ANALYSIS OF AGENCY PERFORMANCE

Since 1 July 2011, ACT government administration has been organised within nine directorates. The current structure of the ACT Government is set out in Notifiable Instrument NI2011-712, Administrative Arrangements 2011 (No 3).

ACT GOVERNMENT DIRECTORATES—
APPROACHES AND COMPLAINTS

Chief Minister and Cabinet Directorate

Overview

The directorate is responsible for:

• directing and coordinating policy and strategy across the ACT Public Service, managing the ACT’s inter-governmental relationships, and supporting the Chief Minister’s role on the Council of Australian Governments
• strategic planning and direction on public sector standards, including service-wide employment, workforce culture and capability, industrial relations, learning and development, implementing machinery of government changes, and promoting ethics and accountability
• community engagement, whole-of-government communications, public affairs advice and planning, and delivery of the Centenary of Canberra
• supporting the Head of Service and the Strategic Board and its sub-committees.

The Chief Minister and Cabinet Directorate has limited service delivery obligations to the general public. Therefore, it is not surprising that very few complaints are made to the Ombudsman about the administrative functions of this directorate.

Complaints and investigations

In 2011–12, the office received three approaches and finalised two about activities within the portfolio of the Chief Minister and Cabinet Directorate. This is less than 1% of all complaints and approaches received by the ACT Ombudsman in 2011–12.

Other significant engagement

In July 2011, the Ombudsman made a submission to the inquiry by the Legislative Assembly Standing Committee on Administration and Procedure into the feasibility of establishing the position of Officer of the Parliament.⁹

On 23 November 2011, the reporting functions of the ACT Ombudsman’s office moved from the Justice and Community Safety Directorate to the Chief Minister and Cabinet Directorate, under the Administrative Arrangements 2011 (No 3).

In May 2012, the Acting Ombudsman and the Director-General of the Chief Minister’s Directorate met to discuss how the office could better assist the directorate to improve complaint management across the ACT Public Service. These meetings will occur every six months. The ACT Ombudsman and the ACT Government will implement a new service delivery agreement in late 2012.

Table 4: Approaches and complaints received about the Chief Minister and Cabinet Directorate 2011–12

Chief Minister and Cabinet	Received	Finalised
	Total	Not Investigated	Investigated	Total
Chief Minister’s Department	2	2		2
ACT Legislative Assembly	1
	3			2

HEALTH DIRECTORATE

Overview

The Health Directorate sets health policy, plans the delivery of health services, and seeks to ensure that these services meet community needs. The Health Directorate also funds a range of non-government organisations to provide vital healthcare services to the people of the ACT and surrounding region.

The provision of health services, disability services and services for young people or older people are matters specifically excluded from the ACT Ombudsman’s jurisdiction under s 5(2)(n) of the ACT Ombudsman Act. While the office receives complaints and enquiries about these matters, they are generally referred to the ACT Human Rights Commission without further investigation unless special circumstances justify another course of action.

Complaints and investigations

In 2011–12, the office received 15 approaches and complaints (2% of the total approaches and complaints received) about activities within the Health Directorate: three were investigated. The issues noted in these approaches included actions taken by health inspectors, requests under Freedom of Information (FOI) and delays in processing payments. The majority of approaches concerned the provisionof health services and, because the Ombudsman has no jurisdiction over these complaints, they were referred to the ACT Human Rights Commission.

Other significant engagement

In May 2012, the responsible Senior Assistant Ombudsman met with the Director-General of Health to discuss the integrity of emergency department data.

Table 5: Approaches and complaints received about the Health Directorate 2011–12

Health	Received	Finalised
	Total	Not Investigated	Investigated	Total
ACT Health	15	14	3	17
	15			17

TERRITORY AND MUNICIPAL SERVICES DIRECTORATE

Overview

The Territory and Municipal Services Directorate (TAMS) delivers a wide range of services to the ACT community, such as recycling and rubbish collection, public libraries and municipal infrastructure (streetlights and public barbeques, for example).

The directorate is responsible for managing roads, footpaths and cycle paths and operating the public transport system (ACTION). The directorate also looks after the ACT’s parks and reserves, such as Tidbinbilla Nature Reserve, Namadgi National Park and the reserves that make up Canberra Nature Park.

Canberra Connect, which is the main contact point for ACT government information, services and payments on behalf of other ACT Government agencies, is also part of the directorate.

The directorate is responsible for several of the ACT Government’s commercial operations, including ACT NOWaste, Capital Linen Service, Yarralumla Nursery, ACT Public Cemeteries Authority (which includes Woden, Gungahlin and Hall cemeteries) and ACT Property Group.

Complaints and investigations

Ten per cent of the approaches and complaints received in 2011–12 were about TAMS service delivery functions.

In 2011–12 we received 73 approaches and complaints about activities of the Territory and Municipal Services Directorate, of which we investigated 18. The issues in these approaches and complaints included:

• transfer of credit to MyWay cards
• maintenance of stormwater drains
• maintenance of footpaths
• damage to property following works on a nature strip
• payment of dog registration fees
• approvals for driveways across nature strips
• delays in responding to correspondence and phone calls
• failure to investigate the alleged actions of a bus driver
• lack of disabled parking spaces at a shopping centre.

