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Finance and Public Administration Legislation Committee
Office of the Commonwealth Ombudsman

Office of the Commonwealth Ombudsman


CHAIR: I welcome Mr Colin Neave, Commonwealth Ombudsman and officers of the Office of the Commonwealth Ombudsman. Mr Neave, do you wish to make an opening statement?

Mr Neave : Thank you, senators, for the opportunity to make an opening statement. I have chosen to do so on this occasion so that I may brief the committee on a new function the government has conferred my office in relation to accepting reports of abuse from current and former serving members of the Australian Defence Force. To provide senators with some background on my position and the work of my office, I, as the Commonwealth Ombudsman, am also the Ombudsman for the Defence Force as well as for the ACT, immigration, law enforcement, overseas students, postal industry and private health insurance.

Recently the Australian government decided to expand the scope of my powers in relation to my role as the Defence Force Ombudsman to permit my office to accept accounts of serious physical and sexual abuse from Defence Force personnel from 1 December. Some history to the Defence aspect of my role: the Commonwealth Ombudsman was given the Defence role in 1983 to provide assurance of independence and integrity in the management of complaints about matters of administration within the Australian Defence Force. The Defence Force Ombudsman is the only external and independent complaints mechanism available to members of the Australian Defence Force for administrative and employment matters.

Senators would be aware of the work of the former Defence Abuse Response Task Force, which operated from November 2012 to August this year. During the course of the task force's work, it was recognised that an independent means for taking complaints about abuse experienced by former and current members of Defence was still needed. The government has chosen to give the complaints function to my office in recognition of the assurance of independence that it provides.

From 1 December this year, my office will be able to accept reports of abuse in Defence and take appropriate action to respond to those reports of abuse. This can include by facilitating counselling for the individual or facilitating an alternative dispute resolution meeting such as the restorative engagement conferences that were developed and piloted by the task force, to which I referred a moment or two ago, with great success. Those conferences provided individuals the opportunity to meet with senior Defence representatives in a restorative engagement conference to engage in a genuine and meaningful interaction about the complainant's experience of abuse and its impacts.

I understand that Defence wholeheartedly committed to engaging with a former task force to participate in these conferences, with over 600 face-to-face conferences attended by senior members of the Defence Force, including the service chiefs, former chiefs of the Defence Force and former vice-chiefs of the Defence Force. I very much look forward to the continuation of this commitment by Defence to address cultural change within that organisation. As part of the new function, I have also been empowered to inquire into Defence's practices and procedures about making and responding to complaints of abuse and the effectiveness and appropriateness of those procedures. I am pleased that Defence has welcomed this oversight function of mine, which among other things will allow my office to oversee the ongoing reforms to target the methods and means that Defence applies in dealing with allegations of abuse. I welcome this new function to examine abuse in Defence. It complements the existing role that my office already has in investigating complaints about matters of administration in Defence. I have written to a number of senators to offer a briefing on this role and also intend to hold a workshop for parliamentary staffers in early 2017, to provide information and other assistance. I would be more than happy to facilitate individual briefings for any of the senators present here today. Thank you.

Senator McALLISTER: I want to ask about your overall workload, and then we might come back to the consequences of the expansion of your responsibilities in relation to Defence complaints. In your 2015-16 annual report you detail quite a significant increase in complaints. Essentially, there were more than 37,000 approaches to the office, compared to only 28,000 on 2014-15. What is that large increase attributable to?

Mr Neave : For a start, it is partly attributable to the Private Health Insurance Ombudsman role, which was added to the office. There has been some increase in complaints more generally, but that is the largest factor to which that increase should be attributable.

Senator McALLISTER: I appreciate it comprises two components: one is a new area of responsibility and the other just a more general increase in complaints. In the second category is there any particular agency which comprises the bulk of complaints as a new source of complaints?

Mr Neave : Certainly the number of complaints we have received about the Department of Human Services has increased. We have worked, as we do with all departments in respect of whom we see an increase in complaints, to manage the process around handling those complaints. Our general approach is to appropriately work with departments in order to deal with increases in workload from time to time.

Senator McALLISTER: I imagine that you cannot disclose details of individual complaints, but what are the general questions people are concerned about in relation to the Department of Human Services.

