, Mr Russell Watts, the Commonwealth and Northern Territory Governments have now concluded an agreement under which Mr Watts and his staff will henceforth represent my office in the Territory, receiving and investigating under delegation complaints Territorians may wish to lodge about the activities of Commonwealth

bodies in the Territory. The Ombudsman for the Northern Territory has offices in both Darwin and Alice Springs, and I expect that the availability of both during the whole of normal office hours for the receipt of complaints, as well as the presence from time to time of Mr Watts and his staff at centres throughout the Territory, will significantly improve the availability of my office’s services to Territory residents.

I note particularly that this arrangement should facilitate use of my office’s services by Aboriginal Territorians, having felt for some time that more active steps were needed to encourage Aboriginal Australians to use those services.

8

I express my thanks to Mr Watts and to both the Prime Minister and the Chief Minister of the Northern Territory, Mr Everingham, for making this agency arrangement possible.

Consultations during the legislative process

There have been three occasions during the year under report on which 1 have been surprised to learn of legislative developments about which I would have expected a greater degree of consultative effort well before they became law.

National Crimes Authority and the Senate amendment

Before and during the National Crimes Commission Conference in July 1983, 1 had put my views on the desirability of such an authority being accountable for its actions through the jurisdiction of an independent review channel. As subsequently developed the National Crimes Commission Bill declared the jurisdiction of my office over the proposed Commission. Therefore I eschewed further comment to the Senate Standing Committee on Constitutional and Legal Affairs during its examination of the Bill, while emphasising to the Committee my availability to it should it wish to canvass

my views further. I have always been readily available to this Committee, which in the past has shown real interest in the Ombudsman’s operations. It was with complete surprise that I found when the Committee’s report was

presented to the Senate that a majority of the Committee had accepted some remarkably ill-informed views put to it by others, who have had nothing to do with my office, about the impact on the Authority’s effectiveness should its actions be subject to review by the Ombudsman. On the basis of those views the majority

recommended the excision of that clause of the Bill that would have asserted my jurisdiction. Despite strong argument by the Attorney-General for reinstatement of the clause during debate in the Senate, the Committee’s proposed amendment was accepted by

the Senate, and subsequently enacted. I believe individual civil liberties have to that extent been diminished as a result, and deplore the short-sighted views that were able to sway the Committee and the Senate without consideration of informed countervailing views.

I can see no stronger argument for exempting the Authority from external review than I can for exempting the police, whose effectiveness has, I affirm, to no extent been hampered by falling under my jurisdiction. I believe fears voiced before the Senate Committee that my office might have been used by sinister and powerful

interests to obstruct legitimate investigation by the Authority are exposed as fanciful by the failure of the identical interests to achieve frustration of any Australian Federal Police investigation through complaint to me.

Merit Protection and Review Agency

Early in 1984, the Government’s White Paper entitled ‘Reforming the Australian Public Service’ foreshadowed legislation to create a new ‘merit protection agency’ whose functions would to some extent resemble those I would have but for operation of s5(2)(d) of the Ombudsman Act (which places complaints reflecting disputes

between the Commonwealth and its employees broadly beyond my jurisdiction). Because s5(2)(d) does not prevent the Ombudsman from investigating pre- or post­ employment complaints, there seemed to me scope for confusion between the roles of my office and the new agency, which would best be resolved before legislation

was introduced to the Parliament.

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The ‘Support Group for the Public Service’ which was developing the policy intentions of the White Paper, did not take steps to confer with either my office or the Administrative Review Council which advises the Attorney-General on the adequacy of review mechanisms in Commonwealth administration. However, my Deputy, Mr Hunt, made contact with the Group and limited consultation resulted. The failure to involve the Administrative Review Council is a matter of separate concern to the Council on which I am an ex-officio member.

The Act that eventually established the new Merit Protection and Review Agency does in fact leave considerable overlap between its functions and mine: 1 do not expect this to become a practical problem. I will exercise my discretions under s6 of the Ombudsman Act not to investigate wherever I am satisfied that an effective investigation by the Agency appears to be in train or likely.

Australian Protective Service

Thirdly, amendments to the Australian Federal Police Act in June 1984 removed from the ranks of the police those officers whose duties are to guard public buildings. These officers will now be ordinary public servants rather than police. So long as they remained police, my jurisdiction over any and all of their official actions was undoubted — the Complaints (Australian Federal Police) A ct 1981 gives me jurisdiction over any ‘action o f a member’ — but of course my jurisdiction under

the Ombudsman Act is confined to actions ‘relating to a matter of administration’. It strikes me that some might assert that certain actions of these guards may be only distantly related to administration — apprehension of intruders, for instance — and I would have welcomed an opportunity to discuss possible means by which any unclarity could have been resolved before the necessary legislation was introduced to Parliament. Once again, however, the matter was brought neither to my attention

nor to that of the Administrative Review Council. I have, however, brought the question myself to the attention of the Minister for Administrative Services and the Special Minister of State. I place on record my intention to view my jurisdiction over the new protective service broadly, since I do not subscribe to the narrow view of

‘adm inistration’ referred to above.

Administrative Appeals Tribunal

It is sometimes a consequence of vesting additional jurisdiction in the Administrative Appeals Tribunal that my office receives or investigates fewer complaints in the new- subject area of the AAT’s jurisdiction. For example, when the AAT became an external authority hearing appeals relating to the refusal to grant benefits under the Social Security Act, we preferred to direct complainants to AAT registries rather than investigate the complaints ourselves. Under s6 of the Ombudsman Act, where a complainant has a right to cause an action which is the subject of complaint to be reviewed by a tribunal such as the AAT I may decide not to investigate if I am of opinion that it would be reasonable for the complainant to exercise that right. There are a good many examples now where the jurisdiction of the AAT and the authority of the Ombudsman overlap, but I do not see that this is detrimental to the public interest. In my office we look at the circumstances of each case in deciding where we should investigate a complaint or suggest that the complainant approach the AAT.

At times when we have investigated a complaint in an area of overlapping jurisdiction, we are assisted by the availability of AAT decisions, for example, in the classification of goods for Customs tariff purposes, and the interpretation of the rules of the Isolated Patients Travel and Accommodation Assistance Scheme.

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Nevertheless there is room for more consultation between the AAT and ourselves than in fact has occurred. The relationship between the AAT and the Ombudsman is one of the topics on the work program of the Administrative Review Council and both the President of the AAT, Mr Justice Davies, and I welcome the step.

In the social security area cases have arisen before the AAT in which the applicant has not been able to obtain redress, however sympathetic the Tribunal has been to his or her circumstances, for example, where the Department is seeking to recover overpayment of a Commonwealth benefit. In some such cases there may appear to

the AAT to be scope for an Ombudsman investigation since the Ombudsman may, if he finds an action to be unreasonable and unjust, make a recommendation in favour of a complainant even though the Department’s actions have not been contrary to law. One possible approach in such circumstances is for the AAT to have power to

refer the matter to the Ombudsman’s office.

Demands for undue attention

Inevitably many complainants to any Ombudsman will be passionately convinced of the justice of their causes. Moreover the bracket of Commonwealth administrative law reforms creating new avenues of accountability such as the Ombudsman and the

Freedom of Information Act affords opportunities for complainants with causes they have sometimes maintained for years without success to seek further ventilation of their dissatisfaction. Our experience is that many such complainants adhere to convictions that they have been unjustly treated even though our investigations may

find no objective support for their beliefs. An international ombudsman seminar held in Flelsinki, Finland, at the end of last June examined the problem of how to deal with chronic complainants but no satisfactory solutions emerged.

During the past year a number of complainants to my office have taken it into their heads that it is for them, and not me, to decide the outcome of investigations and the resources my office should devote to their causes. Unable to accept our conclusions, a small bunch has, over recent months, decided it will be satisfied with

no less than the personal attention of myself or my Deputies and that any failure by us to revive an already finished investigation ad infinitum if the outcome is not in all respects to their liking justifies seeking press publicity adverse to my office, intrusion into our personal offices, gross verbal and even physical abuse of my staff

and the disruption of other investigations at their whim. All of this adds considerably to the burden of work in my office and it is essential that we seek ways of disposing both of chronic complaints and chronic complainants so that our investigatory resources are not diverted from the complaints of citizens of good faith to the

appeasement of the neurotic whims of the disruptive. From a broader aspect, encouragement of chronic complainants to use the avenues of administrative review open to the public at large, as they may freely now do, provides food for the lingering pockets of discontent to be found occasionally in public administration detracting

from the merits of the various measures of administrative law reform standing to the credit of the Commonwealth.

International Conference in 1988

The Third International Ombudsman Conference was held in Stockholm last June — see Chapter 10. It was with pleasure that I was able to inform the Conference

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that I had the Prime Minister’s approval for Australia to host the next Conference which will be in our bicentennial year. There was another invitation but the Conference voted overwhelmingly in favour of Australia. 1 hope there can be some State involvement on the occasion.

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2. Legislation, Representation and Legal Advice

Amendments to the Ombudsman Act 1976

Almost from the beginning in 1977 we embarked on a policy of attempting to deal with complaints on an informal basis rather than to invoke the formal investigatory processes specified in the Ombudsman Act. We felt that the handling of complaints by informal means placed less strain on the resources of departments and prescribed

authorities and at the same time did not prejudice the interests of our complainants in any way. If it was clear from the outset that if a complaint was of a very serious nature or would involve substantial investigation resources, or if it became apparent during the course of an informal enquiry that an agency was resisting the Ombudsman,

we did not hesitate to embark on a formal investigation. But this was usually unnecessary. At an early stage we also made known our preparedness to accept complaints made orally instead of in writing and the process proved attractive both to

complainants and departments. Orally lodged complaints may, of course, be handled in writing but almost invariably our practice is also to deal with them orally by way of telephone and personal contact with the government agencies. By far the greatest number of our complaints is handled in this way and this has been the position over several years even though the Ombudsman Act did not provide for it.

Oral complaints and oral investigations

One of the most important changes in the 1983 amendments was the specific recognition given to the oral process. It is now expressly open to us to receive complaints orally instead of in writing. If I wish to exercise formal investigatory powers, for example, to summon witnesses or to receive submissions from any official

or other person whose actions I may criticise in a report of an investigation, the complaint has to be reduced to writing and the relevant Minister notified. Where my office chooses to handle a complaint solely by way of oral enquiry, for the purposes of the Ombudsman Act it does not amount to an investigation though

in fact that is what it may be. The view we take is that in making oral enquiries and disposing of a complaint in that way we are really making preliminary enquiries to decide whether an investigation is necessary in accordance with other provisions of the Ombudsman Act, in particular the provisions about notifying the agency involved

of an investigation. I should prefer to have seen some statutory provision which recognised that, in handling complaints orally, in substance we may be doing more than making preliminary enquiries. But I understand that the process has the necessary legal cover.

Preliminary enquiries

We used to receive occasional protests from an agency when we attempted to make preliminary enquiries as a prelude to an investigation, the objection being that the Ombudsman’s only power was to maintain an investigation under the Act. Section 7A puts the position beyond doubt by stating that the Ombudsman may make

preliminary enquiries to determine whether he has jurisdiction to investigate a

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complaint or whether or not he should investigate an action complained about. As I have mentioned, we understand that this section authorises us to handle complaints entirely orally if we think that the process meets the circumstances of the case.

Notification of investigations

Section 8 of the Ombudsman Act has always required the Ombudsman to notify an agency that an action complained about is to be investigated and there was also provision for the relevant Minister to be notified. Although written complaints may also be handled orally by way of preliminary enquiry as outlined above, for the most part enquiries into written complaints are initiated by a letter to the department or prescribed authority whose actions are the subject of complaint informing it of the receipt of the complaint and our intentions with respect to it.

An amendment to s8 makes it no longer necessary, in the first instance, to notify the relevant Minister of an investigation by my office. As the section now reads there is no distinction between commencing a formal investigation or an informal enquiry. Whenever we write a first letter to a department or agency this constitutes notification of an investigation as the section requires. Another amendment introduces a further element of flexibility by authorising me to enter into an arrangement with an agency as to the manner in which, and the period within which, the Ombudsman is to inform the agency of a proposal to investigate action. In other words, it is possible for an arrangement to be made which does not necessarily require us to adhere to the practice of writing first letters.

Discretion not to investigate

Section 6 of the original Act described various circumstances in which I could, in my discretion, decide not to investigate a complaint, or in which investigation was precluded subject to certain overriding discretions. Some of those circumstances related to the availability of alternative means of redress employed by, or available to, a complainant, for example, review by a court or tribunal such as the AAT. Amendments of s6 reflect the experience of my office over seven years and have introduced a greater element of flexibility, in particular by giving the Ombudsman more room for using his discretion as to when to investigate a complaint. For example, the Ombudsman has full discretion not to investigate a complaint if he is satisfied that the complainant became aware of the action he complains about more than twelve months before making complaint to the Ombudsman. Previously I also had to be satisfied that declining to investigate would not cause undue hardship to the complainant. We learned by experience that all too frequently the investigation of complaints more than twelve months old required extensive efforts on our part without the possibility of any real determination of the issues in dispute because evidence was no longer available or it was impossible to recapture all the prevailing circumstances of the time when the action was taken. We will continue to view sympathetically stale complaints where we believe hardship will result if we do not investigate but we will not undertake an investigation where there is no likelihood of a productive result.

Persons in custody

Section 7 has always allowed a person in custody facilities to make complaint to the Ombudsman without disclosing the nature of the complaint to the custodial authorities. It did not, however, accord confidentiality to further communications between the complainant and my office. This is now assured. I am glad to report that in practice gaol authorities have long accorded confidence to subsequent communications between inmates and ourselves.

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Power to obtain information and documents

Previously there were agencies which expressed doubts that if we did not undertake a formal investigation by giving appropriate notice to the agency and its Minister under s8 the agency was not protected from the possibility of legal proceedings and,

further, that our compulsory powers to require answers from witnesses and the production of documents did not apply. These objections have disappeared with the obliteration of the distinction between formal and informal process of investigation. A further result is that agencies now usually feel able to provide full information to my office without my having to issue a formal notice under s9. Formal notice will

be reserved for cases where there are special circumstances as, for example, reluctance on the part of an agency or a witness to provide information or answer questions, or where we need to conduct an examination on oath. If I choose to issue formal

notices and the complaint has not hitherto been reduced to writing, this must then be done and I must inform the relevant Minister of the investigation.

Disclosure of information by the Ombudsman

The Ombudsman Act casts a veil of confidentiality and secrecy over the Ombudsman’s· investigations. Section 8 authorises the Ombudsman to conduct an investigation in such manner as he thinks fit, but subject to the condition that it shall be conducted in private. Section 35 requires all of us in the office to observe confidentiality in our

work and not to divulge information coming to us by virtue of the exercise of our functions except in connection with the performance of those functions. These provisions have been extensively eroded by the Federal Court’s interpretation of the Freedom of Information Act to which I am subject. Thus it seems I may be required,

under the FOI Act, to disclose to a person making a request information which I cannot disclose without contravening s35 — although in practice the likelihood of my having to disclose material about the personal affairs of a complainant to someone other than the complainant is small, since such documents are exempt from disclosure

under the FOI Act. Disclosure under the FOI Act of course operates only upon a request being made and therefore my office otherwise remains subject to the provisions of the Ombudsman Act requiring confidentiality and secrecy.

On a good many occasions the prohibitions in s35 have prevented me from making public comment on complaints which have attracted publicity in Parliament and/or the media. At times the result has been a misleading account of the work of my office or a failure to recognise, in a matter of public interest, that my office has been involved

and perhaps produced some productive result. At times agencies have been subjected to unfair, publicly expressed criticism which an investigation by my office may have shown was neither fair nor justified. A new s35A authorises me to make statements about my functions or an

investigation if, in my opinion, it is in the interest of an agency or a person or otherwise in the public interest to disclose information or make a statement. The section is not intended to alter the essentially private nature of investigations and I shall continue to resist efforts made at times by various interests to have my office disclose the names

of complainants or information that might be prejudicial to a complainant.

Special reports

An amendment has been made to s 19 to enable me to make special reports to the Prime Minister for presentation to the Parliament in respect of my operations during part of a year on any matter arising in connection with my work under the Ombudsman Act. The power will allow me to inform the Parliament about any major

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investigations with wider implications and to highlight developments in my role which should be drawn to Parliament’s attention without delay. The special reports are not intended to alter the pattern of reporting on particular investigations as laid down in ssl5, 16 and 17 of the Ombudsman Act and, as with reports under those sections, the special reports will be subject to observance of the natural justice requirements of s8 before I can express any criticism of an agency or person.

Resolution of disputes about jurisdiction

Inevitably there remain areas of uncertainty as to the Ombudsman’s jurisdiction. For instance, it has not proved possible to define the precise limits of the Ombudsman’s exclusion from investigating public employment matters. Further, the Ombudsman Act, wisely, does not attempt to define ‘action that relates to a matter of administration’ this being the kind of action that I am authorised to investigate. I mention in Chapters 1 and 7 the refusal of the Australian Broadcasting Corporation and the Special Broadcasting Service to concede that decisions made in relation to television programs are actions relating to matters of administration. A new si 1A

provides machinery for the settlement of such disputes in a commonsense way. Under it, where the Ombudsman and an agency are in dispute with respect to the exercise of a power or the performance of a function by the Ombudsman, either may make an application to the Federal Court of Australia for a determination of the question.

In my case I may not do so unless I inform the Prime Minister in writing of the reasons for a proposed application to the Court. A contesting agency is under a similar obligation to its Minister.

Advice to a Minister

Some years ago the then Solictor-General expressed the view that the prohibition in the Ombudsman Act upon the Ombudsman investigating the action of a Minister applied also, by virtue of the Westminister theory of responsible government, to the actions of departments or prescribed authorities in advising the Minister. It was a view I had the utmost difficulty in accepting and in fact departments were encouraged by the former Prime Minister, Mr Fraser, not to take up the question of jurisdiction and they rarely did. An amendment to s5 clarifies the position in my favour.

Advisory bodies

Hitherto the Ombudsman Act did not provide me with the means of asserting jurisdiction over the activities of advisory bodies whose members were not public servants and which were not set up by statute, unless it could be shown that they were performing functions on behalf of a department or authority. Amended s3(4)

has the effect of deeming the actions of bodies such as the Foreign Investment Review Board to be those of the relevant department (in this case the Department of the Treasury). This is a potentially wide extension of my jurisdiction although I have received few complaints about activities of such bodies. This amendment ensures that I will not decline to investigate simply because the persons complained about are not public servants.

Application of the Act A new section (s3A) makes it plain that the Ombudsman Act applies both within and outside Australia and extends to every external territory. I have mentioned in Chapter 1 that we have taken little action to make the services of the Ombudsman known to persons dealing overseas with Australian government agencies. If information about the Ombudsman were to be made readily available in Australian

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representative posts abroad, especially, for example, the migration offices, I have little doubt that there would be a marked increase in the number of complaints coming to my office.

Complaints (Australian Federal Police) Act 1981

As mentioned earlier, this Act was also amended in October 1983 to mirror the principal changes made to the Ombudsman Act. Further detailed amendments were enacted in June 1984 by the Statute Law (Miscellaneous Provisions) A ct (No. 1) 1984. Thus, for example, complaints may be made orally in the first instance; and I have a discretion exercisable in the interest of any person, including a member of the AFP, or an agency, or in the public interest at large, to make public statements about

particular investigations. As in the Ombudsman Act I am also expressly authorised to make preliminary enquiries to determine whether a complaint falls within jurisdiction and if it does, whether it should be resolved by pursuing the full statutory procedures, or informally.

Notification to agencies of new working procedures

In November 1983 I wrote to the principal officers of 66 agencies advising of the fact of amendments of the Ombudsman Act and of procedural changes I wished to make arising from the amendments and the experience of my office. The text of the letter appears in Appendix A to this report. The response to my letter was most encouraging and only one principal officer (who has since retired from the Service) declined to nominate an officer in lieu of himself as a person to whom notification of the investigation of a complaint could be made in the event of it being difficult or impossible personally to notify the principal officer.

Legal assistance for the Ombudsman

For the most part my office has been able to rely on its own resources when legal questions arise during an investigation but on occasion we have made use of the usual channels of the legal profession. Two years ago I approached Mr Weaves, then

Secretary, Attorney-General’s Department, and said that I thought there were occasions when we could appropriately seek advice from his Department on questions of law arising during an investigation, particularly questions of statutory interpretation. From my point of view the occasion for advice had to be one on which

the Attorney-General’s Department was in a completely neutral position. Mr Weaves was good enough to agree with my suggestion and occasionally we now seek legal opinions from the Attorney-General’s Department. In Kavvadias v Commonwealth Ombudsman in which the plaintiff sought

production of documents under the Freedom of Information Act in proceedings before the Federal Court, I used, as instructing solicitor, a member of my staff who had litigation experience. Later, when the accounts came to be certified as to the reasonableness of costs incurred, the present Secretary of the Attorney-General’s

Department, Mr Brazil, wrote saying that it was long-standing government policy, reflected in the Judiciary Act, for the Crown Solicitor to act on the record in such matters. The Crown Solicitor, he said, regularly represented persons acting in an independent capacity. The Commonwealth’s interests could sustain injury if there was a proliferation of persons bringing proceedings.

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In the past, to the knowledge of the Attorney-General’s Department, I had used with noteworthy financial economies, qualified legal staff within the office and occasionally had made use of private solicitors. In later discussions I had with Mr Brazil and the Australian Government Solicitor designate, Mr Tom Sherman, Mr

Brazil emphasised the clear practical advantages in using the services of his Department: it had a vast knowledge and experience which could be relevant to particular litigation. Mr Brazil also said that he thought that the public interest warranted our use of the services of his Department if only to ensure that there was an awareness of all questions of public interest in particular litigation.

As to the public interest I said that the Senate Standing Committee on Constitutional and Legal Affairs had taken the view that it was in the public interest for me not be involved with the Crown law authorities in the matter of certification of legal costs. Further, other ombudsman offices in Australia and overseas avoided the use of equivalent official law authorities in the interests of demonstrating the

independence of their offices from government administration. There was an unquestionable public interest in maintaining the independence of the Ombudsman which was an institution not to be compared with other statutory authorities, however independent, formed under Commonwealth law.

In the upshot we agreed that I would make use of the services of the Attorney- General’s Department, in particular the newly established office of Australian Government Solicitor, because of the obvious practical advantages, especially for a small office which could be involved in litigation or equivalent proceedings such as before the AAT in any State or Territory of the Commonwealth. The arrangement is subject to the understanding that as Commonwealth Ombudsman I have the rights of an ordinary client, for example, to issue instructions to the Australian Government Solicitor and also to decide whether there was any conflict of interest in an individual matter. The new arrangement was put into effect in a second Kavvadias case which was concerned with proceedings under the Administrative Decisions (Judicial Review) Act 1977 and I am pleased to report complete satisfaction with the services provided.

Nevertheless my action could attract criticism that I have jeopardised the independence of my office and another Ombudsman could, in my opinion, quite properly decline to be associated at all with official legal institutions which act for the departments and authorities of Commonwealth public administration.

Crown Solicitor’s advice during an investigation

In a complaint described elsewhere in this report (see ‘Four Years O n’ on p 56) the question under investigation was whether an Army truck or some other heavy vehicle caused damage to a driveway giving access to the complainants’ property from the adjoining roadway. The Army denied responsibility for damage relying heavily on information which we found through investigation to be without foundation. I sent my draft report to the Department to enable it to respond to tentatively expressed criticism of the Army’s actions.

Without my knowledge the Department sent a copy of the draft report to the Deputy Crown Solicitor, Brisbane, for advice. The Deputy Crown Solicitor’s advice virtually invited the Department to adhere to its original position. It had a disruptive effect on my investigation and was in large part responsible for the fact that a final result was achieved only two years later. Since the advice patently ignored the evidence which my investigation produced and was also, in my view, in legal error, I wrote to the Secretary, Attorney-General’s Department, expressing my concern about the intervention by the Deputy Crown Solicitor’s office in Brisbane.

In keeping with the good relationship which exists between the Attorney-General’s Department and my office, discussions with the Secretary and the Australian

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Government Solicitor designate did much to clear the air for the future. I acknowledged at the outset the right of the Department to advise clients such as the Department of Defence. For its part the Department recognised that an Ombudsman

investigation had a particular standing and the Department should co-operate with the Ombudsman and endeavour to resolve, at an early stage, any difference which may emerge rather than create an adversary situation. Subsequently a ‘legal services instruction’ was issued within the Attorney-General’s Department reflecting the

agreement reached in our discussions.

The Law Society of the Australian Capital Territory We received a complaint about the Law Society of the ACT which, in substance, was that the Society had unreasonably failed to make a decision about the production of a document under the Freedom of Information Act. The complaint was subsequently withdrawn because the complainant instituted proceedings before the AAT but it led us to consider initially whether the Society was a prescribed authority

under the Ombudsman Act. We thought that it was. Under the Legal Practitioners Ordinance 1970 the Society, in addition to being an association of solicitors practising in the ACT, functions as a disciplinary committee and has functions in relation to the issue and regulation of practising certificates and the management of a fidelity fund. For such purposes it has compulsory powers.

In the proceedings before the AAT, Deputy President Hall decided, in August 1984, that the Society was a body corporate established for a public purpose by an enactment and as such was a prescribed authority subject to the FOI Act. A body so described is also a prescribed authority under the Ombudsman Act.

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3. Defence Force Ombudsman

Amendments to the Ombudsman A ct 1976 which came into force on 5 December 1983 created the office of Defence Force Ombudsman (DFO). Although the office of Defence Force Ombudsman was established within the Ombudsman Act as a complement to the Ombudsman’s general jurisdiction, the intention was that it should be identifiable and distinct. To this end the Act provides for an additional Deputy Ombudsman to be appointed by the Governor-General, and for the Minister to designate a Deputy Ombudsman (Defence Force). The first occupant of this position is Air Vice-Marshal J. C. Jordan AO (Ret.) who was appointed with effect from

1 January 1984 for a two-year term. His special knowledge of service procedures and appreciation of the full context of complaints from serving members has been invaluable. He has received good co-operation and assistance from senior Defence Force and Defence Department personnel.

An ‘Office of the Defence Force Ombudsman’ had existed within the Department of Defence since January 1975. However, legislation to give this organisation independence and statutory investigation powers and responsibilities was not enacted. On the creation of the statutory position of DFO by the Ombudsman Act, I assumed responsibility for the files and some twenty-five complaints awaiting finalisation.

Essential features of DFO function

The function of the Defence Force Ombudsman is to investigate, either when a complaint is made or of his own motion, administrative actions related to or arising from a person’s service in the Defence Force. Although most complaints have been

lodged by current or former members of the Defence Force, the Act is flexible enough to allow other persons, such as dependants of service members, to lodge complaints if they are personally affected by actions which are within the jurisdiction of the Defence Force Ombudsman. To some extent this overlaps my jurisdiction as Commonwealth Ombudsman — I have always investigated matters such as complaints by veterans and their dependants about repatriation claims and DFRDB pensions.

In recognition of the special position of service members, the jurisdiction of the Defence Force Ombudsman is defined in terms of service in the Defence Force, whereas the Commonwealth Ombudsman is excluded from investigating matters arising in Commonwealth civilan employment. There are, however, a variety of exclusions from the jurisdiction of the DFO which parallel exclusions from the Commonwealth Ombudsman’s existing jurisdiction. These include actions taken by Ministers, or by Justices or Judges of courts created by the Parliament, and actions taken by Magistrates. Moreover the Defence Force Ombudsman is excluded from investigating action taken in the conduct of disciplinary proceedings or action relating to the grant or refusal of most honours and awards — though not, for example, campaign medals.

Complaints by unsuccessful applicants for enlistment in the Services and complaints in relation to service pensions from veterans of allied forces remain with the older jurisdiction.

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As noted above, the Defence Force Ombudsman has jurisdiction to investigate administrative actions related to or arising from a person’s service in the Defence Force. This stands in direct contrast to the express prohibition contained in s5(2)(d) of the Act preventing the Ombudsman from investigating action taken with respect to persons employed in the Australian Public Service or the service of a prescribed authority. The reason behind this difference in powers is that servicemen and women differ from most other Australians in that their relations with their employer can extend into almost every aspect of their lives. It is in the nature of Defence Force service that members do not have the advantage of external grievance mechanisms typical in civil employment. With the creation of the Defence Force Ombudsman an independent avenue for the review of work-related grievances has been established. The creation of this statutory office therefore represents an important advance in the conditions of employment for service members.

Review by the Defence Force Ombudsman complements, rather than competes with, existing internal Service redress procedures. Consequently the Defence Force Ombudsman usually does not investigate a complaint by a serving member of the Defence Force unless and until the member first seeks redress through the internal

‘Redress of Wrongs’ procedures. In cases where redress has been granted within the Defence Force, the Defence Force Ombudsman may still investigate if he or the complainant is of the opinion that the redress was not reasonably adequate.

Settling in

The new jurisdiction has established itself reasonably smoothly. While departments and authorities were already well used to dealing with my office on pre-enlistment and post-service matters it has been mainly in relation to the complaints of serving people that there has been a transitional period. For our part, most of my staff were

unfamiliar with the administration of the Defence Force, and of the differences between the approaches of the three Services. For theirs, there was the need to become accustomed to external and in some ways more probing examination. It has taken longer than I, and I am sure the Department and the Defence Force,

would have hoped to deal with the complaints before us. This is perhaps not surprising during these early days, and given the joint and separate responsibilities under the Defence Act of the two principal officers of the Department for the administration of the Defence Force. Effective steps have however been taken by arrangement

between my officers and those of the Department to reduce the time involved, and further improvements are in mind for the coming year.

‘Redress of grievance’ procedures

Each of the Services has a statutory procedure by which a member who is aggrieved by some decision or action may seek redress from his commanding officer and then successively up to the highest level of authority within the Service. As I mentioned in my outline of the essential features of the DFO my function as Defence Force

Ombudsman does not supplant this existing mechanism. The legislation requires that 1 shall not investigate a complaint where the member has not utilised the redress of grievance procedures, unless I am of the opinion that the member was, by reason of special circumstances, justified in refraining from seeking redress. I may not

investigate before the 29th day after the date on which a member has sought redress unless I am of the opinion that there are special reasons justifying earlier

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commencement. Where redress has been granted I may not investigate unless the complainant considers that it is not adequate in the circumstances and I too am of the opinion that the redress was not reasonably adequate. In practice, there have been only a few cases where I have decided to investigate notwithstanding that the complainant has not sought redress — for example, where the complainant is about to be discharged and there is insufficient time for an application for redress to be considered. I have not yet found it necessary on the other hand to commence investigation of a complaint on which redress action has started until it has been fully considered, and rejected by the Service concerned. Once a member leaves the Defence Force he or she loses the right to redress.

Level of complaints

In the first seven months of operations, there were 166 new complaints within my jurisdiction as Defence Force Ombudsman. Flowever, only 121 of these (including 25 complaints taken over from the former Office of the Defence Force Ombudsman’) related to complaints about service matters which were not previously within my jurisdiction as Commonwealth Ombudsman. Of the complaints, 49% came from

Army, 30% from RAAF and 21% from Navy. The remaining 45 complaints relate to complaints about the Department of Veterans’ Affairs, Defence Service Homes Corporation, Defence Force Retirement and Death Benefits Authority etc. which were previously within my jurisdiction as Commonwealth Ombudsman.

Although the incidence of complaints from serving members is about 50% higher than that under the former Office of the Defence Force Ombudsman’ there is evidence that my jurisdiction and how it works is still only partly comprehended within the Defence Force. An example is the fairly significant proportion of complaints which have to be referred back to their originator with the advice that he or she must first pursue the redress procedures. My officers are publicising the new jurisdiction by arranging articles in the Service newspapers and by personal visits to Service establishments. We have received a gratifying number of invitations to make these visits.

It remains to be seen whether the rate of complaint will increase as the jurisdiction becomes better understood. The Defence Force’s perceptions of my effectiveness will be an important factor — as will be whether I will be as helpful as I hope to be in improving administration and thus reducing the causes of complaint.

Types of complaints received

The new service-related complaints have included a wide range of issues. Some complaints concern involuntary discharge from a Service. The subject is very important to the individual concerned, because discharge can involve not only loss of employment (which in itself is particularly serious in today’s economic climate) but also loss of the opportunity to qualify for retirement benefits and/or long service leave benefits. By arrangement with the Chief of Defence Force Staff, when a complaint about an imminent discharge is received, my officers request suspension of action pending resolution of the complaint so as to leave open the option of retention in the Service if the complaint is found to be justified. My officers also seek postponement of action in other cases where action would prejudice a suitable remedy if later the complaint is sustained.

Another common type of complaint is made by members who are seeking to avoid a posting to another location, or are seeking a posting to a particular location for

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family or other reasons. One can sympathise with the member who is happily settled with his or her family in a particular location and is most reluctant to leave; but of course the needs of the Service must be given due weight. Postings are usually made known to the member well in advance. The bulk of them occur at the end of the

year and are announced about mid-year. There is therefore usually ample time for any objections to be resolved, if necessary through the redress of grievance system, and in time for movement to take place in December/January, before the beginning of the school year. Because the new jurisdiction came into operation only in December

1983, I was not able to achieve timely resolution of several complaints about January 1984 postings and in fact did not receive Service reports in some cases until some time afterwards. In one case I determined that a posting from Brisbane to Melbourne was not administratively defective, but the Army ultimately decided to rescind the posting because with the passage of time and in view of the member’s decision to leave the Army in January 1985 it was not financially responsible to incur the costs of removal to Melbourne and then to meet removal expenses later in the year to the city from which the member wanted to be discharged.

Complaints about postings can also involve considerations of other members’ competing claims to be posted or to be permitted to retain their postings. Not infrequently complainants believe that they are being unfairly treated in relation to others. It is not possible of course for the Services concerned to disclose the personal

factors involved in posting decision in relation to other members because of the need to maintain privacy and confidentiality in personal affairs. As Defence Force Ombudsman, on the other hand, I am able to make enquiries about these matters

and to satisfy myself about such matters as an independent and impartial third party. Other complaints which are new to my jurisdiction have related to such matters as allowances payable in relation to the costs of purchase or sale of a member’s house when he or she is posted, lack of promotion, annual assessment reports and rental and other allowances. One member complained about the RAAF’s refusal to make

available to him under the Freedom of Information Act his previous assessment reports, and we are currently awaiting the decision in an appeal to the Administrative Appeals Tribunal by another RAAF member which may act as a precedent. We are pursuing the wider question of the availability of personnel reports to the individuals

reported on with the Department. Some reports are provided as a matter of course but there are differences in and between the Services, including in the policies relating to commissioned and non-commissioned people. Some of the more significant cases handled by my office about matters which

were previously within my jurisdiction as Commonwealth Ombudsman, but now fall within the new jurisdiction, are outlined in Chapter 5. My experience with the new service-related complaints is not yet sufficiently developed — nor have I completed investigation of enough important complaints — to enable me to include any of them

this year in that outline.

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4. Freedom of Information

The Freedom o f Information A ct 1982 which came into operation on 1 December 1982 affected my office in two ways: firstly, as an agency to which the Act applies; secondly, the actions of other agencies in relation to freedom of information (FOI) matters can be the subject of complaint to me. As at the commencement of the present reporting year, the Act had not had a major impact on my operations in either area. The position changed markedly during the present reporting year. Firstly, a Federal Court decision substantially altered the rights of persons to obtain access to complaint

files. Secondly, major amendments to the Act conferred new responsibilities on me.

Freedom of Information Amendment Act

The Freedom o f Information Amendment A ct 1983 repealed the previous section dealing with complaints to the Ombudsman (s57) and substituted a new Part VA (ss 52A-F) whose key provisions are as follows:

• I may investigate complaints about the actions of agencies in exercising powers or performing functions under the Freedom of Information Act (s25B); • I am required to provide details in my annual reports of complaints made to me, and investigations of complaints about freedom of information matters

(s52D); • should investigations uncover misconduct by an officer, a report is to be made to the principal officer of the department or the Minister and the Public Service

Board is to be informed (s52D); • the importance of my role in relation to FOI was recognised by a legislative provision requiring that a Deputy Ombudsman be designated as responsible for freedom of information matters (s52C); and • I may represent, or arrange for the representation of, an FOI applicant before

the Adminstrative Appeals Tribunal.

The political and Parliamentary processes which led to these amendments — particularly creation of the new role of representing persons before the Administrative Appeals Tribunal — are an interesting study in themselves. The Liberal-National Country Party coalition took a different attitude when in Opposition from that it

had taken in Government, whilst the Australian Labor Party took a different attitude in Government from that it had taken in Opposition. Some parts of the amendments were introduced through Opposition initiatives, those provisions being later accepted by the Government when the Bill was before the Senate.

Staffing

Since enactment of the original 1982 FOI Act, my office has had dual responsibilities under it: as a subject agency and in the investigation of complaints. I had originally believed that the agency role would generate little work, because my view (and others’) 24

was that most documents my office holds would be exempt from disclosure under FOl bcause of the secrecy provisions of the Ombudsman Act. 1 therefore refrained from seeking extra staff for FOI purposes — unlike most agencies: total public service

employment grew by some 600 persons because of provision for FOI — preferring to assess the workload before making any staff bids. I similarly preferred to see how many complaints we received about FOI actions of agencies before seeking extra staff to cover this extension of my investigation role.

The 1983 Amendment Act, however, created two entirely new functions: the role of advocate before the AAT; and the function of monitoring the operation of the Act and recommending ways in which public access to official documents might better be secured.

I at once began discussions with the Public Service Board about the staff my office would need to discharge these new functions properly; these were progressing, I thought satisfactorily, when cut short by a decision of the Prime Minister that no staff at all would be provided.

As the year has progressed, the Kavvadias case has proven unfounded my initial belief that the agency duties of my office under the FOI Act would not be onerous; indeed, the total demand on my office resources during the year under report was no less that 3.5 officer years (i.e. 5.5% of my total staff resources), the heaviest demands having been created by the agency role, including the need for internal review

by senior officers and preparation of responses to AAT reviews. 1 have presented fully researched cases during the Budget estimates cycle for what 1 believed were both modest and responsible requests for extra staff. Despite careful demonstration to senior officers of the Department of the Prime Minister and Cabinet of the basis of these requests, no extra staff was agreed to by Ministers — a decision confirmed by the Prime Minister upon reconsideration.

It is, in my view, a matter of grave concern that no provision has been made to enable my office to discharge, as required by the Parliament, significant new functions conferred upon it by statute. It is equally, but for different reasons, cause for deep disquiet that my (as I believed) responsible action in awaiting an opportunity to assess

FOI agency and investigation workload before seeking staff to cope with an objectively established need should result in the denial to my office of the staffing resources it requires. I believe the treatment meted out to my office, when compared with provision made elsewhere throughout Commonwealth administration, is, frankly, both unfair

and demonstrably discriminatory. As a result, I have felt unable to take on several requests for assistance before the AAT that I believe met the threshold requirements of s52F of the FOI Act, and have done little to inform the public of the services the FOI Act directs me to provide.

