COVID complaints to NSW Ombudsman increased in the second year of the pandemic

07 Sep 2022

In a report tabled in Parliament today, The COVID-19 pandemic: second report , NSW Ombudsman Paul Miller has looked back on complaints received by the Ombudsman since his March 2021 report on the COVID pandemic (2020 hindsight: the first 12 months of the COVID-19 pandemic).

The new report reveals that the number of COVID-related complaints to the Ombudsman rose significantly in the second year of the pandemic. His office received 1,046 COVID-related actionable complaints in the 2021-22 financial year – more than double the number received in 2020-21.

The largest increase in complaints concerned the custodial system: there were 5 times as many complaints in 2021-22 about custodial services than there had been in 2020-21. Until mid-2021 COVID did not enter the custodial system on any scale. This changed with the Delta and Omicron variants. Lockdowns and visit prohibitions were extended to prevent transmission of COVID into and across centres. Staff shortages also impacted centre operations as the prevalence of COVID increased in the community. As a result, many inmates had less time out of their cells, reduced access to programs and to work, reduced access to amenities including in some cases to shower facilities and clean clothes, and fewer visits and in-person contact with loved ones.

The second year of the pandemic also saw a significant but temporary spike in complaints about Service NSW, which had found itself having to pivot quickly to perform the new function of processing COVID-related grants.

People overwhelmed and confused by frequent changes to rules

People who contacted the Ombudsman reported that the complexity and frequent changes in COVID rules left them feeling overwhelmed, confused and uncertain. The sheer number of public health orders that were made and the frequency with which they were amended contributed to this.

The report (together with the earlier 2021 report) sets out a comprehensive chronology of COVID-related public health orders – in the 2-year period from 15 March 2020 (when the first order was made) to 31 January 2022, 266 new or amending orders were made.

The Ombudsman’s report highlights some of the ways in which legal rulemaking occurred in response to the pandemic in a way that ‘rubbed against’ what might otherwise be considered essential elements in a system of democratic government based on the ‘rule of law’. It notes the limited Parliamentary oversight of public health orders, the difficulties the public faced in knowing what the rules were at any given time, the inconsistency in the enforcement of those rules, including a disproportionate enforcement in places of greater socioeconomic disadvantage, as well as questions about the proportionality of fines.

Genuine dedication and tireless effort across public sector

Mr Miller acknowledged and thanked government agencies and their staff for their considerable efforts in responding to the pandemic over the past 2 and half years – especially those on the front lines and those involved in the planning and continued delivery of usual government services.

“There is nothing we have seen in either of our reports to fault the genuine dedication and commitment to public service and the tireless hard work of the public authorities we have oversighted as they have sought to manage and mitigate this pandemic,” said Mr Miller.

Complaints mechanisms critical

Mr Miller also reinforced the importance of effective complaints mechanisms in times of crisis.

“In a crisis like the pandemic, we may see ordinary parliamentary governance and oversight ‘sidelined’ in favour of emergency executive powers – those powers being used to impose significant and unusual incursions on individual rights,” said Mr Miller. “There are also fewer opportunities for comprehensive evidence-gathering, consultation and public debate before action is taken. Together, these mean that mechanisms to identify and address issues as quickly and effectively as possible after action has been taken – such as complaint mechanisms – become all the more important.”

“Frequently during the pandemic, people contacted us not because they necessarily wanted to make things better just for themselves,” Mr Miller said. “Rather, they complained because they wanted to improve the situation for other people, and because they saw ways to improve the overall crisis response.”

Read the full report