In April 2011 ACTION introduced the MyWay electronic card system for bus passengers. The office received 12 complaints about the introduction, most stemming from ACTION’s decision not to transfer funds from pre-purchased park-and-ride tickets to MyWay cards after 11 April 2011. The Ombudsman investigation into this issue found that the policy for transferring credit from pre-purchased tickets had not been made clear to ACTION customers.

As shown in Table 7, the remedy provided to the complainant in 79% of the investigated complaints about TAMS was an explanation of the directorate’s processes or decision in way that the complainant could understand. This indicates that considerably more work could be done in this area. Case study 1 illustrates this point.

Table 6: Approaches and complaints received about TAMS 2011–12

TERRITORY AND MUNICIPAL SERVICES	RECEIVED	FINALISED
	TOTAL	NOT INVESTIGATED	INVESTIGATED	TOTAL
Territory and Municipal Services Directorate	57	46	10	56
ACTION	16	10	8	18
	73			74

Table 7: Remedies for investigated complaints about TAMS 2011–12

TYPE OF REMEDY	PER CENT
Action expedited
Apology	5
Decision changed or reconsidered	11
Disciplinary action
Better explanation provided	79
Financial remedy
Other non-financial remedy
Remedy provided without Ombudsman intervention	5

Complainants often advise the ACT Ombudsman’s office that Canberra Connect officers have provided inaccurate information to them or failed to respond to their enquiries. However, our investigations have tended to show that the fault lies with the directorate or business area Canberra Connect has referred the complaint to rather than with Canberra Connect itself. In these circumstances Canberra Connect becomes a one-way communication channel only, and Canberra Connect cannot take responsibility for ensuring that the business area referred to will keep the complainant informed of any progress being made to resolve the complaint. Furthermore, complainants are often unaware that their complaint has been transferred to an external directorate or business area and that they are no longer dealing with Canberra Connect officers. Case study 2 demonstrates how this can create frustration for the complainant.

Canberra Connect officers provide information to complainants from scripts that are based on information provided by relevant directorates or business areas. However, Ombudsman investigations have identified that these scripts are not always current. To ensure that information provided to the community is up to date, it is essential that all directorates update the information held by Canberra Connect to reflect changes in policies, procedures and legislation in a timely manner.

Complaints also arise because a process ‘falls through the cracks’ and a complaint is not appropriately followed up by the responsible area of the ACT Government. Case study 3 illustrates how the failure to follow-up on requests for assistance led to a four month delay and a dissatisfied member of the community.

Other significant engagement

In July 2011, Ombudsman staff attended the Belconnen bus interchange for a demonstration on how the MyWay system operates.

In February 2012, Ombudsman staff met with the Deputy Director-General of the directorate. One outcome of this meeting was an agreement between the parties to meet quarterly to facilitate more direct and timely communication regarding complex complaints.

TREASURY DIRECTORATE

Overview

The Treasury Directorate provides strategic financial and economic advice and services to the ACT Government with the aim of improving the ACT’s financial position and economic management.

Functions and business units within the directorate include:

• ACT Public Sector Shared Services
• budget policy advice, process and financial reporting
• competition policy and regulatory reform
• fiscal and economic policy (including macroeconomic policy and forecasting, in conjunction with Chief Minister and Cabinet)
• Government Business Enterprises ownership policy
• insurance public funds management
• procurement policy
• taxation
• revenue policy and collection.

Complaints and investigations

The office received 19 approaches and complaints (3% of the total approaches and complaints received) about activities within the Treasury Directorate in 2011–12. One complaint was investigated.

Complaints about Treasury’s administrative functions generally relate to one of three issues: revenue collection, such as rates or land tax; requests for waivers for accrued debts; or instalment plans for payment. The office also received approaches from people seeking legal advice on their liability
for accrued debts. The office cannot provide legal advice or advocacy for complainants, so these people were advised to seek independent legal advice. No investigation was undertaken.

The one complaint investigated in 2011–12 involved the receipt by Treasury of a request to waive a debt accrued by a public housing client. Housing ACT had forwarded the request to Treasury, but the request had not been signed. Because the request was not signed, Treasury took no action on it. Consequently neither agency pursued the matter and the request remained un-actioned for more than 12 months, when the complaint came to the attention of the Ombudsman's office.

Table 8: Approaches and complaints received about the Treasury 2011–12

TREASURY	RECEIVED	FINALISED
	TOTAL	NOT INVESTIGATED	INVESTIGATED	TOTAL
Treasury Directorate	19	18	0	18
	19			18

ECONOMIC DEVELOPMENT DIRECTORATE

Overview

The Economic Development Directorate aligns and coordinates land release and development, property management and major projects within the ACT.

The directorate is responsible for:

• business support programs
• Coordinator-General Events (including Territory Venues, Exhibition Park in Canberra)
• Government property strategy
• land development
• land release policy (including the Land Release Program)
• major land and property project facilitation
• skills and economic development
• sport and recreation
• tourism
• gaming and racing.

