Role and overall performance
CHAPTER 2 | role and overall performance
OMBUDSMAN ROLE AND FUNCTIONS
The role of the ACT Ombudsman is to consider complaints about the administrative actions of government departments and agencies and to foster good public administration by recommending remedies and changes to agency decisions, policies and procedures. We also make submissions to government on legislative and policy reform.
The Ombudsman's office investigates complaints in accordance with detailed written procedures, including the relevant legislation, a Service Charter and complaint investigation guidelines. Complaint investigations are carried out impartially and independently, and are handled in private. Complaints may be made by telephone, in person or in writing (by letter, email or facsimile) or by using the online complaint form on our website. Anonymous complaints may be accepted.
'Complaint investigations are carried out impartially and independently, and are handled in private.'
The key values of the ACT Ombudsman are:
- independence
- impartiality
- integrity
- accessibility
- professionalism
- teamwork.
Legislation
The role of the ACT Ombudsman is performed under the Ombudsman Act 1989 (ACT). The Ombudsman also has specific responsibilities under the Freedom of Information Act 1989 and the Complaints (Australian Federal Police) Act 1981(Cth) , and is authorised to deal with 'whistleblower' complaints under the Public Interest Disclosure Act 1994. Links to this legislation can be found on our website at: www.ombudsman.act.gov.au.
Members of the Australian Federal Police (AFP) provide policing services for the ACT under an agreement with the ACT Government. Members of the AFP assigned to the AFP's ACT Region are engaged in community policing duties under the ACT Chief Police Officer, who is also an AFP Deputy Commissioner. Under the Complaints Act, responsibility for investigating complaints is shared between the AFP and the Ombudsman's office.
Organisation structure
During the year, the Ombudsman delegated day-to-day responsibility for operational matters for the ACT Ombudsman to Senior Assistant Ombudsman, Helen Fleming, and responsibility for Law Enforcement including ACT Policing to Senior Assistant Ombudsman, Philip Moss. Both are supported by a team of specialist staff in carrying out these responsibilities for the Ombudsman.
Annual reporting compliance
The ACT Ombudsman is a public authority within the meaning of the Annual Reports (Government Agencies) Act 2004. The ACT Ombudsman is unable to report against some aspects of the Chief Minister's 2004 Annual Report Directions.
Elements on which reports cannot be provided mainly relate to areas where ACT Ombudsman functions are intrinsically linked with broader Commonwealth Ombudsman organisational operations, and include:
- financial statements and financial reports
- whole-of-government issues
- risk management and internal audit arrangements
- fraud prevention arrangements
- staffing profile and human resource management issues
- procurement contracting principles and processes
- workplace injury prevention and management
- capital works management
- asset management strategy
- ecologically sustainable development and fuel management plans.
Reporting on these issues is provided for the office as a whole through the Commonwealth Ombudsman Annual Report. See the compliance index for further information.
PERFORMANCE REPORT
In 2003–04, the ACT Government paid an unaudited total of $878,217 (including GST) to the Ombudsman's office for provision of services. Monies are received directly from the ACT Government under a Memorandum of Understanding. Payments (including GST) were for the purposes of the Ombudsman Act 1989 ($413,418) and the Complaints (Australian Federal Police) Act 1981 (Cth) ($464,799).
The principal performance measures for the ACT Ombudsman and ACT Policing comprise an analysis of the number of complaints received and finalised, time taken to finalise complaints, and training and liaison contacts. Performance against these measures is outlined below.
The statistical report in the Appendix provides details of complaints received and issues finalised for individual ACT Government agencies and ACT Policing during 2003–04.
Preliminary inquiries and formal investigations
Many of the complaints to the Ombudsman's office are dealt with as preliminary inquiries—a stage in our complaint-handling process that allows us to determine whether a complaint is within the office's jurisdiction, whether an investigation is required or whether the complaint can be resolved by informal inquiries. Where a complaint involves complex or multiple issues, we conduct a more formal investigation. The decision to investigate a matter more formally can be made for a number of reasons:
- the need to gain access to agency records
- the nature of the allegations made by a complainant
- the time taken for an agency to respond to our requests for information
- the likely effect on other people of the issues raised by the complainant.
Complaints received
During the 2003–04 reporting year, the Ombudsman received a total of 955 complaints about ACT Government departments and agencies and ACT Policing: this compared to 960 complaints in the previous year.
From the 955 complaints received, 452 complaints (47%) were about ACT Government agencies, and 503 complaints (53%) were about ACT Policing.