Mr Neave : I might ask my deputy to go into a little bit more detail.

Mr Glenn : For the Department of Human Services, the Centrelink program is the program that is most commonly complained about. It represents about 33 per cent of our work. Within that there are a range of issues that are raised by complainants, predominantly concerning the administration of Newstart allowance, youth allowance and the disability support pension. It is a mixture of those issues that are driving Centrelink complaints, predominantly.

Senator McALLISTER: Is there any particular reason why there is such an increase in complaints about Centrelink at this time? It is a longstanding agency, and it looks like we are seeing a bump in dissatisfaction.

Mr Glenn : I am not actually sure if there is a bump. Centrelink has always represented the largest component of our complaints. The increase is broadly even across our jurisdiction, if you exclude the private health insurance activities.

Senator McALLISTER: So there is no particular growth?

Mr Glenn : No.

Senator McALLISTER: It is an overall growth in complaints, but it happens that the DHS is coming off a high base?

Mr Glenn : That is right.

Senator McALLISTER: I understand. I want to ask about the KPIs—the summary of your annual performance results. I note that you have not met KPI 4. You were targeting 85 per cent of complaints finalised within the office's service standards, but you were only able to achieve 76.5 per cent. The annual report actually provides a breakdown of those into categories, which indicates that the department performs much better in some categories than others. Could you just explain the category system—those categories 1 to 5 that are shown on page 28 of the annual report?

Mr Glenn : Certainly, I will get the correct definitions for you.

Senator McALLISTER: What I am most interested in is the process for assigning a particular approach or complaint to one of those categories. What are you taking into account?

Mr Glenn : Essentially, a category 1 complaint can be dealt with without reference to the agency that is complained about. That could be a matter that is outside of jurisdiction or is very easily dealt with. A category 2 complaint will require some initial and preliminary contact with the agency. Category 3 would require more significant investigation with the agency itself. Category 4 requires even further investigation, and category 5 leads to a formal report by the Ombudsman.

Senator McALLISTER: That makes sense. What analysis have you undertaken to understand why the office was unable to meet KPI 4, and what improvements you are planning to meet it in the present financial year?

Mr Glenn : There were two main drivers of our failure to meet that KPI. The first is simply a question of resourcing. With increasing complaints we need to be alive to the efficiency of our own processes. So we are always looking to try to provide a more efficient service in the way that we handle matters, the way that we handle documents within the organisation and the way that we allocate complaints—to be simply more efficient.

The second driver is around the external influences of our ability to meet that KPI, which are the responses we get from agencies when we ask questions. If agencies are unable to comply with our requests for information within the time frames that we give them, that can start to affect our ultimate capacity to be able to deliver within our service standard.

Senator McALLISTER: I do note that your annual report indicates that delays from the Department of Human Services and the Department of Immigration and Border Protection have hampered the office's ability to meet the service standard target. What is the time frame that you would expect from those agencies in terms of a receipt to an inquiry from your office?

Mr Glenn : That varies depending on the type of question that we are asking and the complexity of the matter. Typically, we might ask for a response within 14 or within 28 days. We continue to be in discussions with DHS and immigration about improving processes. There are exercises on both sides that we can continue to work on to try and stop some of those delays happening.

Senator McALLISTER: So you have explicitly raised the delay issue and its impact on your performance with the Department of Human Services?

Mr Glenn : Yes, we have.

Senator McALLISTER: And what has their response been to that?

Mr Glenn : They are very willing to work with us to try and improve their own performance. Like every agency, they are subject to resource constraints—so there are resourcing issues at their end. We have also undertaken to do some work around the way we engage and we pose questions so that we can try to make it easier for agencies to work out what it is that we are asking them, to get that information to us more quickly. Sometimes that involves having a very early meeting in a matter so that we can sit around a table. Rather than passing pieces of paper backwards and forwards between the agencies, we might sit down to really get to the nub of the question so that a response can be provided more efficiently.

Senator McALLISTER: Is that the same approach that you have taken to the Department of Immigration and Border Protection?

Mr Glenn : Effectively, essentially, yes.

Senator McALLISTER: Has that agency been cooperative in response to you raising these issues?

Mr Glenn : Yes, we are encouraged by the extent to which agencies are willing to be responsive to the things that we put to them around time frame.