I have informed the Prime Minister of the inevitable consequences to the proper discharge of my office’s responsibilities, including increasing difficulties in meeting statutory deadlines under FOI and diminution of the quality of service my office can offer the public in its prime investigatory role as staff is diverted to FOI ends.

Operation of the FOI Act — general observations

Because of these staffing problems, I have been unable to devote staffing resources to the ‘monitoring’ function required by s52D(3)(b) of the FOI Act. I am therefore unable to include, in this Report, observations on the operation of the FOI Act during

the year or recommendations on ways in which public access to official documents might be better secured, other than those impressions which have been gained during the investigation of complaints and the processing of requests to my office.

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My impression is that most agencies are becoming more relaxed about release of documents — there are fewer and fewer complaints of a knee-jerk reaction to resist disclosure, and FOI is coming to be accepted as a routine part of public administration. There are also indications that, after an initial slow start, there is an increasing public awareness of, and use of, the Act. This, no doubt, will be assisted by the Government’s commitment to publicise the Act’s provisions.

Complaints

During 1983-84, I received a total of 70 complaints on FOI matters compared to 35 received during the previous reporting year. At 30 June 1984 there were 38 complaints still under investigation. Apart from those cases where a department or authority has taken too long to respond to a request, my investigations begin when the complainant is still dissatisfied, even after the required internal review has provided a ‘second bite’, and a second

set of reasons for the denial of access. Delay in processing a request may result from factors such as inadequate staff numbers to devote to the processing of the request, inadequate knowledge of procedures under the Act, the large number of documents comprehended by the request, or little or nothing being done to see if the request could be better defined by consultation between the parties, or even antagonism towards an applicant based on prior experience.

As the Act’s provisions have become more widely known these factors have led to fewer delays. However, the Department of the Treasury, toward the end of the year, tried to deflect an application on the grounds, inter alia, that its involvement in the preparation of the Budget precluded proper attention to the request. The applicant, correctly in my view, pointed out that the documents he sought had nothing to do with the Budget. Hence this excuse had no merit. The Department of Health contended that it would be an unreasonable diversion of its resources to process the volume of documents included in one request. This argument appeared rather hollow when we found that a much smaller department had handled a request of comparable size without undue difficulty.

Before the parties even consider having the AAT resolve a dispute, Ombudsman investigation of the applicant’s complaint can offer tangible benefits to both applicant and agency. Like the AAT, my office is expected to make an impartial and objective assessment of the documents and the alleged interests of both parties. Our investigation should clarify exactly what documents are required, and at least lead to greater precision in the reasons advanced for the refusal to give access and in articulating the countervailing public interest served by release. Inspection of the relevant documents permits my office to offer constructive advice to both parties which often narrows the dispute and in some cases has resolved it. Even when we are unable to resolve the dispute both parties, if the matter proceeds to the AAT, are likely to be better prepared. If the case is suitable for our representation under s52F then the earlier investigation will always be relevant to our presentation before the AAT. Some examples will clarify the advantages of our intervention. Many cases fall into several categories:

• Clarification of issues — A community group complained that it was being denied funding on the basis of a report alleging financial mismanagement to which access was being refused by the Department of Aboriginal Affairs. Our inspection of the report led

to a recommendation that the Department discuss with the group a number of issues that we identified as raised by the report.

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— A retired academic sought access to records held by the Australian National University of meetings where matters relevant to his career and his research school were discussed. The application raised the ambit of the expression ‘personal affairs’. Agreement on what the term embraces will determine how

much material must be checked which would otherwise pre-date the five-year retrospective period established by the Act. ‘Personal affairs’ documents are not caught by this restriction. The complainant has since re-applied for access in a format suggested by my office: the outcome is awaited.

Acting as intermediaries

— Two complainants had sought access to medical reports about themselves; their requests had been refused by the Australian Telecommunications Commission (Telecom). But when we established that the reporting doctor in each case was prepared to release the report to the applicant the problem was resolved. Similarly we have been able to argue that, notwithstanding any general policy stance not to release ‘personal documents’, the instant case should be treated as an exception.

— In a complaint involving the Attorney-General’s Department our intervention resolved a ‘standoff’ between the applicant and the Department so that the parties were reconciled and documents quickly released.

— Of course, departments may stubbornly adhere to a hard line position, simply ignore an application, or forever treat the matter as being low priority. Ultimately the complainant will either give up or go to the AAT. An applicant applied in 1983 for the return to him of fingerprints and photographs held

by the Australian Federal Police. I am awaiting forensic justification for a decision that the items may be destroyed in his presence, but not handed over.

Asserting a community ‘public interest' against a traditional public service interest

— Several organisations and individuals, representative of such specific community interests as native fauna protection, anti-fluoridation, consumer protection, and proper use of funds allocated for mentally handicapped persons have made complaints. These applicants are seeking access to reports held by

agencies on topics considered to be of great public interest by the applicants. Generally, the applicants also claim some special association with the report; for example, that they contributed to its production, or that it is being used in opposition to their views without their having an opportunity to examine

the report and comment upon it. As well as beginning our investigations (not yet complete) we have been able to inform the complainant organisations of their rights under FOI and to achieve, by discussion with the department, some wider release. — A complaint was also received from a lobbying organisation which wished

to make representations on a topic and therefore sought to have the Department of Flome Affairs and Environment speedily release documents. Our enquiries resulted in release of documents the complainant needed in order to mount more effectively its original representations in the matter.

Reports about the applicant

— Breach of confidence and the maintenance of candour are the usual arguments to deny an applicant access to reports written about him. The reports may assess such matters as the applicant’s physical or mental health, work performance, aptitude, suitability for promotion, moral standing, suitably for

promotion, suitability to remain in Australia, or academic performance. The reports may rely on some impersonal scale or they may make an explicit comparison with one or more other individuals. Sometimes the reports are only prepared upon an unequivocal assurance being given to the author that the subject will not be shown the contents. It is not clear how the community at large values both an individual’s right to know what is being written about him and the performance of a promise to maintain a confidence even where the material supplied is adverse to the subject. If it becomes clear that adverse reports cannot be given ‘in confidence’ then the present problem will disappear. Complaints have been received in which the applicant argues that his interest in gaining the material outweighs the public interest in the maintenance of confidences. The argument may assert that such confidences serve no useful purpose and should not be protected, save in quite specific situations — such as the disclosure of the information being prejudicial to the physical or mental health or well-being of the applicant or in the interests of law enforcement.

• Justification of exemptions

— Departments and agencies in their formal replies to applicants tend to give the bare bones of the basis of an exemption without any supporting background.

— One applicant, for example, asked for access to an Executive Council minute held by the Department of the Prime Minister and Cabinet. This request was refused pursuant to s35 of the FOl Act. In answer to a query from the applicant, the Department advised that the minute contained no factual material. It was left to my office to explain to the applicant the form of a minute and its accompanying, separate, explanatory memorandum. It is the latter document which contains the factual background.

— In our first case before the AAT, as representative for an applicant under s52F of the FOI Act, the applicant was faced with a definition of ‘public interest in non-disclosure’ which begged that very question. This case is dealt with in greater detail at pages 29-30.

As I have suggested above, the involvement of my office may resolve a dispute and, even if it does not, should the case be taken to the AAT the issues in dispute will be better defined. This function may assist the AAT to maintain its role as being accessible and relatively inexpensive to individual applicants.

To ensure that applicants are aware that they may seek the Ombudsman’s assistance without giving up their right to have the matter determined by the AAT we are anxious that applicants be clearly advised, both by the department or agency responding to their requests and by the AAT, of the availability of my office — before lodging an application with the AAT.

Representation of persons before the Administrative Appeals Tribunal As already mentioned earlier in this chapter, the 1983 amendments of the FOI Act conferred on me a power, which is at least unusual and possibly even unique for an Ombudsman, to represent persons before the Administrative Appeals Tribunal who are seeking review by that Tribunal of an adverse FOI decision. This power, which contrasts strongly with my otherwise invariable role as the impartial umpire, stemmed from a view taken in 1979 by the Senate Standing Committee on Constitutional and Legal Affairs that legal issues important to the proper operation of the FOI law might go untested before the Tribunal because the latter’s inability to award costs might deter applicants in such matters.

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In deciding whether to exercise my powers under the section, l am required to take into account:

(a) the importance of the principle involved in the matter under review; (b) the likelihood that the proceedings will establish a precedent in future proceedings; (c) the financial means of the applicant;

(d) the applicant’s prospect of success; and (e) the reasonableness of the decision under review.

Because of the staffing constraints mentioned earlier in this chapter, 1 have so far only provided assistance under the section in one case though I received several applications for assistance. The applicant, a former Government Analyst, had been seeking to have the

information contained in answer given to a Senate question on notice in 1981 amended. The question concerned appeals that he had lodged while a public servant about aspects of his relationship with his Department Head.

The applicant sought access to documents relevant to the preparation of the answer to the Senate question so that he could correct errors of fact about his personal affairs. Such documents are held by the Public Service Board and the Department of the Prime Minister and Cabinet. While both agencies gave him access to a great many documents, conclusive certificates were issued under s36(3) (internal working documents exemption) in respect of documents which allegedly either concerned deliberations and advice about the answer to the question or revealed the deliberations ot Departmental officers about what FOl policy they should follow in response to

the application. During 1983 the former Government Analyst lodged applications for review with the AAT. One of these applications proceeded through the AAT and the Document Review Tribunal where Mr Justice Morling upheld PM&C’s refusal to release the documents covered by one conclusive certificate.

1 decided that the circumstances of the applications met the criteria stated in s52F and that my office should represent the applicant in two applications which put upon the Department and the Board the onus of showing that their conclusive certificates are based upon the maintenance of ‘essential public interest’. (The precise test is set

out in s58(5) of the FOl Act.) The decision to offer representation was immediately vindicated by the Department’s decision to brief private counsel and the complexity of the legal issues raised. Lack of legal training and advocacy experience could have placed the applicant at a serious disadvantage if he had sought to compete unassisted.

Before the Tribunal the agencies raised the application of ‘issue estoppel’ — asserting that certain documents covered by the conclusive certificates now before the AAT were considered by the DRT last year. The Tribunal has reserved its decision on this question. The decision will have important consequences for future cases. The applicant, since he has been refused access to the documents, has no way of

knowing whether documents on various files are identical. The Tribunal is explicitly precluded from looking at the documents until preconditions are satisfied (see s58E and s64 of the FOl Act). These preconditions do not contemplate the ‘identity of

documents’ issue. A failure by an agency to note that files contain identical documents can be a costly oversight for an applicant. The hearing also raised other questions relevant to administrative review. These include access to documents by my office and the wider issue of effective

representation. The FOl Act provides a means for my office to examine disputed documents and to report before an application is made to the AAT (ss 52B, 52F,

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52E). Apart from the unlikely possibility that the Attorney-General may intervene under s9 of the Ombudsman Act to prevent disclosure of documents to my office it can be expected that it would see the documents which might later come before the A AT. Thus, as the law now stands, providing my office first acts under s52B our representation under s52F will have the advantage of prior knowledge not shared by an applicant appearing either unrepresented or with private representation. If, however, the applicant lodges his application with the A AT before we become involved, the position is otherwise as for the instant case. Our request to the departments for access was refused. The hearing is not yet complete.

One application which had to be refused was for assistance in a ‘reverse-FOP case, i.e. where an applicant seeks to prevent disclosure of business or personal information to a third party (the latter party being, in this case, the person who sought my assistance). Section 52F is so worded as to prevent assistance being granted to either party in such circumstances, this being in accordance with a specific recommendation of the Senate Standing Committee on Constitutional and Legal Affairs.

Access under the Freedom of Information Act to documents in the possession of the Ombudsman’s office

In my last annual report I made the point that in processing requests from complainants for access to documents on their files, my officers were obliged to take into account certain special considerations which arose out of specific constraints about cofidentiality and privacy imposed on me and my staff by the Ombudsman Act.

Since the inception of my office, I had accepted as an article of faith that the Parliament had intended the Ombudsman’s investigation to be held rigidly exempt from the scrutiny of members of the public, including that of the complainant. In particular, my view had been that s8 of the Ombudsman Act, together with the secrecy provisions of ss35 and 35A meant not only that each complainant’s affairs were safe from the eyes of others, but that the deliberative processes of the Ombudsman, like those of the Courts, were protected from the public gaze except to the extent revealed by the Ombudsman himself in explaining to complainants and authorities what his conclusions were and why he had drawn them. This principle, however, appears to be threatened by the outcome of a recent Federal Court case in which I was the respondent.

The Federal Court in Kavvadias v. Commonwealth Ombudsman, on appeal from a decision of the Administrative Appeals Tribunal, held that the secrecy and privacy provisions of the Ombudsman Act did not qualify as secrecy provisions under s38 of the Freedom of Information Act and thus could not operate to exempt the Ombudsman, in considering an FOI request, from disclosing documents he had acquired for the purposes and in the course of his investigation of complaints. Following the line it had taken earlier in the News Corporation case, the Federal Court took the view that s38 ‘expressly and intentionally directs attention to the nature of the information contained in the documents and not to the capacity of the person who has received the information’. Thus, although ss35 and 35A of the Ombudsman Act place restrictions on the Ombudsman in regard to disclosure of information, this fact of itself could not activate the exemption from disclosure provided by s38 of the Freedom of Information Act. The Court held further that ‘section 38 requires that there be a more direct and explicit reference to the nature of the information itself. Information is the commodity being dealt with in the Act, not the discipline or integrity of officers.’ The information acquired by the Ombudsman, said the Court, was of an almost limitless nature, qualified only by the fact that the Ombudsman

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has it in documentary form. It could not therefore be regarded as ‘information of a kind’ as required by s38. 1 believe the decision places my office in an anomalous position. On the one hand the Ombudsman Act requires me to carry out my investigations in private and makes

it an offence for me or my staff to divulge information except in clearly defined circumstances. On the other hand, it now seems that we can be compelled under the Freedom of Information Act to release information that we would not otherwise have

released to a complainant. The effect of the Freedom of Information Act, therefore, has been to deprive the Ombudsman of some of the discretionary powers given to him under the Ombudsman Act and to rewrite substantially those provisions of the Ombudsman Act regarding the privacy and the ‘in confidence’ nature of investigations.

Other exemption provisions of the FOI Act remain to be tested. These provisions will be relied on if and whenever I deem it necessary in order to ensure the proper discharge of my duties and functions under the Ombudsman Act. At this stage I am still awaiting the outcome of the Federal Court hearing in Kavvadias (No. 2) which will provide an answer to the question whether s36 (internal working documents) of the FOI Act may be relied on to protect the Ombudsman’s draft reports from being

prematurely released. I am also in the process of considering the extent to which the other exemption provisions, for example, s40(l)(d) may be relied on to protect documents from release. Should these remaining exemption provisions prove inadequate to the task and should I conclude that the efficiency of my operations

is being thereby eroded and undermined, serious thought will doubtless have to be given to the possibility of appropriate legislative steps to exclude the Ombudsman (and similar administrative bodies) from the operation of the Freedom of Information Act. This possibility was alluded to by the Federal Court in the Kavvadias case.

In the interim, however, I am adopting as liberal an approach as possible to the release of documents under the Freedom of Information Act. In the past year 51 new requests under FOI have been received by my office. Of these full access has been granted in 23 cases and partial access has been granted in most of the other

cases. Thirteen of the applicants have sought review by the Administrative Appeals Tribunal of decisions not to grant them access to certain of the documents on their files. None of these cases has yet progressed to the hearing stage. Although my office may have received relatively few access requests the time spent

in processing these requests has been considerable and requests themselves have been complex. It has sometimes been difficult to assess what documents the applicant has requested and on occasions the same applicant will put in several FOI requests for documents that are ostensibly different but turn out to be the same. Consultation

is almost always essential because my office has a large volume of files that largely comprise material obtained — under special statutory provisions — from external sources. We will often need to consult several agencies before replying to an FOI request. Consultation can also be time-consuming where a person makes similar FOI

requests to a number of agencies. This can be accentuated when those other agencies have different views from my office’s about the release or otherwise of a particular document. While in some instances it has been possible to overcome this particular difficulty by transferring all (or part at least) of the request I have found that it is

not always possible to rely upon the transfer provisions of the FOI Act. These administrative and procedural problems which have emerged cannot be lightly brushed aside because my office can only function efficiently so long as it maintains the trust both of government agencies and complainants.

Another matter which has caused difficulties is where my office has not received an FOI request but a request has been made to another agency which has documents originated by my office. While in most cases agencies have consulted with my office in these circumstances there have been two occasions during the past year in which

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agencies have decided to consult my office only when the documents became the subject of an AAT application. 1 hope to monitor this situation during the coming year. Although such things should be kept in perspective, I am also concerned that a

handful of persons have, through purported exercise of their rights under the FOI Act, brought about very severe strains on my office. One person has already made multiple FOI requests — several for the same document which does not exist. Fie has then lodged and subsequently withdrawn several applications to the AAT for review of access decisions yet continued nevertheless to persevere with approaches to the AAT for access to documents which we have always produced.

FOI access work has had a substantial impact on my small office, because of the requirement for senior officers to devote large amounts of time to, in particular, internal review of decisions on access requests and preparation for AAT proceedings.

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5. Some Departments and Authorities

I have included in this chapter case summaries of complaints involving some departments and authorities where investigation has traversed issues of interest in a variety of ways, either because of the circumstances of the individual complaint, or because they illustrate issues of some public interest. The selection of a case in

no way implies any view about the overall performance of that agency beyond the explicit comment. Some case studies of written complaints are included because they show a more comprehensive picture of the work of the agency concerned and the role of my office.

Australian Broadcasting Corporation

In July 1983 the former Australian Broadcasting Commission became the Australian Broadcasting Corporation and responsibility for its functions was vested in the Australian Broadcasting Corporation Board. Section 82 of the Australian Broadcasting Corporation A ct 1983 provides for the

appointment of Community Affairs Officers v/ho may make enquiries into complaints made to the Corporation alleging either that an error of fact or invasion of privacy has occurred in connection with a broadcast or televised programme. The Act provides for the appointment of a Principal Community Affairs Officer and vests in that

officer, where a complaint is justified, a power to inform the Managing Director, who has a duty to ensure that the Corporation broadcasts or televises a prompt retraction or apology in appropriate terms. The former Chairman of the ABC informed me that she considered that there was an intention that the Principal

Community Affairs Officer should investigate complaints which were now entertained in my office. This, however, is far from the case as reference to the Parliamentary debates clearly shows an intention that my jurisdiction should be preserved. In any case the jurisdiction of the Community Affairs Officers is considerably narrower than

my own and the review is internal whereas my own is external. Nevertheless if a satisfactory working procedure is established I would not wish to investigate a complaint falling within the competence of a Community Affairs Officer before that officer has an opportunity to discharge his statutory function.

In Chapter 7 I deal with a case in which the Board continued to resist my considerable efforts to investigate a complaint about a television programme. My office also investigated various other complaints about actions of the ABC. Three examples follow.

Copyright — when is a dealing fair?

A freelance journalist and marine photographer complained to us that an ABC television news programme had reproduced a photograph in his book about Sydney ferries without seeking his permission. He said that he had copyright in the photograph and it was stated in his book that permision needed to be sought for a reproduction

of copyright material. After protracted efforts to obtain a reproduction fee from the ABC failed, the complainant approached us.

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The ABC had informed the complainant, acting on its own internal legal advice, that there was no breach of copyright, the legal view being that there was a defence available to it under s42 of the Copyright Act which provided, among other things, that a fair dealing with a literary or artistic work did not constitute infringement of the copyright in the work if it were associated with the reporting of news by means of broadcasting or in a cinematographic film. The view in my office was that the ABC was entitled to rely on its legal advice and we could not therefore conclude that the ABC’s refusal to pay a fee appeared to be contrary to law or was unreasonable or unjust.

Nevertheless, my office was concerned to ascertain subsequently what procedures the ABC pursued when it proposed to make use of copyright material in radio and television programmes. It seemed to us that the impasse which occurred between the complainant and the ABC might have been avoided if he had been contacted in the

first instance. In response to our enquiry the Chairman of the ABC wrote: ‘The ABC indeed has policies and procedures for the clearance and acknowledgement of copyright material. We have a specialist Copyright Department with a staff of ten constantly engaged in negotiating clearances and advising program staff on copyright law. The Department, on behalf of program producers, negotiates fees and terms with copyright holders or their agents prior to broadcast. Acknowledgements, when required, are given in the form requested. Most copyright owners, however, are aware of the impracticalities involved, and do not insist on full credits. Almost every program broadcast or telecast by the ABC includes copyright material. As claims of infringement are extremely rare, we feel we can justly claim an unusually high level of efficiency in this complex and difficult area.’ The fact remains that no one from the ABC was in touch with the complainant before using his copyright photograph on the new programme. The ABC is subject to the Copyright Act just as it is subject to the Ombudsman Act and it was only some time later, acting on legal advice, that the ABC was in a position to deny liability employing s42 of the Copyright Act as justification for its original action.

An ABC department

A member of the ABC staff lodged a complaint in the previous year alleging inefficiencies and irregularities in a department of the ABC. It seemed to me that the issues were largely managerial and could be the subject of scrutiny by the Auditor- General pursuant to his normal functions. However, though this turned out to be the case, the Auditor-General did not have the capacity to undertake an examination of operating procedures within the ABC. I commenced an investigation but before

I had proceeded far, and following discussions between the then Chairman, Professor Dame Leonie Kramer, and myself, the ABC decided to seek an independent review of the department’s functions and operations. Hence I suspended my investigation. The independent investigator reported during the current year recommending the making of several changes to the structure and functions of the department. The Corporation later advised me that the recommendations were to be considered as part of a comprehensive examination of the structure of the ABC including the department in question. This I hope will provide a satisfactory resolution of the complaint but as the year closed I was still awaiting the outcome.

Shopping centres

The President of a major Adelaide suburban shopping centre association complained about weekly ABC broadcasts of forthcoming events in the Bundle Mall in the city in which a central figure was the manager of the Mall. The complaint was that the programme operated to the disadvantage of the suburban shopping centre and that 34

the ABC had unreasonably declined either to discontinue it or to give the association access to a similar programme. Undoubtedly a radio programme from the city Mall about forthcoming attractions could have the effect of diverting people to the city Mall away from suburban centres

and therefore the feelings of the complainant were not hard to understand. In the first instance the Chairman of the ABC again asserted that what we were looking at was a programme matter and outside our jurisdiction. Nevertheless he chose to answer various questions we put to the Corporation in the course of which

he pointed out that the ABC frequently presented progammes from major centres as a community service. In this instance the manager was also an employee of the City Council and he covered activities in the city beyond the Bundle Mall. The programme was, in the view of the ABC, of genuine community interest and there

was no promotion of commercially-oriented material. It was impractical to present similar programmes in all other major centres and it was felt that the action of concentrating on the city area as distinct from suburban areas was justified in terms of general community interest.

The Chairman also said that the ABC had published policy guidelines about the need to avoid advertising in its programmes and the guidelines had been observed. We wrote to the complainant in effect expressing the view that the ABC’s decision was judgemental and on the facts not open to criticism by us under s 15 of the

Ombudsman Act. However, we were also able to inform the complainant of advice from the ABC that the programme was shortly to be discontinued and that the ABC had no plans to renew it but intended to develop a community interest programme covering the whole of Adelaide in which it was possible that the complainant’s association might be able to have some input. In a later discussion the complainant expressed an interest in the proposed programme and said he would seek more

information from the ABC. He agreed that there was no purpose to be served in pursuing the complaint further.

Australian Postal Commission (Australia Post) As mentioned, notwithstanding publicly expressed opinions about the quality of the postal service and the experience of my own office in relation to delays in mail deliveries, few complaints of this nature come to my office. Complaints received have

covered wide-ranging matters such as the closure of post offices, remuneration paid to mail services contractors and the failure to provide postal facilities. Several complaints were about the refusal of Australia Post to pay adequate compensation for postal articles lost or damaged in transit.

Compensation — Postal By-law 297

The Postal By-laws fix the maximum amounts of compensation payable for loss or damage to postal articles. By-law 293 provides that if it is a registered postal article the maximum payable is $500: for certified articles it is $50 and for articles which are neither certified nor registered it is $20. Under By-law 297 Australia Post also

has a discretion to make higher payments in ‘the special circumstances of the case’. According to advice we have received from it, generally speaking Australia Post requires the equivalent of gross negligence by its staff before it is of the opinion that there are special circumstances.

One complainant expected to receive by certified mail from a friend a parcel containing a doll of sentimental value and a sapphire ring which she thought was worth at least $100. When the parcel did not arrive she sought compensation and Australia Post paid $50, the maximum amount under By-law 293. Our enquiries

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brought to light that in all likelihood a temporary postman for the area had lost the parcel whilst performing delivery duties. The circumstances were such that Australia Post decided to pay the complainant the assessed value of the ring and at the same time offer its apologies to her for the distress and any inconvenience which the loss of the parcel had caused her.

In another case a local Postmaster, after noticing broken glass in a mail bag, contacted the complainants about damage to a parcel addressed to them through the ordinary mail. Inspection revealed the destruction of spectacles even though they had been adequately packed. The Postmaster paid the complainants $20, the prescribed maximum allowed which was not enough to cover the loss. We initiated our usual enquiries later to be advised that there was no doubt that the damage occurred in the course of the transmission of the article. The evidence showed that either the parcel sustained an extraordinary blow or was run over by a vehicle and in the circumstances Australia Post was prepared to treat the case as one of demonstrated gross negligence. Accordingly it paid the full amount of loss to the complainants and at the same time offered an apology through our office.

Offensive mail

A businessman complained that Australia Post not only allowed offensive mail to be delivered to him but refused to prosecute the sender. The sender, he said, was a former business acquaintance and the constant flow of envelopes heavily marked with offensive matter was a source of distress to him, his family and his business. Upon examining several examples we were in no doubt how the complainant and his family would feel. The inscriptions, in bold print on the envelopes, were scurrilous.

Australia Post pointed out to me that unless an item of mail contravened a law of the Commonwealth including postal legislation, it could not deny transmission as long as the sender paid the postage. Australia Post further advised that it had obtained a legal opinion as to whether the articles contravened Postal Regulation 53A. The regulation provides that a person shall not knowingly send by post an article consisting of, containing or displaying on the outside of its envelope or other cover, unsolicited matter which is of an indecent, obscene or offensive nature. The Deputy Crown Solicitor’s office advised that the material was not, in its opinion, indecent, obscene or offensive. The agency said that whilst it acknowledged the resulting distress to the recipient, it was obliged to rely on the Deputy Crown Solicitor’s advice and could therefore take no action. This meant of course that in all probability the complainant would continue to receive offensively addressed envelopes.

Australia Post also said that it was reluctant to review regulation 53A because it did not wish to be seen as an arbiter of community standards. I examined the Deputy Crown Solicitor’s opinion and formed a different view of the application of the law to the facts whereupon I asked Australia Post to seek a legal opinion from the Australian Government Solicitor as to whether a prosecution could be launched. Shortly after the close of the year the Australian Government Solicitor’s office in New South Wales advised Australia Post that after reviewing our conclusions it was appropriate to lay informations and Australia Post forwarded to the office the material relevant to a prosecution. If a successful prosecution does not result, I feel it would be appropriate to examine regulation 53A to determine whether it exposes the recipients of mail to forms of abuse which it is unreasonable or unjust to expect them to endure even though the material may be regarded by the courts as falling short of being offensive.

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Australian Taxation Office Hoards of Review and section 6 of the Ombudsman Act

As mentioned in the introductory chapter of this report, the amount of business going to the Boards of Review is less than it should be because of the inability of the Taxation Office to handle taxpayer references to it at anything like the rate they are being received.

Over the years my office has received many complaints from taxpayers challenging the Commissioner’s view of the law or his application of particular provisions of federal taxation legislation. Particularly in the income tax field there are well- established channels for the lodging of objections and of appeals from decisions of the Commissioner. Moreover, taxation legislation is frequently before the courts for

interpretation. Under s6 of the Ombudsman Act, if a complainant has sought review of the action complained about by a court or a tribunal constituted under an enactment, I should not investigate the complaint unless I am of the opinion there are special reasons for doing so. If a complainant has such a right of review but not

exercised it, I may decide not to investigate the complaint if I am of the opinion that it is reasonable for the complainant to exercise such a right. In these circumstances the attitude of my office has been that we should not investigate complaints where adequate and specifically-designed statutory mechanisms of review are available, such

as Boards of Review in questions of income tax. I expressed my concern about delays in references being made to the Boards of Review in a letter to the Commissioner on 5 January 1984 as follows:

‘In my opinion, the possibility of taxpayers having to suffer even more extensive delays in having objections heard by a Board of Review constitutes “ special reasons justifying the investigation of the action or the investigation of the action further.” I am mindful of the important role performed by Boards of Review in determining matters in dispute

between your office and taxpayers. This office would not seek to usurp that role. However, in cases where the dispute is basically one of the facts, I consider that in the absence of any significant reduction in the delays currently being experienced in having objections heard by Boards of Review, in general we should in future exercise the discretion to

investigate those cases.’ Nevertheless, I am conscious of the fact that the ability of my office to take on complaints raising the same issues as would be determined by a Board of Review will largely be governed by our own staffing resources, and these have been under heavy pressure ever since I have been the Commonwealth Ombudsman.

Public statements by the Commissioner on matters of interpretation of income tax law

In my last annual report I referred to a complaint from a firm of solicitors who wrote to me on behalf of a client who wished to appeal to a Supreme Court against a decision of a Taxation Board of Review and sought an undertaking from the Commissioner to pay their costs on the basis that the state of the law was unclear.

In substance, the point at issue before the Board of Review was the assessability of the cash profit resulting from the sale of gold and silver bullion purchased, as the solicitors put it, as a ‘hedge against inflation’. The Board found that the taxpayer had purchased the bullion with the intention of reselling it at some time in the future to realise a cash profit. While the taxpayer’s stated motive in acquiring the bullion was as a hedge against inflation, the Board found that his dominant purpose in acquiring it was for the purpose of profit-making by sale and the profit was therefore

assessable under the first limb of s26(a) of the Income Tax Assessment A ct 1936. In their letter of complaint the solicitors said that their client had ‘relied on a commonly held view that such capital gains were not taxable’. The solicitors went on to say:

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‘By contrast to the situation faced by (the complainant) is when the Government recently bowed to strong pressure from investors and overruled a decision of the Taxation Office to tax profits from discounted bonds. The basis of this ruling was that hereto such profits made after 30 June 1982 on discounted bonds would be subject to tax. Thus taxpayers were forewarned of the change in policy.’ I sought the Commissioner’s response and he wrote:

‘This office is not aware of any generally held belief that profit on sale of bullion is not assessable income. Furthermore, it could not be said that there was any action of the Government which may have resulted in such a misconception by investors in bullion, which the Treasurer accepted had occurred in the case of purchasers of discounted bonds.’

I next sought to establish what steps, if any, were taken by the Commissioner to publicise his views on the assessability of profits derived from the sale of bullion and other forms of speculative investment. The response was: ‘As a general proposition it has not been found necessary to make any public statements

in relation to section 26(a) with one notable exception. In March 1970, the then Commissioner of Taxation issued a public statement “ Income Tax — Profit from Sale of Shares.” The statement was issued to clarify the income tax implications arising from the boom in the sales of shares in mining companies.’ When the owner sold his gold bullion in January 1980 there was also something of a boom in evidence in the relevant markets. Price information supplied to the Board of Review established that the money value of the complainant’s bullion shot up by 380%. (The price increase was about 800% in the case of silver bullion.)

I wrote again to the Commissioner:

‘My purpose in raising this issue in the context of this complaint was to obtain your views on what I believe is an important principle for taxpayers in general. The principle is that where your Office becomes aware of a widespread practice with which it has a bona fide disagreement, it is reasonable to expect your Office to make its views known to taxpayers so that they can arrange their affairs in the full knowledge of how the practice will be viewed at the time of assessment . . . While I appreciate that the Taxation Office cannot respond to each individual article that expresses views or outlines practices with which it might disagree, my point was that where a practice is known to be widespread, silence may be interpreted by taxpayers as approval. In any event, I note that on three occasions in the past two years either the Treasurer or your Office has made announcements relating to: • the taxation of profits received on the sale of or redemption of securities purchased at

a discount prior to 30 June 1982; • the treatment of deductions for interest on funds borrowed to acquire rent-producing property investments; and • the treatment of payments made to the Knox Grammar building fund and similar funds

operated by other private schools.’ The Commissioner replied:

‘Your letter of 14 February 1984 expresses a general principle that where this office becomes aware of a widespread practice with which it has a bona fide disagreement it should make its views publicly known. You have asked for my reaction to the general principle.

As a statement of general principle I cannot dissent from it nor would I wish to. Clearly it is in the interests of the efficient administration of this office that there should be as little misapprehension about the operation of taxation laws as is possible. This office has always been conscious of its responsibility in this area. You will be aware of the considerable endeavours made to ensure that the terms of the law are clear, e.g. explanations given in return forms, accompanying instructions, etc. . . Recent times have seen the publication of the general rulings used in this office and the emergence of what are known as taxation rulings which contain official views on matters which are of general application . . .’. Given the Commissioner’s acknowledgement of the importance of the principle 1 had raised, I did not think further enquiry on the point was necessary.

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Reimbursement of costs unnecessarily incurred

In previous annual reports I have referred to complaints which have raised the question of reimbursement of costs unnecessarily incurred by taxpayers as a result of the actions of the Taxation Office. At page 62 of my annual report for 1981-82 I noted that the Commissioner had said he did not favour ‘as a matter of principle, the making

of ex gratia payments to compensate taxpayers for expenditure incurred in resolving taxation matters due wholly or in part to departmental errors’. The issue of principle against which the former Commissioner objected continues to be a source of complaint.

Case: I t ’s not in your interest

A complainant received a letter from the Taxation Office which queried the amount of income he had disclosed in his income tax return from investments which he received as the nominee for a partnership of which he was a member. As part of its dividend and interest comparison procedures the Taxation Office checks investment income

stated by taxpayers against the records of payments made by financial institutions. As a result of this largely automated check the Taxation Office believed that it had identified an understatement in the amount of interest shown by the taxpayer. The problem of the complainant was that as partnership nominee he received quarterly interest cheques from a large financial institution, the interest for the quarter ended

30 June being calculated on 28 June and cheques despatched before the end of the month. They were not received until after 30 June and were included, therefore, in the partnership return for the following year. The Taxation Office’s first letter took the form of a request for further particulars of his investments. It sought the taxpayer’s co-operation in resolving the discrepancy,

and suggested that if the taxpayer was unable to provide the information requested because of incomplete records he should obtain the information from the revelant financial institutions. Finally, the letter reminded the taxpayer that there were penalties for failing to make a full and true disclosure of income.

The complainant sought the assistance of his accountant in replying to this letter. The accountant enclosed, as requested, a schedule of interest and dividends. He also pointed out that the income derived from the taxpayer’s debenture investments had always been declared on a particular partnership return. The Taxation Office’s

response to the accountant’s letter (which was counter-signed by the taxpayer) was in the form of a second letter which noted that ‘there is still a discrepancy between the amount of income from investments stated to have been received by (the complainant) and that shown on (the Office’s) records’. The second letter was

peremptory in tone and included a reference to the penalties prescribed by the Income Tax Assessment Act for persons who fail to supply information requested by a Deputy Commissioner. It contained a paragraph which requested the taxpayer to ‘obtain and forward . . . statements, from all institutions with which you had investments, verifying

amounts of interest received’ in each of a number of years of income. The accountant then made a personal visit to the Office to clarify its insistence that there was still a discrepancy. He also produced the taxpayer’s accounting records and copies of these were taken by the Office. The accountant also had a number

of telephone discussions with several officers over a period of time. The complainant was prompted to write to me initially because of a delay on the Taxation Office’s part in giving him a decision on its review of his taxation affairs. I sought the Commissioner’s comments on the delay aspect and, as a result, an

apology was tendered for the Taxation Office’s failure to complete its review in a reasonable time. The Office accepted that all the investments in question were held by the taxpayer as nominee for the partnership, but it went on to say that ‘although

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the discrepancies of the partnership cannot be accounted for, no further action will be taken in view of the amounts involved’. The taxpayer took exception to this last statement because he felt that it suggested that he had not made a full and true disclosure of income from interest.

The discrepancy perceived by the Office involved interest derived from debenture investments. The institution with whom the complainant had the investment sent him interest cheques each quarter and it turned out that one of the payments fell very close to the end of the financial year. The taxpayer received the cheque representing

payment of interest early in the next financial year and he included it in his return of income for that year. Given the disposition of the taxpayer’s investments, it was clear that there would be a difference between his disclosed investment income for the year and the amount shown by the financial institution to the Taxation Office.

Indeed, I pointed out to the Office that if an earlier year were taken as the starting point, the amount of interest returned by the taxpayer over the relevant period exceeded the amount shown on the financial institution’s records. I wrote again to the Commissioner about his Office’s inability to reconcile the ‘discrepancy’ it had identified and at the same time I questioned the legal authority for the request made in the Office’s second letter.

In reply the Office apologised for the suggestion that the taxpayer had not made a full and true disclosure and pointed out that ‘it was not always possible to be certain in which year some interest payments had been returned’. The Office sought to justify its treatment of the interest payments by referring to the provisions of s 19 of the Income Tax Assessment Act. Under s i 9 income is deemed to be derived by a person although it is not already paid to him but is re-invested, accumulated or otherwise dealt with on his behalf or as he directs. As for the legality of the request contained in its second letter, the Taxation Office said that the letter was not a formal request

under s264 of the Act which is the provision normally employed when the Commissioner requires information or evidence. Instead the Office said it was an informal request for information. After examining the relevant case law I informed the Commissioner that I did not believe that sl9 could lend any support to his Office’s treatment of the assessability of the interest cheques. There was, in my view, a strong argument to the effect that the interest paid in the form of a cheque was derived when it was received by the taxpayer. I also expressed the view that the taxpayer had every reason to believe that the Taxation Office’s second letter had placed a mandatory requirement upon him and that failure to comply would occasion a penalty, and that, in any event, s264 did not give the Commissioner the power to require taxpayers to produce to him documents that are not in their custody or under their control. In view of that conclusion I said it would follow that the offending paragraph of the second letter, being a ‘standard’ paragraph, should be re-drafted in a way conforming with the provisions of the Act.

In summary, the Taxation Office had reviewed the complainant’s affairs over a number of years on the basis of a perceived discrepancy which, as it turned out, was perfectly explicable. The complainant had co-operated with the Office at all times, but had felt it necessary to seek professional assistance in responding to the Office’s enquiries. I believe the taxpayer had reasonable grounds for so doing.