Complaints and investigations

In 2011–12, the office received 45 complaints about activities within the Economic Development Directorate, the majority concerning the collapse of online betting company Sports Alive. Complainants urged the Ombudsman’s office to investigate the actions of the ACT Gambling and Racing Commission following allegations that Sports Alive had failed to maintain segregated accounts for clients’ monies—a requirement for holding a betting license in the ACT. This matter has become intrinsically connected to ongoing legal actions concerning Sports Alive’s insolvency. At the end of the reporting period, the office was still considering a range of material associated with the collapse of Sports Alive.

Complaints are occasionally received about land releases and sales. Generally, these concern prevailing Government policies that govern or restrict the availability of land for development, and therefore are not matters that the Ombudsman can investigate. Where it is decided that a complaint is a matter of government policy, and not administrative action, the complainant is referred to the minister or to members of the Legislative Assembly.

Table 9: Approaches and complaints received about the Economic Development Directorate 2011–12

ECONOMIC DEVELOPMENT	RECEIVED	FINALISED
	TOTAL	NOT INVESTIGATED	INVESTIGATED	TOTAL
ACT Gambling and Racing Commission	42	22	4	26
ACT TABa	2	2		2
Department of Land and Property Services	1	1		1
	45			29

JUSTICE AND COMMUNITY SAFETY DIRECTORATE

Overview

The Justice and Community Safety Directorate and associated agencies provide services to the Canberra community in the areas of:

• justice
• emergency preparedness and response
• regulation of many consumer and business activities
• protection of rights.

The directorate’s responsibilities include:

• administration of justice
• electoral services
• fair trading and registration
• inspection and regulatory services (including transport regulation and licensing)
• human rights
• legal policy and services
• road safety, driver and vehicle licensing policy
• emergency services and policing
• corrective services.

Complaints and investigations

In 2011–12, 24% of approaches and complaints received by the office were about matters within the Justice and Community Safety Directorate (JACS).

Complainants sometimes seek legal advice or review of a decision made by a tribunal or court, but such matters are outside the Ombudsman’s jurisdiction. Accordingly, these complainants are usually referred to an appropriate body and the matter closed without investigation. Complaints about the deliberative actions of judicial officers are likewise outside the Ombudsman’s jurisdiction, although complaints about
administrative actions within the ACT’s courts and tribunals may be investigated.

In May 2012, the Ombudsman published a report under s 18 of the ACT Ombudsman Act following investigations of two complaints about the handling of applications for financial assistance under the Victims of Crime (Financial Assistance) Act.¹⁰ The investigations identified that the administrative arrangements in place for progressing and finalising applications were inadequate. The Ombudsman recommended a review of the arrangements with a view to putting a more structured process in place. The Attorney-General responded positively, directing his officials to provide him with detailed advice on alternative models for administering the scheme, having regard to the Ombudsman’s recommendation. In 2012–13, the office will follow-up with the JACS directorate on its progress.

In 2011–12 we received 181 approaches and complaints about activities within the JACS, of which we investigated 53. As identified in Table 10, 73 of the 181 approaches and complaints were about ACT Corrective Services. Complaints about administrative actions by the ACT Civil and Administrative Tribunal (ACAT), ACT Director of Public Prosecutions (DPP), Public Trustee for the ACT and ACT Office of Regulatory Services were also investigated.

Table 10: Approaches and complaints received about the JACS Directorate 2011–12

JUSTICE AND COMMUNITY SAFETY	RECEIVED	FINALISED
	TOTAL	NOT INVESTIGATED	INVESTIGATED	TOTAL
Justice and Community Safety Directorate	3	3	2	5
ACT Corrective Services	73	47	34	81
ACT Office of Regulatory Services	39	23	9	32
Public Trustee for the ACT	17	12	4	16
Legal Aid Commission for the ACT	14	13		13
ACT Civil and Administrative Tribunal	12	9	2	11
ACT Director of Prosecutions	9	7	2	9
ACT Human Rights Commission	9	9		9
ACT Government Solicitor	2	2		2
Supreme Court of the ACT	1	1		1
Office of the Public Advocate of the ACT	1	1		1
ACT Magistrates Court	1	1		1
	181			181

The issues in the complaints investigated included:

• ƒuse of force incidents by correctional officers
• lost and damaged detainee property in the AMC
• restrictions imposed on visitors to the AMC
• management of detainee requests and grievances
• items seized or confiscated from detainees or visitors to the AMC
• detainee classification and placement within the AMC
• safety of protected detainees within the AMC
• detainee disciplinary procedures and penalties imposed for breaches of discipline
• procedural/administrative information available to the relative of an accused person
• timeliness of proceedings in the ACAT
• regulation of asbestos removal works in domestic residences
• driver licence disqualifications and cancellations
• parking infringement notices, disputes and late fees
• delays in registration renewals.