Senator ABETZ: I have a bracket of questions relating to your oversight of the FWBC and its compulsory powers. When was the Ombudsman first required to undertake that task?

Mr Neave : The task under the current legislation commenced some time ago.

Senator ABETZ: Can you recall exactly when? Was it June 2012?

Mr Neave : It certainly was around about June 2012. It was before my time as Ombudsman. I was not the Ombudsman at the time that that work commenced.

Senator ABETZ: But if I were to say June 2012, is there anybody who can contradict that and say that I have something wrong by saying June 2012?

Mr Neave : It sounds right. We should have a more precise answer, but it sounds right.

Senator ABETZ: Let us proceed on that premise then. I do not intend to mislead witnesses with putting these propositions. Were you provided with extra funding to undertake that task?

Mr Neave : No. At the time we ourselves were not provided with funding. Apparently, a memorandum of understanding was completed with the organisation which involved a payment to us of $100,000 per year. I should say that—

Senator ABETZ: $100,000, not $200,000?

Mr Neave : $100,000.

Senator ABETZ: When did that start?

Mr Neave : That started from the commencement of the legislation.

Senator ABETZ: So June 2012?

Mr Neave : Yes. I should say that, as a matter of principle, having an arrangement with an organisation which is subject to our jurisdiction where we expect to be paid for our work is not really our preference.

Senator ABETZ: It does have some issues, and I would agree with that. When did the Ombudsman undertake its first review?

Mr Neave : We will take that question on notice to be sure, but my assumption for the purposes of discussion right now, subject to us taking that question on notice, would be 12 months later. After June of the first year during which we undertook that function.

Senator ABETZ: So June 2012 the arrangement was entered into with an MOU and then you started reviews in June 2013.

Mr Neave : We would have commenced a review at that point, yes.

Senator ABETZ: So you have got $100,000 for one year without having done a review from the FWBC.

Mr Glenn : We would have commenced reviews during the 2012-13 financial year as the agency undertook activity through that period. The Ombudsman would not have reported until the subsequent year because we report the preceding year in Ombudsman's reports.

Senator ABETZ: Because I have a document in front of me that might suggest otherwise. How many reviews have you undertaken all up for the FWBC?

Mr Glenn : The total number we would have to take on notice. I don't have that information—

Senator ABETZ: I have a number here of 14, but—

Mr Neave : If that is the information that is before you, we would not necessarily disagree with the number of files we might have—

Senator ABETZ: Yes, but I do not want to assert it either without your confirmation.

Mr Neave : To be quite sure, we will take all of that on notice.

Senator ABETZ: It seems that it is up to the Ombudsman to determine when you undertake a particular review of the exercise of these compulsory powers.

Mr Neave : The approach that we have taken is that, where those powers are used, we will review that which is done in using those powers on the part of the organisation.

Senator ABETZ: Do you review each one of them?

Mr Neave : Yes, we understand we do. But we will, again, make sure of that.

Senator ABETZ: If you can check that for me, I would be much obliged, because in the document I have in front of me there seems to have been no review undertaken in the first year and a bit, and then there was a flurry of activity between January and April 2015, and then there has been nothing further since then.

Mr Glenn : We can check.

Senator ABETZ: If you can take that on notice and if that assertion is correct, can I be provided with an explanation as to why there was that flurry of activity and why there has been nothing since? Can I also be provided with an explanation, because, if I understand correctly—and on this occasion I am sure I am correct because I am quoting from a document entitled Submission by the Commonwealth Ombudsman: Inquiring into government's approach to re-establishing the Australian Building and Construction Commission—in section 2 of that document we are told that the legislation:

… requires the Ombudsman to report to Parliament as soon as practicable after the end of each financial year about the examinations conducted by the Director and the results of our reviews.

It has been suggested to me that the report that should have occurred as soon as practicable after June 2015 only found its way to the parliament in September 2016, which was, very conveniently, at the same time that the government was trying to pursue the issue of re-establishing the Australian Building and Construction Commission. I am wondering if there is an explanation for this 15-month hiatus and if I am correct as to that. I am going on information provided. I do not seek to make allegations, but if the information provided is correct, I would have to say it is concerning.