While I had no difficulty with the first letter sent to the taxpayer, I believe that had the Office confronted him at that stage with details of the perceived discrepancy, the whole matter could have been resolved quickly and with a minimum of anxiety and cost.

At the end of the year I was pursuing with the Commissioner the question of reimbursing the taxpayer for professional costs unnecessarily incurred as a result of the Taxation Office’s actions.

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Imposition of additional tax

During the year I received several complaints from taxpayers alleging that, in continuing to impose additional tax pursuant to $226(2) of the Income Tax Assessment Act, the Taxation Office was not following the decision of the full Federal Court

in F.C. o f T.v Rabinov & Anor 83 ATC 4437. In all the complaints received by my office the additional tax was imposed before the Rabinov decision and, in some cases, significant amounts of additional tax were at issue. Most of the complainants put the view that the decision in Rabinov’s case had definitively settled the application

of s226(2) and that, therefore, the Commissioner should immediately withdraw additional tax imposed pursuant to the sub-section. Briefly, $226(2) is concerned with the following situations: (i) the omission of assessable income from a return;

(ii) the inclusion as a deduction of an amount in excess of expenditure actually incurred; and (iii) the inclusion of false information in relation to a claim for rebate. It is the failure to make a full and true disclosure of relevant information that attracts a liability to additional tax, not a failure properly to characterise an amount which has been disclosed.

In practice, the Commissioner would raise additional tax pursuant to s226(2) where he believed that a claim to a deduction was erroneous, however, if the taxpayer was able to present a sufficiently compelling explanation he might remit part or whole of the additional tax imposed.

In Rabinov’s case the taxpayer made a gift to a charity which was associated with accompanying transactions including a loan to the taxpayer, the upshot of which was the charity retained only a small part of the gift. The court held that notwithstanding the clearly artificial arrangements entered into by the taxpayers, the Commissioner

had erred by imposing additional tax pursuant to s226(2). The full Federal Court considered that the taxpayers had actually incurred the expenditure claimed as a deduction, and the fact that it was incorrectly characterised as a deductible item did not justify the imposition of additional tax. The Commissioner applied unsuccessfully

to the High Court for special leave to appeal against the decision of the full Federal Court. Subsequent cases considered by both the Boards of Review and the Courts suggest that the application of s226(2) can sometimes be less straightforward than some complainants have contended. For instance, in F.C. o f T. v. Sahhar 84 ATC 4167 the taxpayer had claimed a deduction of $50,000 for his share of a loss in a share trading partnership. The Commissioner disallowed the claim and also imposed

additional tax under s226(2). In dismissing the Commissioner’s appeal Fullagar J. of the Supreme Court of Victoria held that the taxpayer’s claim for his share of the partnership loss was not a claim in respect of expenditure incurred by him and, therefore, s226(2) had no application. Fullagar J. considered that a partner’s interest

in a partnership loss cannot be described as expenditure incurred by the partner and that a partnership loss is not expenditure at all. The Commissioner has been granted leave to appeal to the full Federal Court against the decision of Fullagar J. in Sahhar and I will be taking a close interest in

the outcome. The Taxation Office’s approach to the imposition of additional tax pursuant to s226(2) may be illustrated by the following example.

Case: The unkindest cut o f all

I received complaints from two salaried staff specialists employed by a public hospital. Both specialists had rights of private practice and for several years the Taxation Office

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had allowed certain deductions in relation to that aspect of their activities. For instance, the specialists had been allowed deductions in respect of wages paid to their wives for work done in relation to the exercise of the right of private practice. Following a field audit of the specialists’ affairs covering five years of income the Taxation Office issued amended assessments which were based upon a disallowance of most of the deductions which had been allowed previously. Additional tax was also imposed pursuant to s226(2). When the specialists wrote to my office they were

facing tax liabilities of about $34,000 and $25,000 as a result of the amended assessments. In both cases additional tax amounted to approximately $12,000. Objections against the assessments had been lodged, however the Taxation Office was still considering them when I received the complaints.

Both specialists complained that the Taxation Office had acted unreasonably by disallowing, without prior warning, deductions which had been allowed for some years and that the imposition of additional tax pursuant to s226(2) was in conflict with the decision in Rabinov’s case.

Because the specialists’ objections had not been determined at the time they lodged their complaints I decided to make preliminary enquiries pursuant to s7A(l)(b) of the Ombudsman Act for the purpose of determining whether or not I should exercise my discretion not to investigate. I had two reasons for this approach.

First, the specialists’ complaints called into question the quality of the field audit that had been conducted and this was clearly a matter in which my office has an interest. Second, a significant number of staff specialists with rights of private practice could have been affected by the Taxation Office’s reappraisal of the deductibility of certain expenditure associated with those rights.

After receiving the Taxation Office’s comments on the complaints I decided that I would investigate the matters they raised. The Taxation Office insisted that the field audit had been conducted in a proper fashion and there was no reason to modify significantly the amended assessments that had issued.

An examination of the field auditor’s reports on the specialists’ affairs revealed that no attempt had been made to determine whether or not the expenditure that had been claimed had actually been incurred. Although the field auditor had reached his decision on the additional tax question before the decision of the full Federal Court in Rabinov, my preliminary enquiries were made after the High Court’s refusal to grant special leave to appeal. After the rejection of the application for special leave to appeal the Commissioner issued an Income Tax Ruling IT 2073 which explained his views on how s226(2) would be applied following Rabinov’s case. In this ruling the Commissioner said that ‘the Rabinov decision will apply where the expenditure has been accurately described in the return and had actually been incurred by the taxpayer’.

In view of: the field auditor’s admission that he had ignored the fundamental question of whether or not the disallowed expenditure had actually been incurred; the principles established in Cyprus Mines Corporation v. F.C. o f T. 78 ATC 4468, in which it was held, inter alia, the part of s226 dealing with overstating deductions only applies where a taxpayer includes as a deduction expenditure which he has not incurred or overstates the amount claimed as a deduction; and the Rabinov case, I informed the Commissioner that I was tentatively of the opinion that:

• his Office’s continued failure to determine whether or not the amounts of expenditure which attracted additional tax were actually incurred by the complainants was unreasonable; and • in the absence of evidence that the amounts claimed were either not incurred

or were overstated, or that the relevant arrangements were shams, the continued imposition of additional tax pursuant to s226(2) was oppressive.

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I went on to make the following observations:

‘In my view of the existing judicial authorities it seems to me that your Office should exercise caution in relation to the continued imposition of additional tax in cases such as these present ones. Failure to carefully re-examine cases in light of the existing judicial authorities exposes taxpayers to the possibility of expensive and unnecessary challenges at Board or

Court level or, what is perhaps worse, acceptance that the costs of challenge are prohibitive. 1 think I should make it clear that this office would regard the realisation of such a possibility as a serious matter.’

At the close of the year I had not received the Commissioner’s response to my tentative findings.

Part-year rebate for spouse

1 received several complaints from taxpayers who had additional tax imposed under s226(2) of the Income Tax Assessment Act for incorrect claims for spouse rebates. In these cases the spouse had been in employment for part of the income tax year and in no case was there any question that there had been any attempt to conceal

the spouse’s earnings or to deceive the Commissioner. Nevertheless, the Commissioner had imposed additional tax in line with the guidelines set out in Income Tax Ruling IT 2012. Typical of this type of complaint was one I received from a taxpayer whose wife returned to the workforce on 21 January 1981 and worked throughout the remainder of the income tax year 1980-81. She received wages and allowances of some $7,100

for the period to 30 June 1981, all of which was declared on her return. On his return, her husband declared that she was a ‘dependant’ for the period 1 July 1980 to 21 January 1981 and that the separate net income of his ‘dependant’ was nil. Accordingly,

he claimed a rebate of $446 in respect of his wife. The income tax form directs the attention of taxpayers to the definition of ‘separate net income’ in the ‘Instructions’ published by the Commissioner. The definition of ‘separate net income’ gives no indication that in completing this section of the income tax form, by virtue of s 159J(5) of the Income Tax Assessment Act, a taxpayer is regarded as having contributed to the maintenance of a spouse during the whole of the period they resided together, whether or not the spouse received a separate net

income for the whole or part of the year. Accordingly, the correct ‘separate net income’ of his spouse which the complainant should have shown on his return was $7,100 less $400 expenses incurred in production of that income. Such a separate net income results in no spouse rebate being allowed.

The taxpayer’s error was picked up by the Taxation Office in its routine comparison of income tax returns of spouses. The Taxation Office issued an amended assessment to the complainant imposing additional tax under s226(2) amounting to $228.37 as well as reducing the rebates allowed by the $446 claimed. It was the

imposition of the additional tax about which the taxpayer complained, stating it to be a genuine error caused by a form that was ‘ambiguously worded.’ On receipt of the first complaint of this type I had written to the Commissioner saying:

‘To my mind the major problem seems to arise in the meaning of the word “ dependant” . While the tax form specifically directs the taxpayer to the Guide for an explanation of “ separate net income,” it does not do so for “ dependant” . 1 believe that many taxpayers would believe they understood the meaning of the word “ dependant” and not expect the

form to use the word in a sense different from their understanding.’ My letter went on to suggest possible changes to the income tax forms which I felt taxpayers might more clearly understand. Unfortunately, there was insufficient time for these changes to be considered for incorporation in the 1983-84 forms, but

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the Commissioner has advised me that they will be considered for the 1984-85 forms. On the question of the imposition of additional tax I wrote to the Commissioner:

‘As you know, section 226(3) of the Act vests a broad discretion in the Commissioner to remit additional tax imposed under section 226. It occurs to me that an argument could be made in respect of cases of this type, which would justify favourable consideration under section 226(3). As I indicated in the letter concerning (the complainant), 1 take the view that notwithstanding the information contained in the Tax Guide, confusion still remains in the taxpayer’s mind regarding the meaning of the term “ dependant” as used on the income tax form. It seems to me arguable that there is a difference between a taxpayer who “ forgets” to declare income earned during a year (section 226(2)(a)), and one who through confusion in interpreting the form provided by your office, mistakenly claims a rebate (section 226(2)(d)). In the first instance, it is probably reasonable (all else being equal) that the taxpayer be to a greater or lesser extent, penalised in terms of section 226(2).

However, in the second example where in a sense the Taxation Office, albeit unwittingly, contributed to the taxpayer’s confusion, it seems to me to be questionable whether a penalty should be imposed. On that basis 1 would have thought it reasonable for the Commissioner to remit the additional tax under section 226(3).’

In the one case of this type which had been finalised by the end of 1983-84 the Commissioner remitted the additional tax previously imposed.

Disputed deduction of income tax instalments

From time to time I receive complaints from taxpayers complaining that employers have failed to remit tax instalments deducted from their wages to the Taxation Office and that they have been refused credit for those deductions for offsetting against their tax liability. In some cases there has been doubt that an ‘employee-employer’ relationship existed and hence doubt that the ‘employer’ was required to deduct and remit instalments. Almost invariably, on investigation by the Taxation Office, the ‘employer’s’ records have supported his claim that the complainant was a ‘contractor’, ‘consultant’ or some other kind of independent operator.

Case: Inference or deduction

In April 1983 I received a complaint of this type from a taxpayer who said she had not been able to obtain a group certificate from her employer. In lodging her income tax return therefore she had shown her gross salary as the sum of the amount actually received by her plus the estimated tax instalments which she believed had been deducted. She had also, of course, claimed credit for the estimated amount of tax instalment deductions.

In support of her claim that tax instalments had been deducted she gave me a copy of a letter from her ‘employer’ confirming her appointment and advising her that ‘your salary will be in a package of $230 after tax which will be reviewed in 3 months’. Despite having received a copy of this letter from her the Taxation Office accepted the ‘employer’s’ statement that ‘during the whole of her period of service she was treated as a consultant’. The Taxation Office’s examination of the ‘employer’s’ wages records and cash books failed to reveal the deduction of tax instalments in respect of the complainant. The Taxation Office also advised me that:

‘The former Managing Director of the Company maintains (the complainant) approached him during the first month of her service advising she had formed a consultancy business. This was done so she could purchase a motor vehicle and reduce her liability to taxation.’

As a result, the Taxation Office reduced the income as returned by the complainant to that recorded in the ‘employer’s’ records, which corresponded with the after-tax amount she received, and disallowed the credit claimed by her for tax instalment deductions.

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The complainant, on the other hand, advised me that it was the Managing Director who suggested to her that he could get her a car cheaply through a client company and that she should herself start up a company in order to get the car on lease. She advised me that she registered a business name approximately six weeks after joining the firm.

In directing the Commissioner’s attention to the points of disagreement between the complainant and her former ‘employer’ I said:

‘It appears to me that in attempting to resolve these conflicting statements an examination of the motor vehicle claims made by (the complainant) might prove fruitful. I would appreciate it therefore if you could let me have the relevant details on (her) 1980 return.

I note also that the report agrees that the letter (she) received asking her to commence employment indicates that tax would be deducted by the employer, but that from the Taxation Office’s point of view it must be established that tax was in fact deducted before credit can be allowed. If it is conceded that (she) did receive a payment of $230 per week

from the company, at least during the first month of her engagement, I have some difficulty in terms of the employment offer in not concluding that tax instalment deductions were in fact made in that period even though they may not have been remitted to the Taxation Office. Equally, I would have some difficulty in understanding why (the complainant) would accept a d e f a c t o reduction in salary of $75 per week unless any deduction she claimed

resulted in a tax saving of at least the same amount.’

The Taxation Office then advised me that: ‘A further review of the papers held in this office has now been carried out and it is noted that it was the Company’s policy when engaging the services of other individuals on a consultancy basis to have a written agreement between the parties concerned.

However, in (the complainant’s) case the company have been unable to provide such an agreement to establish the taxpayer’s engagement as a consultant.

Another factor that emerges is that the taxpayer claims she was employed on a salary of $230 after tax, which is evidenced in writing by her employer on engagement. One would expect to see a higher amount being paid to the taxpayer once her status was changed to that of a consultant responsible for payment of her own tax. However, the employer’s

cashbook did not reflect any change from $230 per week.’

The Taxation Office also advised me that the complainant’s travelling expenses for the whole year totalled $432 and concluded:

‘Having regard to all the facts in this case, it is felt that there is sufficient grounds to accept that the taxpayer was an employee of the company receiving a net after tax wage of $230 per week during the whole period she was with the company.’

The Taxation Office then allowed credit in terms of s221Q of the Income Tax Assessment Act. It issued an amended assessment to the complainant bringing into account the tax instalment deductions previously disallowed after having increased the outcome of gross salary to that originally reported by her. The complainant was

naturally pleased with the outcome of her complaint. Despite this outcome for the complainant I considered that the approach apparently taken originally by the Taxation Office raised doubts as to whether the information available to it had been fully considered. As I put it to the Commissioner:

T appreciate that with these types of complaints it can be difficult to reach positive conclusions. What does concern me, however, is that in (two) complaints the “ employer’s” version appears to have been accepted uncritically despite the taxpayer’s protests and what this office perceived on the receipt of the complaints to result in corollaries which were

difficult to accept. It is not surprising, therefore, that some taxpayers have voiced the opinion that the Taxation Office has “ taken the easy way out” in recovering the income tax due from the employee rather than the employer. 1 would therefore appreciate your advice on the existence of any instructions or guidelines

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for your officers in investigating such disputes. Copies of such documents would be appreciated as would any other comments you may care to make on this subject.’ At the time of this report I was awaiting this information from the Commissioner.

Other employer-employee disputes

I received a complaint on behalf of a taxpayer complaining that he had been summonsed and judgement obtained for unpaid tax allegedly owing to the Taxation Office. The complaint continued:

‘The Tax Department alleged that he had been working at a certain place for several months as a sub-contractor and was liable to owe a lot of tax. However, (the complainant) says he was only there for three weeks working for this company as an employee and received in all, only $600 wages, and could not possibly have been liable to pay the amount of tax the Department claimed. His tax accountant supports (the complainant’s) claims all the way and indeed, feels the company involved could have overstated his income by mistake.’

In response to my enquiries the Commissioner advised me:

‘As a result of anonymous information received from a former employee of the company an examination of the company’s wages records was conducted by two inspectors. It was noted that following the wages cheque on each occasion a cheque was drawn payable to another company. After questioning a director of the company, it was revealed that the other company was a fictitious company and the cheques were in fact drawn to cash. The cheques were subsequently negotiated by the company and the proceeds used to make cash payments to employees in addition to the income shown on their group certificates.

The cash payments mainly related to overtime worked and in all, some 30 employees were involved.

Details of the payments were supplied by the employer and these showed that the above taxpayer received $2,190 in this manner. Amendment action was taken to include the omitted income.

The taxpayer has apparently stated that he only worked for the company for three weeks and accordingly could not have earned this amount of money. The group certificate from the company indicates that he worked with them from 26 November 1979 to 8 December 1979 and received $526. However, detail on the taxpayer’s 1980 return also indicates that

he was unemployed and not in receipt of unemployment benefit for the following periods — 31 October to 25 November 1979 and 9 December to 17 December 1979. While it is not known in respect of which period the cash payments were made, having regard to the nature of the payments and in view of the above information it is considered that the opportunity existed for the taxpayer to be paid in the manner previously described. At this stage we have no reason to doubt the inspectors’ findings based on the information supplied by the company and consider that the amended assessment should stand.’

I took a different view and pointed out to the Commissioner that he had in his possession a group certificate which indicated that the taxpayer had been employed by another company from 7 November to 21 November 1979. Moreover, if the information given by the company to the Taxation Office was in fact correct, it was clear that the complainant was being paid an extremely high rate of wage.

The Commissioner next wrote:

‘In an attempt to throw further light on the subject an Instalment Inspector was sent to the company. However, the principals of the company have changed since the initial inspection and it was not possible to obtain any information that would assist in this case. The two Inspectors that undertook the original inspection were contacted and they both have a good recollection of the matter. Full details of the amounts paid and the periods of payment were held by the company. Additionally, the Inspectors performed a reconciliation between the total amount of cash cheques and the details supplied in respect of the individual payments.

It should be noted that the two Inspectors who undertook the initial inspection were two

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of our most experienced officers. As previously mentioned, the inspection was undertaken as a result of anonymous information and led to the discovery of a widespread practice. It is beyond doubt that the payment of cash in respect of overtime was made by the company during the financial years 1978, 1979, 1980 and 1981. The 1980 income tax returns of eleven employees were obtained, and of the eleven, five taxpayers lodged objections. The objections

were disallowed and in each case a reference to a Board of Review was lodged, all of which was subsequently withdrawn. It should be noted that all cases where the appeal was lodged were prepared by one tax agent.

An examination of the details of cash payments made to the eleven taxpayers for whom returns were obtained indicates that the taxpayer under question appears to have been paid an exceptionally high rate in the light of his period of employment, viz. three weeks. However, details obtained by the Inspectors indicated that cash overtime payments were

made, seemingly in respect of weekend work, to taxpayers who did not appear on the payroll. An additional point that has come to notice is that a director, who supplied the information and who is no longer with the company, received $250 per week as cash payments during the period 1 July to 18 October 1980, yet shows his share of the cash payments for the

year ended 30 June 1980 as only $221.40.

Of the eleven taxpayers, one admitted having received cash payments for overtime that were not shown on his group certificate. However, he further stated that the amount involved was not as high as the figure on which he was subsequently assessed. This taxpayer did not lodge an objection to the amended statement.

It would appear there are grounds to believe that (the director) has understated his own income for 1980 and has overstated the amounts paid to certain employees. In this manner, the inspectors were able to effect a reconciliation between the value of the cash cheques and the details supplied by (the director). It could reasonably be assumed that (the complainant) was selected for an inflated amount as he no longer worked for the firm. As sufficient doubt exists to the amount, if any, paid to (the complainant) it is considered

the decision should go in the taxpayer’s favour. The fact that the taxpayer has approached the Australian Legal Aid Office and the Ombudsman further indicates the strength of his convictions.

Accordingly, action will be taken to exclude the income from the taxpayer’s 1980 assessment. An amended assessment will issue shortly and in view of the circumstances of the case, costs will be borne by this Office.’ I am seeking further information from the Taxation Office on action it is taking to attempt to determine the correct amounts of undisclosed income attributable to

individual employees of the company. I consider that the Taxation Office had not fully considered the implications which of necessity would result from acceptance of the employer’s version of events. In this case, on reconsideration the Taxation Office was able to reach a completely

different, and, in my opinion, more reasonable conclusion despite having no further information at its disposal than it had initially.

Australian Telecommunications Commission (Telecom Australia)

Complaints about the actions of Telecom continue to be one of the major sources of my work, accounting for about 17% of the written Ombudsman Act complaints I received during the year. The majority was, as always, about overcharging for metered calls. Other sources of complaint included delays in the installation of

telephone services, the provision of services such as public telephones, the cost of repairs for accidental damage to Telecom equipment and omissions from telephone directories.

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Privacy and security

Several complaints, about the alleged unlawful interception of telephone services and the release of silent line information, called into question both the privacy afforded by Telecom to its customers and the related matter of the security of the telephone

network.

Telephone interception

The circumstances in which a telephone interception is or is not lawful are dealt with in the Telecommunications (Interception) Act 1979. Generally speaking, this makes interception (a concept not limited to the interception of voice transmission) illegal and punishable by a maximum fine of $5000 or two years’ imprisonment. However, the Act also specifies circumstances in which interception is not an offence — for

example, when done by an officer of Telecom in the course of his duties, and, notably, in the interest of protecting national security. The latter requires a warrant issued by the Director-General of the Australian Security Intelligence Organisation or the Attorney-General.

Forms of interception, beside the well-known form of ‘telephone tapping’ as popularly understood — listening to or recording conversations — include the attachment of devices that can record and analyse the destination, time and date of calls made from a service. The attachment of the devices (further discussed at page

50 below) constitutes ‘interception’ and is illegal if unauthorised. Such devices, which have now reached considerable levels of sophistication, clearly have considerable potential for both good and ill. Investigation of complaints about interception poses difficult technical, and, at

least potentially, legal questions for my office. There are circumstances in which an investigation could legitimately be halted by issue of a certificate by the Attorney- General pursuant to s9(3) of the Ombudsman Act, while both the officers who may

issue the warrants referred to above are beyond my jurisdiction. The difficulties for my office in achieving rigorous technical investigation of alleged Telecom actions relating to interception parallel those discussed in previous annual reports in the investigation of metered call charge complaints ■ — we are not a technically equipped office, and must therefore to an extent rely upon the technical integrity of Telcom testing and investigation equipment, confining ourselves largely to examining the procedural integrity of Telecom technical tests and the quality of Telecom analysis of test results.

The burgeoning of (particularly computerised exchange-based) equipment with the potential for misuse constantly enlarges the interest my office takes and will take in investigating any complaints that it is being or capable of being misused — for instance, that access to the results of lawful interception is not properly limited to those staff engaged in its legitimate use.

During the year, a complainant professionally involved in a legal case of great public interest told me of his belief that his home and business telephones may have been subject to some form of interception. Although he had not yet complained to Telecom, I thought the matter warranted my immediate intervention. Accordingly, as well as making the usual written enquiries, I arranged for Telecom to conduct tests of the subscriber’s equipment in the presence of one of my investigation officers. I was then able to inform the complainant that I thought Telecom had taken reasonable steps to investigate the possibility of interception and that I was satisfied that so far as the telephone system was within Telecom’s control there was no reason to conclude that there was an unauthorised interception.

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Misuse o f telephone services

Over the years I have had several complaints alleging misuse of subscribers’ lines by Telecom employees, usually in relation to excessive telephone bills. In my examination of several thousand complaints alleging overcharging, I have found one possible case of misuse of subscribers’ lines by Telecom employees. I have, however,

explored the technical possibilities of unauthorised use of telephone services with Telecom and sought the assurance of Telecom management that proper precautions are taken. It informed me that:

‘ . . . Telecom does not say there is no possibility of any dishonest employee within its ranks misusing subscribers’ lines, but we consider the likelihood of technical staff originating private chargeable calls from subscribers’ lines to be quite remote, firstly because they have ready access to Telecom services and therefore have no need to do so, and secondly because

of their awareness of the serious consequences — including the possibility of dismissal — if detected.’ A possible exception has arisen from a complaint that Telecom employees illegally used the complainant’s service to make international calls. The complainant explained to me that his telephone bill contained charges for ISD calls that were not made from his service. He had queried the bill with Telecom who established that the calls in question had been to French sounding names in Mauritius and London. Telecom informed the complainant, however, that it was satisfied that the calls had originated from the complainant’s service and consequently a reduction in the bill could not be justified.

The complainant subsequently said that a tenant in the same block of flats was a Telecom employee whom he suspected was French. The complainant said that he had heard French speaking voices close to the Telecom junction box on the ground floor of the flats and he was suspicious that his line had been interfered with at that

point. Telecom investigated the matter and as a result decided to reduce the bill to the extent of the disputed ISD charges. Telecom advised me, however, that its investigation had failed to prove its employee’s responsibility or complicity and that he had denied involvement. The circumstantial evidence in this case is quite strong and I propose,

in conjunction with Telecom, to extend the investigation.

Silent lines

Another important element of privacy for telephone subscribers concerns Telecom’s procedures for ensuring the security of ‘silent line’ numbers. Under silent line arrangements, Telecom’s procedures provide that the silent line number is kept confidential, and out of the telephone book.

The former wife of a Telecom employee and her fiance alleged that her former husband had obtained her silent line number and was making harassing telephone calls to her. She explained to me that she had arranged with Telecom for a new silent line number but the harassing calls continued. After investigation, Telecom advised

me that the former husband had admitted to making some of the calls, but claimed that he had intended no nuisance. It obtained a letter of apology from the employee to his former wife which contained an assurance that the calls would cease. The complainants told Telecom they required no further action. Telecom, however, later

told me it was considering charges against the employee for improper conduct, although any case would rest significantly on circumstantial evidence. I asked Telecom whether its silent line instructions to staff provided adequate protection for a subscriber’s privacy. The reply was that as a result of the investigation

of this complaint, it had examined its procedures and had taken steps to secure silent line number information. Telecom said its procedures could not guarantee security

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— but that its customers’ privacy is regarded seriously by Telecom management and by the vast majority of its staff. Recently, a complainant advised me that she had moved to a new address and taken over a telephone service from the previous owner. She claims to have asked Telecom for silent line conditions, especially that the number not be published in the next edition of the telephone directory. She later found that not only was her number being given out by ‘Directory Assistance’ but that the number was in the new telephone book. The complainant said Telecom’s error meant she will almost certainly have to sell her new house, with all the costs of such a move, and that she feared for her personal safety. At the time of writing this report, I am waiting for Telecom’s comments.

Release o f information

I received a complaint from a person who objected strongly to the release by Telecom of correspondence about him, between it and my office to a member of a State police force. The Telecom officer responsible for the release of the correspondence said that, in the rather complicated circumstances of the case, he felt he had acted in the best interests of the complainant.

1 am pursuing with Telecom the propriety of the release of the correspondence and I will be seeking to satisfy myself of the adequacy of Telecom’s procedures about the release of information about its customers.

Reliability of the telephone network

The role of my office in examining Telecom’s administrative actions requires that my officers maintain a continuing interest in the reliability of the telephone network — specifically in the development of telephone exchange technology, and in the fault analysis and service assessment procedures Telecom uses to judge the reliability of the telephone network.

Exchange technology

The telephone network has three basic charging systems. During the year my officers held several discussions with Telecom technical staff and visited telephone exchanges to improve their knowledge of these systems. The first charging system is the most common and involves the ‘multi-metering’ principle. Local, STD and ISD calls cause exchange equipment to generate electrical pulses which in turn advance the subscriber’s electro-mechanical meter in the telephone exchange. Some exchanges rely upon a mini-computer to determine the timing of pulses on STD and ISD calls.

The second system is known as Call Charge Record (CCR) and is available for ISD and STD calls made via an increasing number of specially equipped exchanges. Details of ISD calls made under this charging system are available (at a fee) to subscribers on request. No meter is involved in this form of charging.

The CCR facility became available for STD calls for some telephone exchanges in Melbourne and Hobart from 1 July 1984 and is to be introduced in other capital cities. Telecom has recently contracted for the supply of a computerised billing and accounting system which will allow for more detailed presentation of billing information and which will complement CCR.

The third charging system is confined to a new type of exchange known as AXE SPC (Stored Program Control) which Telecom is currently introducing in metropolitan locations. Under the advanced technology employed in AXE SPC exchanges, charging is determined by computer software and the subscriber’s electro-mechanical meter is replaced by a ‘software counter’.

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Fault analysis and service assessment

It is not uncommon for complainants to contend strongly that the metered call charge in an account is ‘impossible’ and that the explanation for its magnitude lies not in use of the service but in some malfunction of Telecom’s equipment. Until such time as CCR is available for all ISD and STD calls, it will remain

difficult for me (or for Telecom) to determine whether a disputed charge is correct. Furthermore, without full details of use the subscriber feels at a disadvantage in arguing about what he may honestly believe is an excessive charge. In this, the reliability of Telecom’s equipment is an important factor. My office has dealt with a large number of metered call complaints. Occasionally, I have found evidence of overcharging or undercharging and in these cases Telecom has generally

been quick to trace the source of the error and adjust the charges. The dominant evidence available to me supports Telecom’s confidence in the reliability of the telephone network. I am, however, currently taking a close interest in Telecom’s procedures for fault analysis and service assessment as determinants of network reliability. I have been corresponding with Telecom on these matters and

my officers are shortly again to have discussions with Telecom headquarters staff. The identification and analysis of faults that might affect the accuracy of charging are critical to any judgement about the network’s reliability. If a relevant fault is not identified in the first place or if its impact upon charging is not properly assessed,

it follows that the available statistics of fault incidence would distort any assessment of network reliability. Telecom also samples ‘live’ traffic to obtain data about the overall performance of the telephone network. It is interested in scrutinising the following characteristics

of a telephone call:

• accuracy in selection of destination; • transmission quality; • freedom from intrusion; • cut off; and

• metering.

Telecom’s approach is not unlike the quality control techniques employed by manufacturers of components. I am interested to improve my understanding of service assessment procedures and to e_stablish whether they are an accurate indicator of the network’s reliability.

The importance of Telecom’s service assessment procedures in this context can be gauged from this case study:

Case: A country malpractice

A complainant from a rural area said she had been overcharged for metered calls. By the time she contacted my office, Telecom had decided to reduce the charges (of some $1800) by $90 on the basis that her service may have been giving wrong numbers. Although Telecom thought the reduction generous, the complainant disagreed.

I obtained the relevant files which suggested that Telecom had conducted and documented standard tests of the service but was unable to find any evidence to support the complainant’s claim. The complainant stated several times that because of her business commitments she was rarely at home and, therefore, the charges raised

by Telecom were difficult to comprehend. It emerged that the complainant may have had difficulty with wrong numbers but that the likelihood was that the $90 reduction allowed by Telecom was in fact generous. As part of its investigation of the complainant’s claim that she frequently got

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wrong numbers Telecom connected a Call Record Printer (CRP) to her service. I have explained the use of CRPs in previous reports. They only provide a printed record of the number dialled and the incidence of metering. The observation of her usage as recorded on the CRP provided ample evidence that she used the telephone to a large extent.

The CRP output, however, contained clear evidence of overmetering which Telecom had overlooked. My office demonstrated that two STD calls had been charged at a rate applicable to more distant destinations. And, in April 1981 (when new tariffs were introduced and changes had to be made to the charging equipment), exchange staff had misinterpreted their instructions. The effect was that all calls to eight area codes would have been overcharged. The error persisted through another change in tariffs in January 1982 and was rectified only on 7 December 1982, a day after my office notified Telecom of its existence.

It also emerged that Telecom had failed to act upon other evidence of faulty tariff­ setting. This evidence came from routine examination of live traffic passing through the exchange. It seems that staff whose job it was to analyse critically the results failed to do so. Telecom informed me that ‘service assessment procedures are being reviewed to ensure that any incorrect metering is identified and referred for technical investigation’. It also acknowledged that its analysis of the CRP tapes relating to the complaint was inadequate.

In this case the CRP tape revealed an overcharge of at most $1.08 and, by means of estimation, it was possible to determine that the total amount of overcharge suffered from the tariff error was around $20. But all subscribers to the particular exchange could have been affected and Telecom was able to estimate that the average overcharge per customer resulting from the tariff error was of the order of $1.35. I have recommended to Telecom that it take steps to identify those subscribers who could have been affected by the incorrect tariffs and provide them with an appropriate rebate.

I observed to Telecom that although the task of adjusting charging equipment throughout Australia must be susceptible to human error, the public has a reasonable expectation that telephone calls will be charged accurately and that any errors will be quickly identified and rectified. My prime concern was not that Telecom had made a mistake in what is clearly a complex task, but that staff had failed to recognise evidence of overmetering.

Telecom responded to my enquiries in the following way:

T share your concern about the integrity and importance of the STD charging system and ■ · . arrangements were made for a thorough review of the existing procedures for documenting and implementing changes to the tariff charging system and this work is proceeding . . . You may be assured that the work I have asked to be put in hand will ensure the optimum charging arrangements in each State Administration.’

My staff will continue to monitor Telecom’s performance in the area of metered call complaint handling to ensure that these standards are being met.

Case: Out o f the mouths o f babes

I referred earlier in this report to the difficulties caused by the absence of detailed records of STD and ISD calls. Telecom has always employed a system in which each subscriber has a single meter to record calls irrespective of whether they are local, STD or ISD, the charges for STD and ISD calls being based on units equivalent to a local call.

The agency is moving to provide such detail by the progressive implementation of CCR for STD and ISD calls, but in the meantime the great majority of metered call complaint investigations must proceed in the absence of Telecom records other than those obtained from the telephone exchange meter.

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It is not surprising in these circumstances that subscribers who believe that they have been overcharged feel at a disadvantage. The reaction of some is to keep their own records which sometimes can have quite unexpected results as the following case illustrates.

The complainant said that, because he had felt for some time that his accounts had been in error, he had ‘arranged for the family to keep accurate records of all telephone calls made’ and that this had confirmed a major discrepancy between Telecom’s charges and those records.

Telecom connected a Call Record Printer (CRP) to the complainant’s service for two weeks, analysed the records of calls, and discussed them with the complainant. It was revealed that a family member was the cause of the discrepancy and the complainant later wrote to me:

O ur records are NOT as accurate as we would have liked to believe.

. . . Examination of the numbers called shows that the fault lies largely with my younger daughter.

. . . The fact that any discrepancy exists, let alone one as large as 16%, indicates that I cannot convincingly argue that the fault lies outside.’ A perceived overcharge is not always the result of an equipment malfunction.

Case: Location o f public telephones

The complainant was a firm of solicitors which advised me that its client operated a caravan park in a small town on the New South Wales south coast. For some years, he had leased a coin telephone for the use of patrons and members of the public. In September 1977 and again during the following three years, he asked Telecom

to convert the leased telephone to a public telephone. During 1978, Telecom received representations from the local shire council, the residents’ association and other residents of the town supporting the location of a public telephone at a site in the residential area and some 600 metres from the caravan park. This site was approved by Telecom, following a meeting with the council in

November 1978. In early 1979 Telecom came to an agreement with the council and the caravan park operator that if the chosen public telephone site proved to be unacceptable financially to Telecom, the leased telephone arrangement would be cancelled and the public telephone would be relocated close to the caravan park. The more distant site,

however, proved to be acceptable to Telecom. Telecom was not able to justify the provision of another public telephone closer to the caravan park. Subsequently, the caravan park operator cancelled his leased service largely because of the costs involved.

The solicitors complained to me that Telecom had unreasonably discriminated against their client in declining to move the public telephone closer to his property. They pointed to public telephones outside or immediately adjacent to other caravan parks in the area. In addition they claimed that the personal feelings of Telecom

officers made it impossible for their client’s representations for a public telephone to have been justly and properly considered. In examining this complaint, I concentrated on these issues: • whether Telecom had given the caravan park operator’s representations fair

and proper consideration; • whether its policy on the placement of public telephones discriminated against him; and • whether any personality clash between the caravan park operator and Telecom

employees would have unfairly affected the consideration of these representations.

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Following my initial enquiries I examined Telecom’s files and concluded that the agency had fairly and properly considered the caravan park operator’s representations. It had acted in accordance with its policy for the provision of public telephones, and the local council’s wishes. I found no evidence that Telecom had departed from its policy in refusing to install a public telephone outside the caravan park. Furthermore,

I could find no evidence that the application of the policy discriminated against the caravan park operator. I did establish that there were caravan parks with public telephones either on site or close by. However, their presence was justified by the amount of patronage and I could not conclude that this amounted to evidence of discriminatory application of the policy. Nor could I find evidence of personality clashes to the detriment of the complainant.

Some administrative changes arising from complaints

1. Telecom agreed to revise its procedures for advising landowners of its intention to enter upon land for its purposes pursuant to the Telecommunications A ct 1975. It is preparing a leaflet which contains the relevant sections of the Act of interest to landowners such as entry to land, work thereon, subdivision, and compensation provisions. 2. Several improvements were made to procedures for investigating metered call

complaints, including the development of a manual which identifies common and unusual technical features of complaint investigation and the establishment of committees in each State to consider exceptional technical matters arising from investigations. 3. Redesign of Telecom’s telephone service and facilities application form and

provision of an accompanying brochure clearly identifying charges for individual items and facilities available additional to the cost of a standard telephone service.

Department of Communications

Interference

There were several complaints against the Department of Communications about investigation of reports of interference to television and radio reception by radio transmissions from various sources, including citizens’ band (CB) and amateur radio operators.

One came from a woman who was suffering interference to television reception from a citizens’ band operator in a neighbouring flat. Technical officers from the Department paid several visits, both to the complainant and to the CB operator, in the course of which they conducted extensive technical tests, both of the complainant’s TV set and the transmitter which was giving rise to the interference problems. They concluded that the CB operator’s transmitter was functioning properly and that he was operating in all respects within the terms of his licence. The Department found that the real cause of the problem lay with the complainant’s TV set which, because of poor technical design, suffered an unfortunate susceptibility to interference from radio frequency transmissions. My investigation of this complaint satisfied me that the Department had acted properly in reaching these findings.

This complaint, and others like it, illustrate what appears to be a growing community problem, namely the susceptibility of some domestic entertainment equipment, such as TV and radio sets, as well as video recorders and hi-fi installations, to interference from nearby radio transmissions. There is no doubt that problems of this sort have arisen largely through the absence of enforceable design standards

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setting levels of radio frequency interference immunity for domestic electronic equipment sold within Australia. I was pleased to learn that this deficiency has been directly confronted by the shortly-to-be-proclaimed Radiocommunications A ct 1983. The Act provides machinery for the establishment of such standards and should help

reduce the incidence of interference complaints. My office will be interested to assess the impact of the new legislation.

Case: Interference to television reception in Finley, N SW

1 received separate complaints from 15 residents of Finley, near the NSW/Victorian border, that the Department of Communications had not taken proper steps to eliminate interference to their television reception. The complainants informed me that they experienced interference on one ABC

channel and two commercial channels. Two of the channels’ transmitters were 100 kilometres away, the other 150 kilometres. They believed that the interference was caused by radio transmissions licensed by the Department and coming from a tower owned by the NSW Electricity Commission.