General referrals
The Ombudsman's office plays a valuable role in referring people to the most appropriate agency. Where a person has an inquiry or complaint outside the Ombudsman's authority, we try to provide relevant information and contact details to assist them. During the year, staff handled 426 general inquiries about ACT Government agencies.
'The Ombudsman's office plays a valuable role in referring people to the most appropriate agency.'
The Ombudsman's Law Enforcement Team receives many inquiries about actions of other police forces, especially where members of the public are uncertain whether they interacted with the New South Wales Police Service or the AFP. In these cases, staff refer the complaint to the relevant State Ombudsman.
ACT Government agencies
There was a small increase in complaints received about ACT Government agencies (452 complaints compared to 447 in the previous year). The trend in total complaints has continued to be fairly stable over the past three years. Figure 1 provides complaint trends since 1998–99.
ACT Policing
For ACT Policing, there was a 2% decrease in complaints received (503 compared to 513 in the previous year). This follows a general decrease in the number of complaints made about ACT Policing since 1998–99. The fluctuations from year to year do not indicate any significant trend, although the slight decrease in complaints in 2003–04 may be attributed to ACT Policing's increased emphasis on customer service issues. Figure 1 provides an overview of complaints received since 1998–99.
FIGURE 1 Complaints received, 1998–2004
Complaints finalised
ACT Government agencies
During the 2003–04 reporting year, the Ombudsman's office finalised 457 complaints and 639 issues about government agencies, compared to 432 complaints and 510 issues in the previous year.
Of the 639 issues that were finalised during the year, 27% were finalised by way of preliminary inquiries, 37% were formally investigated and in 36% of cases we decided not to investigate at the outset. The latter figure of 36% compares with 45% in the previous year and represents an increase in the number of complaints we decided to investigate.
The most common reason for deciding not to investigate a complaint was that the person had not first tried to resolve their problem with the relevant agency. This practice provides an agency with the opportunity to resolve any issues before an external body, such as the Ombudsman, becomes involved.
For other complaints, as required under our legislation, we refer particular issues to other review agencies that can more appropriately deal with the complaint. These issues include complaints about environment, health and consumer services, as there are special commissioners to deal with these issues. There are also certain issues that we are unable to consider, such as complaints about employment conditions and other matters that may arise within an agency.
In most of the 64% of issues investigated or dealt with as preliminary inquiries, we were able to resolve issues informally and quickly, and to obtain a remedy for complainants with the cooperation of agencies. Remedies included agency explanation (explaining to the complainant why the agency acted the way it did); expediting the matter; an apology; reconsideration of an earlier decision; or changes in administrative policy and procedure.
In 11% of complaints investigated, we formed the view that there had been defective administration by an agency; that is, the relevant agency had not acted fairly, reasonably or in accordance with its legislation, policies and procedures. In 41% of investigations there was no finding of defective administration in relation to an agency's actions. In the remaining cases (48%) it was not necessary to form a view as to whether defective administration had occurred for a variety of reasons, including the provision of a remedy by an agency during investigation or the withdrawal of the complaint.
ACT Policing
Of the 645 issues finalised this year, a large percentage (70.5%, or 455) were referred to the AFP's workplace resolution process for conciliation. A further 77 issues were subject to some investigative action; we decided not to investigate the remaining 113 issues (17.5%) on receipt or after making preliminary inquiries. The ACT Policing section in this report provides further information on investigations, including complaints conciliated through the workplace resolution process.
The Ombudsman conducted special investigations into three complaints about ACT Policing matters. One of the investigations was finalised during the year; the other investigations will be finalised in 2004–05.
Of the 77 issues subject to investigative action, 69 issues (compared to 158 in the previous year) were investigated by the AFP and reviewed by the Ombudsman's office. Of these issues, eight (12%) were substantiated; four (6%) were incapable of determination; 40 (58%) were unsubstantiated; and five (7%) were withdrawn by the complainant. The Ombudsman's office decided not to investigate 12 issues (17%) for such reasons as the ability of the complainant to raise the matter with a court or a tribunal, jurisdictional issues or other circumstances.
'We were able to resolve issues informally and quickly, and to obtain a remedy for complainants with the cooperation of agencies.'
In reviewing AFP investigation reports, we found most reports showed a comprehensive investigation and analysis, resulting in reasonable and appropriate recommendations. There were a small number of occasions when reports were returned to the AFP for further action, including a quality assurance review of the report or further clarification of a particular issue. We continue to work with the AFP to ensure that complaint investigation reports represent a robust response to complaint issues. Figure 2 provides outcomes of ACT Policing issues investigated by the AFP and reviewed by the Ombudsman's office in 2003–04.