Table 11: Remedies for investigated complaints about the JACS Directorate 2011–12

TYPE OF REMEDY	PER CENT
Action expedited	2
Apology	2
Decision changed or reconsidered	4
Disciplinary action	4
Better explanation provided	64
Financial remedy	7
Other non-financial remedy	4
Remedy provided without Ombudsman intervention	13

As shown in Table 11, a better explanation is the most frequent remedy provided to people who make complaints about processes within the JACS directorate. This is not surprising, given the portfolio of the directorate. JACS clients frequently find themselves in unfamiliar circumstances, having to deal with legal issues they have never previously confronted. There is significant potential for confusion about unfamiliar processes and legal consequences following a client’s action or inaction.

The following two case studies demonstrate the difficulties people sometimes have when dealing with complex legal circumstances that involve JACS agencies. In both these cases, remedies involved providing to the complainants an explanation for what had happened and why.

Other significant engagement

In the second part of 2011–12, the Acting Executive Director, Governance within the JACS directorate and the Director of the ACT team within the Ombudsman’s office implemented quarterly liaison meetings. The responsible Senior Assistant Ombudsman met with the JACS Executive in late June 2012. It is hoped that meetings with the Executive will take place every six months.

The Senior Assistant Ombudsman and the Executive Director of the AMC also met regularly throughout the year.

Staff of the ACT Ombudsman’s office participate in the regular Oversight Agencies Working Group meetings held at the AMC, the ACT’s full-time correctional centre. The purpose of these meetings is to discuss the prevailing circumstances in the AMC, including health services, accommodation issues, management of complaints and grievances, program availability and participation, and access to welfare and assistance services for detainees.

ENVIRONMENT AND SUSTAINABLE DEVELOPMENT DIRECTORATE

Overview

The Environment and Sustainable Development Directorate incorporates sections of what was formerly the Department of Environment, Climate Change, Energy and Water, ACT Planning and Land Authority (ACTPLA), transport planning, heritage, Government Architect, and Conservator of Flora and Fauna.

The directorate’s responsibilities cover:

• climate change policy
• electricity and natural gas, water and sewerage industry technical regulation
• energy policy and energy efficiency programs
• environmental sustainability policy
• environment protection
• Government Architect
• heritage
• occupational licensing
• planning, development and building control
• strategic land use and transport
• planning
• support to the Conservator of Flora and Fauna
• survey and leasing
• water policy and water efficiency programs.

Section 5(2)(h) of the ACT Ombudsman Act excludes action taken in managing the environment (other than stormwater and street lighting) from the Ombudsman’s jurisdiction. Complaints about these matters are referred to the Commissioner for the Environment. Complaints about water supply (ACTEW), such as disputes over billing, are handled by ACAT. Most approaches to the Ombudsman’s office about these matters are referred to ACAT without investigation.

Complaints and investigations

In 2011–12 the office received 80 approaches and complaints (10% of the total complaints and approaches) about activities within the Environment and Sustainable Development Directorate, of which 15 were investigated. Thirteen of these concerned the actions of ACTPLA. The issues in these complaints included:

• conduct of controlled activities on neighbouring properties
• Development Application approvals, submissions and delays
• planning approvals without public notification
• decision notices not written in plain language
• claims against builders and certifiers
• delays in certifying solar panel installations.

All investigated complaints were finalised by providing a better explanation to the complainant. Case study 7 demonstrates the need for simple and clear language in explaining complex planning regulations and decisions.

Another important aspect of communicating with complainants is keeping them informed. As demonstrated by Case study 8, keeping complainants informed of developments can alleviate dissatisfaction and prevent further problems.

COMMUNITY SERVICES DIRECTORATE

Overview

The ACT Government Community Services Directorate is responsible for a wide range of human services functions in the ACT, including the areas of:

• multicultural affairs
• community services
• older people
• women
• public and community housing services and policy
• children, youth and family support services and policy
• disability policy and services
• therapy services
• Child and Family Centres
• the ACT Government Concessions Program
• homelessness
• community engagement
• Aboriginal and Torres Strait Islander Affairs
• community disaster recovery.

Many of the directorate’s portfolio responsibilities fall outside the ACT Ombudsman’s jurisdiction to investigate by virtue of s 5(2)(n) of the ACT Ombudsman Act. Complaints about matters outside the Ombudsman’s jurisdiction are referred to an appropriate body without investigation. The majority of Community Services Directorate complaints are referred to the ACT Human Rights Commission, either by referring the complainant to that body or by formally referring the complaint details to the Commission under s 6A or 6B of the ACT Ombudsman Act.

Complaints and investigations

In 2011–12, the office received 170 approaches and complaints (22% of all approaches and complaints) about activities within the Community Services Directorate. Twenty-one of these were outside the ACT Ombudsman’s jurisdiction and the complainants were referred to another appropriate oversight body. There were 151 complaints concerning housing, of which 41 were investigated by this office.

The issues in these complaints included:

• action taken to address antisocial behaviour by tenants
• action taken to recover debts, accrue debts, waive debts or write off debts
• assessments of applications for housing or transfer
• calculation of rental rebates
• engagement between tenants and housing managers
• lost amenities while maintenance works carried out
• management of complaints
• settlement of compensation claims
• time taken to allocate appropriate housing to ’high needs’ and ’priority’ applicants
• timeliness or quality of maintenance actions.