The Department asserted that the three television stations in question were not designed to serve the Finley area. There was only one station, an ABC station, designed to provide interference-free reception to the area. The Department said it was the responsibility of those residents who wished to attempt to receive distant transmissions

to effect the relevant modifications to their television installations. We sought more information from the Department about service areas of distant television stations, and about its policies and procedures governing the licensing and location of radio transmitters. We also sought and examined the Department’s files, had discussions with departmental officers and conferred with the complainants.

I formed the opinion that the Department was probably wrong in asserting that at least two of the distant television stations were not designed to serve the complainants’ area. There was also some doubt whether proper consideration had been given by the Department’s predecessor organisations to the possible effect on television reception of transmissions from the Electricity Commission’s Finley

transmitter, whose tower is shared by the transmitters of two other NSW instrumentalities. We suggested to the Department two possible courses of action to alleviate the interference problems. The Department responded to our suggestions by preparing a detailed technical report which it considered essential to determine precisely which households were

being affected by interference and for what reasons. It planned to use that report as a basis for firm proposals for remedial action. The Department later advised that it had a team of 10 field officers visit every home in Finley to note the type and degree of interference experienced from all sources.

Further, it had made several complex technical investigations. The Department advised me that the essence of the comprehensive resulting report was that:

‘The survey found that all radiocommunications transmitters in the township cause some degree of interference to reception of distant television stations. Power line interference also contributes significantly to interference levels. It is of particular interest to note that

the survey found the quality of television receivers, that is, the level of their susceptibility to radio frequency interference, was a very important factor.’ As to remedial action the Department advised me that:

• it would ask the Electricity Commission to modify its radiocommunications equipment; • it would ask another user of the transmitting tower to change its transmitter frequency or move to a new site; and

• action had been taken in conjunction with the local council to identify and correct interference from electricity power lines.

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The Department told me it expected these measures to resolve most of the serious interference problems. It indicated also that it would assist householders where possible with technical advice, in particular those with interference-prone television sets. Notwithstanding these measures, the Department acknowledged that some residual interference would remain. To reduce this to normal levels it would be necessary to upgrade the level of television signals received which would necessitate the provision of local translators for both the national and commercial channels. It would take up these options with the station licensees.

The Department said it would inform residents of these plans by advertisements in the local press. I am monitoring the situation, in conjunction with the complainants, to assess the effectiveness of the Department’s remedial action.

Case: Confiscated equipment

I received a complaint from the wife of a CB radio operator about departmental officers who visited the complainant’s house and confiscated equipment including a transceiver which they believed had been used to make illegal ‘out of band’ transmissions. The transceiver was of a type not designed for CB operation and was capable of producing transmission power levels some 8 times the maximum allowed to CB operators. The Department had received complaints of interference to TV reception from neighbours.

The operator was later convicted of having used the transceiver for making illegal transmissions. The Department refused to return the transceiver to the operator whose wife complained to me, not only about this refusal, but also about the allegedly rough manner in which the Department’s officers had conducted their search.

The Department provided me with a detailed reported of the circumstances surrounding the seizure of the transceiver, including statements from the officers who executed the search warrant, and explained its refusal to return the transceiver. I told the complainant that I thought the Department’s instructions on the manner

in which search warrants should be executed constituted a reasonable attempt to ensure that the rights and sensitivities of the individuals concerned are observed, and that any stress or inconvenience is minimised. I also said that the manner of the search did not merit serious criticism.

As to the Department’s refusal to return the confiscated equipment, s7(l) of the Wireless Telegraphy A ct 1905 provides that ‘appliances used in contravention of the Act shall be forfeited to the Commonwealth’. There is a discretion in s7(2) of the Act to return forfeited goods, but the Department normally exercises it only when further breaches of the law are ‘unlikely to occur’. In this case, there was judged to be a strong likelihood that the equipment would again be used for illegal purposes and the Department had decided, therefore, that the equipment would remain forfeited to the Commonwealth. I found myself unable to criticise the Department’s judgement

as being defective.

Department of Defence

Case: Four years on

During the year an apparently simple complaint concerning damage alleged to have been caused in 1980 by an army water tanker being driven over a domestic driveway connecting the complainant’s residence to the adjoining street, moved closer to final resolution. The army denied responsibility for the damage after making some enquiries and in so doing it informed me that a Queensland sergeant of police attributed the

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damage to a State Department of Main Roads truck. In view of the positive nature of the police sergeant’s statements the army was satisfied that its decision to deny responsibility was correct. Extensive enquiries by my office revealed, among other things, that the police

sergeant had no direct knowledge of the facts and made no independent enquiries. It was an assumption that a DMR truck which was in the area was responsible. In a draft report we set out a number of additional factors, including tyre markings, which led us to conclude tentatively that the army should accept responsibility for

damage to the driveway. Among other things the army did not take into full account the evidence of its own officer’s inspection of the driveway. In accordance with office practice, we sent the draft report to the Department of Defence in 1981 inviting submissions in regard to the criticisms of official actions contained in it.

In December 1981 I received a letter from the Secretary to the Department agreeing with my general conclusions and acknowledging the force of the complainant’s case, yet to my surprise the Secretary informed me that the matter had been referred to the Deputy Crown Solicitor in Queensland for advice. I learnt, moreover, that the

Deputy Crown Solicitor had been given a copy of our draft report. In February 1982 the Acting Deputy Crown Solicitor advised the army that he was not satisfied that our investigation was any more conclusive than that conducted by the army officer and he was not prepared to recommend that liability be accepted

although he suggested that the army might like to consider, as an exercise in public relations, repairing the driveway. The advice expressed a view as to the law which I found to be odd. It also contained various criticisms of the draft report, none of which appeared to me to have any validity. Then on 30 August 1982 the Deputy Crown Solicitor’s office wrote to the complainant stating that further investigations had been

made, the result of which was to confirm that the damage was not caused by an army water tanker and therefore liability was denied. The actions of the Deputy Crown Solicitor’s office had a disruptive effect on my attempts to obtain a settlement and, particularly since I was unaware of there being

any further investigations apart from those of my office, I widened the scope of the investigation to include the actions of the Deputy Crown Solicitor’s office. In November 1983 I sent a revised draft report to the Secretary to the Attorney- General’s Department repeating the substance of the conclusions in the first draft

report but also covering the actions of the Deputy Crown Solicitor’s office. Suffice to say, as far as these are concerned, as described in Chapter 2 of this report, the problems I experienced were satisfactorily resolved in discussions with the Secretary and the incoming Australian Government Solicitor.

As to the substance of the complaint the Secretary to the Attorney-General’s Department thought that the claim could be settled under Finance Directions permitting a permanent head to authorise a claim for up to $2,000 if, as a matter of common sense, he is satisfied that the Commonwealth is liable.

In June we received a letter from the new Secretary to the Department of Defence informing us that the evidence was, in his opinion, sufficient to warrant a settlement on this basis and that he had directed that the complainant be invited to submit quotations for repairs to the driveway.

Some administrative changes arising from complaints

1. In my third annual report I outlined several recommendations I had made to the Department of Defence following an investigation of a complaint where restrictions had been placed on a property adjoining a Defence Force airfield. The investigation had revealed, inter alia, that the Department had no known

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statutory powers to enable the Commonwealth to control the type of height of structures adjoining military airfields; and that the Department had not informed the complainant of possible dangers in connection with the holding of explosives on a storage area adjacent to his property. In accordance with my recommendations in this case, the Department proceeded to prepare new regulations providing for controls over certain uses of land adjoining military airfields, and for compensation to be paid for any restrictions of this kind. The Department had advised that the new regulations should be introduced

by early 1985, although it will not be until mid to late 1987 that all military airfields will be covered. 2. Following my investigation of this complaint the Department also conducted a review of its explosive storage areas to determine where outside safety

distances extended beyond Commonwealth property and the Department has advised affected landholders of any possible risks resulting from proximity to explosive storage areas. In March 1984, a system of Public Risk Waivers was accepted by the Government. Under this system, the Minister for Defence may approve a waiver authorising, inter alia, the storage of explosives where it is not feasible to comply with explosive safety regulations, such as where private land falls within safety distances from explosive storage areas; and where there is no other suitable option available. 3. I have also been advised that in the longer term, as a matter of policy the

Department proposes to purchase affected land, or relocate explosive storage areas, so that safety distances are wholly located within Commonwealth land. The administrative procedures needed to remedy the defects which I found in my original investigation are quite complex and will take some time to implement. As in the instance of the regulations described in 1. above we will keep in touch with developments.

Defence Service Homes Corporation

Years ago an ex-serviceman complained that the Defence Service Homes Corporation had failed to arrange settlement o f a loan to him under the Defence Service Homes Act on the date it nominated. As a result, he was forced to obtain bridging finance at a much higher rate of interest than he would have paid had the loan become available when he expected to receive it. I was satisfied from investigating the complaint that the delay in settlement was attributable to deficiencies within an office of the Corporation for which it should carry responsibility and in a report under s 15 of the Ombudsman Act I recommended the payment of compensation for the detriment suffered by the complainant.

Implementation of my recommendation required the Defence Service Homes Corporation to recommend to the Minister for Finance that he authorise payment to the complainant under the act of grace provisions of the Audit Act. I found the Corporation, though not objecting to my recommendation, to be less than enthusiastic in putting the case to the Minister for Finance and though I persevered, successive Ministers for Finance declined to authorise payment.

Under s 16 of the Ombudsman Act where I am of opinion that adequate and appropriate action has not been taken within a reasonable time with respect to recommendations included in my report under sl5, I may inform the Prime Minister of the situation. I am not prepared to acquiesce in the rejection of a recommendation made in a formal report and since the last refusal of the Minister for Finance in effect meant the rejection of my principal recommendation, I made a report to the Prime Minister. This matter had dragged on for so many years that I also recommended

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that compensation to the complainant include an amount representing interest on the sum which 1 considered he should have been paid long ago. Shortly after the close of the year the Prime Minister wrote to the Minister for Veterans’ Affairs asking him to take a personal interest in the prompt resolution of the case and explore all avenues which might be used to give effect to my recommendation for payment to the complainant. The Prime Minister said:

‘I believe that it is only in the most exceptional circumstances that a recommendation by the Ombudsman should be set aside and that, in this case, we should regard the fact that a recommendation has not been given effect as a failure in administration.’ I expect that the complainant will at last be compensated for the administrative failure he first complained about in 1979.

Department of Education and Youth Affairs

Fraudulent negotiation of cheques

Complaints continue to be received from traders who have cashed Commonwealth cheques in good faith only to find that the cheque was fraudulently negotiated, leaving them without recourse to the Commonwealth as the drawer of the cheque. In one complaint a shopkeeper had negotiated a large cheque for an Aboriginal

customer and given her cash and goods. The cheque was by way of an allowance for attendance at a training course, and was sent to her by the Department of Education. However, the cheque should not have been issued as the allowance had already been paid direct to the training institution and the trainee had authorised

this payment. The Deputy Crown Solicitor’s Office had advised that the recipient of the cheque did not have good title to it, since under s87 of the Bills of Exchange Act the shopkeeper could have no better title to the cheque than the person who negotiated it, so the Commonwealth was entitled to decline to give value for the cheque.

I had reservations about one aspect of the Deputy Crown Solicitor’s advice — which was that negotiation of the cheque amounted to fraud. It is true that the recipient cashed the cheque after signing an ‘order to pay’ form authorising payment of her entitlement to the training institution, and after receiving her proper entitlement from

it. Nevertheless, I thought that cultural and educational factors should be taken into account before concluding that negotiation of the cheque amounted to fraud or to a breach of faith. If it were the case that cheques from one or another Commonwealth agency

constituted a significant proportion of the woman’s income, and if she did not always have a clear understanding of the statutory basis of payment, then she might have negotiated the cheque in good faith. The shopkeeper advised the Department that she had negotiated a cheque for a comparable sum a few months previously, and he thought it was from the same Government agency. The Department said it had made no previous payment, but of course another agency might have. It would also

have been useful to have the woman’s own version of events, but this was not possible to obtain. Despite these reservations I accepted that the Department was not under any legal obligation to reimburse the complainant. But I do not believe that the complaint was

necessarily disposed of by the conclusion that there is no legal obligation. It was not disputed that there was defective administration by the Department in sending a cheque, and again, incidentally, in relation to the amount of the cheque, which was well above the real entitlement. Without this defective administration, the complainant

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would not have suffered a loss. This in itself did not provide a basis for recommending that the complainant should be recompensed. The woman cashed the cheque, and in normal circumstances, anyone who cashes a cheque which is subsequently dishonoured would be liable to the party who gives value for it.

The question for me to consider was whether there were factors suggesting that the Commonwealth should accept responsibility for the loss. I thought there were such factors. The complainant shopkeeper cashed many Commonwealth cheques for Aboriginal social security recipients. Although he undoubtedly derived commercial advantage from doing so, it seemed to me that it could also be argued that he was (with the full knowledge of the Commonwealth) assisting the Commonwealth to deliver benefits to persons entitled to them, and so had become, informally if not

in any strict legal sense, an agent of the Commonwealth: and that as such, he should be recompensed for a loss he could be said to have incurred, in good faith and without any lack of due caution, on its behalf. The Department, like other Commonwealth agencies, pays entitlements by way

of non-negotiable cheques as a standard practice. I enquired whether it had ever considered the extent to which Aboriginal people participate in the banking system, as presupposed by the issue of non-negotiable cheques. If few such beneficiaries have bank accounts, then the practical reality is that the cheques will be negotiated by traders such as the complainant and indeed, he claimed that the service he provided was ‘officially’ recognised, since the Department of Social Security sometimes provided

letters intended to establish that individuals hold title to cheques they present. He said that a local Aboriginal hostel also vouched for clients in this way. Given this background I did not think the Commonwealth should rest on its usual position that in cashing a non-negotiable cheque the complainant was simply taking a commercial risk. The contrary argument is that he was providing a service, and without that service, Commonwealth beneficiaries would be disadvantaged and Commonwealth policies frustrated.

I also think the facts of this case suggest that the usual consideration of commercial risk does not apply. The complainant knew the woman and had cashed the cheques for her previously. She was the intended beneficiary of the cheque, and she may not have acted in bad faith in cashing the cheque. The ‘commercial risk’ argument, I thought, could only reasonably apply where a trader could take precautions against a loss, by way of checks of identity etc.: but in this case, it was hard to see what precautions would have been effective. Even if the trader had telephoned the Department, he may have been given the go-ahead to cash the cheque, since apparently the error was not discovered until the day after he cashed it. The case is still under investigation.

Department of Employment and Industrial Relations

Case: Training agreement revised

During 1983-84 the Tasmanian Ombudsman, Mr Woodhouse, informed me of several complaints he had received alleging that the Commonwealth Employment Service had misinformed employers about the correct award rates which should be paid to young people employed under Commonwealth training schemes. Employers who, apparently through no fault of their own, underpaid their trainees, found themselves subject to demands for additional payments and possibly prosecution for breaching awards. Mr Woodhouse, who is my delegate in Tasmania, considered that the complaints suggested the existence of a general problem and he suggested that we raise the matter with the Department of Employment and Industrial Relations.

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In the case Mr Woodhouse referred to me, it quickly transpired that the complainant had agreed to pay the extra amount to the trainee (and in the individual circumstances of the case this did not seem unreasonable to me) and did not press his complaint any further. Nonetheless I made some enquiries of the Department.

I learned that the ‘training agreement’ — which sets out the various parties’ rights, obligations etc., and is signed by the employer, the trainee and the Department — did not make it clear that it was the employer’s responsibility to ascertain the correct award rates for trainees. Moreover, the CES manual was also not clear on this point.

The Department informed me that moves were under way to produce a new ‘training agreement’ to overcome this and other problems. The CES manual was also being revised; one impetus for this being a complaint I had taken up with the Department in 1981. The Department undertook to provide me with copies of the revised agreement

and manual, which it said would clearly spell out the employer’s responsibility for payment of the correct rate of wages for trainees.

Case: Underpayment

The complainant alleged that the former Industrial Relations Bureau (some of whose enforcement functions were on its abolition transferred to the Department of Employment and Industrial Relations) had both failed adequately to investigate her allegations that a former employer had consistently underpaid her, and failed to

prosecute the employer for breaching the award under which she was employed. The complaint was received after the abolition of the Bureau, when the Department had taken over responsibility for investigating the allegations. The Department was of the view that it had taken far too long for a decision

to be made in the prosecution. It said there had been delay because the officer who prepared the original prosecution brief was inadequately trained; another officer working on the case had left the Bureau; a later staff shortage delayed a review of the matter; the case was difficult; and the Department’s policy was to ensure that

prosecution briefs were watertight before going to court. To us the main problem was that the inspector who originally investigated the allegations, and thought they were justified, had no training in how to mount a prosecution. The Department should not have entrusted such to an untrained officer. Fortunately, the Department was aware of the problem. The introduction of a training program had, it said, already led to an improvement in the quality of prosecution

recommendations submitted by its inspectors. Following advice from the Deputy Crown Solicitor’s office legal proceedings have been initiated. The Department has kept the complainant and my office advised of progress.

Department of Health

Medifraud investigations

In the last year the Department of Elealth audited more than 250 private practitioner services and interviewed approximately 5,000 patients. My office received several complaints from medical practitioners concerned about the methods employed to

investigate suspected fraud or over-servicing. Two practitioners complained that their patients were subjected to lengthy interrogation and asked to reveal details of their medical treatment. They were concerned that the investigation process may have adversely affected the relationship

of trust and confidentiality with their patients. Moreover, they objected as a principle to interview of their patients without their knowledge or consent, an objection

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strengthened by the notion that such investigations could be prompted by statistical indicators produced by the Department’s computer system. My enquiries revealed that to some extent these concerns reflected a misunderstanding of the rationale behind the interviewing of patients and of the approach taken by medical investigators. An audit of a particular practice can be undertaken on the basis of recommendations from officers in the Department of Health who analyse profiles from its computer in conjunction with other relevant background data (such as socio-demographic information about the practice area), or on the basis of other information received by the Department. The aim of an audit is to verify services for which claims have been submitted, with the patients who signed forms to indicate that they had received those services. I am satisfied that investigators are instructed in the necessity of allaying any misconception on the part of the patient that the conduct of an audit implies malpractice by the doctor.

Since a member of my staff attended some such interviews, I have no reason to believe that patients frequently object to participating in the audit process when asked. But it did seem to me that the Department would ease the task of its investigators by publicising their role and that it would be good policy for the Department to advise practitioners when patient interviews are undertaken, and to tell both practitioner and the patients when the outcome of an audit indicates that no further action is required. The Department has responded favourably to suggestions to this effect.

Isolated Patients Travel and Accommodation Assistance Scheme (IPTAAS)

Patients living in isolated parts of Australia complained that the Department of Health had unreasonably refused to pay them benefits under the Isolated Patients Travel and Accommodation Scheme (IPTAAS) because they did not attend the ‘nearest suitable specialist’. IPTAAS benefits cover travel and related costs where a patient in a remote area is referred to the nearest suitable specialist. Often enough, the patient’s

failure to see the specialist the Department considered to be the nearest suitable one was due to no fault of the patient’s but was the result of referral by the local doctor. Unfortunately, the National Health Act 1953 (the relevant legislation for IPTAAS) does not allow the Director-General of Health to approve payment of benefits unless the nearest suitable specialist has been consulted. This lack of flexibility in the Act obviously can have an unjust effect on those who are not referred to the nearest specialist. How can patients be expected to know who is nearest?

I asked the Department of Health what action it proposed to take on a recommendation of the AAT that the Act be amended to give the Director-General some discretionary powers under IPTAAS. It says it intends none, so I have been considering how best the continuing problem might be overcome. I will be putting some further views to the Department soon.

Case: Drug taken o f f fr e e ’ list

I received a complaint that the Department of Health had withdrawn a drug, essential for the control of a rare disease, from the free list. The drug, the complainant explained, was needed by a very small proportion of the population and because of its dangerous side effects, was available only on authority issued by the Department. He believed it unjust that the chronically ill should foot the bill for an increase in the cost of the drug of 250% merely because of a squabble over prices between the Government and the manufacturer.

The price arrangements under the Pharmaceutical Benefits Scheme are based on the wholesale price of drugs to the chemist. This price is normally discounted by an approved 15% when the manufacturer sells to the wholesaler. The chemist is then allowed a 25% markup and a dispensing fee (at the time the complaint was lodged) of $1.73. In this case the wholesale price of fifty tablets of the drug was $7.00 while

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the total price recovered by the chemist was $10.48. The customer paid $4.00, $2.00 or nothing depending on the health benefits applicable and the Government paid the chemist the difference. On investigation, we found that before a drug is accepted for inclusion on the

list of ‘free’ or subsidised drugs the Government and the manufacturer negotiate an agreed wholesale list price to the pharmacist. Negotiations for price variations are a continual factor in the agreement. We also discovered that because government is deeply involved in underwriting the Australian pharmaceutical drug market, the

average drug price in Australia is said to be lower than in most countries. In this case, the drug company wished to double its wholesale price. The Department resisted so the company unilaterally increased the price to $11.75 wholesale to the chemist. The Department estimated that if increases of this order were accepted across the whole scheme, the cost flow-on to the Commonwealth would

be some $200 million. It contrasted this with the effect on the chronically ill of a refusal to accept the price rise. As the Commonwealth’s pricing policy is also used as a guide by other agencies such as public hospitals it was judged that the flow-on effect could have had an even greater cost to the community.

The Department told us the effect on patients of the Commonwealth’s not accepting the price increase had been fully canvassed with the Minister before he decided to remove the drug from the benefits list. For drugs not coming under the benefits scheme, the Pharmacy Guild of Australia sets a formula for pricing drugs

by the local chemist: the wholesale price is increased by 66.67% and a $3.50 dispensing fee is charged. Applying this formula to the wholesale price of $11.75, the customer would pay $23.08. In light of that information I considered that the Department’s advice to the

Minister in relation to the price rise was not unreasonable.

Health Insurance Commission (Medicare and Medibank Private)

From 1 February 1984 the Health Insurance Commission assumed responsibility for the payment of claims under Medicare. A number of my officers have visited the Commission’s processing centres and observed the procedures involved in paying

claims. The general impression gained was that the new procedures were operating smoothly. This impression has been reinforced, at least in respect of the payment of medical practitioners’ direct billing claims, by a decrease in the number of complaints received about delay. Many of the problems previously evident arose

through the varying eligibility of patients over time for treatment under the pensioner health benefit and similar schemes and transcription and other errors and omissions on assignment forms submitted for payment. While the new scheme will not overcome all of these problems, the universal coverage it provides and the use of Medicare cards to reproduce the basic details on assignment forms should remove some of the sources of error.

Retention of original accounts and receipts

By far the most frequent complaint I have received since February relates to the Commission’s general policy of retaining patients’ original accounts and receipts submitted with claims for refunds. This issue has also been the subject of Parliamentary questions. The Commission has told me that this is how it has explained

its decision to members of the public:

‘The decision to retain account documents was taken to provide the Commission with access to original documents which is essential for the effective control of fraud and over-servicing.

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I might add that in the general insurance industry it is unusual for documents in support of a claim to be returned. The Commission was of the opinion that the decision would not cause significant inconvenience as we were advised by the Australian Taxation Office that less than 7% of taxpayers will incur concessional expenses in excess of the increased level of $2,000 and thereby need to specifically identify medical expenses in their tax returns. To provide for those persons who require information for taxation purposes the Commission provides:— (a) statements of benefits with benefit cheques; (b) an annual statement of benefits which will be available, on request, at the end of

the financial year; and (c) manually prepared statements of benefits, on request, for persons claiming benefits in cash. Where a person requires the return of accounts and receipts for other reasons, either because of some genuine need to make claims through other insurers or because of strong personal views about retention of documents, the Commission does provide for the return of documents on request. However, where documents are to be returned, the following conditions apply:— (a) benefit will not be paid in cash. The claim will be sent to State headquarters for

processing and benefits will be paid by cheque; (b) documents will not be returned over the counter but will be returned after processing; and (c) returned documents cannot be included with benefit cheques and will be returned

separately.’ I have concluded that these arrangements provide a reasonable balance between patients’ and the Commission’s needs.

Differing health insurance needs of husbands and wives

Since the introduction of Medicare I have received two complaints from residents of Queensland that Medibank Private has refused to accept membership at the single rate for a married person. In each of the complaints only one of the partners decided to continue to have private health insurance, the other party being satisfied with the health cover provided by Medicare.

Medibank Private had previously said there were two main reasons for its long­ standing policy of refusing ‘single’ membership to married contributors, namely:

• it has been Medibank Private’s experience that members of a family unit who seek to arrange single cover often do so in the knowledge of imminent expense and this is to the detriment of other members; and

• the policy is complementary to Medibank Private’s support for the community rating principle.

Nevertheless, Medibank had indicated that where a person sought a review of a decision to refuse single membership it would consider the individual circumstances to determine whether an exception should be made. In the two cases received this year, Medibank reconsidered them and advised me that it would accept single membership in both cases. In arriving at this decision the Commission said that it took into account that:

• the applicants were both Medibank Private members of long standing with family membership; • the Medicare program significantly affected private health insurance arrangements, although it did not have the same impact in Queensland because

of the public hospital arrangements in that State. It could be expected that the Medicare changes and the resultant publicity would cause many Fund members to re-think their private health insurance needs; and

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• the applicants have indicated that there are opposing family views on the merits of health insurance and this is the reason for their seeking single membership. There are no apparent elements of anti-selection. In communicating its decision to me Medibank Private said:

‘the decisions taken in these cases are not to be considered as creating a precedent even though one or more of the above factors might apply in other cases. Each case must be considered on its merits.’ 1 am currently seeking information from Medibank Private on the factors it feels it would need to take into account in considering applications for single membership by married persons.

Department of Housing and Construction

l ate applications for Home Savings Grants

In my 1982-83 Annual Report I referred to the substantial number of complaints I had received from people who believed they had been unjustly denied a Home Savings Grant because their applications had not been received in time to meet the statutory cut-off date and there was no provision in the Homes Savings Grant Acts Amendment Act 1982 to meet cases of late lodgement where good grounds existed for accepting the application. In that report I said that although I had not, to that date, reached

any conclusion of defective administration, I was of the view an action of the Parliament — the inclusion of a legislatively inflexible deadline which did not permit circumstances to be taken into account — had resulted in avoidable denial of consideration to quite possibly eligible applicants. I registered strong concern at the

circumstances which gave rise to the complaints, and expressed the belief that a more flexible method should be found to close the Home Deposit Assistance Scheme when it was replaced by the new First Home Ownership Assistance Scheme. I was pleased to note that when the change-over to the new scheme was made, no final cut-off date

was set for applications for Home Deposit Assistance Scheme grants. This did not, of course, resolve the problem of the inflexibility of the cut-off date under the Homes Savings Grant Acts Amendment Act. No remedy has been provided for those affected, and I have continued to receive new complaints.

My interest in this issue has continued, and I particularly noted a decision by the AAT of March 1984 in the Wildman case whereby the Tribunal determined that under s i 5(6) of the Home Deposit Assistance Act the date of a contract for a house was not the actual date of the contract but ‘such date as is determined by the Secretary’.

In this case the Department had argued that the actual date of the contract was 12 February 1982, hence the relevant home assistance scheme was the Home Savings Grant Scheme, and as the applicants had missed the cut-off date for that scheme, they were not eligible for a grant. Moreover, the Department said they were not eligible

for the Home Deposit Assistance Scheme because that scheme only applied to cases where the date of contract was later than 17 March 1982. However, the Tribunal concluded that in the particular circumstances of the Wildman case, the date of the relevant contract for purposes of the Act was 4 August 1982, and that the Secretary

had discretion under si 5(6) of the Home Deposit Assistance Act to determine that this was the date. This decision was significant for a number of cases where Home Savings Grant applicants have argued that their dates of contract should be deemed later than 17

March 1982 for reasons such as the contract’s depending on finance being available. However, the Department has decided to appeal to the Federal Court on the question of the extent of the Secretary’s discretion to determine a date of contract (in the AAT the Department had argued that this discretion extends only to determining a date

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earlier, not later, than the date upon which the formally concluded agreement is entered into). For my own part, 1 am still considering this group of complaints in the context of sl5(l)(a)(iii) of the Ombudsman Act.

Department of Immigration and Ethnic Affairs

My office has continued to receive a substantial number of complaints about delays in processing applications for entry to Australia, refusal to issue visas, ineligibility to migrate or to remain in Australia, deportation, and charges for overseas students.

Working holiday-makers

Several complaints came from young people (mainly from the United Kingdom) who, as part of their holidays in Australia, were given permission to take up short term employment but whose applications for permanent resident status lodged whilst still in Australia, were rejected.

Working holiday-makers are usually restricted to a maximum stay of 12 months and employment for longer than 3 months in any one place is considered by the Department contrary to the spirit of the working holiday scheme.

It was against this background that, on 6 April 1983, the Minister for Immigration and Ethnic Affairs announced new rules for working holiday-makers in Australia. In future they would not be able to change their status to permanent resident by virtue of their qualifications or employment prospects as they previously could.

The complaints I received (and continue to receive) were from people who had applied to change their status before the Minister’s announcement, but whose applications had not been processed at the time of the announcement and which otherwise might have been approved. The main thrust of the complaints has been that these applicants have been disadvantaged as against others who had applied at the same time and whose applications had entered the system for processing.

1 raised with the Minister the question of applicants in this category and sought to discover his intentions in respect of those who, but for some administrative defect in the processing of their applications (including unreasonable delay) would have been eligible and presumably received approval for the change they were seeking. The Minister informed me that an instruction issued by the Department for guidance in the handling of those cases which were under consideration at the date of his announcement was clear in its intention that only those cases in respect of which a

pre-existing commitment existed were to be approved. All other applications were not to be considered further. I remain concerned about the equity of a system that seems to apply irrespective of the merits of individual cases and will be taking the matter further with the Department.

Action of overseas posts

While I have drawn up no statistics to support a statement about particular trends developing in complaints received in relation to processing of applications for entry to Australia by certain overseas posts, I have had several about the Australian Embassy in Manila. That is not to say that I have identified any underlying problems associated with the operation of that post and my impression perhaps best reflects the large number of enquiries I understand are handled at that post each year. An example follows:

Wedding plans delayed

The complainant had lodged sponsorship papers with our Embassy in Manila for

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migrant entry to Australia for his fiancee and her daughter and was unhappy, amongst other things, about the delay in processing those papers. My investigation revealed that the Embassy was justified in checking with local authorities the fiancee’s marital status and I ascertained that this accounted for most of the delay. By the time we were in a position to respond to the complainant, approval had been given for his fiancee to travel to Australia.

The complainant subsequently wrote to us again to say that when his fiancee presented her passport for issue of a visa she was issued with one which expired before she was able to travel to Australia. The complainant alleged that the action had been intentionally discriminatory and vindictive. His fiancee had managed to take a flight

to Singapore before she and the airline had noticed the visa had expired. She was stranded there until arrangements could be made to review the visa for travel on to Australia. I concluded that the post had acted in good faith in endeavouring to finalise the application without further delay, given the earlier complaint to my office. I was, however, of the view that the post had otherwise acted hastily and without proper consideration of the particulars of the situation in issuing a visa that would expire

within three days. Technically, however, it was correct in doing so given that expiry of the visa had to coincide with expiry of the mandatory notice of intended marriage supplied to the Department by the parties concerned. It was clear that the opportunity also existed for the officer concerned at the post to have obtained from the applicant

details of her travel arrangements at the time the visa was issued and to alert her to the need for alternative arrangements. Equally, however, the complainant should have been aware of the need to travel before the expiry date that was stated clearly on the visa.

On balance I was not able to find sufficient connection between the deficiencies displayed by the Embassy and the costs and distress incurred by the complainant and his fiancee. I therefore made no recommendation for any recompense by the Department apart from a formal apology and rewording of the standard letter of

approval for travel to Australia which I thought needed clarification to prevent any future misunderstanding about the period of validity for travel of visas. The Department said it found no serious dispute with my conclusions and complied with the requests I had made.

I also noted that the complainant intended to approach the airline responsible for carrying his fiancee to Singapore since it is normal practice for airlines to ensure that passengers are in possession of valid visas, where appropriate. Airlines may be prosecuted under si 1 of the Migration Act for carrying passengers to Australia without

proper visas.

Charges for overseas students

In my last report I detailed several cases of complaints about charges for overseas students arising from the Overseas Students Charge A ct 1979. I also mentioned that the complaints, broadly speaking, fell into two categories — the first being from students who claimed that they had been misinformed about the charges and the

second from those claiming that, under the Overseas Students Charge Act and the Overseas Student Charge Regulations, they were exempt from the charges. One case brought to conclusion in 1983-84 did, however, encompass both categories.

Case: Exempt or misled?

In this case the complainant enrolled in the Bachelor of Commerce course at the University of Western Australia in 1979 and he successfully completed the first year of the course. But, following failure in 1980, he transferred to a Bachelor of Business

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course at the Western Australian Institute of Technology in 1981. In the process of making the decision he, on two occasions in 1980, consulted the then Department of Education about his transfer, particularly to confirm his exemption from student charges.

Regulation 4(b) of the Overseas Student Charge Regulations grants exemption to overseas students who were enrolled in a course before 1980 but who transferred to a second course after 1 January 1980, provided that ‘ . . . the student could complete successfully the second course in the same period as he would have taken to complete the second course had he enrolled in the second course at the time at which he enrolled

in the first course’. In the complainant’s case it seems that the Department of Education led him to believe that he would not be liable for the overseas student charge as his new course could be completed in 1982, that is in the same length of time that he would have taken if he had continued in the commerce course at the University.

The Department of Immigration and Ethnic Affairs subsequently assessed him as liable for overseas student charges for 1981 and 1982. In determining this the Department applied an objective test, namely the minimum time possible to complete the course (in this case three years). On this basis since the complainant would not be able to finish the course by the end of 1981 he was thought liable for the charge.

As I mentioned in my previous report, legal advice from the Attorney-General’s Department queried the use of this test. It said that it was necessary to consider how long the individual student would have taken to complete the course. Thus, if there was information available about a student which indicated that he or she would not, or was not likely to finish in the minimum time then this should be taken into account. On this basis the Department reconsidered the case but concluded that since the complainant had not displayed any disability at university, but rather his failure in

1980 stemmed from dissatisfaction with the way the course was run, and he had afterwards performed very well at the Institute, then had he started his second course in 1979 he could have successfully completed it within time — three years. Although I did not disagree with this assessment I was concerned that the complainant’s change of course was based on incorrect information the Department of Education gave about his liability. Although I could not positively establish the form of advice the complainant received it was clear that he understood he would not be liable for the charges. I concluded that there was a reasonable chance that if he had received correct advice, because of his financial position he would have persevered with his University course.

Both Departments agreed that in all probability the complainant acted on the original advice and would suffer financially from the changed assessment if it were enforced. The Department of Finance approved waiver of the charges for 1981 and 1982.

Case: With prejudice

The complainant made a number of unsuccessful attempts to obtain approval for a relative to come to Australia. She asked me to investigate the refusal of the Department of Immigration and Ethnic Affairs to grant a visa. After I examined the files I was able to conclude that the Department had adequate grounds for its repeated refusals. I was however concerned at evidence that officers of the Department harboured unconfirmed views about her ‘mental condition’ which could have adversely affected her applications. For example an officer in one of the Department’s regional offices refused to believe — in the light of her ‘history of treatment for personality disorders’ — her claim that the Department’s Central Office had sent her a particular letter — although it had.

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Since the first application on behalf of a relative was on the grounds that the complainant needed someone to look after her, the Department considered medical advice. The medical referee said the basic problem was one of chronic hysteria. The doctor recounted clashes with other relatives who had allegedly been living with her, saying she drove them to such a state of mind that they moved out of the State. Although the review by the Department noted the inconsistency between this account and the complainant’s claims to have no relatives in Australia no effort was made to check this. Such a check would have revealed that this part of the doctor’s story was incorrect and that there were no relations in Australia. Had the Department’s decision been based on the doctor’s version of events I should have reason to criticise

but a senior officer invited the complainant to submit another medical report and also instructed that her relation overseas be interviewed by the Australian Embassy. While, as I have said, I was able to conclude that the Department’s rejections of the various applications were made on unobjectionable grounds, I was concerned about:

• the failure of the Department to examine more closely the comments it received on the complainant; • the way repetition of remarks about her ‘instability’ added weight and authority to such comments; and

• what I saw as a tendency in this case for officers not to take seriously someone who allegedly had a ‘mental condition’. I asked the Department to note the points I had made, and to place a copy of my letter containing the above views on relevant files. To the Department’s credit, it will

use this case as the basis for a circular warning officers of the dangers of ‘building paper castles’.

A matter of interpretation

The Department has a panel of interpreters who, among other things, assist at Social Security Appeals Tribunal hearings. An interpreter who had attended one such hearing complained that the Department later removed her from the panel on the ground that she did not attend a further hearing for which she was listed but had sent a man

along to replace her. The Department got to know about this because one of the appellants before the Tribunal complained to his doctor that the Tribunal asked him an irrelevant question which appeared to demonstrate bias. The doctor wrote to the Minister for Social

Security who sought advice from the members of the Tribunal. In the Tribunal’s written report it blamed the interpreter for the offending incident and referred to the interpreter as being a man. The Department of Social Security drew the incident to the attention of Immigration and Ethnic Affairs which

immediately focussed its attention on the fact that the interpreter listed to attend on that day was a woman. It obtained a further report from the Tribunal, confirming the original version of events and interviewed the interpreter, who was unable to convince the Department that she had not sent along a substitute. The Department

therefore removed her from the panel. When she approached my office the complainant was extremely distressed, having made numerous unsuccessful attempts to vindicate herself including tracing and obtaining a statement from one of the appellants who appeared before the Tribunal on the day in question. My office obtained documents of the Departments of

Immigration and Ethnic Affairs and Social Security, from which it became evident that the doctor who complained originally had, when he received a reply from the Minister for Social Security, written back informing him that the interpreter was our

complainant, whom he knew. The Department of Social Security had not, however, passed on this information to Immigration and Ethnic Affairs. Secondly, we contacted 69

the doctor who again asked his patient. The patient confirmed that the interpreter was a woman. Presented with this information the Department was prepared to reinstate the complainant but she was not satisfied. We therefore contacted the third appellant who had attended the Tribunal on the day in question. He also confirmed that the interpreter was a woman, whereupon the Department and the Social Security Appeals Tribunal both sent written expressions of regret to the complainant, with which she was satisfied. I could only assume that in their original recall of the incident the Tribunal members had mistaken the day.