FIGURE 2 Outcomes of ACT Policing issues investigated by AFP internal investigation 2003–04
Time taken to finalise complaints
One of our major performance targets for 2003–04 was to finalise 90% of complaints about agencies within three months of receipt.
ACT Government agencies
During the year, 457 complaints about government agencies were finalised, of which 81% were completed within three months of receipt (compared to 86% in 2002–03). The main reasons we took longer to finalise complaints were the complexity of some of the complaints and an unusually high ratio of Ombudsman staff changes, particularly of staff with the experience and skills needed to investigate complex complaints.
Figure 3 provides a detailed breakdown of the time taken to finalise complaints about ACT Government departments and agencies in 2003–04.
FIGURE 3 Time to finalise complaints, 2003–04
ACT Policing
For complaints about the AFP, 68% were finalised within three months of receipt (the same as in 2002–03) and 22% were resolved within six months. The remaining 10% of complaints, which extended beyond six months, were characterised by the size and complexity of the investigations. Our failure to meet the three-month target for finalising 90% of complaints will be scrutinised in the coming year.
Reasons for taking longer to finalise complaints included the complexity of issues; the unavailability of some complainants to meet with ACT Policing representatives until some time after the complaint was made; and the need for some conciliating officers to make multiple appointments to resolve issues.
Commitments to overseas deployments this year also had an impact on ACT Policing and the AFP's Professional Standards and led to some increases in the time taken to finalise complaints. We will continue to monitor timeliness issues to ensure that the workplace resolution process remains an effective response to complaints.
Figure 3 provides a detailed breakdown of the time taken to finalise complaints about ACT Policing in 2003–04.
Training and liaison contacts
It is important for Ombudsman staff to maintain cooperative relationships with government agencies and community sector organisations. Good working relationships allow us to better understand our respective roles and to ensure effectiveness in resolving complaints.
A number of informal meetings were held during the year with individual agencies to discuss complaint handling and collection of statistics, and to ensure more beneficial use of intelligence gathered by staff. Meetings were also held with the Chief Executive of the Department of Urban Services and the Director of ACT Corrective Services. These discussions provided a useful opportunity to clarify agency roles and responsibilities, and the jurisdictional parameters for Ombudsman investigations.
Members of the Ombudsman's Law Enforcement Team met with representatives of key agencies involved in issues arising from actions by the AFP, including the Director of Public Prosecutions, the Legal Aid Office and the ACT Victims of Crime Coordinator. They also held regular liaison meetings with the AFP's Professional Standards to discuss the progress of complaints.
Staff also attended a range of forums and information sessions presented by ACT Government agencies, including an ACT Complaint Handling Forum conducted by the Community and Health Services Complaints Commissioner and a session on the Public Interest Disclosure Act conducted by the Industrial Relations and Public Sector Management Group.
Specific activities included:
- hosting a lunch for ACT Government heads of departments to discuss relations with the office
- co-sponsoring a seminar on 'whistleblowing' protection laws with the Griffith Centre for Ethics, Law, Justice and Governance
- maintaining an ongoing involvement with the ACT Free Legal Advice Forum
- making a presentation to the ACT Multicultural Council on the role of the Ombudsman's office
- conducting a three-day Investigators Training Course in August 2003 and a five-day Advanced Investigators Training Course in March 2004 (both attended by a total of 12 representatives from ACT agencies, Ombudsman staff and others)
- conducting two seminars for ACT contact officers in November 2003 and June 2004, looking at the office's role in handling and investigating complaints, and at agencies' internal complaint handling processes
- making presentations to the AFP about the role of the Ombudsman and strategies to respond effectively to complaints
- commenting on a range of departmental and agency submissions and discussion papers raising issues of administrative practice as outlined earlier in this report.
Service charter standards
We are committed to providing the best service possible. The ACT Ombudsman Service Charter is available on our website at www.ombudsman.act.gov.au. The charter outlines the service that can be expected from the office, ways to provide feedback and steps that can be taken if standards are not met. Where a complainant disagrees with our decision on a complaint, a more senior officer not previously involved in the matter will conduct a review.
During the reporting period, we received two complaints about our service delivery and finalised seven reviews of our complaint handling. Of the reviews finalised, the original decision was affirmed in six complaints, whereas in one matter we conducted further investigation on the basis of new information provided by the complainant. The latter investigation resulted in a changed decision, with the agency making an Act of Grace payment to the person.
In May 2004, we commissioned a market research company to conduct a Client Satisfaction Survey of 2,000 complainants across all jurisdictions of the Commonwealth and ACT Ombudsman's office. Of the 2,000 complainants, a small sample was taken from the ACT Ombudsman and AFP jurisdictions.