A frequent topic of complaint about Housing ACT is delay in maintenance services, as illustrated in Case study 9.

Table 12: Approaches and complaints received about the Community Services Directorate 2011–12

COMMUNITY SERVICES	RECEIVED	FINALISED
	TOTAL	NOT INVESTIGATED	INVESTIGATED	TOTAL
Office for Children, Youth and Family Support	19	21	1	22
Housing ACT	151	96	41	137
	170			159

Table 13: Remedies for investigated complaints about the Community Services Directorate 2011–12

TYPE OF REMEDY	PER CENT
Action expedited	18
Apology	12
Decision changed or reconsidered	5
Disciplinary action	3
Better explanation provided	50
Financial remedy
Other non-financial remedy	5
Remedy provided without Ombudsman intervention	7

Complaints about antisocial neighbours

The ACT Ombudsman’s office receives complaints from neighbours of public housing tenants who say that they have been disrupted by antisocial behaviour. Complainants report that despite having complained to Housing ACT and to the police, no action has been taken to curb the behaviour or to evict nuisance tenants. Sometimes the complainant will also be a public housing tenant or resident. In these cases, both neighbours will usually have the same housing manager; the complainant will usually expect the housing manager to take some action against the nuisance neighbour.

Antisocial behaviour may include excessive noise, vulgar language, verbal abuse, threats to property or person, actual damage to property and, in some cases, altercations and assaults.

The Ombudsman’s investigations of these complaints have shown that these matters can become intractable and difficult to resolve within timeframes considered reasonable for the complainant. Public housing tenants have the same rights in law as private rental tenants. Housing ACT cannot summarily evict tenants and has no lawful right to intervene in the lives of people who happen to have Housing ACT as a landlord. People who live in, or adjacent to, public housing may have an expectation that antisocial or nuisance tenants who are moved into their neighbourhood by Housing ACT can be just as easily moved out. This is not the case.

Once a lease has been signed, a public housing tenant can only be evicted from the premises if it is proven that they have breached the conditions of the lease. Like any other landlord, Housing ACT must obtain orders from the ACAT or from a court to evict a tenant. A court or tribunal will only issue such orders if it is satisfied that the breach of the tenancy conditions is proven, the tenant has been afforded procedural fairness including rights to appeal and to be heard, eviction is warranted in the case, and no other course of action is reasonably open in the circumstances. Establishing a case and obtaining orders can be a protracted process.

All public housing tenants are required to refrain from disrupting their neighbourhood. Doing so can constitute a breach of the tenancy agreement.

Nonetheless, proving that such a breach has occurred requires documented evidence. This can be in the form of Environmental Protection Authority (EPA) noise measurements, police records, statutory declarations from witnesses and the like. A one-off or single instance will not warrant eviction. Generally, a tenant will only be evicted if there is a pattern of ongoing antisocial behaviour that is reasonably serious, and the tenant has disregarded reasonable requests to curb or moderate the behaviour. Again, it is a protracted administrative process to obtain this evidence and it usually falls to the complainant to document instances of antisocial behaviour affecting them. Complainants consider this frustrating and unfair; they believe that they are doing the job that Housing ACT or the police should be doing to establish a case against the nuisance neighbour.

When Housing ACT receives a complaint about alleged antisocial behaviour, officers will investigate the circumstances and try to establish the veracity of the complaint. Sometimes the tenant will admit to the behaviour or an incident. Where the complaint involves behaviour that has been or may have been reported to police, Housing ACT officers will request police attendance records under a Memorandum of Understanding between Housing ACT and the AFP. If the EPA has made noise measurements that support a complaint of excessive noise, these will be provided to Housing ACT.

Following a complaint about antisocial behaviour, Housing ACT will inform the tenant that there has been a complaint but not identify the complainant. The tenant will be reminded of their obligations under the tenancy agreement not to disrupt the quiet enjoyment of other people’s residences. If the complaint is verified through documented evidence, Housing ACT will issue the tenant with a Notice to Remedy. This essentially warns the tenant that if the behaviour continues then Housing ACT may start legal action that may proceed to an eviction.

Any action that Housing ACT takes remains private and confidential. The complainant generally has no lawful right to know what, if anything, Housing ACT has done or said to the tenant about whom they have complained. This again creates frustration for the complainant and reinforces their view that Housing ACT is ‘doing nothing’. The Ombudsman’s office is also bound by privacy and confidentiality not to disclose the details of investigations to complainants. If an investigation finds that Housing ACT has done as much as is reasonable in the circumstances, the complainant is advised of the outcome, but no details are disclosed. If an investigation finds that Housing ACT could take further action, the Ombudsman may recommend to Housing ACT that the action be considered. Again, the complainant cannot be informed of any Ombudsman recommendations other than those that concern Housing’s ACT’s engagement with the complainant.

Some complainants have reported that they or their family members have become so traumatised by their experiences that they now require medical or psychological intervention to cope. Where the complainants are public housing tenants, they may feel particularly aggrieved that Housing ACT appears to be unable or unwilling to take effective action to remedy the situation. While some affected neighbours will take up the option to apply to be transferred to another property, even for those on the ’high needs’ or ’priority’ transfer lists, this may take months to arrange.