Administrative changes arising from complaints

1. The Department no longer holds passports in every case where applications for permanent residence are being considered. 2. The Department agreed to publicise the fact that not all New Zealand citizens are automatically exempt from the requirement to obtain entry permits. 3. The Department agreed to revise letters sent out by overseas posts when issuing

visas to minimise any possible confusion about the date by which the holder must travel.

Department of Industry and Commerce

Case: What is art?

An Australian tourist in Venice purchased a hand-made drawn glass horse and foal and posted it home. The Collector of Customs classified it as coming within sub-item 70.13.2 of Part II of Schedule 1 of the Customs Tariff A ct 1966 which applied to ‘glassware . . . of a kind commonly used for indoor decoration . . . ( b ) statuary figures’. The objects thereby were subject to 2°7o duty and to sales tax amounting to $166.70. The owner disagreed, saying that item 99.03, applying to ‘original sculptures and statuary, in

any form’ was the right classification and so no duty- was payable: nor, as a consequence, would sales tax apply. The Collector affirmed his decision but about six months later, following a decision of the A AT, varied his classification from 70.13.2 to item 35 which deals with ‘handicrafts’. No duty was now payable (although liability for sales tax remained) and the owner received $10.81 refund of duty.

He remained dissatisfied, however, and tried to take the matter before the A AT, which found that he had not met the statutory pre-conditions which would have allowed the Tribunal to consider his appeal. The Tribunal suggested that the applicant pursue the matter with my office.

There were, in my view, two issues requiring investigation: whether actions of the Australian Customs Service tend to prevent people using their right to apply to the AAT for review, and whether the classification decision of the Collector in this case was correct.

The Collector in his revised decision was guided by the AAT’s decision in Bloomfield’s case. I considered that it was reasonable for the Collector to be guided by this decision which involved similar goods bought from the same place, made by the same craftsman and returned to Australia the same way (parcel post). In informing the complainant of my conclusion I said that for his glass figure to be reclassified it would be necessary to be able to distinguish it from those considered in Bloomfield’s case. He replied saying he would seek reclassification based in part on the opinion of the Curator of Sculptures and Glass at a State gallery.

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The question of access to the AAT arises from the provision of the Customs Act which requires that importers pay the duty, write on the entry ‘paid under protest’ and put reasons in writing before an appeal to the AAT is possible. Such appeal has to be made within 6 months.

The same Act, however, allows for the delivery for home consumption of certain goods without entry (s71 A). Thus non-commercial goods may be sent to Australia by way of parcel post without a formal entry. Such goods arrive in Australia in their millions each year and are assessed for duty and sales tax and held at local post offices

for payment (if any) and collection. The addressee receives a notice of the goods’ arrival, and of any duty and sales tax. A person paying the duty in order to collect the goods would not be able to take the matter to the AAT — there being no formal ‘entry’ or opportunity for objection in writing at the time.

Following discussions with the Department of Industry and Commerce a revised notice was printed warning addressees that if they object to the duty they should not pay it but contact the authority specified, which will then tell them how to make a formal entry, pay under protest and (if need be) appeal to the AAT. The

Administrative Review Council has considered the question of appeals under s i67 of the Customs Act and incorporated it in a broader review in progress.

Case: When is an owner not an owner?

An intending immigrant from South Africa noted in a brochure he obtained from the Australian Embassy in Pretoria that intending settlers were able to bring with them, free of sales tax and duty, vehicles they had privately owned and used for six months before departure. The brochure did not mention that leased vehicles were

not included in this provision. On arrival, the Australian Customs Service assessed the immigrant’s car, which he purchased after leasing for some time, as liable for some $1,000 in import duty and sales tax. His attention was also drawn, for the first time, to the full terms of Customs By-law 2515 and its exclusion of leased vehicles from the exemption. He

nevertheless considered that the ‘lease-and-buy’ arrangement he had entered into was more akin to a hire purchase agreement and sought my assistance in having Customs reassess the charges levied against him. I wrote to the Department asking it to review the situation. It did so and discovered

that a significantly lower level of duty and tax was payable, although the decision that no exemption was available stayed in force. The Department also sent me a copy of the South African legislation which governed the lease/buy agreement (Credit Agreements A ct 1980) and argued that even if this law was relevant to determining

ownership, for the purposes of Australian legislation it confirmed that the agreement was simply a leasing transaction. My reading of the legislation, however, suggested the opposite, and I was not prepared to accept that the terms under which the complainant purchased the vehicle were irrelevant to the question of ownership.

I put my views to the Department and suggested that it seek an opinion from the Attorney-General’s Department. It did so and received advice that the expression ‘owned’ in the By-law did not necessitate that title in the vehicle was to be vested in the person concerned and that the law of another country could be considered

relevant. The Attorney-General’s Department also advised that the South African law effectively provided the complainant with control of the vehicle and, as such, he was ‘possessed of’ the car before his formal purchase of it. On the basis of this advice the Department agreed that the By-law exemption

applied to the car and refunded the amount paid.

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Case: Free flight

The complainant and his family migrated to Australia from British Columbia in 1982. Before doing so the complainant wrote to the Australian Consulate in Vancouver informing it of his family’s intention and asking for all the relevant forms and information. He also asked whether there would be any difficulties in bringing his home-made light aircraft. He received a reply to the effect that household goods and personal effects of first time migrants were exempt from import duty. The Australian Consulate did not however, specifically respond to the question about the aircraft, and on its arrival in Australia the Australian Customs Service assessed it as liable to duty and sales tax amounting to $2,400.

There were therefore two issues that warranted investigation: the advice the complainant received from the Australian Consulate; and whether the decision concerning the duty and sales tax was correct. In this case, resolving the second issue obviated the need to pursue the first.

Under the Customs Tariff Act, ‘flying machines’ attract duty of 2%. As sales tax is applied where duty is payable the complainant faced a hefty bill. However the provisions of the Act admit some qualifications, exceptions and provisos, and personal effects of first-time migrants form a category of goods that are admitted duty free. At our request Customs re-examined the legislation and concluded that since the aircraft was packed with the family’s other personal effects and not imported separately it could be regarded as a personal possession within the concession. This also resolved the question of sales tax, since under the Sales Tax (Exemption and Classification) A ct 1930 goods imported free of duty under the ‘first time migrant’ concession are also exempt from sales tax.

This being so we were able to wish the complainant many happy flying hours.

Case: Buried treasure

A complainant wrote to me from a State prison. In 1981 he was convicted of conspiring to import a prohibited drug. Shortly after his arrest his house was searched and the Australian Federal Police took possession among other things of $1,400 in Australian bank notes found in a coffee jar under his house. This was seized under s228A of the Customs A ct 1901 and the money was subsequently condemned under s262 of the Act. His solicitors had unsuccessfully sought the return of the money from the Australian Customs Service.

The complainant claimed that the moneys involved were unrelated to the offence of which he was convicted. Since the Crown had not suggested to the Court that they were, nor asked the Court to come to any conclusion on the matter, the moneys were not subject to condemnation.

My enquiries with the Australian Customs Service and the Australian Federal Police established that the circumstances outlined by the complainant were substantially correct. The sum was repaid to him.

Case: Tusk tusk

In May 1981, a big game hunter was making plans for a hunting trip to Africa. He asked Customs officers what restrictions there were on importing animal trophies into Australia and was told, among other things, that African elephants (and parts thereof) could be imported.

In August 1981 the Customs (Endangered Species) Regulations were amended so that African elephant products could not be imported unless a permit had been obtained before importation. But the hunter knew nothing of this. In September 1981 he travelled to Zimbabwe and took part in a Government-sponsored elephant cull.

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He bagged one elephant and arranged for certain portions of it (four feet and a tail) to be treated by a South African taxidermist. In January 1983 the trophies arrived in Australia and were promptly seized as prohibited imports by Customs. The hunter immediately protested that he had acted

in accordance with Customs’ advice but Customs, while admitting that he was ‘the victim of a most unfortunate set of circumstances’, said that an import permit could not be granted retrospectively and declined to release the items. In July 1983 he complained to me. After an exchange of letters with the

Department, my office recommended that, since the complainant had acted in good faith on departmental advice and would, according to our enquiries, have been likely to be able to obtain a permit had he applied before importing the trophies, the Comptroller of Customs should use the discretion given him by s208D of the Customs

Act to dispose of forfeited goods (except narcotics-related goods) ‘as he thinks fit’, and make the goods available to the complainant. In July 1984 I was able to tell the hunter that Customs had agreed to hand his trophies over to him.

Department of Social Security

The ‘Social Security Fraud’

In my 1982-83 report I noted that at the end of that reporting year I had advised the Department of Social Security of preliminary views I had formed as a result of my investigation into the complaint that the Department had acted improperly,

unjustly and unreasonably in cancelling pensions and benefits in 1978 following allegations of a widespread conspiracy to defraud the Commonwealth. During the year under review I received and took into account comments from the Department, and I also afforded the opportunity to other relevant departments and individuals to make submissions to me under s8(5) of the Ombudsman Act (which requires me

to invite such submissions before reporting when I have formed opinions which are expressly or impliedly critical of a department or a person). After providing a suitable time for reply, and considering the responses received, I was in the process of finalising my report at the close of the review year.

An additional element in my handling of this large and complex case was the application by the Public Interest Advocacy Centre on behalf of one of the complainants for access under the Freedom of Information Act to the draft report on my investigation which I provided to the Department in March 1983. This matter is reported in greater detail at pages 30 and 31 of this report.

Backdating of certain allowances denied

Over the years I have received a steady stream of complaints from people who lodged a claim for certain allowances outside the statutory six month period after eligibility first arose, and who objected to the Department’s decision not to backdate payment to the date of first eligibility because the circumstances of their late applications were

not considered sufficiently ‘special’. Section 102(1) of the Social Security A ct 1947 provides that if, beyond the six month period, a claim is lodged for family allowance (including student family allowance when a child turns sixteen), or for handicapped child’s allowance, or for orphan’s pension, then payment is only made from the next

payment period — i.e. no arrears are paid — unless the Director-General determines that there are ‘special circumstances’, in which case he has the discretion to decide the starting date for payment.

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During the year my consideration of the Department’s reponse to some concerns I had expressed about the operation of the Social Security Act as regards payment of family allowance when a child turns sixteen and becomes a student child led me back to the ‘special circumstances’ problem. Section 103(1 )(f) of the Social Security Act provides that family allowance ceases when a child turns sixteen, unless the Director-General is satisfied, within three months of the child’s sixteenth birthday, that the child became a student child on attaining that age. The Department has adopted the practice of sending out forms before the child’s sixteenth birthday — in order to ascertain whether or not the child will be a student at age sixteen — so that payment can be continued or cancelled as necessary. If these forms are not returned within three months after the birthday (or the allowee fails to notify the

Department in some other way that the child became a student child at age sixteen) it is still possible under sl02(l)(a) to make a claim within six months of the birthday (i.e. the date of eligibility) and to receive full payment. However, if the claim is made after the six month period, arrears back to the sixteenth birthday are only paid if

‘special circumstances’ were considered to be responsible for the failure to apply within the qualifying time. Issues raised by some particular complaints were that people did not receive the Department’s forms sent prior to the sixteenth birthday (perhaps because they had changed addresses); that they did not know payment of the allowance had been stopped because they had a separate bank account for family allowance payments and examined it only rarely; and that they were unaware of the need to notify the

Department that the child had become a student child at age sixteen. While I did not pursue one complaint because the complainant had the right of appeal to the AAT, and the other eventually had her case satisfactorily resolved by the Department, I nonetheless made some general enquiries of the Department and I will be looking

further at this question of student family allowance. One point that struck me during my examination of the problem was that on several occasions (including one case involving student family allowance) the AAT had commented that the term ‘special circumstances’ was too narrow and restrictive and that it appeared to prevent the exercise of the Director-General’s discretion in those cases where justice would require that payment of allowance should be backdated. This struck a particular chord when I received two new complaints where it was alleged that payment of arrears of handicapped child’s allowance was being denied because

‘special circumstances’ were not considered to exist for the late applications. I see merit in the AAT’s proposal that ‘special circumstances’ in sl02(l)(a) of the Social Security Act might better be replaced by the phrase ‘sufficient cause’, and I will be writing to the Director-General to support some such change.

Delayed recovery of overpayments

My investigation of two complaints gave me cause to examine the practice of the Department of Social Security of recovering overpayments of pension or benefit under s i40(2) of the Social Security Act. Had legal action been taken to recover some such debts, the Courts may have held that they were not recoverable at law because of the effect of the statutes of limitations.

Under s i40(2) the Department may recover an overpayment by withholding amounts from any pension or benefit payable at the time the overpayment is raised or which may become payable at some future time. The Department’s authority to recover under s i40(2) is, of course, not affected by the restrictions of the statutes of limitations because recovery action is not taken in the Courts. Where Court action is the method of recovery employed and the Commonwealth delays instituting action beyond the period specified in the relevant statute of limitation — generally six years

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— the debt is often irrecoverable and is written off under s70C(l) of the Audit Act 1901. A paradoxical situation can arise where the Director-General invokes s i 40(2) to recover a long outstanding overpayment which may be not recoverable at law. In these circumstances the recipient of an overpayment whose financial situation has taken a turn for the better and who no longer needs benefits is not subject to recovery

action where the relevant statute of limitation precludes such action. But the recipient who still qualifies for benefits may be subject to recovery action. I am presently examining the application of s i40(2) in the light of the Government’s policy on recovery of old debts, the intention of the sub-section, and the reasonableness of

the law. My investigation of a complaint about an overpayment of sickness benefit gave rise to the question of whether an incapacitated beneficiary whose financial affairs are handled by another person (or ‘agent’) should be held responsible for any overpayment the beneficiary may inadvertently receive because of a failure by the agent to notify.

The complainant in this instance, during his period of incapacity, had depended upon another person to deal with his financial affairs. The nature of his incapacity was such as to suggest that he would not have been able to grasp the significance of the fact that for most of the period in which he was in receipt of sickness benefit,

he was also being paid by his employers. It was this latter fact which resulted in the overpayment of sickness benefit. I formed the view that recovery action should be waived on the basis that the complainant’s agent had the responsibility of notifying the Department of the complainant’s income and that overpayment had, therefore,

occurred through no fault of the complainant. Moreover, it was the agent and not the complainant who had received the benefit of the overpayment. The Department of Social Security agreed with my view that recovery should not proceed and it referred the case to the Department of Finance with a recommendation

to that effect. The latter Department duly approved this recommendation. At the same time it commented that the circumstances giving rise to the overpayment were capable of recurrence in one form or another. It pointed out that the agent of an afflicted applicant can manipulate the system or otherwise obtain benefits without

legal entitlement and leave the legal beneficiary ‘holding the bag’. It suggested to the Department of Social Security that the Social Security Act might be amended to impose liability on such agents so that restitution of overpayment can legally be sought from the competent party.

Case: Single adopting parents: second class citizens?

Our complainant was a single person, who had not married and had adopted a child born in Thailand. She was in receipt of special benefit payable under the Social Security Act but sought the grant of supporting parent’s benefit which would have given her fringe benefits not available to someone receiving special benefit. The Department

rejected her claim on the ground that she was not qualified to receive supporting parent’s benefit and it also rejected a recommendation of a Social Security Appeals Tribunal that she be made an act of grace payment in lieu. The complainant thought the treatment meted out to her was unjust and

discriminatory; as she said, had she been widowed, divorced or separated after adopting a child, she would have been entitled to supporting parent’s benefit and there was no good reason why her entitlement should be less because she had always been single.

We were satisfied that the Department had correctly applied the law and moreover we were of the opinion that since the law was clear the Department had not acted

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unreasonably in declining to seek an act of grace payment. Nevertheless we were concerned with her exclusion from supporting parent’s benefit and made enquiries about amendments made to the Social Security Act in 1973. On that occasion, for the first time, supporting parent’s benefit became available to a supporting mother irrespective of whether the child was conceived before or after the date of widowhood, desertion or separation. At the same time the definition of child in the Act was amended to include a child who was an adopted child before the widowhood, desertion or separation. The combined effects of the amendments seem to be to grant supporting parent’s benefit to all recognisable categories except a child adopted by a single parent.

Under sl5(l)(a)(iii) of the Ombudsman Act the Ombudsman, after making a finding that departmental action is not defective because it was in accordance with a provision of an enactment, nevertheless may form the opinion that the provision of the enactment itself was unreasonable, unjust, oppressive or improperly discriminatory. We have never fully explored the parameters of the power to make such a finding partly because there has to be an air of reality about an Ombudsman’s recommendation if it is to gain acceptance. Thus, for example, it would be a purposeless exercise for us, upon receipt of a complaint, to embark upon an analysis of a recently enacted Act of Parliament on the ground that it contained substantive provisions which were unreasonable, unjust or oppressive. In the matter before us, we were not convinced that the Government was aware of the isolation of the case of a single adopting parent, when such extensive policy changes found their way into the amendments, in favour of a parent who had at some stage had matrimonial status even in respect of an adopted child. However, a later government had the instance drawn to its attention no less than twice but decided to let the law stand.

A change of government in 1983 resolved the situation for us. The Minister for Social Security announced the intention to introduce legislation to extend supporting parent’s benefit to single people who adopt children. The Social Security Legislative Amendment A ct 1983 effected the change on 1 December 1983.

Case: Husband as second class citizen

1 received two complaints about an anomaly under the Social Security Act under which a wife’s pension was payable to women who stay at home to look after invalid husbands, but no similar pension is payable to husbands caring for invalid wives. While special benefit was paid to husbands this was not as generous as wife’s pension. I suggested to the Department that this appeared, prima facie, to be improperly discriminatory, and I sought to discover whether there was any satisfactory

justification for the anomaly. The Department replied that this issue had been raised previously, but it was considered that a change of this nature would raise the difficult issue of how to distinguish between people permanently incapacitated for work because of their age and those permanently incapacitated for other reasons. The Department said it might be expected that many age pensioners would seek to transfer to an invalid pension in order for their husbands to qualify for the ‘husband’s pension’. It also noted that this matter had been brought to the attention of the previous Government, when the National Superannuation Committee of Inquiry had recommended that a spouse’s pension be payable to the dependent husband or wife of an eligible pensioner.

However, the Department said, the former Government after careful consideration decided not to act on it. From information supplied to me I was able to tell the complainant first that the previous Government had made a deliberate decision not to introduce a spouse’s pension; and second that the present Government’s pre-election policy for such a pension was under consideration. In the meantime there was nothing further which we should or could do.

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In the event, the Treasurer announced in his 1983 Budget speech that the Government had decided to introduce a spouse carer’s pension which would allow the husband of an age, service or invalid pensioner wife to receive assistance, on the same basis as wife’s pension, where the husband provided care and attention for an extended period on account of his wife’s severe disability. The announcement was

effected in the Social Security Regulation Am endm ent A ct 1983.

Case: Income by instalment

1 received a complaint alleging that the Department of Social Security was unreasonably denying unemployment benefit. In a property settlement on her divorce, the complainant received a sum of money, a major proportion of which she had on loan to the family company. As her ex-husband could not immediately find the money

from the operations of the family company, an agreement was reached whereby she received payment in instalments each month. The Department told the complainant that, had she been paid the full amount in a lump sum, this would have been taken

into account only once as ‘income’, in the week of receipt, and would not have been subsequently considered when assessing her eligibility for unemployment benefit (apart, presumably, from any interest or the like she earned on the money). But because the money was being paid in monthly instalments, the Department was obliged

to average this out as a weekly payment, in accordance with s i06(2) of the Social Security Act. Thus the complainant was found to be in ongoing receipt of a level of income which rendered her ineligible for unemployment benefit. I have pointed out to the Department that the financial arrangement of paying out the property settlement by instalments was not of the complainant’s making, as

her ex-husband could not afford to pay out all at once. I have also said to the Department that if it had no choice but to take such instalments into account as income (no matter what the circumstances that gave rise to this method of payment) then my view was that the legislation is unreasonable, unjust and improperly discriminatory.

I am awaiting the Department’s response.

Case: ‘A rather sorry record’

A woman complained to me about the Department’s efforts to recover from her an overpayment of family allowance. She was originally receiving allowance for three children, but when she moved from interstate to Canberra in March 1981 she informed her local Social Security office that she would only be taking two of the children.

On her arrival in Canberra she claimed supporting parent’s benefit, and told the Department’s office several times that she only had two children with her. Despite this, the Department continued to pay her family allowance for three children. In late 1981 the Department realised there had been an overpayment, and

undertook recovery by suspending her allowance. The woman complained to me, and as a result the Department resumed payment and refunded the money it had already withheld, while it investigated her complaint. The outcome of the Department’s consideration was that the overpayment should be recovered and my

office was so informed in April 1982. Unfortunately, this information was not passed on to the complainant (by the Department or by my office); nor did the Department resume recovery. Nothing more was heard about this matter until in April 1983 I received a further complaint from the woman that the Department had again brought up the question

of overpayment and was recovering by withholding $10 per month. Our investigation of her complaint eventually included an examination of departmental files, and these revealed considerable instances of defective administration which I described to the Department as ‘a rather sorry record’. Thus:

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• the interstate office had passed to Canberra the information that she only had two children with her, but Canberra continued to pay for three; • there was a failure to inform the woman in late 1981 of the decision to recover the overpayment, and a similar failure in early 1983 to advise her in time before

withholdings began; • the departmental file inexplicably went missing for 7 months from April to November 1982, and then for another 4 months until March 1983 (which was why the April 1982 decision to persist v/ith recovery was not actioned until

March 1983); • the advice the woman eventually received in April 1983 about the amount owing was under-calculated by some $70; and • the refund in December 1981 of moneys already recovered was an error, as

it anticipated waiver. It also emerged that, although the Department conceded that the overpayment was due to its own error, it opposed waiver o f recovery because it doubted her good faith. This was because just before she left her home State she was sent a letter saying she would from then on receive family allowance at $36.90 per month because she was only caring for two children, whereas only fifteen days later the Canberra office sent her a letter saying she would be paid $62.90 per month (i.e. the rate for three children). The Department considered that the woman should have realised from these two letters that she was being overpaid, and that she should have drawn this to the

Department’s attention — that she had not done so cast serious doubt on her good faith (waiver is made in circumstances of departmental error and good faith). When I put this to the complainant, she said that she had in fact queried her rate of allowance on several occasions (although she could not recall receiving the letters). I also noted from the files that she definitely had, in her dealings with the Department in Canberra after her arrival there, repeatedly told officers that she only had two children with her. As for the evidence of the letters, which the Department put such store in, I said that I saw merit in the hypothesis put forward by one of the Department’s own officers: that since the woman had informed the Department she only had two children with her, she would appear to have been justified in accepting failure to amend her rate of allowance as confirmation of her entitlement, and thus the Department’s second letter to her (telling her she would be paid the higher amount of allowance) could well have been regarded as over-riding or amending the advice of two weeks previously.

The Department accepted that she had received the payments in good faith and decided to waive recovery.

Case: Pension whereabouts unknown

I received a complaint from a woman, aged 60 and separated from her husband, who in February 1979 lodged a claim for age pension with the Department of Social Security. The Department determined, two weeks after seeking advice from her about the names of witnesses who could testify to the fact of her separation, that she was not entitled to age pension because she failed to supply such names and because her then whereabouts were unknown. She was not notified of the rejection, nor had she previously been notified of the importance of providing the information the

Department required to determine her claim. She provided the information in August, shortly before re-applying for age pension and the claim was granted at a single rate. However from February to September 1979 the woman received no benefits and survived on the charity of friends.

In July 1980 she unsuccessfully appealed to the Social Security Appeals Tribunal (SSAT) against the Department’s refusal to pay pension from her first claim in February 1979. In November 1980 she wrote to my office.

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My investigations revealed that the complainant’s whereabouts were not unknown to the Department because she had visited its office and had arranged for mail to be forwarded to a local post office (an acceptable address where she checked regularly and which the Department had on file). Nevertheless, her pension was refused partly for this reason and for the same reason the Department did not notify her of its rejection of her application. In this context I noted that the SSAT, in recommending the rejection of her appeal, referred to correspondence being sent to her last known address and not answered. I could find no evidence of any such correspondence. Had the Department notified the complainant of the rejection of her claim, it may have brought an early end to misunderstandings.

Although the Department had doubts about her marital status, it had no evidence to suggest either a change in her circumstances or that she had not separated. Moreover, the rejection of her claim just two weeks after asking her for names of witnesses was, in my view, unreasonable.

I concluded that, had the Department properly determined her pension entitlement when she first applied, it would have decided that she was separated from her husband and entitled to a single rate pension. In any event the Department should have calculated her pension entitlement taking her husband’s income (which it believed was probably small) into account but it did not do so. Neither did the SSAT rectify

the Department’s omission to calculate the benefit on the basis of taking the husband’s income into account. We notified the Department of our conclusions and it agreed to pay for the period from February to September 1979 at the 1979 age pension rate. Payment in 1984 of arrears of pension at 1979 rates is far from being the same thing as payment in

1979 and I am examining the issue in the course of a wider review about ‘updating’ payments significantly delayed through no fault of the recipient.

Case: Imposing circumstances

A single parent looking after several children was receiving unemployment benefit. He worked at a sawmill for part of a fortnight in which he received benefit but did not declare his income on his next unemployment benefit continuation form but instead declared it on the subsequent form. The Department of Social Security, suspecting misrepresentation, deducted the overpayment from his benefit and referred

the matter for police action. He was prosecuted, convicted of imposition and fined $40. In addition the Department deducted six weeks’ benefit on the grounds that he had voluntarily left work after a brief period of work. The complainant considered his treatment to be unreasonable. His failure to notify

the work at the sawmill was in his view a genuine error which he rectified as soon as possible. He felt that the six weeks’ suspension of benefit, imposed several months later, was unfair. He was also concerned that there was a delay of over a year in charges being brought, and alleged that the police had told him to plead guilty.

Examination of the relevant files made it clear the Department never properly investigated its initial suspicion that the complainant deliberately misrepresented his income. It had staff whose job it was to investigate such matters, but the matter was sent instead to the police without reference to them for reasons which were not

recorded. The police acted on the belief that the Department wished to prosecute. The police had some misgivings about prosecuting but considered they were acting in accordance with the Department’s wish. There was a substantial delay in bringing the matter to Court because the complainant lived in a remote area seldom visited by the police: sufficient to have

led the Department to reconsider its attitude. We also concluded that the Department did not have at its disposal the evidence necessary to make out a prima facie case

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of imposition. The police denied telling the complainant to plead guilty, but admitted discussing with him the consequences of ‘guilty’ and ‘not guilty’ pleas in terms of the time the proceedings in Court would take. Some months later, when the Department thought the complainant was about

to obtain full-time work, it had terminated his benefit. When the job did not eventuate the complainant sought and obtained restoration of benefit, but the Department deducted six weeks’ benefit even though the complainant provided an explanation why he left work at the sawmill.

I recommended that the Department make an approach to the Attorney-General’s Department with a view to considering whether the Governor-General should be asked to pardon the complainant. The Department acted accordingly and a pardon was ultimately granted. The Department also agreed to pay the six weeks’ benefit which it had deducted.

Department of Veterans’ Affairs

Retention of documents

Three complaints brought to attention the fact that the Department of Veterans’ Affairs was not always retaining in its files copies of documents by which its medical officers were taking action with important consequences for the veterans concerned. In one case the complainant, a veteran, had attended a Repatriation hospital for examination and a departmental officer certified under the relevant provision of the

State Mental Health Act that he was mentally ill and a suitable person for admission to an admission centre, and that in his opinion assistance from a member of the Police Force was desirable in conveying him there. He was taken to a State mental hospital, but released next day. His complaint to me was not about the action of the medical officer concerned (although it appeared that the veteran was considering legal action) but about the refusal of the Department to provide copies under the Freedom of

Information Act of the documents by which he was certified for admission. The Department admitted that it had not retained a copy of the document, but to assist the veteran it obtained a copy for him from the State hospital. In another case investigation of a complaint showed that the Department had again omitted to retain a copy of a certificate of admission under the State Mental Health Act.

In the third case, the veteran’s pension money was held in trust by the Department under regulation 9 of the Repatriation Regulations. The Department arranged for one of its medical officers and a private doctor to certify that the veteran was incapable of managing his own affairs and the State Public Trustee took control of his entire estate. Some time later other departmental medical officers certified that he was not

incapable, and the Public Trustee relinquished his control. When I investigated a complaint by the veteran’s wife about these events, I found that the Department had not retained copies of these documents. Following these complaints the Department reviewed this question and found that committal certificates were only being retained by medical officers in small branches.

Instructions have been issued to medical officers requiring a copy of such certificates to be placed on the veteran’s file along with a record of the circumstances of the committal and the reasons for it.

Deceased mental patients

In my last two annual reports (pages 60 and 86 respectively) I have referred to delays by the Repatriation Commission in disbursing to surviving relatives in accordance

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with my formal recommendations funds accumulated from deceased mental patients’ Repatriation entitlements. The Department of Veterans’ Affairs reported some difficulty in contacting some relatives and by year’s end had still not disbursed the funds involved. I am awaiting the Department’s formal advice of its intentions regarding my recommendations. That advice may cause me to consider, I must admit

somewhat belatedly, whether I should report the matter in full to the Prime Minister or to the Parliament as the Act provides.

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6. Exercise of Commonwealth Purchasing Power

The Commonwealth is the largest customer in the land for goods and services supplied by private enterprise. For some suppliers, continuing patronage by the Commonwealth is critical to commercial survival. Entry into contracts for the supply of goods and services is a function of the executive government of the Commonwealth which has

an institutional structure primarily determined by the provisions of Chapter II of the Constitution. The institutions include the departments of the public service of the Commonwealth, and the purchasing of goods and services normally falls within the administrative arrangements determining the functions of the various departments and statutory agencies for which the Ministers in charge of departments are administratively responsible according to the terms of their portfolios. The institutions may be said to reflect the will of our democratic society. In its commercial dealings the Commonwealth is not to be reproached because it seeks to exercise commercial judgement in getting the best value for money. At the same time departments and

agencies entering the market place as purchasers have a clear duty in the public interest to be scrupulous in their dealings with potential suppliers not only because contracts involve the expenditure of public funds under mandate from the Parliament, but also because suppliers and potential suppliers to the Commonwealth themselves are components of our society and are entitled to even handed treatment by the appropriate publicly funded authorities. In particular, they should not be the victims of administrative errors and deficiencies.

In recognition of the foregoing, as part of the reorganisation of my office described in Chapter 11, the responsibility for investigations arising from the Commonwealth’s commercial dealings became that of a single investigation team within the office. Previously investigations of this kind had been dealt with according to the agency

involved.

I expect this centralisation of such investigations will help build up within my office a body of expertise about such issues. I expect that we will less frequently ask similar questions of agencies, and will be better able to consider patterns in complaints related to the Commonwealth’s actions as a customer.

The Secretary to the Department of Administrative Services drew my attention to my 1982-83 report in which we said that a complainant had told us he thought he may have been prejudiced in seeking contracts for the supply of scientific equipment by having made complaint to my office. Such a serious allegation commanded attention and we invited the complainant to let us have particulars but he provided none and, as reported, at his request we discontinued our investigation of his complaint which was that the contract had been awarded to a competitor with a higher tender price than his. The Secretary was concerned that the question of prejudice, remaining unresolved, reflected on the reputation of the Department. As reported, we made it clear that the allegations were unsupported by any evidence but we failed to bring the complainant’s assertion to the attention of the Department as we should have done. The Secretary advised me that the Purchasing Division of his Department was in receipt of further tenders from companies believed to be associated with the complainant and those tenders were being assessed in the usual manner.

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Puchasing procedures

In my 1982-83 annual report I discussed the influence of Government policy in establishing standards for the Commonwealth’s purchasing behaviour. This year I narrow my focus to concentrate on the procedures established for putting the Commonwealth’s standards into practice, particularly the procedures involved in

calling for and evaluating tenders, and in converting tenders into firm contracts. The Commonwealth Purchasing Manual published by the Department of Adminstrative Services provides a comprehensive and detailed guide to the steps required in arranging a contract. The sheer weight of procedures it outlines

demonstrates the clear need for diligence and care in handling tenders and contracts and suggests the inadequacies that might beset any contract arranged without due care at every point in the process. As with almost any administrative procedures, faults can stem either from failure to adhere to procedures, or from weaknesses in the procedures themselves, despite strict compliance by the agency concerned. I am

pleased to note that where my investigations have identified such problems, the agencies concerned have taken or are taking steps to eliminate them. Not all the cases discussed below have resulted, or may result, in findings of defective administration, and in some, any fault was insufficiently related to the complainant’s claimed loss to warrant a recommendation for compensation.

Nonetheless, inadequacies have been revealed and, although the number of defective actions is small in comparison with the overall number of contracts arranged throughout the year by the Commonwealth, it suggests that there is always room for improvement. Moreover, the cost to the Commonwealth in some cases where I have identified defective administration causing loss to the complainant must justify concern.

Case: Missed the boat (former Department o f National Development and Energy) There is a clear obligation on any agency which calls for tenders to specify its requirements as accurately and as fully as possible. Otherwise, the agency may mislead

tenderers who may be well able to comply with the full requirements into submitting inadequate and unacceptable tenders. The owner of a charter vessel based in Queensland complained that his tender for chartering a marine geology survey by the Bureau of Mineral Resources, Geology

and Geophysics, had been rejected on the basis of his alleged inability to meet the required starting date. The tender specifications suggested that the starting date was negotiable; they also provided very broad technical requirements. The complainant’s quote was the lowest, but after tenders closed the then Department of National Development and Energy

advised the Department of Administrative Services that the charter should start on a date which differed from that suggested by the complainant. 1 found that the Department of National Development and Energy did not try hard enough to find out if the complainant could meet the required date (contact

was made, but too late for him to comply). I also found that the Department attempted to reject the tender on the basis of the insufficiently specified technical requirements (it had not specified that loading equipment was necessary yet advanced lack of such equipment among the reasons for rejecting the tender) and that it failed to assess

properly another of its tender specifications, water storage capacity. I have recommended that the complainant be compensated for loss of the contract.

Case: Forms o f confusion (Department o f Industry and Commerce) Tendering does not always involve the prospective exchange of money for goods or

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services between the Commonwealth and contractor, but the need for care and consistency does not therefore vanish. A complaint I received was from a Brisbane clothing firm which had failed to have its tender accepted as being received in time. Its managing director claimed that the Department of Industry and Commerce had changed procedures for the availability of application forms relating to the 1984 Global Tender Scheme, under which importers acquire import quotas by tender.

There were two ways of tendering under the scheme and the Department produced different application forms for each. The forms were initially available from all Customs offices but, fearing confusion, the Department changed this so that copies of one form could be obtained only from the Canberra office and copies of the other could only be obtained from State offices. The form required by the complainant’s company was, needless to say, in Canberra and although the Department attempted to notify him of the change, the letter (which also contained a copy of both forms and other relevant requirements) went astray. I was unwilling to ascribe the failed tender to the vagaries o f the postal service because the complainant had later, but before the closure of tenders, learned of the change. By that stage, however, he was unable to obtain the required form through the post.

I have not yet completed my investigations, but I am currently of the view that the change in procedures appears to have been ill-considered and can be directly implicated in the failure of the tender. Should this be my final conclusion, the nature of the Global Tender Scheme will pose interesting problems in suggesting a remedy, although I intend to explore the possibilities available.

Case: No thoroughfare (Department o f Housing and Construction)

The terms of a contract normally assert the rights and obligations of the parties directly involved. The Department of Housing and Construction demonstrated that it could be both aware and forgetful of the fact that the rights of a third party can require consideration.

A Queensland shire council complained to me that the Department of Housing and Construction refused to include certain tender provisions in a contract subsequently concluded for the supply of topsoil to the Brisbane Airport site. The provision would have required the contractor to obtain the permission of the local authority for any haulage route chosen, and to provide proof of this to the Department. The route followed fell within the council’s boundaries but the

Department never itself sought, or required the contractor to secure, permission. The council was also concerned with preventing removal of any further topsoil from the contractor’s quarry which also was within its boundaries and to this end took legal action. My interest in this aspect was limited to ensuring that, when an injunction was finally granted, the Department did not participate in any violation.

I was satisfied that none occurred and, in relation to the failed enforcement of the tender provision, I learned that the haulage route passed along roads under the control of the Queensland Main Roads Department and therefore outside the council’s power. Although the Department’s actions were not crucial to the complaint in this case,

I have sought an assurance that it intends a more rigorous approach in future.

Case: A matter o f hours (Department o f Territories and Local Government)

Although one expects procedures to be rigorously observed in tender and contract arrangements, rigour is not entirely free of risks when carried to the point of rigidity. A Canberra book binder complained that the Department of Territories and Local Government unreasonably excluded his tender as late, even though it was posted in

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time to arrive in the normal course of post as scheduled by Australia Post — which advertises next working day delivery between many points in the ACT for articles posted before early evening. The complainant thought his prudent time of postage should warrant acceptance

of his tender. Unfortunately, the Commonwealth Purchasing Manual specified that the tender be posted at least 24 hours prior to closure. This the complainant had not done, so the Department was correct in excluding his tender. Although I could not help the complainant, I took up with the Department of Administrative Services this apparent inflexibility. That Department justified its position, urging that a requirement

for posting which depended upon timing of the means of transmission for each tender introduced too much possibility of argument about individual cases and potentially unacceptable administrative costs. Given the straightforward and easily understood nature of the requirement I accepted this explanation.

Case: ‘Medicards’ (Health Insurance Commission — Medicare)

The principle of revealing the successful tender price to unsuccessful tenderers who care to enquire is enshrined in the Commonwealth Purchasing Manual. There seems good reason for this. Such information can assist tenderers to evaluate their performance and thus to provide more competitive prices. But these considerations

are not always appreciated. The managing director of a company which had tendered for the contract to produce Medicare cards complained about a number of issues involved in the tender and contract procedures of the Health Insurance Commission. The contract went to another company and in my investigation of the complaint I found nothing

untoward in the Commission’s actions to the point of awarding the contract. However, the complainant also pointed out that the Commission had refused to release to him details of the successful contract price. The Commission’s rationale for its refusal was that price is not the only

consideration in awarding a contract and that to reveal the successful price in isolation might be misleading. Be this as it may, there are other ways of avoiding potential confusion, such as a simple caveat; I therefore suggested that the Commission amend its policy on this issue and it agreed to conform with normal practice and to release

successful tender price details on request in future.

Case: In hot water (Department o f Housing and Construction)

Although various Commonwealth agencies produce supplementary guidelines this does not, of itself, guarantee better observance of procedures than in those where only the Commonwealth Purchasing Manual is available. The manager of a manufacturer of solar water heaters raised with me the rejection

of his tender by the Department of Housing and Construction. The Department sought tenders from 3 firms (not including the complainant’s) for a specific brand of solar heater. Departmental contract policy, however, required that tenders for specific brands be sought only under limited conditions: specification of required performance

is generally to be preferred. The complainant learned of the call for tenders and, as his firm produced a product similar to the one cited, submitted his tender uninvited. On investigation, I found that the reason for citing a specific brand was the Department’s belief that it was

freeze-resistant. But the complainant’s firm also produced a freeze-resistant product. I also found that, although the office had invited 3 tenders, it received only one response. Thus, counting the complainant’s uninvited tender, only 2 tenders were received; although the rules required that 3 be obtained.