The overall results were pleasing, with the survey finding the majority of complainants were satisfied with the service they received from the Ombudsman's office. Where the office investigated complaints, 65% of complainants were satisfied that staff had done as much as they should have done to help. In the cases where we decided not to investigate a complaint and referred the complainant to the relevant agency in the first instance, 74% said they would consider using the Ombudsman's office for future complaints. The great majority (87%) of complainants followed our advice to take up their complaint directly with the agency.
ACT GOVERNMENT AGENCIES OVERVIEW
Each year we receive a variety of complaints across a range of issues about many government agencies. Many complaints are resolved quickly, with others requiring detailed examination of agency files and procedures.
Common themes identified across agencies during 2003–04 included procedures and guidelines either being inadequate or not being followed, responsiveness and timeliness to requests from Ombudsman staff, professional standards, and public interest disclosure matters.
Applying best practice
Legislation, internal policies and guidelines, and processes define the responsibilities of agencies to the public, and provide assistance in discharging them. A number of our investigations found that agencies had not followed their own internal guidelines in dealing with matters. The Addressing insufficient explanations case study illustrates the effect that this can have upon a routine matter. On the other hand, such practices could result in more serious consequences, as the Inadequate internal reporting processes case study demonstrates.
In April 2003, Mr L disputed a Parking Infringement Notice (PIN) and was dissatisfied with the explanation given by ACT Road User Services (ACTRUS). Mr L complained to the Ombudsman, resulting in the agency addressing the issue of insufficient explanations in review letters as part of its Road User Services Review Office Quality Assurance Program. This included a commitment by ACTRUS to issue review staff with the Administrative Review Council (ARC) booklet Practical Guidelines For Preparing a Statement of Reasons. Changed procedures were subsequently implemented in mid-2003, requiring agency staff to provide more detailed responses to complainants, including the facts and reasons for decisions.
In July 2003, another complainant, Mr B, sought review of a PIN. ACTRUS promptly undertook a review and wrote to Mr B informing him that the Review Officer was upholding the original decision. Mr B complained to the Ombudsman that ACTRUS had not provided sufficient explanation in its letter and he did not understand how the agency's decision had been reached.
An investigation by Ombudsman staff determined that insufficient explanation had been provided to Mr B. The ACTRUS Review Office Manager concurred with this finding. An apology was provided to Mr B. The Manager also took other action to address the broader issue, undertaking to remind Review Officers of their responsibilities and to apply the principles set out in the ARC booklet in preparing letters in response to review requests.
Ms K complained to the Ombudsman about the failure of the then Department of Education, Youth and Family Services to act on a disclosure by a child about alleged abuse while under the care of the Department. Ms K had raised the matter with the AFP Sexual Assault and Child Abuse Team and her lawyer prior to bringing her concerns to the Ombudsman.
A childcare worker had reported the child's disclosure to the Department, meeting the requirements of the ACT Children and Young People Act 1999. The then Director of Family Services wrote to the Ombudsman confirming that the Department had been notified of the disclosure and that 'the nature of the disclosure was assessed [at that time] and not considered to require an immediate response. The delay in commencing an appraisal is acknowledged.' The letter also stated that the child was unable or unwilling to discuss the matter again.
Ombudsman staff contacted the Department on numerous occasions to seek additional information and documents. The Ombudsman subsequently wrote, seeking a response to his concerns that the Department's processes did not appear to ensure that a notification of suspected abuse was followed through or appraised in a timely manner. That is, the events that appeared to have triggered departmental action were external to the agency. The new Director of Family Services responded, advising that the department was 'taking steps to review its procedures to ensure that appraisals are undertaken in an appropriate and timely manner'.
The Ombudsman wrote to the Department suggesting that an apology be offered to Ms K for the distress caused by the delay in commencing an appraisal of the child's disclosure of abuse. Ombudsman staff followed up with the Department's contact officer, who agreed to send a letter of apology to Ms K. However, the Department recently advised us that no apology has been made to Ms K as they believed that they had responded in an appropriate manner.
The Ombudsman is concerned that the Department's internal processes did not appear to prompt an appraisal of the child's circumstances. If the external prompts had not occurred, it appears possible that the case may not have been appraised for some time.
The Ombudsman will continue to monitor the Department's timeliness and reporting processes in light of this case and the results from broader reviews being conducted by the Commissioner for Public Administration and law firm, Minter Ellison.
Responsiveness and timeliness by agencies
When investigating complaints, Ombudsman staff frequently request agencies to provide information or documents relating to a particular complaint.