Mr Neave : We need to take that on notice in order to provide you with an explanation of the delay in that case.

Senator ABETZ: In your submissions to the committees you indicated concern with funding and finances, and I am just wondering how much it actually costs per review. Given that you are provided with $100,000, I would have thought you would be able to undertake them. How much time does a review actually take?

Mr Neave : We would be happy to make some comment in our response to that question. I think it needs to be understood that some of these matters are, in fact, quite complex, requiring us to have staff examine each file and be convinced that the powers that were exercised were appropriately exercised.

Senator ABETZ: I understand—and, once again, correct me if I am wrong. The Ombudsman does find money to pay for career advice for members of the immediate family of staff, including confidential counselling services for immediate family of staff. Is that correct? You also spend $800,000 on travel, $450,000 per year on supplies that are employee related and $150,000 on media related expenses. Then you have an unforeseen increase in supplier expenses in 2014-15, which I think was on page 143 of your annual report, which talks about the higher than anticipated international program activity to assist ombudsmen in the Asia-Pacific region. Aren't you fully funded for that by DFAT?

There should not have been an overrun on that or do we now consider the ombudsman in Tonga more important than looking after the FWBC in Australia?

Mr Glenn : There are a number of questions in what you have just put to us. The first question related to counselling services or assistance which is an employee assistance program that is provided generally by public service organisations to staff and, as I understand it, is available to members of staff. That is a contract that is engaged in by most people.

Senator ABETZ: That is fine. But immediate family members as well?

Mr Glenn : I understand so, but I cannot give direct evidence about what other agencies do, but that has been my experience. Senator, you raised the travel cost. The office does have reasonably significant travel expenditure. Approximately half of that relates to our international program, which is funded by DFAT; the other half relates to our various inspections work, which includes inspecting immigration detention centres and inspecting state and territory law enforcement bodies, which requires a significant amount of travel.

Senator ABETZ: Do you get full cost recovery from DFAT?

Mr Glenn : Certainly on the international program, yes.

Senator ABETZ: On page 143 of the 2014-15 annual report, you had an unforeseen increase in supplier expenses, higher than anticipated international program activity. I want to ascertain whether there has been a blowout and whether that has been recovered from DFAT?

Mr Glenn : I do not have that year's report in front of me, but I can confidently say that expenses related to our international program are funded by DFAT. The office's contribution to that is essentially the time of the SES officers, which is the typical arrangement for DFAT funded international programs. If I may suggest, if the thrust of your question is whether these expenses were operating to the detriment of the office's capacity to undertake work for Fair Work Building & Construction, the answer is no. That task was separately funded.

Senator ABETZ: You would say that, wouldn't you? That would be my response to that.

Mr Glenn : That activity was funded under a separate memoranda of understanding. That memoranda of understanding expired in June 2015 and we have been in subsequent discussions with the agency about whether that could be extended.

Senator ABETZ: No reviews have been done since then?

Mr Glenn : No. Reviews have been done since then and the 2014-15 report has been published, and you have asked about the delay in that. We will provide you with a more detailed explanation about that.

Senator ABETZ: Sorry, when did the funding stop?

Mr Glenn : The end of 2014-15.

Senator ABETZ: Yes, so your 2014-15 annual report clearly talks about a period for which you were funded. I am asking past that: have you undertaken any reviews in 2015-16 and, if so, have you reported those to the parliament as yet?

Mr Glenn : We have undertaken reviews for 2015-16. They have not yet been reported.

Senator ABETZ: Why the delay?

Mr Glenn : They are still being finalised.

Senator ABETZ: I am being told that there were certain notices—17, 18, 19 and 20—that were simply not reviewed in 2014-15.

Mr Glenn : I do not have that information.

Senator ABETZ: I think I have given you the general flavour with a lot of questions to be taken on notice, and I look forward to the answers. Thank you very much.

CHAIR: I am advised that Senator Lambie had some questions but we have been unable to get in contact with her. I am going to operate on the assumption that she will not be here to ask them. I do understand that Senator Xenophon is on his way and will be here imminently to ask some questions. Here he is.