Despite such findings it seemed the complainant’s tender would not have succeeded

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for price reasons, and I was unable to conclude that the complainant had suffered any loss, either from the incorrect tendering procedures or from his firm’s failure to obtain the tender. I therefore recommended no remedy but asked the Department to impress on its staff the necessity to follow established procedures.

Case: Flexibility or uniformity (Department o f Science and Technology, Public Service Board)

This complaint raised the question of whether, in selecting from a number of quotes submitted by consultants, the Department of Science and Technology was bound to the Commonwealth purchasing principle of uniform treatment of tenderers or whether the more flexible guidelines established by the Public Service Board for engaging consultants should have applied.

A Sydney consultancy firm complained that the Department had unreasonably given time extensions for a number of firms (including itself) to submit quotes for assisting in a design task. I was unable to find that the complainant firm had been disadvantaged by the procedures adopted. The issue was, however, of some concern since two arms of the Commonwealth had developed separate, and potentially contradictory, procedures. The Public Service Board, too, recognised the implications of this and advised me that it intended taking account of the Commonwealth purchasing requirements in revising its guidelines for consultancies.

Case: One lump or four? (Department o f Defence Support)

Normal conditions of tender prescribe that no tender will necessarily be accepted and there is certainly no guarantee that the lowest will succeed. There are, of course, good reasons for this. Nevertheless there has to be adequate justification for rejecting the lowest tender: . 'here all else is equal the cheapest should normally prevail.

As I no*ed Tier in this chapter, the price of the successful tender is normally available to ur- -.cessful tenderers. It is not surprising, therefore, that I occasionally receive complaints from unsuccessful tenderers whose prices were lower than their competitors’ In such cases one seeks to establish whether there were good and sufficient reasons for preferring the higher tender. Factors such as dates of delivery, adherence to tender specifications and after-sales service may be taken into account.

There are occasions, however, when the lowest tender will fail for bad reasons: where Commonwealth action affected the quality of the tender, or where there has simply been a mistake. I received a complaint from a manufacturer who tendered for the supply of sugar in small pouci in lo‘s of 400 to the Department of Defence Support. The officer who assessed the tender misread it as being for lots of 100 and the tender was awarded to another supplier, although our complainant’s was the lowest tender. The

Department apologised promised to tighten up its procedures, but declined to take any further action. Notwithstanding the standard provision that no tender would necessarily be accepted, in this case the complainant would have been the successful tenderer but

for a simple, admY;ed mistake. I have recommended payment of compensation to the complainan" fc identifiable detriment by way of loss of profit and this recommendation is still under consideration. Although there is pr cedent for acceptance of a recommendation for compensation to an unsuccessful ten "crer (see my second annual report, at pages 16-17) I do of course understand that those who receive such recommendations will carefully consider the implications of accepting them. But my position on this is clear: if an agency has caused anyone detriment by defective administrative action, whether or not the 86

action was taken in good faith, there is, prima facie, a case for compensation and, unless there are countervailing factors in individual cases, that is what I will recommend. It is particularly important in the case of tenders and contracts that the Commonwealth, while being business-like, be seen to have clean hands since its

reputation for fair dealing and reliability is an important component of its ability to obtain goods and services from private enterprise on favourable terms.

Department of Administrative Services

Period contracts

In my last annual report (at page 24) I mentioned the case of a manufacturer of office machines whom the Department of Administrative Services suspended from participation under a current period contract arrangement because of alleged breaches of the Trade Practices Act in the supply of office machines to Commonwealth

agencies. The Secretary to the Department subsequently wrote to me stating that the criteria expressed in my report which were stated as being relevant to the Department’s actions were far from exhaustive. The criteria were certainly not expressed as, nor intended to be, exhaustive and our examination of the Department’s actions convinced

us that it was quite entitled to have regard to evidence casting serious doubt on whether the machines received were completely new. We informed the complainant that the Department’s action was, in our opinion, justified. Later the company was convicted of breaches of the Trade Practices Act and thus the Department’s stand was fully

vindicated. We were concerned, however, that the manufacturer should not be indefinitely disbarred from having its tenders considered on their merits when tenders for future period contracts were called. I am informed that such will not be the case. We also suggested that the Department prepare guidelines to ensure that future actions

in circumstances like these adequately safeguard the rights of all the parties.

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7. Matters of Jurisdiction

Commonwealth employment Exclusionary clause

Section 5(2)(d) of the Ombudsman Act provides that I am not authorised to investigate:

‘action taken by any body or person with respect to persons employed in the Australian Public Service or the service of a prescribed authority, being action taken in relation to that employment, including action taken with respect to the promotion, termination of appointment or discipline of a person so employed or the payment or remuneration to such a person.' This exclusion of employment-related complaints from my jurisdiction reflected the view that there was not the same need to confer on individuals in their capacity as employees of the Commonwealth a right to independent review by the Ombudsman of complaints about administrative action as there is to confer such a right on individuals in their position as citizens generally.

Difficulties encountered

The operation of this provision has been a perennial source of difficulty and a matter to which I have referred in previous annual reports. While in overall terms, it has not given rise to difficulties in a great majority of cases, in the relatively few cases where doubts about jurisdiction have occurred the result has been time-consuming and costly. Particular areas of doubt have been:

• whether action taken after termination of employment, but stemming from employment, is excluded; • whether the Ombudsman can have access to information about employment when investigating an action within jurisdiction; and • whether action which affects a third party, as well as an employee, can be

investigated. The explanatory memorandum circulated with the Ombudsman Bill in 1976 had stated that s5(2)(d) was ‘not intended to exclude pre-employment matters, such as the conduct of entrance examinations or interview for employment or information about a prospective employee’. I have always interpreted this to mean that action taken with respect to a person before an employment relationship comes into being was not excluded from my jurisdiction, even though such action might have consequences during subsequent employment, for example, recruitment actions. And although the intention in regard to post-employment action was not mentioned in the explanatory memorandum, on analogy with the pre-employment position, I decided that action taken following the termination of employment was subject to my investigation. Temporally, then, if the person to whom the action relates is not an employee when it occurs, the Ombudsman may investigate notwithstanding the imminent or prior existence of an employment relationship.

The question of what actions, whenever they occur, can properly be described as ‘taken in relation to’ the employment of officials is, however, much more difficult since the spectrum of such action is potentially very wide indeed. For example, the

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action of a Commonwealth agency in seeking to garnishee the salary of a public servant in another department to obtain satisfaction of a rates debt could be an action proscribed by s5(2)(d). In such a case I should have little hesitation in forming the

view that the existence of the employment relationship is purely collateral to the action in question. At the other extreme the official counselling of an officer by his supervisor would clearly be proscribed by s5(2)(d). More difficult of solution are cases where related actions forming parts of a single

action fall on either side of the termination or commencement of employment. Two sets of circumstances can arise: (a) where a post-employment action is attributable in whole or in part to action during the employment period (such as delay in payment of superannuation arising from inefficiency in processing retirement papers); and (b) where a former employee requests the employing agency to address a grievance which

arose during the employment and complains about the employing agency’s reply.

Legal advice

As part of a re-assessment of my jurisdiction I sought legal advice from the Attorney- General’s Department on the ambit of the existing exclusion, referring in particular to jurisdiction over complaints about superannuation and Commonwealth employees’ compensation matters.

The advice I received confirmed my own thinking. In essence it stated that superannuation and compensation actions taken during the course of a person’s Commonwealth employment are within jurisdiction, if they relate essentially to matters of superannuation or compensation rather than to the person’s employment. Although s5(2)(d) was capable of being read widely, thereby excluding superannuation and

compensation matters from jurisdiction, the expression ‘action taken in relation to employment’ was to be read as focussing on action relating to the performance of the duties of the office or position occupied by the employee, and was not intended to put beyond the reach of the Ombudsman’s jurisdiction action taken in the course

of administering the Commonwealth’s superannuation or compensation legislation in relation to the employee. The advice added that the express reference in s5(2)(d) to the exclusion of actions with respect to promotion, termination of appointment, discipline or the payment of remuneration would be hard to explain if the expression

‘action taken in relation to employment’ had a meaning so wide as to include actions taken in administering the superannuation and compensation legislation in relation to an employee. The advice pointed out that where there was an overlap between s5(2)(d) and

superannuation and compensation matters, the Ombudsman should respect the express exclusion contained in s5(2)(d). The Ombudsman would therefore be obliged, in cases where a complaint relates to a superannuation or compensation matter, to consider whether the exclusion in s5(2)(d) might be applicable in relation to all or part of an

investigation. For example, complaints that would be in jurisdiction would be: (a) the Australian Government Retirement Benefits Office refuses to supply information to an employee about benefits available to him on retirement and (b) an employee complains of delay in payment of compensation. Complaints that would fall outside

jurisdiction include: (a) a former employee complains about prejudice to his position because he was wrongly dismissed on disciplinary grounds and (b) a complainant alleges that he suffered a compensable injury because he was specifically directed to perform the work which caused the injury.

Application of the legal advice

The overall effect of the advice is to reflect the policy that, so long as employment continues, an employee is in a special position with less need than others for access

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to the Ombudsman. The exemption contained in s5(2)(d) is confined to action taken during the employment period. A complaint about action taken during or after the employment period in consequence of matters arising during employment can be examined, but only so far as post-employment action is involved. A complaint about the adequacy of treatment of a post-employment appeal concerning an employment matter could be examined, but not the employment matter itself.

Following on this advice, I have informed the Public Service Board, AGRBO and the Commissioner for Employees’ Compensation that I will in future investigate complaints relating to superannuation and compensation matters arising during the course of a person’s employment, in terms of the advice from the Attorney-General’s

Department. Apparent anomalies can arise, for example a superannuant will be able to complain about actions in relation to pension entitlements taken following retirement, but not those taken before retirement; and the Ombudsman will be able to investigate action which might normally have been taken before a person’s employment ends but is not taken in fact until after it ends. These do not constitute a major or unique problem: an ombudsman has frequently to deal with complaints about actions which form a sequence both within and outside jurisdiction.

Merit Protection and Review Agency

The Merit Protection (Australian Government Employees) A ct 1984 provides for a Merit Protection and Review Agency. According to s4 the object of the Agency is to ensure that actions taken and decisions made in relation to a Commonwealth employee with regard to his employment are fair and equitable, and are taken or made in accordance with sound personnel management practices and with due regard to the efficiency of the relevant authority and the need to ensure good relations between the relevant authority and its employees. My jurisdiction continues and it remains to be seen whether many of the complaints of the kind I currently receive in my office are channelled instead through the Agency, and if so, how the Agency will interpret the notion of employment-related actions.

Broadcasting and television

Australian Broadcasting Corporation: the continuing struggle

As a public corporation the Australian Broadcasting Corporation performs statutory governmental functions of providing broadcasting and television programs and it is a prescribed authority for purposes of the Ombudsman Act.

Jurisdiction over program decisions

My jurisdiction, defined in terms of power to investigate complaints about the actions of the ABC relating to matters of administration, has been the subject of a long­ standing dispute between the Corporation (and its predecessor the Australian Broadcasting Commission) and myself. That dispute still remains unsettled. One complaint in particular has given rise to a great deal of acrimony and presented me with problems of investigation of a magnitude I would not have expected since, whatever else may be said, it was clear that a member of the public had a legitimate grievance about a television program. The complainant was and is the Principal of the Perth Technical College and he considered that a ‘Nationwide’ program singled him out, as Principal of the College, for deprecatory treatment. He also said that when he complained to the ABC his complaint was disposed of without adequate, 90

proper consideration on its merits. I first referred to the complaint in my fifth annual report (for 1981-82) and since then it has had a long, and at times tawdry, history. From the beginning the Chairman of the former Australian Broadcasting Commission in effect asserted tha. programming decisions did not fall within jurisdiction as involving matters of administration. As far as I am aware the

Commission did not receive independent legal advice to this effect but only advice that the question needed to be decided in a court. On the other hand the ABC is aware of a legal opinion from the Attorney-General’s Department that I do have jurisdiction.

I have made it clear to the ABC from the early days of my office that I would not wish to pursue a complaint merely because it gave rise to an expression of dissatisfaction, for example, because a complainant considered it did not give a balanced presentation of the subject matter. There has to be an element of defective

administration plainly going beyond the merits of a programming decision before 1 will investigate. As a result usually I will not investigate allegations of bias, lack of objectivity or unsuitable programming. Nevertheless as I observed in my fifth annual report:

‘if I receive a complaint that a Commonwealth authority within my jurisdiction has published false or misleading information about an individual or sought to prejudice the legitimate interests of a person in the community I believe I should investigate. The fact that the organisation happens to be a broadcasting authority does not, in my opinion, place it in a position in which other Commonwealth authorities are not.’

Although the Corporation seems to have maintained the same attitude to my jurisdiction as the earlier Commission, like its predecessor it does not apparently have the courage of its convictions, declining to mount a challenge to my jurisdiction in the Federal Court, a procedure readily available to it under si 1A of the Ombudsman

Act. During the year I dealt with a complaint about an ABC program in the course of which the Corporation again raised the jurisdictional issue but I was able to dispose of the complaint by applying the approach I have described above.

The complainant alleged that a statement on an ABC current affairs program had incorrectly attributed a tax relief measure to a previous government and that the statement was not relevant to the subject matter of the program, and was gratuitous and politically biased. He also alleged that the ABC had failed adequately to respond

to his allegations. In writing to the ABC my Deputy pointed out the attitude I had taken in relation to the exercise of my discretion in reviewing programming decisions. He also said that we would normally have suggested to the complainant that he avail himself of the provisions of s82 of the Australian Broadcasting Corporation A ct 1983 which provides a mechanism for the investigation by the ABC of certain types of

complaint. This complaint could have been handled by that mechanism had it been in place at the time of the complaint — but, since it was not, we could not exercise our discretion to direct the complainant to this avenue of redress. We also asked if we could be provided with a tape and text of the program. The ABC responded by

giving us the text of the particular statement and saying that it believed it was accurate. It also sought to rebut the claim that it had not responded adequately to the complainant’s allegations when he had written to it. My Deputy wrote again to the ABC seeking the tape. The ABC responded in part as follows:

‘The principal matters raised by . . . relate to program judgements and I therefore do not believe that in this case they rightly fall within the ambit of the Ombudsman’s jurisdiction. While the Board of Directors has shown that it is most willing to co-operate with your

officers in their enquiries on behalf of citizens there comes a time when 1 believe the ABC must properly assert its programming independence.

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The ABC stands by its program and rejects . . .’s subjective judgements, which have no support from other listeners.’

We replied saying that while we held different views about the nature and extent of the Ombudsman’s jurisdiction in relation to program matters it was wasteful of the ABC’s and our resources to engage in protracted dealings of the sort we had in this case. We merely wished to listen to the tape to enable us properly to finalise the matter. The ABC then provided the tape and the results of our investigation were that we found that the statement complained of was inaccurate to some extent, although not in the way the complainant had alleged, but that there was no evidence of a deliberate attempt by the ABC to broadcast inaccurate or misleading material.

My Deputy advised the ABC that had the inaccuracy quickly been researched and dealt with when the complainant first wrote to the ABC then he might not have raised the matter with us.

Obfuscation

Returning to the complaint about the ‘Nationwide’ program in Perth — I submitted my report to the ABC on 2 December 1983. Following this I was informed in correspondence from the Chairman and by various representatives of the ABC who sought to discuss the case with me, of the Corporation’s sincerity and wish to co­ operate. In addition I attended a meeting of the Board to explain whatever aspects of my report were of concern to it and there reiterated that my office was not concerned with the merits of programming decisions but only with cases such as the one on hand where the complainant considered that the segment conveyed misleading

information about his actions as Principal of the College, so that he was depicted as a person not interested in the welfare of a particular student — when the program gatherers were well aware that this was not the case. In July this year the Chairman of the Board advised me that the Board had decided

a month earlier that it had taken all reasonable steps to investigate the complaint and that it was making improvements to its procedures for handling complaints in the future. The Board’s decision amounted to a rejection of my principal recommendations upholding the substance of both of the Principal’s complaints. I can only express regret at this stage that I have employed so much time in fruitless endeavours to obtain real rather than ostensible co-operation from the Board. The case now awaits further action on my part.

Special Broadcasting Service: wearing the same mantle

The Special Broadcasting Service (SBS) has taken a similar view to that of the ABC about my jurisdiction when I have attempted to investigate complaints about its actions. In the reporting year I received five complaints about the content of SBS programs.

When I wrote to the SBS on the first of the complaints I received, it replied as follows:

‘With the utmost respect, the Special Broadcasting Service is of the view that the content of programs broadcast by the Special Broadcasting Service does not fall within the jurisdiction of your office. It is the view of the Special Broadcasting Service that the content of programs is not “ action that relates to a matter of administration” .’ The SBS then stated it was aware of my discussions with the ABC in 1977 in which I said that my office would not wish to pursue complaints arising out of an alleged lack of balance in a program, such matters being a legitimate management discretion.

It said:

‘We are of the opinion that similarly matters of programming fall within the management

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discretion of the Special Broadcasting Service and are not proper matters for your Office to investigate, not being action relating to a matter of administration.

The Special Broadcasting Service will, of course, co-operate in every way with the Commonwealth Ombudsman in all matters pertaining to action relating to matters of administration.’ I replied that 1 did not envisage that the criteria 1 had developed with complaints against the ABC would extend to other agencies such as the SBS, at least not

automatically. Nevertheless I was willing to apply them in complaints about SBS programs. As to jurisdiction I said:

Tn my view it does not follow that because an action can be described as involving the conduct of a program or as a programming decision that it ceases to be an action concerned with a matter of administration. I accept the need for the SBS to be able to determine

its own program content and I would not generally wish to investigate complaints about programming decisions or program gathering activities of the SBS where these merely involved matters of judgement and taste as to what should form part of a particular program or a series of programs. The complaints involve allegations of defective administration

in the content of the programming of ethnic community broadcasters. I accept that this is a sensitive area of broadcasting as there are various views held within ethnic groups in Australia but until I have your views and comments on the matters raised by the complaints, 1 am not in a position to determine whether 1 might investigate the complaints within the criteria I have proposed.’

The SBS replied:

‘The SBS is however concerned that you appear to take the view that it is your responsibility to investigate complaints about a radio or television program if the action complained of contained some element of defective administration as that term is explained further in

your letter. The SBS is of the view that the content of programs is a programming decision rather than a matter of administration. Programming decisions are based on the functions of the SBS as set out in Part IIIA of the Broadcasting and Television Act and the wealth of knowledge gathered by SBS, including its officers, employees, broadcasters and co­

ordinators, regarding the Australian multicultural community and the ethnic communities within it, during the 5 years and 3 years it has been responsible for multilingual radio and multicultural television broadcasting services respectively. Such decisions, involving as they do an intimate understanding of the community, are not in our view matters of

administration. If an individual or group feels that the SBS has published false or misleading information about it or sought to prejudice the legitimate interests of a person or organisation within the community it is open to those persons to make representations to the SBS. SBS will investigate the matter, reply and take any corrective action necessary.

In the event that SBS should fail to reply then that would in our view be a matter of defective administration which would be within the responsibility of the Ombudsman to investigate. It is the responsibility of the Special Broadcasting Service to serve various communities forming part of the Australian multicultural community not to mislead those communities

and accordingly SBS will continue to refuse to broadcast announcements which could mislead any part of the Australian multicultural community. The Special Broadcasting Service regrets that this difference of opinion has arisen between our organisation and yourself as to which matters fall within the definition of “ action

that relates to a matter of administration” , and trusts that you will understand that many aspects of programming decisions are made and have to be made against the background of long term involvement in the various ethnic communities and of the political and cultural diversity existing within those communities.’

The intimate understanding and multiple skills which the SBS says it has to employ have nothing to do with the question of whether an action relates to a matter of administration and the SBS attitude is quite unacceptable. Fortunately I have been able to deal with complaints about SBS programs either by application of the policy I have adopted or from information supplied by the SBS

itself.

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However, the continuing denial of my jurisdiction without joining issue on the question for purposes of seeking its legal resolution is quite unsatisfactory and the position cannot remain as it is. Unlike the commercial television and radio networks, both the ABC and the SBS are publicly funded. Their actual and potential audiences, including complainants to my office, are the source from which those funds are derived. It is surprising to me that in the arguments about jurisdiction neither agency has expressed any particular concern that members of the public who have complained to me may have a case to be answered.

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8. Complaints against the Australian Federal Police

Statistical overview

Detailed statistics on complaints against the Australian Federal Police (AFP) are at Appendix C. During the reporting year 1983-84 360 complaints were made against the AFP — 155 to my office and 205 to the AFP which notified my office as required by the

Complaints (Australian Federal Police) A ct 1981. This is 29% more than in the previous year. The number of complaints finalised in the year tripled (335 compared with 102 in 1982-83). This dramatic increase in cases finalised is partly attributable to the fact that the system really only got under way during the last reporting year. However,

it is also partly the result of having more staff in the police complaints team. This has enabled us to improve efficiency and increase the use of both preliminary enquiries and the reconciliation provisions of the Complaints Act to resolve minor complaints. In last year’s report I pointed out that not all complaints warranted the time and

resources required for a full investigation. This year 17 complaints were resolved by reconciliation. In several other cases an early explanation or apology from the AFP satisfied the complainant. Even where a complaint is not reconciled or withdrawn, I may decide that

investigation or further investigation is not necessary. Section 24 of the Complaints Act was amended in October 1983 to extend the Ombudsman’s discretion to decide that a complaint should not be investigated. Previously it had applied only to complaints made to my office, not to those made to the AFP. Now it applies to all

complaints made under the Act. At the same time s24A was inserted, enabling me to make preliminary enquiries for the purpose of deciding whether a complaint is in jurisdiction or whether I should exercise my discretion to decide that it should not be investigated. In 54 cases (compared with 14 in 1982-83) I decided that complaints

should not be investigated or investigated further. Many of these were minor complaints in which preliminary enquiries only were warranted. In some of these cases, the complainant was satisfied that the complaint had been brought to the attention of the member concerned and of his or her supervisor.

Despite the increase in the number of complaints finalised, 25 more were received than were closed. This means, of course, that the backlog of cases to which I referred in my last annual report has not eased. I am confident, however, that the minor complaints procedures, an increased emphasis on reconciliation and more efficient

handling of complaints will all have an impact in the coming year and bring about a significant reduction in the backlog of police complaints during the coming year.

Visits to AFP regional headquarters

In February 1983, the Office-in-Charge of the Internal Investigation Division (IID) of the AFP and the Acting Senior Assistant Ombudsman in charge of my police complaints team conducted joint visits to AFP regional headquarters in Canberra, 95

Sydney, Brisbane, Melbourne and Adelaide. I made a similar visit with the Officer- in-Charge of the IID to the A F P’s office in Perth. The main purpose of the visits was to discuss with senior AFP members the proposed new approach to minor complaints, and changes to the Complaints (Australian Federal Police) Act to which I have briefly referred above. The visits were also opportunities to discuss the investigation of complaints and obtain feedback from members about the Complaints Act procedures. It was the first time we had sought members’ views since the Complaints Act came into force in May 1982 — our previous visits were in March of that year — and I believe it was a valuable service. Comments from the members have assisted the IID and my staff in formulating the minor complaints procedures and in improving the handling of complaints.

Many of the AFP members we spoke to had investigated complaints on behalf of the IID. Many others will do so in the future. The Officer-in-Charge of the IID took the opportunity to remind members of the HD’s instructions in relation to investigations and of the need for thorough, effective investigations.

Quality of investigation

Last year I reported my satisfaction with the thoroughness of complaints investigations and that in most cases it rendered unnecessary further investigation by us. In the last twelve months my office has returned a greater proportion of complaints to the IID for reinvestigation under s36 of the legislation. In most cases my office has asked the IID to obtain statements from witnesses who were not originally contacted or to put additional questions in order to ensure that all the available evidence has been obtained. I might add that we have never believed that any attempt has been made to conceal evidence from my office.

Usually investigations conducted by officers authorised to investigate on behalf of the IID have fallen short of my requirements. Most such officers do not have an extensive background in criminal investigation and their enquiries frequently are confined to taking statements, without additional questioning to test the accuracy of witnesses’ recollections. The essence of sound investigative technique is a willingness to probe answers given during an interview and to vary or develop the questions according to the response provided by the suspect or witness. As the success of the complaints process depends heavily on the ability of the AFP investigators, I am anxious to learn what emphasis is placed on interviewing technique in training courses.

I shall therefore be seeking the Commissioner’s assistance to enable my staff to learn more about the content of these courses in the coming year. It seems that some police investigators, including members of the IID, are reluctant to put police witnesses under pressure during interview. This may result from too close an association between investigator and witness. In a force the size of the AFP with national policing responsibilities, factors such as distance and economy influence the appointment of investigation officers for many of the less serious complaints. Investigator and police witness may thus have worked together previously, or be of comparable rank, in which case there may understandably be a reluctance to subject the witness to the sort of probing interview that might be employed in the course of criminal investigations.

I should add that my criticisms do not extend to investigation of serious allegations of theft or corruption; in the main, such complaints are pursued rigorously. Flowever, I share the view expressed by the United Kingdom Police Complaints Board in its 1980 triennial report that there is an apparent difference in the police approach to allegations of dishonesty and allegations of assault or incivility. The police are evidently most concerned to root out bad apples in their midst and every effort is made to 96

bring such offenders to account. But, as the Board has commented, where an allegation is, for example, one of assault in the course of making an arrest, the investigating officer is perhaps more likely to be influenced by early experience of his own and therefore to be more ready to accept the policeman’s account of what

took place than that of the complainant. I do not believe the deficiencies I have mentioned imply that the system of investigation as established under the Complaints Act is inadequate. Rather I feel that they demonstrate that the existing procedures can always be improved. To this end my office has suggested to the AFP that it may sometimes be unproductive for

us to request re-investigation of complaints many months after the incident. We have agreed that with certain complaints, principally those involving serious assault, my investigation staff should have the opportunity to discuss the progress of the investigation with a member of the IID. This will allow any clarification or additional

evidence we may think necessary to be obtained while the incident is fresh in the minds of the witnesses. It is good that the existing provisions of the Complaints Act are sufficiently flexible to allow for the development of such liaison without the need for amendments.

In order to reap the maximum benefit from this procedure my office needs to be notified of the complaint as early as possible. In general, the IID has endeavoured to pass on details of complaints within a few days of their receipt. However, in several instances members receiving the complaint have taken an unacceptably long time to

advise the IID. Because of such delays in two cases, both of which involved serious allegations of impropriety, my office brought the matter to the attention of the Commissioner. The members concerned were reminded of their obligations under s6 of the Act. We have informally agreed with the IID that an explanation will be

provided for any delay longer than ten working days.

Minor complaints

I explained last year, that much of the AFP’s and my office’s resources were being used to conduct full investigations into relatively minor complaints. Many such complaints can be resolved in other ways — by reconciliation, for example. Others simply do not warrant the hours of enquiries, interviews and examination of evidence

that full investigations usually entail. I see this as an inefficient use of limited resources, worsening the backlog of complaints and increasing delays in reaching conclusions. From time to time complainants have made it clear that they had never intended to trigger a full investigation. They just wanted to have their criticism of the AFP noted

or perhaps a member spoken to by a supervisor. The AFP has been concerned also that the supervisory role of senior officers has been eroded. When complaints are made about — say — the attitude or driving habits of members, supervisors could not take immediate commonsense action to speak to the member concerned but had to refer the complaint to the IID. Many members

felt it unfair that they faced a full formal investigation into even the most minor allegation against them. The Complaints Act created extra pressure on them, they said, in their day-to-day dealings with the public. This year, the IID and my office developed procedures for handling many of these

minor complaints without a full investigation. In brief, senior AFP officers will have a discretion to attempt to resolve certain defined minor complaints when they are first lodged. They may be able to reconcile the complainant and the member concerned. In other cases the complainant may be happy once the senior officer

explains the reasons for the A F P’s action. Even if the complaint cannot be resolved in these ways, it may be of such a minor nature that informal enquiries only are

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warranted. The senior officer receiving the complaint will have the discretion to handle such a minor complaint in this way. But in all cases, the complaint and the action taken must be reported to the IID. The IID, in turn, will provide the report to my office. Under the Complaints Act, only the Ombudsman has a discretion to decide that further action is unnecessary.

Either the IID or my office will be able to decide when further investigation is necessary. The procedures came into effect on 1 July 1984. In addition to monitoring them to resolve any problems as they arise, the IID and my office will review the procedures after twelve months.

Even before implementing these procedures, my office and the IID have been putting the principle into practice by resolving as many minor complaints as possible without full investigation. In some cases we have decided to attempt reconciliation. In others we have decided that preliminary or informal enquiries will allow me to decide that investigation is unnecessary. The following case illustrates the approach to minor complaints:

Case: Unprofessional investigation

A complaint was received from a father, whose son was a witness to theft, that the member who investigated had acted unprofessionally by taking his son’s name and address in the presence of the alleged offender. The officer authorised by the IID to investigate the complaint interviewed the

father and learned that he simply wanted the AFP to speak to the member to ensure that the ‘imprudent procedure’ would not be followed again. He told the investigator that he did not wish to ‘crack a nut with a sledgehammer’ by having the matter investigated formally. The investigating officer spoke to the member to remind him of how he should obtain information from witnesses. The complainant was happy with that result and we decided that no further action was necessary.

Arrest procedures Arrest or summons?

The police officer’s power of arrest frequently places him or her in conflict with the public. The loss of freedom, the indignity of being fingerprinted and photographed and the conditions of bail represent a substantial invasion of the liberties of the individual. For this reason Commonwealth law lays down firm guidelines on when arrest is to be preferred to summons as a means of bringing a suspected offender before a Court. Although the Commonwealth Parliament has not gone as far as its

British counterpart in providing for arrestable and non-arrestable offences, s8A of the Crimes Act 1914 does specify that a constable may only arrest if he or she has reasonable grounds to believe that summons would not be effective. In addition AFP General Orders & Instructions provide that members should satisfy themselves about the identity of the suspect and the likelihood that he or she will attend Court in answer to a summons, as well as considering such factors as the necessity of preventing any continuation of the offence, the preservation of evidence, the gravity of the offence and the safety and welfare of persons concerned.

The interpretation that some AFP officers have placed on these guidelines has led to some complaints alleging unreasonable arrest. In one case a philatelist was suspected, with others, of reproducing first day stamp covers with the intention of passing them off as originals, an offence under s68 of the Crimes Act. Following the execution of a search warrant at his stamp shop the philatelist was arrested several weeks later and charged with conspiracy to commit the offence. However, because there was no evidence to suggest that the stamp covers had been made with the

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intention to deceive (they were in fact stamped facsimile and offered for sale at a price far below that of the genuine cover) the Crown offered no evidence at the hearing and the charge was dropped. The philatelist complained to my office, inter alia, that he had been arrested unreasonably. The experience had contributed to the depression he had suffered

following the police action and this had in turn affected the profitability of his fledgling business, causing him financial hardship. The investigation by officers of the IID revealed that the senior detective responsible for the attempted prosecution had not given reasonable attention to whether a summons would have been effective; the arrest was therefore unlawful. Furthermore the investigator considered that the detective’s general handling of the case against the complainant displayed a high degree of carelessness in the discharge

of his duties. The AFP then sought advice from the Deputy Crown Solicitor on whether the investigation disclosed sufficient evidence to justify charging the detective with a disciplinary offence; and on the extent of any AFP liability for the damages claimed

by the complainant. The advice they received was that insufficient evidence existed to substantiate a charge against the officer and that no compensation should be offered. My office disagreed and recommended that the AFP should compensate the

complainant. To prevent future cases of this type we reaffirmed the need to instruct members regarding their arrest powers. The Commissioner of the AFP submitted our report to the Crown Solicitor who, having considered our opinion, amended his original advice to the AFP and instructed the Deputy Crown Solicitor, on behalf of the AFP, to contact the complainant to discuss compensation.

Arrest offers a quicker and more straightforward method of bringing a suspected offender before the Court than does summons and I believe the police may sometimes be tempted to arrest in situations where a summons would suffice. I shall therefore continue to monitor closely all complaints alleging unreasonable arrest to ensure that

there is strict adherence to the guidelines mentioned above.

Arrest by threat

In a number of complaints alleging unreasonable arrest it has been difficult to determine whether the suspect has voluntarily accompanied the police to the station or whether threat of arrest has procured his assistance. I believe the ‘option’ of going

voluntarily or being arrested is no option. In such circumstances a person’s liberty has been curtailed as effectively as if there had been a formal ‘laying on’ of hands and an utterance of the familiar caution which according to the judges’ rules must accompany an arrest.

In one such instance a couple complained to me about the actions of two police officers who had visited their house in connection with a complaint that the wife had maliciously damaged another person’s motor vehicle. The couple alleged that the police officers had threatened to arrest the wife unless her husband agreed to

drive her to the police station for questioning. They were so concerned at the attitude of the officers that the husband telephoned his solicitor to seek his advice. The solicitor later gave a statement to the officer investigating the complaint in which he confirmed that his client had informed him of his belief that his wife was to be arrested.

In the opinion of the investigating officer the two members concerned had not acted improperly, a conclusion endorsed by the Officer-in-Charge of the IID and the Deputy Commissioner. My office considered that the investigation had failed to

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disclose evidence to rebut the assertions of the couple and their solicitor. We therefore suggested that the members concerned receive advice concerning their actions. Although the police may believe the process of investigation can best be served by interviewing suspects within the confines of the police station with such facilities as typewriters and criminal records at hand, the law provides that a person shall not be compelled to accompany the police unless under arrest. Unless the exercise of that power is considered warranted the police must accept that interviews may have to take place wherever the suspect is located.

Access to solicitors and friends while in police custody

Some complaints came from persons who allege that while in police custody they were refused access to their solicitors, parents or friends whom they wished to contact to seek advice. Usually police have denied that such a request was made. As there are rarely independent witnesses to confirm or refute the complainant’s allegation, such matters are frequently incapable of determination. I understand that there are no guidelines within the AFP General Orders & Instructions covering the provision of access. I am therefore considering whether to recommend to the Commissioner that the General Orders & Instructions be amended to incorporate provisions which will not unduly impede the process of investigation. There is possible merit in giving arrested persons a pamphlet advising of their rights at the time and place of arrest.

Malicious complaints

In a handful of cases, I formed the opinion, after the completion of investigations, that the complaint was not only unfounded, but made with malicious intent seeking, for example:

• to divert police attention and/or resources from the investigation of major offences; • retaliation in response to the laying of charges, perhaps with the hope of securing a reduction of penalty; or • by way of a ‘fishing expedition’ i.e. to ascertain the extent of police awareness

of, or interest in, the complainant’s illicit activities.

Conspiracy to abuse Complaints Act

In another type of case, the complainant was not facing charges, but was a witness in disciplinary proceedings being taken against an AFP member. He submitted a sworn statement containing serious allegations against certain other members of the AFP, including a member of the IID.

In accordance with s46 of the Complaints (Australian Federal Police) Act which specifies what action should be taken when a complaint concerns a member of the HD, a special investigator was appointed to investigate this complaint. The ensuing investigation was lengthy and detailed. Its outcome was a salutary reminder that my office, which is designed to assist and protect members of the public, can also be abused by the unscrupulous. It was clear that the complaint, in its more serious aspects, was unfounded, and that the complainant had not acted alone in its fabrication.

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Absence of penalties for malicious complaints

The Complaints (Australian Federal Police) Act does not provide for action to be taken against malicious complainants. When I am conducting an investigation under Part III of the Complaints Act I am empowered under s29 to examine under oath or affirmation a person called to produce information, thus leaving open the way

for action to be taken against individuals who perjure themselves. Some AFP members have expressed the view that all complaints should be made as statutory declarations. Others (including the Australian Federal Police Association) want the Act to be amended to insert a penalty for makers of malicious complaints.

In view of the small number of malicious complaints received, and the risk that genuine complainants might be deterred from lodging complaints by such provisions, I consider that these suggested changes are not in the public interest. The existing discretion in s24(l)(b)(i) of the Act enables me to decide that a complaint should not

be investigated (or investigated further) if in my opinion it is not made in good faith. 1 believe this provision is sufficient in most cases to prevent serious abuse of the legislation.

AFP members’ reaction to Complaints Act

During the year strong views were expressed by members of the AFP about the Complaints Act, both individually and through their union — the Australian Federal Police Association (AFPA). As I mentioned at p96 an object of our visits to AFP regional headquarters was

to obtain feedback from senior AFP members about the operation of the Act. Participants in the Fifth Officers Course at the Australian Federal Police College also provided frank views about the Complaints Act as part of a syndicate exercise in which my office was involved. Other members have seized opportunities during the investigation of complaints to comment on the legislation.

The main criticisms of the Act received from members were that it: • places unfair additional pressure on members in their day-to-day dealings with the public; • results in overreaction to minor complaints;

• enables criminals (especially organised crime) to hinder investigations by complaining against the investigators; • denies to members the right to remain silent when questioned — a right which other members of the community possess; and

• has no provision for redress against malicious complainants — members must foot the bill if they wish to take civil action against malicious complainants even where they had been acting properly in the course of their duties. But not all the feedback from members was antagonistic towards the Act. Many members recognised the need for such legislation if the public is to have confidence in the investigation of complaints against police. Others acknowledged that independent review of complaints investigations is here to stay and it is important, therefore, to make the system work. Some acknowledge it to be for the good of the

force that the system may enable unsatisfactory members to be identified. The ACT Branch of the AFPA went to press during the year, claiming that the Complaints Act was unjust, unrealistic, discriminated against the police and allowed criminals to frustrate the law. The Secretary of the ACT Branch was quoted as saying that they were not looking to have the Act abolished or to have scrutiny of the police

removed but they did want to point out that it needed some major overhauls. Among

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other things, the Association said it wanted machinery for culling trivial complaints, a penalty provision for false complaints and a provision allowing senior officers a discretion to deal with anonymous complaints. In a subsequent submission to the Special Minister of State, AFPA sought a wide range of amendments to the Act. Suggestions that touched on the Ombudsman’s responsibilities under the Act included:

• a discretion not to investigate malicious or frivolous complaints; • exclusion of anonymous complaints; • no further investigation where complaints are withdrawn; and • time limits on the lodgement of complaints and on their investigation. I have already discussed the problem of malicious complaints. Suffice it to repeat here that under s24(l)(b) of the Complaints Act, the Ombudsman already has a discretion to decide that complaints that are frivolous, vexatious or not made in good faith should not be investigated. I can, and do, decide that a complaint should not be investigated (or investigated further) once it becomes evident that it is malicious. In many cases, of course, this may not become evident until an investigation is almost finished.