During the year, some agencies were increasingly unable to meet our requests for information within the requested time frame. This particularly applied to complaints about family services and planning matters, where we considered the complaints had generally taken longer to resolve than was necessary. The number of complaints received about these areas is relatively small, but this placed an extra burden on the Ombudsman's office to resolve these complaints. Delay in agency responses has the potential to undermine the effectiveness of the Ombudsman's office.
We will work more closely with agencies over the next twelve months to improve responsiveness and timeliness in complaint handling and resolution.
Professional service
It is expected that agency officers will maintain a professional attitude towards their clients, addressing and treating people with courtesy and respect.
This year we received complaints about 19 issues concerning the behaviour of Corrective Services officers and 14 issues relating to ACT Housing staff. There were nine other agencies about which from one to seven similar issues were raised concerning the professionalism of their staff.
Complaints about the behaviour of Corrective Services officers are not surprising, given that most relate to treatment within the Belconnen Remand Centre where the proximity, frequency of contact and relationships between prisoners and officers can sometimes result in conflict. We have generally been satisfied with the manner in which the ACT Corrective Services deals with complaints when matters are brought to its attention.
It is of particular concern that we received such a large number of complaints about comments made by ACT Housing officers to its clients. These complaints are often difficult to substantiate, as the complainant's recollection of an incident is usually different from that of the officer, and often there are no independent witnesses or other evidence to support one version over the other. In most cases, Ombudsman staff were unable to form a view about whether an officer had acted appropriately or inappropriately. This is an area we will be monitoring in the coming year.
The Inappropriate comments case study below provides examples of inappropriate behaviour.
ACT Housing
Mr S complained about comments made by an ACT Housing officer. Mr S claimed that the officer made a derogatory comment about his daughter when the officer attended the property. In response to our inquiries, the officer admitted making an inappropriate comment.
ACT Housing accepted our suggestion that a written apology be made to Mr S.
ACT Corrective Services
Ms T was a detainee in a remand centre, when she contacted the Ombudsman to complain about a senior custodial officer who had made an inappropriate comment about her and another detainee. Ms T alleged the custodial officer referred to them as 'dogs who when they lie down bark and yap'.
When we asked for an explanation and response to the incident, the custodial officer provided a statement that he told Ms T to 'stop barking like a dog' because she was interrupting his conversation with another detainee.
As a result of our investigation, the custodial officer was counselled about the appropriate way to speak to detainees.
Setting an example
It is important that an Ombudsman's office is itself committed to principles of good decision-making. A complainant who is not satisfied with the consideration given to their matter may ask for the decision to be reviewed by a senior officer. Legislation does not require the Ombudsman to provide an internal review of the office's decisions. We do provide one review of our decisions on request.
Our Service Charter provides information about the right of internal review, as well as the right to complain about Ombudsman's service and actions. We also advise complainants about their right of internal review if they express, or are likely to express, dissatisfaction with our decision.
The Act of Grace payments case study shows how we reviewed a decision and obtained a more favourable outcome for the complainant.
An objective of the Ombudsman's office is to foster good public administration by making suggestions and recommendations to address broad issues across ACT agencies and to reduce complaints generally (as in the Act of Grace payments case study). The Making changes case study is a good example of an agency's willingness to improve its practices as a result of complaints.
Mr S received an age pension entitling him to reductions in his rates and utilities accounts for his primary place of residence. He did not lodge applications for these reductions with ActewAGL or the ACT Revenue Office for some years, and complained to us when the agencies refused to backdate his claim.
Our original investigation revealed that the agencies considered he was not living in the ACT because his mailing address for Centrelink was in Sydney and he was not on the ACT electoral roll. Legislation prohibits the agencies from accepting applications for reductions made for previous years, and they can only apply a discount from the time that an application is lodged. Consequently, we decided not to suggest that ActewAGL or the Revenue Office backdate the reduction or make an Act of Grace payment for the discounted amounts.
Mr S approached us at a later date seeking a review of the decision not to investigate the matter further. Mr S contested the view that he lived in Sydney. While he spends a substantial period in Sydney undergoing medical treatment, he advised that a friend accommodates him and his only property is in Canberra, which is his home. He also advised that ActewAGL had reconsidered its decision and he had received an Act of Grace payment for his electricity accounts for this period.
We decided to investigate the matter further and advised the ACT Revenue Office of ActewAGL's decision to make an Act of Grace payment. Mr S also sent a letter to the ACT Treasurer requesting a review of his case. The ACT Treasurer reconsidered Mr S's claim and agreed to make an Act of Grace payment for the additional rates he had paid.