Recently, the Minister announced policy changes that will allow provisional tenancies to be offered to some tenants. It is intended that for these tenants the administrative procedures for responding to complaints of antisocial behaviour will be streamlined. Also, Housing ACT has set up a new business unit to engage more actively with tenants who have attracted complaints of antisocial behaviour. The ACT Ombudsman’s office will monitor the effectiveness of these initiatives, and the support and assistance extended to complainants while they wait for a matter to be resolved.

Other significant engagement

As public housing matters make up a substantial proportion of complaints received and investigated by the office, liaison meetings with Housing ACT officers are held regularly to discuss strategic initiatives, policy and legislative matters, and complaint trends affecting the agency and its clients.

There were five liaison meetings in 2011–12, where topics included:

• response and follow-up to the Ombudsman’s 2011 s 18 report, Assessment of a Priority Housing
  Application (01/2011)
• Housing ACT’s new Gateway Services shopfront
• managing issues of antisocial behaviour committed by, or affecting, Housing ACT tenants
• calculation of rental  rebates
• effects of stimulus  spending on public housing waiting lists
• applicants’  expectations from published average waiting times
• property maintenance,  including asbestos removal
• the Housing for Young  People program
• Housing ACT’s  responsibility for property maintenance management.

In 2011, the ACT  Legislative Assembly Standing Committee on Health, Community and Social  Services started an inquiry into the provision of public housing in the ACT.  The Ombudsman’s submission to that inquiry¹¹ focused on systemic  issues recurring in complaints, including:

• assessment of  applications for housing or transfer
• timeliness and delays  in allocating housing to eligible applicants
• energy efficiency of  older public housing stock
• dissatisfaction with  quality and timeliness of maintenance works.

EDUCATION AND  TRAINING DIRECTORATE

Overview

The Education and  Training Directorate delivers education services through government schools,  registers non-government schools, and administers vocational education and  training in the ACT.

The directorate’s  responsibilities include:

• education (including  early childhood education)
• government and non-government  schools
• vocational education  and training
• higher education.

The administrative activities of the Education and Training  Directorate encompass higher education, school-age and early childhood  education. The Canberra Institute of Technology and the University of Canberra  are not part of the administrative unit of the Directorate. Therefore, the  Director-General has no direct responsibility or powers delegated by the  Minister for Education and Training in respect of the Canberra Institute of  Technology Act 1987 and the University of Canberra Act 1989.

If a complaint concerns services to a person under 18 years of  age, it is usually outside the ACT Ombudsman’s jurisdiction, as defined under s  5(2)(n) of the ACT Ombudsman Act. Where it is identified that a complaint  relates to services to children or young people, the complainant is referred to  the ACT Human Rights Commission without investigation. Complaints about  administrative services in the ACT’s higher educational institutions, Canberra  Institute of Technology and University of Canberra, normally fall within the  ACT Ombudsman’s jurisdiction and are considered for investigation. Where a  complaint relates to services provided to overseas students attending these  institutions, it is referred to the Overseas Students Ombudsman team within the  office of the Commonwealth Ombudsman.

Complaints and  investigations

In 2011–12, the office received 39 approaches and complaints (5%  of the total approaches and complaints) about activities within the Education  and Training Directorate, the Canberra Institute of Technology, and the  University of Canberra, of which seven were investigated. The issues in these  complaints included an internal investigation into the conduct of a teacher,  academic appeal procedures, and reporting of non-compliance with student visa  conditions to the Department of Immigration and Citizenship. Five of these  complaints were finalised by providing a better explanation of the process to  the complainant. The agencies were asked to reconsider decisions in the  remaining two complaints.

Table 14: Approaches and complaints received about the Education and Training Directorate 2011–12

EDUCATION AND TRAINING	RECEIVED	FINALISED
	TOTAL	NOT INVESTIGATED	INVESTIGATED	TOTAL
Education and Training Directorate	14	12	1	13
University of Canberra	14	13	1	14
Canberra Institute of Technology	11	3	5	8
	39			35

• 9http://www.legassembly.act.gov.au/downloads/submissions/6.%20ACT%20Ombudsman.pdf.
• aThe Directorate has advised that as ACT TAB is a Government owned corporation, the Directorate has no administrative responsibility for this agency.
• 10http://ombudsman.act.gov.au/files/investigation_2012_01.pdf.
• 11http://www.parliament.act.gov.au/downloads/submissions/Sub%2011%20ACT%20Ombudsman. pdf.

ACT Policing

Overview

In the ACT, the  Australian Federal Police (AFP) undertakes community policing governed by an  agreement between the Commonwealth and the ACT Governments. The AFP provides  policing services to the ACT in areas such as traffic law, crime prevention,  maintaining law and order, investigating criminal activities and responding to  critical incidents.

Complaints about the  AFP are dealt with by the AFP under the Australian Federal Police Act 1979 (AFP  Act) (Cth) and may also be investigated by the Ombudsman under the Ombudsman  Act 1976 (Cth). The Ombudsman does not oversight the AFP’s handling of  every complaint, but is notified by the AFP of complaints it receives which are  categorised as serious conduct issues (Category 3 issues). The Ombudsman  reviews these complaints annually.