For anonymous complaints the discretion in s24(l)(b) of the Complaints Act can be used if they appear to be malicious. Alternatively I may decide under s24(l)(d) that investigation is unnecessary in all the circumstances. 1 have received several anonymous complaints, however, alleging corruption or serious misconduct. Upon investigation, some have turned out to be unfounded but others have had substance.

It is doubtful that the latter would have come to light if the Act had not allowed for anonymity. I believe it is essential that the IID and my office have the capacity to investigate anonymous complaints, particularly where they relate to serious misconduct or corruption.

Where a complainant withdraws a complaint, it has been the IID’s and our practice to consider whether there are any issues which still warrant investigation. In most cases, we decided that no further action is necessary but from time to time the IID or my office believes that enquiries should continue. The complaint may have raised important issues or we may consider that the member about whom allegations have been made should be given an opportunity to place his or her side of the story on record. In my view, a statutory provision preventing further investigation where a complaint is withdrawn would not be in the public interest nor in the interests of

members. Moreover it may leave complainants open to pressure from members to withdraw complaints against them. The Ombudsman’s discretion in s24(l)(d) is sufficient to enable us to discontinue investigations where complaints are withdrawn and there are no compelling reasons to investigate further.

In respect of time limits to lodge complaints s24(l)(a) of the Complaints Act provides me with a discretion to decide a complaint should not be investigated if the complainant became aware of the action complained of more than 12 months before lodging the complaint. This is sufficient to ensure that ‘stale’ complaints are not investigated. I believe that a statutory time limit would not be in the public interest

because it may bar investigation of serious allegations. The Association also wants a time limit on completing investigations. I agree that delay in finalising complaints is a serious problem. In most cases the investigation, review within the IID and then review by my office take many months. In some cases the process may take over a year. I discussed this problem in my report last year.

I do not believe, however, that time limits on investigations are the answer. Increased staff, improved efficiency in the handling of cases, resolution of minor complaints where possible at the time they are received, and concentration of resources on more serious complaints are all steps we have taken to reduce the backlog of work and the overall delay. Should a time limit be set, it would limit the investigation of the

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more complex and serious cases which necessarily take the most time. I would not like to see a serious complaint abandoned or investigated in a less than thorough manner simply because a time limit applied.

Case: Fair investigation

I received a complaint on behalf of a constable about an IID investigation. In particular the complainant alleged that the IID failed to: • comply with General Instructions when conducting an identification exercise; • inform members about the exercise and tricked them into taking part;

• advise the constable before questioning him that he had been identified by the complainant; and • caution him even though the alleged offence was of a criminal nature (assault). Because the complaint was against the IID, the Commissioner appointed a special investigator under s46 of the Complaints Act. The special investigator — a senior AFP officer — concluded that the IID had carried out its investigation in a lawful and fair manner. When my office reviewed the investigation report, however, we were concerned that some of the issues had not been resolved. After obtaining further

information from the special investigator, we decided to exercise the Ombudsman’s power under the Act to investigate it ourselves. We interviewed the constable and the IID member who had questioned him. We also examined the record of interview, relevant statements and other documents. We

concluded that the IID had not acted improperly or unfairly in carrying out the informal identification exercise. Such exercises are normal police practice and, as long as they are carried out fairly, we consider the IID should be able to use them. We were concerned, however, that the AFP had no guidelines on the use of

identification exercises other than formal parades and we recommended that the AFP introduce such guidelines. A more difficult issue was whether the IID investigator questioning the constable should have cautioned him before commencing his interview. The victim of the alleged

assault had identified the constable during the identification exercise. The constable did not know this until several minutes into his interview by the IID investigator and became upset that he had not been told earlier or cautioned. He discontinued the interview shortly afterwards, asking to be allowed to seek legal advice.

The IID investigator explained to us that he had not cautioned the constable because he had not believed him to be a suspect, despite being identified that morning. Because the victim of the alleged assault had cleared the constable in a previous statement, the investigator said he regarded the constable as a prime witness, not

as the offender. Moreover, he said, the constable had been given an information sheet before the interview which would have made it clear to him that the victim had told the police previously he was not the assailant. In any case, he argued, the constable had not been directed to answer questions and, as an experienced policeman, should

have been aware of his rights. On the other hand the constable firmly believed that he had been the prime suspect in the case and that the IID had forgotten all about the victim’s statement clearing him previously. The record of interview did suggest that he had been questioned as a suspect but it was not decisive —· the questions could have been asked simply to give him an opportunity to comment on the fact that he had been identified.

We found that we could not determine one way or the other on the evidence whether the IID investigator suspected the constable of assault. If he did suspect him, clearly the investigator should have cautioned the constable at the beginning of the interview but no caution was necessary if he did not regard the constable as a suspect.

In that case, the problem could have been avoided if the IID had informed the

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constable at the beginning of the interview that he had been identified but was not a suspect. It was hardly surprising that he had become upset upon being told half way through an interview that the victim had identified him as the assailant. We found the complaint to be substantiated, therefore, to the extent that the IID

should have informed the constable earlier that he had been identified. We could not determine whether or not he should have been cautioned because we could not know what was in the IID investigator’s mind when he questioned the constable. I recommended to the Commissioner, however, that the instructions to IID investigators (and to officers authorised to investigate complaints on the IID ’s behalf) include a reminder of the need to caution members suspected of committing a criminal offence.

We pointed out to the IID investigator that in our view he should have told the constable earlier that he had been identified. I did not consider further action was warranted, however, as it was not a matter of improper conduct or a breach of procedures. Moreover, the constable told us that he did not wish to see action taken against particular IID members. Rather, he wanted to see the IID ’s practices and procedures improved so that the problem would not recur. I believe my recommendations will have this result.

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9. Report on the Australian Capital Territory

Statistics

Complaints Received

Attorney-General’s Department • ACT Corporate Affairs Commission • ACT Legal Aid Commission

Department of Education and Youth Affairs • ACT Schools Authority • Canberra College of

Advanced Education • Australian National University

Department of Health • Capital Territory Health Commission

ACT Administration • Department of Territories and Local Government • ACT Electricity Authority

• National Capital Development Commission

Complaints Finalised Attorney-General’s Department • ACT Corporate Affairs Commission • ACT Legal Aid Commission

Department of Education and Youth Affairs • ACT Schools Authority • Australian National University

• Canberra College of Advanced Education

Department of Health • Capital Territory Health Commission

ACT Administration • Department of Territories and Local Government • ACT Electricity Authority

• National Capital Development Commission

Written Oral

3 2 Not

10 r separately

3 7

12 recorded

74 69

Nil 15

10 3

121

2 1

Not

9 4 >

4

separately

20 recorded

117 69

8 15

15 3

180

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Basis of the ACT report

Following amendments to the Ombudsman Act in 1983, I am empowered to incorporate in the main body of my annual report to Parliament a separate ACT chapter that may constitute my annual report to the Flouse of Assembly. This is the second such report since the amendment to the Ombudsman Act came into operation.

What the future holds

On 10 May 1984 the Minister for Territories and Local Government tabled the Report of the Task Force on the Implementation of Self-Government in the ACT. In doing so he foreshadowed a staged transfer of power and functions to a self-governing ACT with greater than municipal responsibilities but less than those of statehood.

Apart from the wider ramifications associated with the concept of self-government, the report made it clear that the transition would not derogate from the existing rights of ACT citizens and in that context recommended that legislation be provided to ensure protection of those rights via the ACT functions of the Ombudsman.

As I interpret the Task Force recommendations, this does not necessarily mean that there should be an Ombudsman for the ACT operating independently of my office and in a letter I wrote to the Chairman of the Task Force on 19 September 1984 (which is reproduced at Appendix D), I argued the wisdom both from an economic and administrative point of view of utilising the presence of an institution with the depth of resources and experience greater than a solely territorial office starting afresh is likely to have.

At present the Ombudsman Act grants authority to the Commonwealth Ombudsman to investigate complaints about actions of Commonwealth departments and prescribed authorities irrespective of whether the agencies are purely territorial or perform functions of the central government in the federal system. The Ombudsman Act provides for the Prime Minister to designate one of the Deputy Commonwealth Ombudsmen as the Deputy Ombudsman for the Australian Capital Territory. Such a Deputy Ombudsman would have all my powers and functions in relation to action taken by a department or a prescribed authority in connection with the administration of the Australian Capital Territory apart from the power to report directly to the

Parliament. The grant of such a power does not derogate from the powers of the Commonwealth Ombudsman. The practice in my office since its inception has been to deal with ACT complaints in just the same way as we handle other complaints and there has therefore been no Deputy Ombudsman for the ACT. From my point of view, however, there is no objection at all to having such a Deputy.

Nonetheless, should a separate ACT Ombudsman be created as part of the self­ government package, my office would of course co-operate fully and assist in every possible way to make the establishment of the office a success.

Current office arrangements

I have devoted Chapter 11 to a report on the internal administration of my office including a description of a structural reorganisation that took effect in January 1984. As part of the arrangement, separate investigation teams now each assume responsibility for complaints according to broad subject areas of complaints (an expansion of the earlier two-team structure divided more or less according to departments), whether it be welfare oriented matters, contracts and tenders or overpayments. In the light of the Government’s commitment to self-government, one

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of the teams has taken on responsibility for complaints concerning the internal administration of the ACT. Complaints in this category continue to represent a relatively high volume overall of matters that come before us and this in itself has justified concentration of effort on ACT matters by a particular team. It has also encouraged establishment of more effective channels of communication with the Department of Territories and Local Government in particular and 1 am pleased to say this has been achieved through direct access by my investigation staff to the individual action officers concerned within the Department. Before this my office was confined to liaison with selected contact officers and while I appreciate the value at times of their co-ordinating role, from my point of view this tended in the longer term to frustrate the efficiency of our

operations. There has also been a marked improvement in the quality and speed of responses by the Department to written enquiries and the Secretary to the Department and his senior officers have displayed an increasingly positive attitude to my office’s work.

Educational issues

An interesting element in the last twelve months has been the increasing number of complaints which relate in some way to the rights of students at government educational institutions. To date most of these have queried the system whereby marks or grades are determined in secondary or tertiary institutions, though some raised

such issues as discipline and, in the post-graduate field, the selection process and the calibre and amount of supervision. Several of these complaints raised the sensitive question of the exercise of professional ‘academic’ judgements and most challenged,

at least by implication, the autonomy in these matters which educational institutions have tended to regard as sacrosanct. For my part I do not accept that because an action involves the exercise of professional judgement of one sort or another it ceases to be an action that relates to a matter of administration and I will make any enquiry that is necessary in order to investigate properly. As I have mentioned in previous

reports, however, I do not see it as part of my functions to substitute my own opinion for the expertise of individual decision-makers provided their decisions accord with accepted standards. Complaints about the allocation of grades included some from secondary students who were dissatisfied with the method of rescaling scores necessitated by the requirements of the educational system. Where students undertake subjects which are widely studied this does not cause a problem but if the number of students in

a particular subject is very small the recalculation necessary to establish performance against a mean can give the appearance of a harsh downgrading of results. At the close of the year I had not reached a final view on these complaints but was provisionally of the opinion that they arose from misunderstanding of the basis upon

which calculations occurred rather than anything fundamentally wrong with the system. As with other complaints in the education field this indicated a communication problem as between students and educational institutions. I also received complaints about decisions of educational institutions not to award particular grades, or to prohibit students from continuing for a variety of reasons. One such complaint was from a former PhD student at the Australian National University who submitted her thesis only to have it rejected by the examiners. Although

my office was in no position to assess whether the thesis was adequate, investigation disclosed that the complainant had encountered extraordinary difficulties, to a large extent beyond her control, during the course of her studies. Since the University system had apparently been unable to resolve these difficulties, I suggested that the University

consider allowing a rewrite and resubmission of the thesis within twelve months and

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the Graduate Degrees Committee agreed. The University also established a formal appeal mechanism for graduate students in similar circumstances.

Child welfare

The adoption of children is, for the people concerned, an emotive issue and there are inevitably complaints from applicants who believe their inability to adopt a child, or to obtain one as quickly as they wish, is the fault of the Welfare Branch of the Department of Territories and Local Government.

Adoption approval within the ACT is governed by the Adoption o f Children Ordinance 1965. The Ordinance provides, in essence, that the welfare of the child shall be the paramount consideration in adoption cases, and the Department does not always find that the prospective parents’ interests and those of the child coincide.

The legislative scheme for adoptions provides for a court to decide, on the basis of a report from the Director of Welfare, whether a particular couple may adopt a child. In order to provide a report that will allow the court to be satisfied, the Department applies a list of eligibility criteria, included in which is the following item: ‘(a) satisfactory health (a specialist report is required in any instance of physical or mental illness, defect or disability).’

A health problem

1 received a complaint from a married couple who applied in 1981 to adopt a child in the ACT. In September 1981 the Director of Welfare wrote to them declining to proceed with their application on the ground that the wife’s medical history did not give sufficient assurance that she would be able to care for a child until adulthood.

The couple replied giving more health details and asked the Director to reconsider. As a result the Director arranged for the medical evidence to be examined by a consultant at the Capital Territory Health Commission, following which he affirmed the original decision.

There followed further correspondence and discussions with the Welfare Branch revolving around the degree and effect of the medical condition: the wife having produced medical evidence attesting to the nature and degree of her health problems, the prognosis for the future and, she believed, certifying her fitness to raise a child to adulthood. This advice was also examined by the Commission’s consultant but without a change to the decision. The couple sought access to the consultant’s advice pursuant to the Freedom of Information Act but this, too, was refused.

The essence of the complaint was that the Director of Welfare placed reliance on the advice of the Capital Territory Health Commission consultant but refused to obtain another medical assessment, although offering to have his administrative conduct examined by another welfare agency.

It seems to me that it was proper for the Director to obtain the consultant’s advice — but it was also apparent that, notwithstanding the complainants’ belief, he did not consider the advice binding. His decision was based on an assessment of all the evidence available to him, of which the consultant’s opinion formed a part: obtaining another medical opinion would be unlikely to do more than add to the information he had, with little possibility of a change of decision. Following our examination of the Department’s files and a meeting with the Director, the latter suggested, in view of the complainants’ concern that he might not properly have evaluated the medical evidence, that he would extend his original offer. He proposed now that the

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complainants’ application be passed to an interstate adoption agency for evaluation and undertook to abide by any decision that agency made. It would be open to the applicants to present further medical evidence, if they wished, during that process. I considered this a satisfactory offer and informed the complainants accordingly, together with my conclusion that the Department’s administrative actions were correct. They indicated their intention to accept the offer.

Child abuse

The Welfare Branch also becomes involved with the emotionally charged issue of child abuse and again adopts the attitude that the welfare of children is more important than, for example, the risk of damaging the sensibilities of parents. I rarely receive complaints arising from activities in this area but one such demonstrated the kind

of problem that can arise even when great care is exercised. The complainants were the parents of a schoolchild who received a visit from a departmental officer who said there had been reports that the parents were mistreating the child. Since there was no foundation for these reports, and the Welfare Branch accepted this, the parents were hurt and indignant, not only at the allegations but also the Department’s refusal to disclose its source. They believed the reports to have originated from malice and considered they had a right to the information

so that, if necessary, they could take action to ensure they were not subjected to further allegations. The complaint to my office, therefore, was about two issues: the decision to take the allegations seriously in the first instance and the refusal to disclose the source.

So far as the first was concerned I received argument from the Department that it could not afford to ignore any such report unless it had good reason to believe it unfounded, since the risk of child abuse was too great. The Department normally

approaches parents in the first instance as it believes that enquiries of third parties would constitute the greater invasion of privacy. In relation to the second issue, the Department’s reason for not releasing details of information is its wish not to discourage genuine people from coming forward

with details of child abuse. Although I could understand the complainants’ distress I saw no alternative but to accept the Department’s arguments as it appears to me that the duty to identify and intervene in cases of child abuse must outweigh the possibility of arousing concern

in parents.

Property

The root cause

A substantial proportion of complaints relates to the alleged deleterious effect on leased land of various natural and man-made phenomena supposedly the responsibility of the Commonwealth. For example, I receive complaints about tree roots invading the sewers of private residences where the offending tree is located, or alleged to be

located, on adjacent Commonwealth land. In cases where the origin of the roots can be established without question the Commonwealth will take remedial action but occasionally, tree roots being less easily identifiable as to species than, for example, leaves, there is doubt and dispute as to their origin. There can also be disagreement

about the actual cause of blockage or breakage. In one such case the complainant, having purchased her home from the Department, had the sewers cleared of roots with an electric eel several times before

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asking a plumber to excavate. The sewer proved on inspection to have numerous cracks and was substantially blocked with roots which the plumber identified as originating from a tree on adjacent Commonwealth land.

The Department, however, did not consider there was sufficient evidence that the roots had caused the damage and denied liability. After a member of my staff inspected the site we reached the preliminary view that, whether the roots were responsible for the damage to the pipe or were simply taking advantage of pre-existing damage it was likely, in view of the short time that had elapsed since the complainant purchased her house from the Commonwealth and the lack of likely sources of root invasion within the boundaries of the complainant’s lease, that the Commonwealth was in fact liable, at least for some of the costs incurred.

At this point the Department seems to have reached a similar conclusion for it decided to obtain formal legal advice. The complainant, for her part, decided to withdraw her complaint to my office and institute legal proceedings and since it appeared probable that she would achieve her objective by these means I discontinued the investigation.

In another case of blocked drains the householder again had difficulty in convincing the Department that the Commonwealth was liable and since there were several trees in her yard which might have been the cause there was little I could do, since the drains had already been cleared and the evidence disposed of. The

Department offered, however, in the event of a further blockage, to accept the results of a root analysis conducted by the Australian National University at the complainant’s expense, and I considered this a reasonable resolution. The complainant is still waiting for the roots to grow again.

Landfill

Quite frequently the alleged detriment to a block of land occurred before the lessee took possession. This was the case with a small number of complaints about blocks of land purchased at auction which the complainants considered unsuitable for building. In one such case the complainant bought a block at Fadden located on the side of a steep hill. The National Capital Development Commission was unaware of the presence of fill on the block but when the purchaser started excavating for

building he discovered that it was located over an old watercourse containing up to three metres of fill, including boulders up to 1.5 metres in diameter. Before approaching my office the complainant had approached the Department which allowed him to return the block and purchase another for a comparable price. It did not, however, accept liability for the substantial expenses incurred in establishing the condition of the block.

It seemed to me that it is not unreasonable of the Commonwealth, as a general practice, to place upon purchasers the responsibility for discovering the character of their blocks before purchase. In this case, however, it was apparent that the exceptional nature of the disability on this block would have precluded its prior discovery by a reasonably prudent purchaser. Furthermore, although the Commonwealth itself was unaware of the disability its contractors, who had done extensive road and landscaping work around the block, would have been likely to be able to identify the possibility of its existence had they been asked.

I considered, too, that there is a general presumption that blocks released for home building in the ACT are reasonably capable of being built upon and I noted that in later offering the block for resale the NCDC specified for potential purchasers all the shortcomings identified by the complainant.

For all these reasons I decided to recommend that the general principle of caveat emptor not apply in this case and that the Commonwealth reimburse the complainants for costs incurred in identifying the defects on the land. I also suggested to the NCDC

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that it require contractors to inform it of apparent or probable defects in land they are servicing. The Department agreed to submit the claim to the Minister for Finance with a recommendation for an act of grace payment. The NCDC is still considering the

implications of my procedural recommendation.

Motor vehicles

A substantial number of complaints arise because motorists receive parking tickets. In most cases the action complained of is reviewable by the courts and I decline to investigate but there have been allegations that, for example, signs indicating that parking is permitted outside business hours are insufficiently specific in view of the

wide variety of trading hours now in operation. The Department has a program for changing such signs as they need to be replaced and I do not believe the problem is important enough to warrant the expense of doing so earlier. Decisions of the Registrar of Motor Vehicles also attract a number of complaints,

particularly when he refuses registration for what, to complainants, appear arbitrary reasons.

Car window tinting problems

In November and December of 1983 my office received a number of written complaints and oral enquiries about changes to the light transmittance standard the Registrar of Motor Vehicles applied to tinted car window films. In August 1982 the Australian Transport Advisory Council raised its standards for light transmittance and reflection and registration authorities adopted the new

standard for vehicles being presented for registration. Although complainants have told me that vehicles with window tinting meeting the old standard and fitted before introduction of the new standard are still being re-registered outside the ACT, in the ACT they are rejected on inspection.

Complaints were not confined to owner-drivers but came also from a new car dealer and a private contractor who applied the film to car windows. Both complainants stated that their business reputations were adversely affected by the decision to raise the required standard, the contractor pointing out that the

Department’s Controller of Technical Standards wrote to him in July 1982 warning of the impending introduction of new standards of solar control film ‘in accordance with which your previous authorisation will be continued’. One owner/driver has challenged the Registrar’s right to refuse to register his

vehicle in light of this letter and a Canberra magistrate set aside the Registrar’s decision. The Crown, however, lodged an application to review the decision in the Federal Court and we are awaiting the outcome of this appeal. Meanwhile we are advising complainants who wish to have their vehicles re­

registered pending the outcome of the appeal that they may lodge an appeal with the Court of Petty Sessions pursuant to si04(b) of the M otor Traffic Ordinance 1936. The making of such an appeal means that the vehicle is deemed registered pending its outcome. My staff has made arrangements with the staff of the Court of Petty

Sessions for such appeals to be kept together and not brought forward for mention pending the outcome of the Federal Court hearing.

Annoying taxi

Another complaint was from the owner of a former taxi who was displeased when the Registrar declined to register it while it still had on it the reflective tape that is affixed to all such vehicles.

Il l

On enquiry it appeared that the reason for the Registrar’s decision, which he did not originally communicate to the complainant, lay in s 104(2)(c) of the Motor Traffic Ordinance, which empowers the Registrar to refuse to register a vehicle which constitutes a source of annoyance to the public. The Registrar was of the opinion

that a vehicle which looked like a taxi could be mistaken for one and this could lead to illegal use. Fortunately by the time I became aware of this opinion the Registrar had changed his mind and decided that the reflective tape was an insufficient source of annoyance to the public to warrant refusal of registration. The Department said, however, that it would advise the Canberra Taxi Proprietors Association to consider removing reflective tape and other distinguishing markings from taxis before selling them.

Time limits

The Department of Territories and Local Government closes its offices for receipt of cash payments of rates at 4 pm. A complainant put it to me that he wished to pay in cash but could not do so before 4 pm, and considered the Department

unreasonable in not keeping its offices open longer. My enquiry of the Department prompted the explanation that its hours of opening were set having regard to staff resources, employment conditions, security arrangements and computer processing arrangements. The Woden, Dickson and Belconnen offices all had to transfer cash and data to the central office each evening and extension to the hours would require considerable extra expense on overtime and

penalty rates. There was little apparent demand for longer hours but the Department was prepared to reconsider if circumstances changed. It seemed to me that this was a reasonable explanation and we told the complainant so. He disagreed, however, saying that a creditor who refused to accept a debt from a debtor willing to pay after 4 pm would be regarded by a court to which he applied

for relief as misusing its processes. He also disputed the Department’s contention that there was no significant public demand for the extension of these hours and requested that if I was not prepared to take the matter further I should mention the fact of the Department’s attitude in my next annual report. This I agreed to do.

Design and siting

Over the years I have received and discussed in various reports a number of complaints arising from dissatisfaction people have with the effects of building that takes place adjacent to their own leases. Such complaints are often difficult to resolve since what is an eyesore to a complainant may be a thing of beauty to its designer or owner and may not contravene the NCDC’s design and siting policies. Even when it does, and for some reason its construction has been wrongly approved, demolition is rarely a practical option.

A case which I currently have under consideration involves the construction of a block of units in Yarralumla which obscures some of the view previously enjoyed by the complainants. Although I have not reached finality with this complaint it is clear from this and earlier examples of this kind of problem that some formal

mechanism is required whereby persons with a legitimate interest, other than the prospective builder, can have their views taken into consideration by the Design and Siting Review Committee which considers appeals from decisions of the NCDC on design and siting matters. I intend pursuing this matter with the Commission.

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Own motion investigation

Section 5 of the Ombudsman Act provides that the Ombudsman may investigate pursuant to a complaint or of his own motion. The large volume of complaints has meant that I have been constrained in my ability to initiate investigations otherwise than in response to complaints, although it has been common for particular enquiries to range beyond the immediate issues originally raised by complainants.

During the year however, I noticed a certain amount of publicity relating to the Department of Territories and Local Government’s handling of the growing problems caused by heavy vehicles parking in residential areas. It seemed to me that this was a matter of some public interest and although I received no complaints about it I

decided to investigate the Department’s actions in relation to the problem. This investigation was incomplete at the close of the reporting year but it was evident that the present lack of controls, enabling very large and noisy vehicles to reduce drastically the amenity of streets in which they are located, is unsatisfactory. I anticipate

recommending to the Department that it act to establish controls comparable to those existing in other capital cities.

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10. Activities involving other Ombudsmen

Seventh Conference of Australasian and Pacific Ombudsmen

Ombudsmen from all States of Australia as well as the Commonwealth, New Zealand, Fiji, Papua New Guinea and the Solomon Islands, attended the Seventh Conference in Darwin from 28-31 August 1983. The host was the Ombudsman for the Northern Territory, Mr Russell Watts. The official conference guest was Sir Antony Buck, Chairman of the UK House of Commons Select Committee on the Parliamentary Commissioner for Administration.

The Chief Minister

The Honourable Paul Everingham, Chief Minister of the Northern Territory, publicly opened the Conference. He acknowledged that:

‘. . . we had to wait longer than almost all the other Australian States before the Governor- General gave assent to the appointment of the Territory Ombudsman. Our first Ombudsman, Harry Giese, recalls that when Tiger Brennan, by this time retired from both his Legislative Council and Darwin Mayoral duties, appropriately performed the official opening of the Ombudsman office he had almost to be physically restrained from making the first complaint. Almost certainly his first complaint would have been the length of time it had taken for the Territory to get its own Ombudsman.’ On the question of dealing with the bureaucracy the Chief Minister said:

‘Inasmuch as both Ombudsmen and parliamentarians are representatives of the people, our roles overlap and that gives me some food for thought. After German novelist Franz Kafka died, a friend revealed that he had intended completing his unfinished novel, T h e C a stle, by having the central character die just as the Castle issued him a permit to live in the district. The Ombudsman’s job and the parliamentarian’s job is partly to make sure that people do get their entitlements from the government system. The bewildering arms of administration are best described by the superintendent in T h e C a stle who tells the frustrated central character that: “ you haven’t up to now come into real contact with our authorities, all those contacts of yours have been illusory, but owing to your ignorance you took them to be real” .’

The Chief Justice The Chief Justice of the Northern Territory, Sir William Forster, in addressing the opening gathering said that he found himself in agreement with Sir Ronald Davison, Chief Justice of New Zealand, who had said to the Fifth Ombudsmen’s Conference

in New Zealand in 1981, that ombudsmen should have the power, possibly subject to safeguards, to enforce their own decisions, for example by leave of the court, in order to obtain the satisfactory resolution of a complaint from a bureaucracy reluctant to acquiesce in recommended remedial action. For my part it is not a power which

1 believe to be necessary.

Leadership Code and the Papua New Guinea Ombudsman Commission

Speaking in the public session, Mr Ignatius Kilage, Chairman of the Ombudsman Commission in Papua New Guinea, explained the additional and unusual function vested in the Commission of administering the Leadership Code:

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‘In Papua New Guinea in addition to the Ombudsman Act and the classical ombudsman functions, we have another responsibility which is to administer the Leadership Code of Papua New Guinea. The Ombudsman Commission of Papua New Guinea consists of three people, myself and two other persons. We are required to look after the leaders of Papua New Guinea.

The only man who is a man of substance in Papua New Guinea who is not under the microscope of the Ombudsman Commission is the Governor-General. We think that it is not proper for the Ombudsman to interfere, to look at the representative of the Queen, but all others have to inform the Ombudsman Commission of all they have, their assets,

liabilities, gifts they receive and so on. The objective of this is to ensure that Papua New Guinea is kept free of corruption.’

Intersystem railway complaints As in past Conferences most of our time was utilised in discussing matters of common interest, several of the items being supported by papers written in ombudsman offices including our own.

The Victorian Ombudsman, Mr Geschke, submitted a paper raising problems experienced in the investigation of complaints involving the movement interstate of freight by rail. All Australian Ombudsmen have jurisdiction over their respective railway authorities and complaints are not infrequently received. Working problems

occur for Ombudsmen, not only because conditions of carriage in a particular jurisdiction may have both contractual and statutory sources, but also because there are substantial differences throughout Australia in the terms and conditions on which goods may be carried and maximum amounts of liability for damage or loss of goods

in transit. Mr Geschke illustrated one of the problems as follows:

‘The differing conditions, together with the difficulty of ascertaining where the damage or loss occurred over the interstate journey, may lead to different results in the recovery of compensation, depending upon which system those goods were carried.

This may perhaps be demonstrated best by referring to two cases investigated, one involving the loss of unaccompanied luggage on the interstate system and the other the loss of unaccompanied luggage on the intrastate system. The first complaint concerned a lady who, on her return trip between Melbourne and Sydney, deposited unaccompanied luggage

at the central depository in Sydney. She received a luggage check for her cases, those cases were placed in the system and simply disappeared without trace. There was no indication in the Authority’s register of the receipt of that luggage, as is usual practice, nor was it known whether the luggage was ever placed on the correct train. Most importantly, insofar as the Victorian Railways Board was concerned, there was no evidence whatsoever of the

Board ever having taken that luggage into its possession. By this I mean that there was no evidence at all of the luggage having been placed on an interstate train to Melbourne and therefore there was no evidence that the luggage had entered Victoria and thus became

the responsibility of the Board.

The differing conditions of liability created a problem. In New South Wales the Authority was exempt absolutely for any loss or damage to those goods, whilst in Victoria the Victorian Board was liable only for the negligence of its servants.’ Generally the Ombudsmen were of opinon that the question of uniformity of conditions of carriage warranted close attention from the Australian Transport

Advisory Council but that the ombudsman community was not yet in a position on the basis of complaints received to make a definitive statement about possible ways of overcoming problems so far experienced.

Commonwealth-State investigations — effect of Commonwealth FOI

Another matter of continuing concern to me is that in spite of agreement reached in principle at Prime Minister/Premier level several years ago, not all States have

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yet legislated to provide an effective means of dealing with complaints which involve more than one Ombudsman’s jurisdiction as, for example, where a governmental activity is carried on pursuant to an arrangement between the Commonwealth and the States. There are several examples of such arrangements, including the exploration of Australia’s off-shore petroleum resources and the development of the Albury/W odonga area. Investigations may also be undertaken by the Australian Federal Police jointly with a State police force. In practice the absence of a complete umbrella coverage has so far not much mattered but a situation could arise at any time in which the absence of complementary legislation will inhibit the satisfactory resolution of a complaint.

The Parliamentary Commissioner for Administrative Investigations in Western Australia, Mr Eric Freeman, said that the application of the Freedom o f Information Act 1982 to the Commonwealth Ombudsman was a real problem for a State Ombudsman who wished to enter into consultative arrangements with the

Commonwealth Ombudsman. In Western Australia the Ombudsman was liable at common law for negligence and if he made some information available to the Commonwealth Ombudsman to facilitate an investigation involving both Western Australia and the Commonwealth, and that information found its way into the hands of a third party by reason of application of the Freedom of Information Act, the State Ombudsman was also in breach of his Act, which requires him to maintain confidentiality in the investigation of complaints.

The South Australian Ombudsman said that the position of the Commonwealth Ombudsman under the Freedom of Information Act also presented a real problem for him.

Eighth Conference

The Eighth Conference will be held in Melbourne in October 1985. There was no Conference scheduled for 1984 because of the holding of the Third International Ombudsman Conference in Stockholm in June this year.

Ombudsman Forum at the International Bar Association

The Chairman of the Bar Association, Mr Alex Weir, invited us to nominate a Regional Director to promote the activities of the Ombudsman Forum in the Pacific area. Our view was that all our offices subscribed as members of the International Ombudsman Institute and though the International Bar Association was to be encouraged in showing an interest in the ombudsman institution, it was preferable that we support one international non-governmental institute which was mainly concerned with the work of classical ombudsmen, rather than spread our interests laterally.

Canadian Legislative Ombudsmen’s Conference

At the invitation of the Ombudsman of British Columbia, Dr Karl Friedmann, I attended a Conference of Canadian Legislative Ombudsmen in Vancouver in September 1983 to give an address on the benefits to Australia of a federal

Ombudsman. The Conference was a much larger affair than our counterpart Australasian Ombudsman Conference, with more than 100 participants including all Canadian Provincial Ombudsmen and a sprinkling of Ombudsmen from other countries, in particular the United States. There were also in attendance several academics including

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two Australians, Associate Professor McCallum of Monash University and Dr Kenneth Wiltshire of the University of Queensland, both of whom delivered papers. Besides addressing the Conference on the opening day I was able to engage fully in the later proceedings. Nine of the ten Canadian Provinces have Ombudsmen but

although at federal level there is a Privacy Commissioner, an Information Commissioner, a Commissioner of Official Languages and a Human Rights Commission, there is as yet no federal Ombudsman. Australia’s experience attracted considerable attention in the Conference and elsewhere. I also made a television

appearance on the widely watched Webster Show with Mr Yves Labonte, the Quebec Ombudsman, and attended a subsequent seminar at Dr Friedmann’s office in Victoria, BC. Some of the Conference papers have been of considerable value to my own office and there is clearly much to be gained by greater contact between Canadian and

Australian Ombudsmen.

International Ombudsman Institute

The Board of Directors of the International Ombudsman Institute held its sixth annual meeting in Ottawa, Canada in September 1983 after the conclusion of the Conference of Canadian Legislative Ombudsmen. A major item considered was the report of the International Ombudsman

Consultative Committee which had met in Stockholm in April 1983 (see my Sixth Annual Report at pages 122-123), put before it by Per-Erik Nilsson, Chief Ombudsman of Sweden. Some members of the Board were concerned about the Consultative Committee’s decision to give outright priority for attendance at the Third

International Ombudsman Conference to be held in Stockholm in June 1984 to classical ombudsmen. By the Committee’s definition a classical ombudsman is one whose office is established either by the constitution or the legislative enactment of a central government legislature. A probable consequence was that others, in particular

municipal ombudsmen and those who hold non-statutory positions, would be virtually precluded from attendance. Membership of the Institute includes ombudsmen whose offices are in the last two mentioned categories and it was felt that their exclusion from the International Conference could have further consequences for the Institute.

It was accepted, however, that a restriction on members attending the Stockholm Conference was inevitable and that the international gatherings were to serve primarily the needs of classical ombudsmen. The Board of Directors held its seventh annual meeting in Fredensborg, Denmark,

in June 1984, shortly before the Stockholm Conference. Arrangements were much assisted by our host the Parliamentary Ombudsman of Denmark, Dr Neils Eilschou Holm. The meeting was marked by the retirement of the President of the Board, Mr Ulf Lundvik, former Chief Ombudsman of Sweden. His successor is Dr Bernard Frank of the United States, widely known for his sustained interest in the universal

promotion of the institution of ombudsman. The composition of the Board is as follows: Bernard Frank, Pennsylvania, United States, President Jacques Vontobel, Switzerland, Vice President

Randall Ivany, Alberta, Canada, Secretary and Executive Director Frank Jones, Dean, Faculty of Law, University of Alberta, Canada, Treasurer William Angrick, Iowa, United States

Joseph Berube, New Brunswick, Canada Cecil Clothier, England Robert Fabre, France George Green, Jamaica

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Daniel Hill, Ontario, Canada Anthony Mbelwa, Tanzania Per-Erik Nilsson, Sweden Jack Richardson, Australia

Brian Sawyer, Alberta, Canada Moti Tikaram, Fiji Although there is a developing body of literature on the subject of the ombudsman much of it is of a general character and there are many areas of ombudsman operations remaining uncovered by worthwhile literary contributions. With this in mind, in 1982 the Institute established a Research Committee under the chairmanship of Baroness Serota, former Chairman of the Commission for Local Administration in England. The Research Committee is currently engaged in an analysis of responses it received

from ombudsmen to a questionnaire on the ombudsman’s procedure in terms of caseload. This was a questionnaire to which we responded, our answers being the subject of consultations with some of the members of the Research Committee during the Third International Ombudsman Conference in Stockholm. Another current project of the Research Committee, again initially implemented by way of questionnaire, deals with the health care jurisdiction of ombudsmen.

Third International Ombudsman Conference, Stockholm

The Chief Parliamentary Ombudsman of Sweden, Mr Per-Erik Nilsson was host for the Third International Conference, the principal theme of which was The Ombudsman and the Developing Society. All proceedings were held in the resplendent and newly designed legislative chamber of the Riksdag and conference arrangements were characterised by the high level of efficiency that we have come to expect from the Swedish Ombudsman’s office. Deputy Ombudsman Hunt and I attended.

Ombudsmen and observers came from 33 countries. As might be expected in the country acknowledged internationally for the invention of the Ombudsman the Conference was recognised as an important occasion. It received extensive cover in the media. Interest in the state of the institution in Australia led me to participate in television programs in Sweden and Denmark. The Conference concluded with a widely attended festive dinner at the Grand Hotel in the presence of Their Majesties the King and Queen of Sweden.

The gathering was addressed in the opening public ceremony by the Chief Parliamentary Ombudsman, the Speaker of the Riksdag, Mr Ingemund Bengtsson and the former Federal Chancellor of the Republic of Austria, Dr Bruno Kreisky. It was of some surprise to myself and, I believe, other Australian Ombudsmen that among the diplomats who attended the opening ceremony there did not appear to

be an Australian representative. Opening day sessions of international conferences sometimes seem to provide the occasion for homilies, declarations of faith, espousal of causes and so forth from the dais or the floor which, however laudable, have little to do with the current proceedings. A paper on the subject of The Ombudsman and Politics presented by the South Australian Ombudsman, Mr Bakewell, was used by some as just such an occasion. In so doing at least on this occasion it served to demonstrate the extent of the gulf which exists between ombudsmen entrusted by their legislators to pursue investigations independently and objectively, and those, including alternative institutions, adopting politically inspired methods of dealing with complaints. The classical institution of the ombudsman has spread from Sweden to most other European countries and in other parts of the world, particularly in English-speaking countries with Westminister-based parliamentary systems. Nevertheless, there are

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many countries still without an ombudsman. The creation of alternative institutions or ombudsmen without such essential characteristics as legislative independence and the capability of invoking compulsory processes of investigation may serve some immediate purpose but in the long run these are unsatisfactory precedents and should not be encouraged as acceptable equivalents when the possibility exists of obtaining an ombudsman in the classical mould.

Fortunately, on subsequent days, the Conference addressed itself very much to the business on hand and the result was a successful Conference. I was chairman of the session which considered a paper by Sir Cecil Clothier, Parliamentary Commissioner for Adminstration in the United Kingdom, on the subject of formal

hearings by the ombudsman.