We also expressed concern that the relevant legislation did not provide for any discretion to backdate applications for pensioner rebates of rates. The ACT Revenue Office advised that the amalgamation of two statutes into a single Rates Act, to apply from 1 July 2004, will contain justice and equity provisions for the Minister to remit an amount of rates in cases where there are special circumstances.
Belconnen Remand Centre implemented a new telephone system in November 2002. Following implementation we received a flurry of complaints from detainees.
Detainees complained of being charged for their calls to this office, being cut off after 10 minutes and needing to have money in their telephone account to make 'free' calls. During our investigation we also found that detainees were not able to contact the ACT Human Rights Office or the Community and Health Services Complaints Commissioner.
Following a number of recommendations from the Ombudsman, the Belconnen Remand Centre has implemented several changes that:
- provide detainees with access to a pre-determined list of welfare and legal agencies (including the Ombudsman's office) without needing any money in their accounts
- allow detainees to make free calls to specified agencies with no time limit
- add the telephone numbers for the ACT Human Rights Office and the Community and Health Services Complaints Commissioner to the list of telephone numbers of welfare and legal agencies.
ACT POLICING OVERVIEW
Responsibility for investigating complaints about the AFP's ACT Policing is shared between the AFP and the Ombudsman's office. Members of the AFP provide the following policing services for the ACT:
- enforcing traffic laws
- maintaining peace and order
- undertaking crime prevention activities
- responding to critical incidents
- investigating serious crime.
Members of the AFP, including those assigned to ACT Policing, are subject to the provisions of the Complaints (Australian Federal Police) Act 1981 (Cth). Approximately 70% of all complaints received about the AFP relate to ACT Policing. The remaining complaints relate to the AFP's corporate, national and international roles and are reported in the Commonwealth Ombudsman's Annual Report.
A high number of complaints are made about ACT Policing because of the level of public interaction involved in community policing work. Most complaints are of a relatively minor nature and concern alleged conduct of police, such as incivility or rudeness.
The AFP's Professional Standards investigates most complaints about AFP members. The Ombudsman reviews all AFP investigations and conducts independent inquiries and investigations, if appropriate.
The Complaints Act allows the AFP to conciliate complaints of a minor nature directly with complainants through its workplace resolution process. This process combines the benefits of direct accountability with the opportunity to learn from mistakes. The Act also provides information to assist the AFP to improve practices and procedures and the performance of individual members. When a complaint is finalised through the workplace resolution process, the AFP provides a report to the Ombudsman explaining how it was managed or investigated.
'This process combines the benefits of direct accountability with the opportunity to learn from mistakes.'
For serious complaints about police actions, either the AFP or the Ombudsman will conduct a formal investigation. The Ombudsman will generally conduct an investigation when:
- practices and procedures are the central elements of the complaint
- it is not appropriate for the AFP's internal investigation area to investigate the complaint
- the investigation is initiated under the Ombudsman's 'own initiative' powers.
An overview of the Ombudsman's complaint handling is provided in the ACT Policing complaints' section.
ACT Policing complaints
In 2003–04, we received 503 complaints about ACT Policing compared to 513 in 2002–03. As stated earlier in this report, fluctuations in complaint numbers have occurred over the past six years, with a 2% decrease this year. Complaints can contain a number of issues, each requiring separate investigation and possibly resulting in various outcomes. An analysis of complaint complexity, as indicated by the number of issues raised per complaint, shows that on average complainants are consistently including between one and two issues per complaint.
This year, we increased our focus on the effectiveness and efficiency of the police complaints system. Allocating resources to ensure that complaints can be resolved and that police remain accountable for their use of powers is sometimes a balancing exercise for the Ombudsman. Many complainants, after receiving an explanation for police use of powers, remain dissatisfied with the resolution of their complaint and request that Ombudsman staff continue to investigate the complaint, which is sometimes expressed as 'corruption' or 'brutality'.
Even when the result of a workplace resolution process may not be the outcome sought by the complainant, the process is often beneficial. Improved understanding is achieved and the complainant is given an opportunity to discuss the matter directly with senior police. For example, a person may believe that police should not be able to place an intoxicated person in protective custody when no offence has been committed. The complainant may not accept the decision made in the individual case, but will be better informed as to the difficulty of the issue.
In 2003–04, the Ombudsman assessed that it is unproductive and an ineffective use of limited Ombudsman staff resources to investigate a matter if the complainant is not committed to using the conciliation process or if the nature of the complaint has not been properly detailed.