If a complainant is  not satisfied with the outcome of the AFP’s own investigation, the person can  complain to this office which then decides whether to investigate the matter.

Complaints made about the AFP and its officers acting in their  ACT Policing role are dealt with by the Law Enforcement Ombudsman under  Commonwealth jurisdiction and through an agreement with the ACT Government.

The Law Enforcement  Ombudsman is also the ACT Ombudsman and the Commonwealth Ombudsman.

The Ombudsman also  does an annual review of how the AFP handles ACT Policing complaints and  reports this to the AFP Commissioner and the ACT Chief Police Officer.

Complaints and  investigations

In 2011–12 we received  138 approaches and complaints about the actions of AFP members in their ACT  Policing role. This is a reduction of four from 2010- 11 and Figure 4  illustrates this ongoing downward trend. The most common complaint topics were  about:

• inappropriate action  (46)
• customer service (26)
• police practices (22)
• police misconduct  (minor 8, serious 7)
• use of force (8).

Some of the complaints also related to the adequacy of AFP  investigations, failure to act and unreasonable delays in investigating  complaints. Eight complaints were out of our jurisdiction to investigate as  they were employment related matters.

Figure 4: AFP complaints received, investigated and finalised, 2007–08 to 2011–12

The ACT Ombudsman’s office receives many more approaches and complaints than it investigates – in 2011-12 the office finalised 141 approaches and complaints with 91 per cent of these being finalised within three months. Eighty-four of these were referred back to the AFP as the complainants had not first approached that agency. In 10 cases, complainants were advised to pursue their issues in a court or to contact a more appropriate agency for their matter, such as the Australian Commission for Law Enforcement Integrity for corruption-related matters. The number of approaches and complaints has gradually declined from 2007-08 (over 150) and the number investigated by the ACT Ombudsman has increased.

In 2011–12, we finalised 141 approaches and complaints with 91%  of these being finalised within 3 months. As is our usual practice with  complaints, we referred 84 of these back to the AFP as the complainants had not  previously approached that agency to seek resolution of their concerns. In 10  cases, we advised the complainants to pursue their issues in a court or to  contact a more appropriate oversight agency, such as the Australian Commission  for Law Enforcement Integrity (ACLEI) for corruption related matters.

We decided not to investigate 35 of the approaches and  complaints, for reasons such as:

• an investigation was not warranted in all the circumstances¹²
• the matter was in the process of being considered by a court
• the matter was out of jurisdiction, such as employment related  matters
• the matter was being considered by the Minister
• the complainant was aware of the matter more than 12 months  before approaching the Ombudsman.

Of the 12 complaints  we did investigate, two issues were about excessive use of force on an  individual, two were about unwarranted police attention, four were about  inappropriate action, two were about minor misconduct and two about property  retained by the AFP.

We were critical of the AFP in two cases—one, where in our  opinion, the AFP’s investigation of a complaint was poorly handled. In this  case we came to the view that a potential conflict of interest by the main  investigating officer had resulted in an incorrect decision. There was also a  long delay in finalising this complaint, particularly in relation to the time  ACT Police took to return seized money to the complainant (refer Case study 10: Conflict of interest inappropriately managed). In the other case we  found there was an unreasonable delay (of almost 20 months) in investigating  the complaint.

Table 15: Approaches and complaints received about ACT Policing 2011–12

ACT POLICING	RECEIVED	FINALISED
	TOTAL	NOT INVESTIGATED	INVESTIGATED	TOTAL
ACT Policing	138	129	12	141
	138			141

As a result of another (unrelated) complaint that was investigated by our office, the AFP has reviewed its handling of conflict of interest and complaint management. The AFP has advised that no matters are to be assigned to AFP members for investigation who have had any involvement in the original incident, unless the involvement was supervisory in nature and any conflict of interest is identified and can be reasonably managed.

The Ombudsman has continued to highlight the importance of the AFP complaint management practices being both transparent and seen to be above reproach to the integrity of the police in the eyes of the community. It is essential that the processes of investigation and internal review recognise that the public perception of the police can be compromised if a customer-centred approach to complaints is not taken.

Table 16 shows the remedies we provided or recommended from our investigation of 12 complaints. A total of 27 issues were recorded across the 12 complaints investigated.