After deciding that there should be a Fourth International Conference in 1988, the dominant feature of the business sessions was the question of where it should be held. With the approval of the Prime Minister, Mr Hawke, I was able to put forward Australia as a host country. However, the Austrian Ombudsmen were anxious to have the Conference in Vienna. The eventual vote at the final business session

was decisively in favour of Australia.

I was grateful for the Prime Minister’s approval in principle. It will now be necessary to work towards maximising the benefits of a further international conference without financial extravagance. For the purpose there is again to be a Consultative Committee, of which 1 am Chairman, to assist in planning the

conference. I shall not be in office in 1988 but the Stockholm decision as to the membership of the Consultative Committee allows for my successor to replace me as Chairman. As before, the International Ombudsman Institute will also act in an advisory capacity. Nevertheless the responsibility for the organisation of the conference

in Australia rests squarely on the shoulders of my own office and it is encouraging to have the support and co-operation of fellow ombudsmen of the Pacific area. The principal venue will, of course, be Canberra. It is particularly fitting that the

conference should be held in Canberra in Australia’s bicentennial year which is also to be the year of the opening of the new Parliament building.

International Ombudsman Seminar at Helsinki

Associated with the Stockholm Conference, by arrangement with the Chief Parliamentary Ombudsman of Sweden, there was an International Ombudsman Seminar held the following week at Parliament House, Helsinki, Finland. The opening ceremony was performed by the Speaker of the Parliament of Finland. The host was

Mr Jorm a S. Aalto, the Parliamentary Commissioner of Finland and a member of the International Consultative Committee.

The avowed aim of the Seminar was to enable members of staff of ombudsman offices to have the opportunity, after Stockholm, to discuss matters of mutual concern in the day-to-day operations of their offices. Hence the Seminar dealt with such practical matters as how to deal with chronic complainants, the engagement of outside

experts, publicity, and the use of automatic data processing. Because of the nature of the program the Seminar also attracted many more statutory ombudsmen than was originally expected. Australian representation included Ombudsmen from four States as well as Deputy Ombudsman Hunt and myself. In all, the attendants came

from a total of 29 countries. One suggestion worth serious consideration was that the ombudsman conference and the staff seminar could usefully be merged in 1988.

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Visits to Britain — Parliamentary Commissioner

In December 1983 Mr Richard Lucas of my office, in the course of a private visit to England, took the opportunity to familiarise himself with the United Kingdom approach to the investigation of complaints against the police so far as we considered it relevant to our police jurisdiction. I am indebted to Professor Sir Cyril Phillips of the Police Complaints Board and Chief Constable Imbert of Thames Valley Police

Headquarters for making it possible for Mr Lucas to spend time at their offices. The former Commissioner of the Australian Federal Police, Sir Colin Woods, assisted in the organisation of the program which also, through arrangements with Messrs Andrew and Harding of the Home Office, enabled Mr Lucas to study, among other things, the impact which disciplinary procedures can have on a police force’s morale and operational capacity.

Dr Rosalie Schaffer, my Principal Legal Adviser, also in the course of a private visit spent several days in December 1983 at the office of the British Parliamentary Commissioner for Administration making a particular study of the work of a unit which screens complaints in order to determine whether a prima facie case of maladministration is revealed justifying its investigation.

Over the years my office and I, through personal meetings and correspondence, have maintained continuous contact with Sir Cecil Clothier and his office. As a result, among other things, we have learnt much about the techniques of formal investigation and we also like to think that there have been some mutual benefits. In July Sir Cecil announced his impending retirement from his offices of Parliamentary Commissioner and Health Services Commissioner. He will become Chairman of a new Police Complaints Authority and we wish him well. His departure is a matter of regret for me but I am sure the cordial relations which have existed between our two offices for so long will continue under his successor.

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11. Internal Administration

Office organisation

In previous annual reports I have mentioned difficulties in recruiting high-quality investigation staff to replenish the office’s loss of such people to other organisations. I was convinced then, and events since have confirmed, that the problem was one of organisational structure. The office did not present a sufficiently attractive career path to hold enough of its best staff members. The Public Service Board acknowledged the problem late in 1983, when it agreed to a reorganisation proposal that included

the creation of six positions of ‘director of investigations’ (Clerk, Class 11). The new structure came into effect in January this year, soon after the Ombudsman Act amendments relating to the Defence Force Ombudsman responsibilities. The office now has three divisions, each headed by a Deputy Ombudsman

responsible for a discrete portfolio of Commonwealth agencies and/or functions. The Deputies are each supported by branch heads with one or more teams made up of either a director of investigations (Class 11) and a senior investigation officer (Class

9) or a number of principal investigation officers (Class 10) working individually or in groups depending on the nature and complexity of the case-load. Previously cases were allocated functionally between two teams, each headed by a Deputy. Each team member, generally speaking, previously worked independently with all case work

ultimately being reviewed by the responsible Deputy. Under the new structure, responsibility for supervision of staff and the quality of most investigations now rests with a branch head at level 1 or 2 of the Senior Executive Service. Already there is a noticeable beneficial effect, in terms of staff retention, flowing

from the reorganisation. There are distinct signs, too, that the complaint investigation process will be streamlined by the new team arrangement, which lifts some of the excessive workload from my Deputies, who are now able to concentrate on the least

tractable investigations, on overall management and supervision, and on the development of coherent approaches to frequently-encountered investigational problems. The organisational arrangements and the occupants of key positions in the office

as at 30 June 1984 are depicted on the chart which follows this chapter.

Staffing

My approved average full-time operative staffing level for 1983-84 was set at 60. It was clear early in the new year that my approved establishment at that time was not flexible enough, in numbers and composition, to allow the much needed level to be achieved. Concurrently with the reorganisation mentioned above, I sought and

obtained the Public Service Board’s agreement to an adjustment to my establishment which would allow early recruitment action. A most successful recruitment campaign followed which saw three new staff promoted or transferred from other areas of the Public Service and five new appointees from outside. I am pleased to say that the

quality of the new recruits is particularly high. In the event, I was able to achieve

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my approved level of 60 full time staff for the year. As stated elsewhere in this report, the number of oral complaints is continuing to increase dramatically. In my forward staff estimates submission in February this year, I identified the additional staff necessary to allow me adequately to perform my statutory functions in 1984-85 as three staff years — a figure that took full account of the expected productivity gains from the recent reorganisation. I have been concerned for some time about the plight of my regional offices, particularly the

smaller offices in Brisbane, Perth and Adelaide, where there is an urgent need for typing support, since processing an increasing load of oral complaints has left precious little time for the typing and minor clerical duties which still have to be done by the investigation officers. It was my intention that the additional staff cover sought, if approved, would be channelled to providing part-time typing/clerical support to each of my five regional offices.

ADP proposal

In my last report I mentioned a study being undertaken by a firm of consultants of the extent to which my office could benefit from a greater use of ADP. That study was completed early in 1984, and recommended extensive use of ADP in a number of our functions. The consultant, Management Solutions Pty Ltd, recommended an integrated system that would make use of a main frame computer owned and operated by another department and would provide my office with ADP assistance in:

• case work management; • investigation research information; • FOI application management; • registry services; • access to legislation information held by the Attorney-General’s Department;

and

• personnel record services.

We have accepted these recommendations and, at the close of the reporting year, had just been told that the resultant costed ‘ADP Strategic Plan’ had been accepted by the Public Service Board and the Department of Finance as a basis for future ADP resource planning, and that expenditure over the next three years had received

‘in principle’ approval from the Government. I expect that my next report will include news of significant developments in the implementation of this project.

Publicity and promotion

Early in the year under report I appointed the first occupant of a new position of Research and Information Officer created within my office. We have yet to see the full benefit of that position, since the appointee stayed with us only briefly, while his successor did not take up duty until after the close of the year.

Flowever, I have during the year made a significant alteration to the methods by which I seek to ensure that those who may need to use the Ombudsman’s services have ready access to knowledge of my existence, of the range of services my staff can offer, and of where and how to make use of us.

The emphasis in our publicity efforts has now been moved from maintaining a regular (if occasional) personal presence around the country by way of regular travel

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by the Assistant Ombudsmen to country areas, both undertaking publicity and collecting complaints as they went, to the spreading of knowledge and information about the office to community groups and agencies to whom complainants with the most pressing problems can be expected to have recourse at times of trouble.

This has been achieved by designing seminars, to which audiences of representatives of community ‘helping’ organisations are invited. Pilot seminars were held in Melbourne in February 1984; with the kind help of the Department of Social Security we were able to invite representatives of some 500 organisations; a total of 197

responded and this number of persons attended some six sessions of the seminar series spread over three days. Audience response was favourable, and I intend over the coming year to expand this pilot project into the regular means of publicising my office. 1 intend that such seminars should not only be run regularly in capital cities,

but extend to country centres as well, thus ensuring that the staff presenting each seminar can during their visit continue the sort of local media exposure that has been developed up until now. A further development in our publicity methods over the last year has been the

production of a new edition of the leaflet ‘What can the Commonwealth Ombudsman do for you?’ which brings up to date the leaflet’s description of my office’s functions. It has been supplemented by three information sheets giving more detail on particular facets of our activities:

• ‘Complaints . . . about the Australian Federal Police’ (replacing a longer leaflet on the subject, and presenting information in simpler language); • ‘Complaints . . . to the Defence Force Ombudsman’; and • ‘Complaints . . . about freedom of information matters’.

These supplementary information sheets are presented in a simple and inexpensive format which will enable us to bring them up to date without hesitation or waste whenever changes in personnel, legislation or procedures dictate. Less happily, I have to report that we have achieved no real progress, given the

non-availability for most of the year of a Research and Information Officer, toward presentation of the four leaflets in community languages. I hope to be able to report more positively on this in my next report. In Chapter 3 I have described in greater detail the steps we have taken to publicise the services of the Defence Force Ombudsman, particularly among active service

personnel. Because of resource constraints discussed more fully in Chapter 4, I have felt justified in taking only rudimentary steps to publicise the availability of my office as advocate to people applying to the Administrative Appeals Tribunal for review

of decisions under the Freedom of Information Act. Our inability to provide the level of service to applicants that I have no doubt the Parliament intended, has suggested to me that the degree of publicity I believe the service should get would have led to more applications for assistance than we could possibly have handled. Disappointment

to numbers of hopeful and deserving applicants would inevitably have resulted. It follows that I am unable to assess the real level of demand in the community for this service. I intend to publicise it only when resources are available to me with which to provide the public with a reasonable level of assistance.

Expenditure

The total financial expenditure against appropriations in 1983-84 for the Ombudsman’s office, excluding those expenses associated with the leasing of

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accommodation which are traditionally borne by the Department of Administrative Services, was $2,294,099 itemised as follows:

Salaries (and overtime) Administrative expenses • Travel and related costs ($86,596) • Other administrative expenses,

including office requisites, printing, equipment, postage, telephones, advertising, library materials and incidentals ($451,112)

Expend. Approp.

$ $

1,756,391 1,756,900 537,708 538,000

2,294,099 2,294,900

Funds allocated to the office in the year were adequate to meet operating requirements. By way of comparison, the levels of total expenditure in previous years were: 1977-78 $453,062

1978-79 $1,069,194

1979-80 $1,213,749

1980-81 $1,383,627

1981-82 $1,563,701

1982-83 $1,832,797

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οι ι κ ι: οι ι hi: commonyvkaitii ombudsman TOP STRUCTURi: C HARI

Australian Capital Territory, Property and

Commercial

Taxation and personal health benefits (located in

Sydney)

Public

communications (located in Melbourne)

Police and Welfare and

personal support benefits

Defence force employment and Commonwealth pre and post employment

Executive Officer (Administration)

Appendix A: Letter notifying principal officers of amendments to the Ombudsman Act 9 November 1983

Dear Principal Officer,

Amendments to the Ombudsman Act

The Ombudsman Am endm ent Act 1983, except for those sections relating to the Defence Force Ombudsman, received Royal assent and came into operation on 13 October. The purpose of this letter is to apprise you of some of the ramifications of the legislation for dealings between my office and other agencies of the Commonwealth and to seek your response to my suggestions for improved procedures.

The Act as amended contains a number of provisions designed to facilitate the operations of the Ombudsman, several of which, such as s7(l) which gives statutory recognition to oral complaints, simply reflect existing practice. Others enable the Ombudsman and principal officers to make arrangements to deal with complaints, or classes of complaints, in as economical a manner as is practical.

Section 7A(1) of the Act now authtrises the Ombudsman to make preliminary enquiries of agencies in order to determine whether he has jurisdiction, or whether, if he has, to exercise a discretion not to investigate. Section 7A(2) enables him to make arrangements with the principal officer of an agency ‘with respect to the officers of whom all enquiries, or enquiries included in a class or classes of enquiries specified in the arrangement, are to be made by the Ombudsman . . .’.

As I see it s7A enquiries will normally be those which, as now, are made orally of contact officers in the relevant agencies and the s7A(2) arrangements will therefore, essentially confirm the existing satisfactory arrangements for such contact officers. If I can have your agreement to this I do not think there will be any need for further

formality. If there is a need for more substantial preliminary enquiries, as for example when a difficult jurisdictional issue arises, we will of course write and in such cases the enquiries will be directed not to a contact officer but to you.

Experience has shown that, with both written and oral complaints, oral enquiries of contact officers will satisfactorily dispose of the great majority of matters. Approximately 20%, however, need to be dealt with by correspondence and I expect that will continue to be so. In the past our first written enquiry on a complaint has generally been in the nature of a preliminary enquiry, the decision about whether to investigate being made later. I have always felt this a somewhat artificial procedure which lent unnecessary and undesirable formality to an investigation. Henceforth,

however, our first letter on each complaint will constitute notice of our intention to investigate unless the letter states otherwise. The Act has also been amended to eliminate the requirement in s8 for me to inform the Minister of the investigation and except in unusual circumstances I will not be doing so.

As far as current complaints are concerned, the Act as amended is now in operation. Would you please accept this letter as notification that any complaints now being handled by way of correspondence between our offices are from today under investigation.

The procedure I have outlined will have the effect that the protection against civil proceedings afforded by s37 (as amended) of the Ombudsman Act will extend to officers of agencies from the time they first supply information to my office. I would expect and hope that this will free up the processes of exchange of information. In particular I would see there being little need in future for my office to use s9 of the

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Ombudsman Act to require the production of files, the provision of information etc. when there is no legal barrier to their provision on request during the course of an investigation. Section 8(1 A) of the Act is another arrangements provision, the intention of which is to introduce additional flexibility into the procedures for notification of

investigations. There may be occasions when urgent investigation is necessary but it is difficult or impossible to personally notify the principal officer of an agency e.g. because he or she is interstate. In such cases written or oral notification to a senior level officer or officers other than the principal officer would seem a logical

arrangement and I should be grateful if you would consider nominating the occupant(s) of a position or positions for that purpose. The remaining provision permitting arrangements between the Ombudsman and principal officers is s 12(2). This reads as follows:—

‘The Ombudsman may from time to time make with a Department or with a prescribed authority an arrangement in relation to actions in respect of which complaints have been or are made to the Ombudsman, being actions taken by the Department or authority that are included in a class or classes of actions specified in the arrangement—

(a) providing for the manner in which, and the period within which, the Ombudsman is to inform the Department or authority of his decision not to investigate, or to continue to investigate, such actions and of the reasons for his decision; or (b) providing that the Ombudsman is not required to inform the Department or authority

of his decision not to investigate, or to continue to investigate, such actions and of the reasons for his decision.’ For complaints that are handled by correspondence 1 intend continuing past practice of informing principal officers in writing at the end of an investigation. For complaints, whether oral or written, that do not generate correspondence, it will be normal for the relevant contact officer to be aware of the outcome from speaking with our office and unless you propose an alternative I do not suggest any greater formality. For the remainder, i.e. the small number of complaints which we reject without making any enquiry of agencies, some form of arrangement for periodic notification may be necessary. Under this arrangement we would furnish you with a periodic statistical return, say every six months. Alternatively you may be satisfied with the information in the statistical tables of the office’s annual report — naturally 1 should prefer this because of its workload advantages. I should be grateful for your reaction to these suggestions. Apart from the abovementioned provisions there are some others that might be of interest to you. Section 5, which states that the Ombudsman may not investigate actions of Ministers, has been amended to make clear that action of a delegate of a Minister, whether or not deemed by legislation to be action of the Minister, may be investigated. Similarly, action by an agency at a Minister’s behest or in expectation of a Minister’s approval is not to be taken to be action of the Minister (ss 5(3) and (3A>). Section 6 has undergone amendments which should make it easier for the Ombudsman to decline to investigate in those cases where much unproductive effort for both this office and the agency can be foreseen (ss6( 1 )(a>) and 6(l)(b)(iii)); to enable the Ombudsman to require complainants to approach the agency with their complaints if they have not done so (s6(lA)); and to delay investigating until the results of such approaches are known (ss6(lB) and 6(1C)). Section 8(7A) is inserted to require that the Ombudsman, if he intends to take submissions about defective action, or to use s9 compulsory powers, inform the relevant Minister of the investigation and have the complaint, if oral, reduced to writing. Section 9 has been amended to make clear that the Ombudsman may retain and copy records he obtains, but he must allow inspection of them at any reasonable time

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(s9(l A)(c)). My policy of returning files as soon as possible after receipt will remain unaltered. Section 11 has been amended to permit the Ombudsman to require principal officers to seek advisory opinions from the Administrative Appeals Tribunal on the taking of action in pursuance of powers conferred by enactments. Previously such opinions could only be given on the exercise of discretionary powers.

There is a new section, 11 A, which provides for settlement of disputes between the Ombudsman and principal officers. Either may apply to the Federal Court for a ruling in cases of disputes as to the exercise of the Ombudsman’s powers (si 1 A(l)). If a person fails to comply with a requirement under s9 by the Ombudsman to produce information, files etc. or to appear before him, the Ombudsman may apply to the Federal Court for an order to that effect (si 1 A(2)). Neither the Ombudsman nor a principal officer may approach the Federal Court under this section without first informing the responsible Minister of the reasons for doing so.

Section 12(4) permits the Ombudsman to make comments or suggestions arising from his investigations to any department, body or person other than the recipient of a report under sl5. Thus it will be possible, for example, for the Ombudsman to inform the Public Service Board or the Auditor-General of matters he becomes aware of during investigations.

Section 15(l)(c)(i) has been amended to add to the existing description of defective action, viz — ‘that irrelevant considerations were taken into account’ the following: ‘or that there was a failure to take relevant considerations into account’. Section 35A provides for the Ombudsman to disclose information about investigations where in his opinion it is in the interests of any department, prescribed authority or person, or otherwise in the public interest. The main effect of this as

far as Commonwealth agencies are concerned is that I will now be free in appropriate cases to provide one agency with information on complaints made about another agency, thus avoiding the difficulties that have sometimes arisen when a department or authority wishes to obtain confirmation that I am investigating a complaint about another agency but I am unable to confirm or deny the existence of the complaint. The section also gives me scope to make public statements about investigations e.g. when a complainant gives a misleading impression to the media. It is too early to predict how use of this section will develop in practice.

I look forward to having your response to this letter. If in addition to the specific matters upon which I have sought your opinions you wish to raise any questions or offer any comments I should be pleased to receive them.

Yours sincerely,

(J. E. Richardson)

Commonwealth Ombudsman

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Table B2: New complaints received 1983-84 by State or Territory o f residence of com plainant and by departm ent and authority.

Table B2: New complaints received 1983-84 by State or Territory o f residence o f com p lainant and by departm ent and authority.

8 4 315

242 84 70 33 53 17 14 6 519 424 274 125 82 178 20 26 5 1134

24 2 240

— — — — — 1 — 3

Table B2: New complaints received 1983-84 by State or Territory o f residence of com p lainant and by d ep artm ent and authority.

Written Complaints Oral Complaints

N SW VIC QLD WA SA TAS A C T N T Total N SW VIC QLD WA SA TAS A C T N T Total

E d u c a t i o n a n d Y o u t h A f f a i r s

• Department of Education and Youth Affairs 7 2 7 7 1 3 6 — 33

• ACT Schools Authority • Canberra College of 2 — — — — — 8 — 10

Advanced Education — — — — — — 3 — 3 23 134

• Schools Commission • Australian National

1 — 1 — — — 1 — 3

University 1 1 — — — — 5 — 7

E m p l o y m e n t a n d

I n d u s t r i a l R e l a t i o n s

• Department of Employment and Industrial Relations 20 11 15 18 3 2 2 1 72 34 33

F i n a n c e

• Department of Finance • Australian Government — — 3 — 1 — — 4 8 12

Retirement Benefits Office 12 1 5 2 1 — 3 2 29

F o r e i g n A f f a i r s

• Department of Foreign Affairs 7 8 5 5 1 1 2 3 32 42 169

H e a l t h

• Department of Health • Capital Territory Health 19 16 9 11 3 6 5 3 72

Commission • Health Insurance

2 — — — — — 10 — 12 71 114

Commission 13 8 10 4 3 2 1 2 43

Table B2: New complaints received 1983-84 by State or Territory o f residence o f co m plain an t and by d ep artm ent and authority.

Written Complaints Oral Complaints

N SW VIC QLD WA S /4 TAS A C T N T Total N SW VIC QLD WA SA TAS A C T N T Total

H o m e A f f a i r s a n d E n v i r o n m e n t

• Department of Home Affairs and Environment 3

• Australia Council 2

• Australian Film & Television School 1

• Australian Film Commission 2 • Australian National Gallery 1

• National Library of Australia

3

7 10

H o u s i n g a n d C o n s t r u c t i o n

• Department of Housing and Construction 13 12 15 12 4 2 4 2 64 34 46 15 51 11 2 7 4 170

I m m i g r a t i o n a n d E t h n i c

A f f a i r s

• Department of Immigration and Ethnic Affairs 59 42 22 47 6 2 10 6 194 196 255 43 74 36 — 14 24 642

I n d u s t r y a n d C o m m e r c e

• Department of Industry and Commerce 13 7 10 12 7 2 5 1 57 41 19 22 21 30 1 2 1 137

Table B2: New complaints received 1983-84 by State or Territory of residence of com p lainant and by departm ent an d auth ority.

3 2 18 394 379 182 2146 176 22 18 53 1670

1 —

Table IJ2: New complaints received 1983-84 by Stale or Territory of residence o f co m plain an t and by dep artm en t and authority.

15 1283

Table B2: New complaints received 1983-84 by State or Territory o f residence of com p lainant and by d ep artm ent an d authority.

Written Complaints Oral Complaints

N S W VIC QLD WA SA TAS A C T N T Total N SW VIC QLD WA SA TAS A C T N T Total

V e t e r a n s ’ A f f a i r s

Department of Veterans’ Affairs Repatriation Review 18 8 14 19 6 3 3 1 72

Tribunal Defence Service Homes

1 1 2 — 4

Corporation 4 3 6 2 3 — 2 20

Bodies outside Ombudsman’s jurisdiction 146 45 77 64 28 9 41 7 417

44 170

2430 1511 366 228 374 14 5021

Total 975 503 478 435 210 87 280 65 3053(a) 4289 3887 1157 1264 1176 149 393 170 12485

(a) Includes 20 complaints lodged by residents of other territories and overseas.

T a b l e B 3 : O u t c o m e o f c a s e s r e s o l v e d 1 9 8 3 - 8 4

Resolved totally or substantially in favour of complainant Action expedited Admission of error & apology

Reversal or significant variation of original action Payment of compensation or act of grace payment Other remedies Total

Written Complaints

Proportion

Number per cent

111 4.5

66 2.6

148 5.8

19 0.7

170 6.7

514 20.3

Resolved partially in favour of complainant Action expedited Admission of error & apology Reversal or significant variation of original

action Payment of compensation or act of grace payment Other remedies Total

Resolved in favour of department or authority Withdrawn or lapsed

56 50

33

3

220

362

1530 130

2.2 2.0

1.3

0.1 8.7

14.3

60.3 5.1

Oral Complaints

Proportion

Number per cent

1297 30.3

146 3.4

191 4.5

3 .1

220 5.1

1857 43.4

647 15.1

34 .8

37 .9

4 .1

462 10.8

1184 27.7

1245 28.9

AH Complaints

Number

Proportion per cent

1408 20.7

212 3.1

339 5.0

22 .4

390 5.8

2371 35.2

702 10.1

84 1.2

70 .8

7 .1

682 10.0

1546 22.20

2775 40.60

130 2.00

Discretion exercised

Oral complaints

Resolved Resolved Resolved in

substantially partially department’s in in or Written

complainant’s complainant’s authority's Complaint favour favour favour Advised Total

18

188

Table B4: C o m plaints finalised 1983-84 by d epartm ent and prescribed authority

Written complaints Oral complaints

Resolved Resolved Resolved in Resolved Resolved Resolved in

substantially partially department’s substantially partially department’s

in in or in in or Written

Outside Discretion Withdrawn complainant's complainant’s authority's Outside Discretion complainant’s complainant's authority’s Complaint

jurisdiction exercised or lapsed favour favour favour Total jurisdiction exercised favour favour favour Advised Total

A v ia tio n

• Department of Aviation — 5

C o m m u n ic a t io n s

• Department of Communications • Australian Broadcasting — 1

Commission • Australian Broadcasting

4

Tribunal — 3

• Special Broadcasting Service • Australian Postal Commission — —

(Australia Post) • Australian Telecommunications 5 5

Commission (Telecom Australia) 4 48

D e f e n c e

• Department of Defence 4 30

D e f e n c e S u p p o r t

• Department of Defence Support — 1

E d u c a tio n a n d Y o u th A f fa ir s

• Department of Education and Youth Affairs 2 6

• ACT Schools Authority — —

• Australian National University 1 1 • Schools Commission • Canberra College of Advanced — 1

Education — 1

1 6 2 24 38 3

— 1 2 18 22

2 1 4 8 19 4

1 1 3 8

8 — — 3 11

7 18 7 56 98 17

17 120 69 300 558 32

11 16 9 60 130 25

— 1 1 2 5 —

3 9 5 30 55 Λ

— 2 3 4 9

— — — 2 4

► 16

— — 1 2 4

1 2 4 „

1 2

9 3

54 68

111 243

29 24

1

24 70

2 1 25 34

2 8 11 37

44 38 94 315

206 159 402 1153

20 28 114 240

1 — 1 3

20 30 66 226

Table B4: Com plaints finalised 1983-84 by d epartm ent and prescribed authority

Table B4: C om plaints finalised 1983-84 by d ep artm ent and prescribed authority

Written complaints Oral complaints

Resolved Resolved Resolved in Resolved Resolved Resolved in

substantially partially department's substantially partially department’s

in in or in in or Written

Outside Discretion Withdrawn complainant's complainant’s authority’s Outside Discretion complainant’s complainant's authority's Complaint

jurisdiction exercised or lapsed favour favour favour Total jurisdiction exercised favour favour favour Advised * • Total

H o u s in g a n d C o n s tr u c tio n

• Department of Housing & Construction -

I m m ig r a tio n a n d E th n ic A f f a i r s

• Department of Immigration & Ethnic Affairs 4

I n d u s tr y a n d C o m m e r c e

• Department of Industry & Commerce 1

P r im a r y I n d u s tr y

• Department of Primary Industry 1 • Australian Wool Corporation -• Australian Dairy Corporation —

P r im e M in is te r & C a b in e t

• Department of Prime Minister & Cabinet —

• Public Service Board 2

14 32 38 29 52 170

84 168 107 104 143 642

31 21 10 30 42 136

1 — 1 1 4 7

6 6 3 2 21

R e s o u r c e s & E n e r g y

• Department of Resources & Energy — — — — — _ _ _ _ _ 1 1 2

Oral complaints

Resolved Resolved Resolved in

substantially partially department’s in in or Written

complainant’s complainant's authority’s Complaint favour favour favour Advised Total

296 421 219 1667

Oral complaints

Resolved Resolved Resolved in Resolved Resolved Resolved in

substantially partially department’s substantially partially department’s

in in or in in or Written

Outside Discretion Withdrawn complainant’s complainant’s authority’s Outside Discretion complainant’s complainant’s authority’s Complaint

jurisdiction exercised or lapsed favour favour favour Total jurisdiction exercised favour favour favour Advised Total

1 3

13 38

2 9 3 1 6 9 30

30 124 450 249 176 243 1272

66

- 5021

883 1857 1184 1245 1864 12,485

Appendix C: Statistics — Complaints (Australian Federal Police) Act 1981 T a b l e C l : C o m p l a i n t s r e c e i v e d b y o r n o t i f i e d t o t h e O m b u d s m a n u n d e r t h e C o m p l a i n t s ( A F P )

A c t d u r i n g 1 9 8 3 - 8 4

Part II Part III Total

(made to AFP) (made to Ombudsman)

Conduct 181 (50.3%)

Practices and

75 (20.8%) 256 (71.1%)

Procedures 23 ( 6.4%) 64 (17.8%) 87 (24.2%)

Out of jurisdiction 1 ( 0.3%) 16 ( 4.4%) 17 ( 4.7%)

Total 205 (57.0%) 155 (43.0%) 360 (100%)

T a b l e C 2 : G e o g r a p h i c a l d i s t r i b u t i o n o f 1 9 8 3 - 8 4 c o m p l a i n t s

Total

A .C .T. 206 (57.2%)

N. .S'. IV. 64 (17.8%)

VIC. 33 ( 9.2%)

QLD. 17 ( 4.7%)

H'.A. 18 ( 5.0%)

S.A. 9 ( 2.5%)

TAS. 1 ( 0.3%)

N.T. 12 ( 3.3%)

Total 360 (100%)

T a b l e C 3 : C o m p l a i n t s c o m p l e t e d 1 9 8 3 - 8 4

Total

Out of jurisdiction 16

Withdrawn or lapsed 41

Discretion exercised Reconciliation effected:

54

— by AFP 14

— by Ombudsman* Practices and Procedures investigations completed**

3

— by AFP 13

— by Ombudsman Conduct investigations completed**

37

— by AFP 152

— by special investigation 5

— by other investigation —

Total 335

* Also equals number attempted. **Does not include those where investigation commenced but complaint was then withdrawn, resolved by reconciliation or discretion exercised not to investigate further.

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T a b l e C 4 : O u t c o m e s o f i n v e s t i g a t i o n s c o m p l e t e d 1 9 8 3 - 8 4

T o ta l

Totally or partially substantiated after investigation Complaints unfounded Incapable of determination after investigation

62 (29.9%) 107 (51.7%) 38 (18.4%)

Total 207 (100%)

T a b l e C 5 : A c t i o n * r e s u l t i n g f r o m i n v e s t i g a t i o n s c o m p l e t e d d u r i n g 1 9 8 3 - 8 4

I n r e l a t i o n t o m e m b e r s * *

Complaints where members charged with criminal offences Complaints where members charged with disciplinary offences 6(10)

Complaints where members counselled or spoken to 31(38)

I n r e l a t i o n t o c o m p l a i n a n t s

Complaints where AFP has admitted error and made apology 8

Complaints where the original decision was reversed or varied —

Complaints where detailed explanation has been offered 9

Complaints where compensation has been or will be paid 6

Complaints where some other remedial action taken 10

C o m p l a i n t s w h e r e A F P p r o c e d u r e s a m e n d e d 2 1

N u m b e r o f a c t i o n s t a k e n 9 1

*A complaint may produce action under more than one of the headings shown. **The number of members involved is shown in brackets.

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Appendix D: Letter about Ombudsman institution for a self-governing ACT 19 September 1984 Dear Mr. Craig,

I received your letter on 3 August about your Task Force’s recommendation that the Commonwealth Ombudsman’s powers and functions be mirrored in model ACT legislation for early enactment by a new ACT government. You asked me to express any views which I believe should be taken into account at this time.

I note that the Task Force has emphasised the importance, in the transition to self-government, that existing rights of ACT citizens to avail themselves of the various measures enacted since 1975 for review of federal administrative decisions should not be impaired. At present citizens of the ACT have unrestricted access to my office irrespective of whether the complaint arises out of an action taken in a purely territorial context as, for example the enforcement of a covenant in an ACT lease, or whether the concern of the citizen is about the application to him of action under a national law such as the Social Security Act. If there were to be a local Ombudsman operating quite independently from my own office there would obviously be a need for some transitional arrangement for dealing with outstanding complaints made to my office but this would not present an insuperable problem.

Although your Task Force has recommended that the ACT functions of the Ombudsman be derived from model ACT legislation it does not appear to me to be suggesting that there should be a separate Ombudsman’s operation in the ACT. I think it would be altogether undesirable for the new administrative law procedures and machinery to be found in the Administrative Appeals Tribunal Act, Ombudsman Act, Administrative Decisions (Judicial Review) Act and the Freedom of Information Act which now apply throughout Australia and without differentiation in the ACT, to become fragmented purely out of a desire to assert autonomy.

At present the Ombudsman A ct 1976 grants authority to the Commonwealth Ombudsman to investigate complaints about actions of Commonwealth departments and prescribed authorities irrespective of whether the agencies are purely territorial or perform functions of the central government in the federal system. The Ombudsman Act provides for the Prime Minister to designate one of the Deputy Commonwealth Ombudsmen as the Deputy Ombudsman for the Australian Capital Territory. Such a Deputy Ombudsman would have all my powers and functions in relation to action taken by a department or a prescribed authority in connection with the administration of the Australian Capital Territory apart from the power to report directly to the

Parliament. The grant of such a power does not derogate from the powers of the Commonwealth Ombudsman. The practice in my office since its inception has been to deal with ACT complaints in just the same way as we handle other complaints and there has therefore been no Deputy Ombudsman for the ACT. From my point of view, however, there is no objection at all to having such a Deputy.

Obviously it is an expression of independent status for a new ACT government to pass an Ombudsman Act establishing an Ombudsman for the Australian Capital Territory. If such legislation were to be passed, it could, in my view, closely follow the Ombudsman A ct 1976 under which our territorial operations are already conducted. Since its original passage the Ombudsman Act has been subject to intensive

review not only within this office but also by the Administrative Review Council and substantial amendments have been made improving the efficacy of the Act in its original form. As it now reads I believe the Ombudsman Act provides a satisfactory legislative model.

If there is to be a fully fledged Ombudsman for the Australian Capital Territory, and I see no reason why there should not be, the question arises however as to whether

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the best course of action is for a Territory Act to provide for the territory Ombudsman to operate as a separate entity with his own organisation or whether advantage should be taken of the existence in Canberra of the central office of the Commonwealth Ombudsman. I have little doubt that departments and authorities, having functions

under both territorial and national law, would prefer to be answerable to a single Ombudsman’s office and from a complainant’s point of view, resort to a single office has obvious advantages. It would not in my opinion make economic or administrative sense to have a separate operation where the possibility exists of utilising the presence

of an institution with a depth of resources and experience greater than a solely territorial office is likely to have. Last year the Parliament amended the Ombudsman A ct 1976 to provide for the creation of the office of Defence Force Ombudsman. The Act provides that the

Defence Force Ombudsman should be the person who holds the office of Commonwealth Ombudsman. It also provides for the Prime Minister to designate a Deputy Commonwealth Ombudsman as the Deputy Ombudsman (Defence Force). There is such a Deputy Ombudsman. He is empowered by delegation to exercise most of the statutory functions of the Defence Force Ombudsman. In practice the DO(DF) carries the bulk of responsibility for handling defence force complaints and the

arrangement works well. One of the reasons for vesting in the Commonwealth Ombudsman the role of Defence Force Ombudsman was to take advantage of existing facilities with consequential savings in cost. If the ACT legislature should wish to create an Ombudsman for the Australian

Capital Territory, in my opinion it should consider vesting the role in the Commonwealth Ombudsman as in the instance of the office of Defence Force Ombudsman. By further legislative provision a Deputy Ombudsman could be appointed or designated to exercise the powers vested in the Ombudsman for the

Australian Capital Territory. The Ombudsman would, of course, report to the legislature as in fact I do now in respect of our ACT work. I appreciate, of course, that there may be considerations of a political nature which ultimately may have to be taken into account but I have thought it proper to explain my views without

reference to them. I should also add that there are other options, one being a modification of the above-described suggestion to vest the role of ACT Ombudsman in one of the Deputy Commonwealth Ombudsmen instead of the Commonwealth Ombudsman. Another is for an ACT Ombudsman to have the use of the facilities

and resources of my office. However, for my part the proposal I have outlined is preferable. You will appreciate my office now has a good deal of broad-ranging experience behind it and we are, I believe, in a position to contribute to further consideration

of the administrative review aspects of self-government in the event of there being more thorough coverage of the subject in the forthcoming white paper than in the Task Force report. Yours sincerely,

(J. E. Richardson)

Mr. Gordon Craig, OBE, Commonwealth Ombudsman

Chairman, Task Force on Self Government, GPO Box 158, CANBERRA ACT 2601.

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Where to direct inquiries and complaints

The Commonwealth Ombudsman is located in Canberra, and he also has representatives in all States and the Northern Territory. Inquiries and complaints should be directed to:

CANBERRA The Commonwealth Ombudsman GPO Box 442, Canberra, ACT 2601 or call at:

1st Floor, Prudential Building, Cnr. University Avenue and London Circuit, Canberra City Telephone (062) 47 5833

SYDNEY The Commonwealth Ombudsman, 9th Level, Aetna Life Tower, Cnr. Bathurst and Elizabeth Streets, Sydney, NSW 2000 Telephone (02) 264 7188*

MELBOURNE The Commonwealth Ombudsman, 6th Floor, Aldersgate Flouse, 405 Collins Street,

Melbourne, Vic. 3000 Telephone (03) 613 911

BRISBANE The Commonwealth Ombudsman, 21st Floor, Watkins Place, 288 Edward Street,

Brisbane, Qld. 4000 Telephone (07) 229 5116**

PERTH The Commonwealth Ombudsman, 18th Floor, City Centre Tower, 44 St. George’s Terrace, Perth, WA 6000 Telephone (09) 325 5000**

ADELAIDE The Commonwealth Ombudsman, 10th Floor, GRE Building, 50 Grenfell Street, Adelaide, SA 5000 Telephone (08) 51 2861

HOBART In Tasmania the Tasmanian Ombudsman acts as a delegate for the Commonwealth Ombudsman. Inquiries should go to: The Tasmanian Ombudsman, 23 Kingsway Place, Hobart, Tas. 7000 Telephone (002) 34 9200

DARWIN In the Northern Territory the Northern Territory O m budsm an acts as a delegate for the

Commonwealth Ombudsman. Inquiries should go to: The Northern Territory Ombudsman, 1st Floor, Paspalis Centrepoint,

Smith Street Mall, Darwin, NT 5790 Telephone (069) 81 8699

* Country residents in New South Wales can phone (008) 42 2272 at only the cost of a local phone call. ** Country residents in Queensland and Western Australia can phone (008) 117 000 at only the cost of a local phone call.

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