The increase in the number of issues we decided not to investigate on receipt or after making preliminary inquiries (113 or 17.5%, compared with 12.5% the previous year) allowed Ombudsman staff to devote more time to ensuring that issues warranting investigation received appropriate attention.
Taking this approach resulted in a decrease in the number of conciliations attempted and an increase in successful outcomes, with a corresponding increase in the number of preliminary inquiries and decisions not to investigate at the outset. These results reflect the level of scrutiny and analysis Ombudsman staff applied to each complaint received and the accuracy of their decisions about how each should be handled.
Some complaints are best dealt with as management issues for the AFP without the direct involvement of the Ombudsman's office. This approach is supported by A Review of Professional Standards in the Australian Federal Police by the Hon. William Fisher, AO, QC (the Fisher Review), which was tabled in the Federal Parliament in December 2003. Under the Fisher model, the Ombudsman's involvement in minor complaints about the AFP would be reduced and attention would be focused on handling more serious complaints. This model is well established in New South Wales and Queensland and is to be introduced in Western Australia.
The Australian and ACT Governments have yet to respond to the Fisher Review, and details of implementing the Fisher model are yet to be finalised. Subject to the accountability audits recommended in the Review, the Ombudsman considers the model to be a natural progression from the present complaint system, especially in the ACT Policing context.
Responding to intractable complaints
A problem for the Ombudsman's office is that some complaints become a significant drain on complaint management resources. This year the Ombudsman's powers were used under section 24(4A) of the Complaints Act about a certain class of actions by the AFP. These complaints are now considered under an arrangement with the Commissioner of the AFP. The arrangement specifies that complaints about the AFP's response to a particular complainant's neighbourhood disputes will be determined 'a class not warranting investigation'.
This arrangement was used for a complainant who had a history of neighbourhood disputes and made frequent complaints of dissatisfaction with the AFP's response to those disputes. When conciliation of this person's complaints was attempted, further complaints about the conciliation process were then made. This cycle of complaints reached a peak when the complainant made 15 complaints about the AFP in one weekend. The number of these complaints and the experience of trying to conciliate them represented a significant administrative and cost burden for both the AFP and our office.
Traffic Infringement Notices
This year there was a marked increase in the number of complaints made about AFP officers issuing Traffic Infringement Notices. The complaints were often made in letters seeking withdrawal of a notice. In seeking to understand these complaints and possible reasons for the increase, we identified the following factors behind the complaints:
- improper conduct by an AFP member
- misunderstandings about police powers and the manner in which a traffic notice can be contested
- differing expectations about the way in which police can and should use their discretionary powers.
AFP members have been contacting complainants to assess the reason for their complaints and are developing strategies, in consultation with Ombudsman staff, to reduce complaints about AFP officers.
Workplace resolutions
The majority of AFP complaints deal with issues about conduct, such as allegations of rudeness, or misuse of police powers. The AFP successfully manages these complaints in the workplace, as Table 1 shows.
A significant proportion of complaints concerning ACT Policing were assessed as suitable for conciliation using the workplace resolution process, as shown in Figure 4.
TABLE 1 AFP—issues raised in complaints to the Ombudsman managed and resolved by conciliation, 2000–04
FIGURE 4 ACT Policing—method of handling complaints issues finalised, 2003–04
Managing property
Managing exhibits and lost property is a significant logistical task for the AFP. While this year there was a general decrease in complaints about property management, the ongoing number of errors in exhibit handling and property management caused concern.
During the year, Ombudsman staff provided input to the revision of the ACT Policing Practical Guide for Property, Exhibit and Drug Handling. The resulting code includes:
- more appropriate storage for firearms
- video monitoring of storage facilities
- formalised audit processes and random stocktakes
- protocols for accurately recording transfer of property between AFP members
- clarification of roles and responsibilities of case officers and property registrars.
In April 2004, Ombudsman staff inspected the AFP's main ACT property storage facilities and noted significant progress in implementing the new guide. The AFP had completed a full stocktake and upgraded the database to support the audit. They had also made significant improvements in the security and maintenance of impounded vehicles.
A complaint conciliated by the AFP during the year highlighted the practice of conducting searches under the Drugs of Dependence Act 1989 (ACT) where the occupant of a house is not present, as illustrated in the Conducting searches case study.
Mr K complained his bedroom had been turned into an 'utter shambles' following the AFP's execution of a search warrant. He also complained that personal items were left in clear view of his flatmates when they entered the home because of the position of the bedroom in relation to other rooms in the house.