Senator XENOPHON: I just want to ask some questions very briefly of the Ombudsman's office in relation to the fact that before he investigates a matter the complainant must first have attempted to resolve the issue with the Commonwealth entity—it is correct that that is the standard protocol? Yes. So when they come to you, short of a tribunal or judicial remedy, which can be difficult for individuals to pursue, you are effectively a place of last resort—I think that is fairly axiomatic. I note that the standard for a government entity's response is 28 days, and I draw to your attention by way of a question on notice that the agency had taken four months and not responded. I just want to ask about your powers to compel agencies to respond—in the situation of last resort, under what circumstances would you issue a section 9 notice? What are the criteria to issue a section 9 notice, given the delay is sometimes quite egregious for constituents, who say, 'We're stuck without a response'?

Mr Glenn : The Ombudsman's power to issue a section 9 notice is essentially at large. The Ombudsman can form a view that a notice should be issued, and if that is done then that compels the agency to produce information or to appear before the Ombudsman to answer questions.

Typically, our use of that type of compulsory power is restricted to two circumstances. One is that there are instances where individuals request to be compelled to answer questions that the Ombudsman wishes to put to them. That can be agencies or it can be private individuals who wish to have the protection that comes with being compelled by the Ombudsman to answer a question. The second, which is going to the situation you are talking about, is if there is unacceptable delay by the agency in answering the question, so we would seek to compel the answer to the question.

In that second circumstance the power is used rarely, primarily because throughout all of these processes we are working very hard with agencies to be able to improve their capacity to be able to answer our questions, to avoid turning every investigation into a formalised exercise where we go head to head, issuing formal powers and getting formal responses. Where we can have a more open conversation with agencies about matters, that is typically more productive.

Obviously, there are limits to the Ombudsman's patience, and that is when we engage in very robust conversations with agencies about whether formal powers would be exercised if we do not receive adequate cooperation.

Senator XENOPHON: I will not labour on this point, but in answers to written questions on notice for the additional estimates you indicated that the Ombudsman's office had five section 9 notices issued in 2014-15. Of these, four were issued to private individuals and one was issued to the Australian Securities and Investments Commission, and to date—this was back in February 2016—nil section 9 notices have been issued in 2015-16. Is that still the case? Or how many were issued in that financial year?

Mr Glenn : I would have to take that on notice, I do not know that number off the top of my head.

Senator XENOPHON: Well, it was nil up until February. So is it the view of the Ombudsman's office that it is not so much the last resort, but a power that is exercised quite rarely?

Mr Glenn : Certainly, it is a power that is exercised sparingly because it is a significantly intrusive power—to compel people.

Senator XENOPHON: Is it intrusive to say, 'Respond'? The response from an agency could be a cursory response, but it is still a response. At least it leaves the person awaiting that response from the agency knowing where they stand, which might then lead to a triggering of any administrative remedy that might flow from that response.

Mr Glenn : What we typically find is that a cursory response is not adequate to progress the matter, which is why we seek to work with agencies to get a better and more full response that can actually help us advance the matter and deal with the complaint that has been made to us.

One of the difficulties with using formal power to press to get a cursory response is that you are left, essentially, not very much the wiser from the cursory response. So our efforts go to engaging with agencies to try to elicit more helpful responses that allow us to fully examine the complaint that has been made to us so that we can seek a resolution for the individual, if that is available.

Senator XENOPHON: My administrative law is very rusty—having done it at law school in the 1970s and not having practiced in that field—but I would have thought that getting a response might itself be a trigger for administrative remedy in some cases?

Mr Glenn : Possibly; I suspect fairly rarely.

Senator XENOPHON: Your administrative law is rusty as well?

Mr Glenn : My administrative law is okay. I think—

Senator XENOPHON: It is better than mine.

Mr Glenn : I think if somebody is engaged with the Ombudsman, it is often the case that there is not another remedy that is available to them, which is why they are engaging with our office in the first place. Those that have administrative law remedies, such as through the tribunals, would not often be with us.

Mr Neave : I think it is fair to say that we do everything we can to get a response which is going to be helpful as far as the complainant is concerned. As my deputy said, we would use section 9 sparingly. But I have to say, having listened to what you have said, it is certainly something that perhaps we should be considering a little more.

Senator XENOPHON: Thank you, I appreciate that.

CHAIR: If there are no further questions, I thank the Commonwealth Ombudsman.