Table 16: Remedies for investigated complaints about ACT Policing 2011–12

TYPE OF REMEDY	PERCENTAGE
Action expedited	11
Apology	15
Decision changed or reconsidered	11
Disciplinary action	7
Better explanation provided	33
Financial remedy
Other non-financial remedy	22
Remedy provided without Ombudsman intervention

Other remedies  achieved in complaints we investigated included:

• recommending  that the AFP apologise to the complainant and provide a better explanation of  its actions
• providing  a better explanation to the person concerned for example, in one case we  explained to the person how they could collect their seized property directly  from the AFP
• requesting  the AFP re-examine a case due to new evidence obtained by us through  interviewing the complainant (refer Case study 11)

Review of complaint  handling

The Ombudsman has an  obligation under s 40XA of the AFP Act to review the administration of the  AFP’s handling of complaints through inspection of AFP records. This includes  records of the handling of complaints about ACT Policing. The Ombudsman reports  to the Commonwealth Parliament annually, commenting on the adequacy and  comprehensiveness of the AFP’s handling of conduct and practices issues, and  inquiries ordered by the relevant Minister. Our annual report on the  Commonwealth Ombudsman’s activities under Part V of the Australian Federal  Police Act 1979 covered the period 1 July 2010 to 30 June 2011 and was  tabled in Parliament in November 2011. This report dealt with one review  (Review 7) of AFP complaint records that we undertook in that period. The  report is available on the Ombudsman’s website (www.ombudsman.gov.au).

We are currently  finalising our Review 8 report and note some improvement in the timeliness of  complaint handling by the AFP, particularly in the finalisation of complaints  over two years old. We also continued to draw attention to the need for the AFP  to better use the information provided by complainants to determine and address  systemic problems.

We continue to take a close interest in complaints about the  AFP’s use of force and have taken the opportunity to observe AFP training in  this area. This assists us to better understand how policies are put into  operational practice and can also help us to better understand the information  we get from police when we investigate complaints. Further details on our  findings and the AFP’s response can be found in the most recent report to the Parliament, available on our website (www.ombudsman.gov.au).

Of the 553 conduct issues raised in complaints to the AFP during the review period 2010-11, 52% related to ACT Policing. This is consistent with ACT Policing being the area of the AFP with the greatest contact with members of the public. This figure has reduced from the previous period when 62% related to ACT Policing.

Of these, the AFP considered 14% ‘established’ (substantiated) which is an increase from the nine per cent for the last reporting period.

Our review of complaints finalised within 2011–12, Review 8, will be tabled in Parliament in late 2012.

Other significant  engagement

Critical  incidents

The AFP notifies the  Ombudsman of critical incidents involving ACT Policing. Critical incidents are  incidents in which a fatality or significant injury has occurred, or where the  AFP has been required to respond to an incident on a large scale, as might  occur during a public demonstration. Usually we do not get involved in the investigation  of critical incidents unless the AFP requests our involvement. The AFP provides  a briefing to the Ombudsman so the office can keep a watching brief on the more  serious incidents that arise in the ACT involving the AFP.

During 2011–12, the AFP notified our office of one critical  incident that occurred in the ACT. This incident involved a vehicle hitting two  pedestrians near Canberra Hospital both of whom were employees of the hospital.  One pedestrian died and this incident was widely covered in the ACT press. The AFP is currently reviewing this incident and will provide a copy of its final report to us when available.

Stakeholder  engagement, outreach and education activities

The AFP hosted the  annual AFP/ Ombudsman Forum in July 2011. The forum is a valuable opportunity  to discuss relevant issues that arise through the work of both agencies, to  exchange information and ideas on ways to improve the AFP’s complaint handling  processes. This year we considered the AFP Categories of Conduct which is a  legislative instrument determined jointly by the AFP Commissioner and the  Ombudsman under the AFP Act. It forms the basis for AFP investigations of complaints  against members. We also considered new more simplified procedures for handling  the less complex complaints so that a result can be provided to the complainant  in a timelier manner.

The Ombudsman Law  Enforcement Team engaged in outreach and stakeholder activities during the year  to discuss the role of the Ombudsman and our complaint handling procedures.  This assists people to understand how they can make a complaint. Outreach  during this period included:

• presenting at a Legal  Workshop for first year law students at the Australian National University.  Feedback from the workshop indicated that attendees found the information  provided very helpful.
• attending an  orientation session for new members of the Australian Federal Police  Professional Standards. This provides us with the opportunity to make new  members of PRS and AFP Complaint Management teams aware of our role in managing  complaints about AFP members.
• in June 2012, our  office facilitated a Community Group Forum where issues of concern were discussed.

Additionally, law  enforcement staff observed new ACT Policing recruits undertaking their  operational safety training in July and August 2011. The operational safety  training involves training the new recruits in the appropriate use of force and  covered use of firearms, OC spray, batons and escort holds and takedowns. The  course also covered appropriate communication techniques.

In August 2011, law  enforcement staff were provided with a demonstration of non-lethal AFP weapons  used during an incident on Christmas Island in March 2011 so we could  understand the practical use of these weapons and the impact they may have on  an individual.

Taser reporting

We currently have an informal arrangement in place with AFP  Professional Standards (PRS) to provide our office with Use of Force (UoF)  reports relating to incidents involving the use of tasers by ACT Policing and  have been provided with UoF Reports from 1 January 2011 to 31 March 2012. We  have an oversight function and analysed these reports and are in the process of  drafting a report for comment by ACT Policing. We have not decided whether to  make this report public at this time.

• 12The Ombudsman has the discretion to decline to investigate a matter where ‘investigation is not warranted in all the circumstances’. Most commonly, we will exercise this discretion where it is clear that the agency has already provided the complainant with a reasonable outcome or remedy to the complaint.