The matter was successfully conciliated, with Mr K accepting the AFP's explanation for the condition of the room. The AFP advised that in future the areas being searched would be videotaped before and after the search, wherever possible, to ensure that the police leave premises in a comparable condition at the conclusion of a search.
Custody
The management of people in custody remained a strong focus for the Ombudsman's office. ACT Policing sought our contribution in developing new guidelines for managing people in AFP custody. Based on information gathered from complaints made about treatment in custody and from considerable research, we made a number of recommendations. The AFP accepted the recommendations and implemented a new guideline.
During the year, we visited the Jervis Bay (ACT) Watch House to assess whether it complied with the new custody guidelines. This facility services a population with a high proportion of Indigenous Australians. We found no apparent shortcomings during our review.
Video monitoring plays an essential role in the investigation of Watch House custody-related complaints. Normally, video evidence allows Ombudsman staff to reach a conclusive view. During the year, two investigations were hampered by failures in the video-recording equipment at the City Watch House as the Theft of property and Evidence after the fact case studies demonstrate.
Mr U was taken into custody at the City Watch House and a sum of money was recorded as part of his property. The next day it was discovered that $50 appeared to be missing and an investigation was conducted as to whether a member of the Watch House staff had taken the $50 from Mr U's property.
Ten or so AFP members were involved in the arrest, transport and detention of Mr U, and video surveillance of the property cupboard failed for over an hour during Mr U's custody. Therefore, Ombudsman staff were not able to determine who had stolen the money.
The AFP compensated the complainant for the missing money and made a number of recommendations about procedural improvements relating to recording and storing property, and upgrading of the surveillance equipment in the Watch House.
Mr M complained about Watch House staff failing to obtain medical treatment for him after he was injured in the course of his arrest.
A significant failure of the Watch House video system occurred for 36 hours during Mr M's period in custody. The Watch House videotapes would have assisted Ombudsman staff in determining whether the injury would have been obvious to custodial staff, and if there was support for Mr M's claim of requesting medical assistance while being charged. The lack of corroborative evidence prevented a conclusion being reached about the negligence or otherwise of the Watch House staff.
The AFP has assured us that a new tamper-proof digital recording system will be installed in the Watch House in the coming year. Apart from remedying intermittent video failure, the system will also rectify the current problem of video 'blind spots' in the Watch House.
As an interim measure, the Ombudsman has asked to be advised immediately by Watch House staff of all video failures as they occur.
ACT Family Violence Intervention Program
In recent years, in consultation with many community representatives, ACT Policing developed a special program for police response to family violence incidents. This program was the subject of an own initiative investigation by the Ombudsman in July 2001.
The resulting report, Policing Domestic Violence—Own Initiative Investigation into Policing Domestic Violence in the ACT, foreshadowed that the Ombudsman would consider a further investigation of this issue during 2003–04. Due to resource constraints and a decrease this year in the number of complaints about the response of ACT Policing to family violence matters, we did not proceed with further investigation of this issue. Our staff are aware that such complaints are often distressing for all involved, and are keen to ensure that we continue to develop knowledge to deal with these types of complaints. This year, two members of the office's Law Enforcement Team participated in a course delivered to all AFP ACT Region officers as part of implementing the ACT Family Violence Intervention Program.
We will continue to take a special interest in family violence complaints during 2004–05 and to monitor the type and number of complaints.
Own initiative investigation—administering Traffic Infringement Notices
For two years, Ombudsman staff have been working collaboratively with the AFP on a project to investigate the AFP's role in deciding whether individual Traffic Infringement Notices should be withdrawn or disputed in court. The project was initiated because of the high level of complaints over a number of years about the AFP's traffic adjudication responsibility.
It has been beneficial to run the project for a two-year period, and to map and address the range of issues that historically caused people to complain. The AFP adopted new procedures for traffic disputes, resulting in these types of complaints reducing significantly. We hope that agreement will be reached early in 2004–05 on a new policy to guide decision makers in traffic adjudication. We also expect that lessons learned from this investigation will be applied to other government agencies facing similar challenges in administrative decision-making.
Critical incidents
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.
During the year, the Ombudsman's office considered the AFP's role in two critical incidents: a fatal high speed pursuit and an incident during US President George Bush's visit to the ACT.
It is pleasing to note that the AFP has proactively notified the Ombudsman of issues arising from critical incidents where no complaint has been made. This approach provides the opportunity for the Ombudsman to assess the AFP's response. While the Complaints Act requires the Ombudsman to be notified about complaints, critical incidents are not necessarily the subject of a complaint.
In the coming year, we will develop a more formal arrangement with the AFP to ensure that there is a clear basis for proactive notification of issues arising from critical incidents.