VICTORIA
Twenty-ninth Report of THE OMBUDSMAN
30 June 2002
Ordered to be printed
VICTORIAN GOVERNMENT PRINTER 1999-2002
No. 190, Session 1999-2002
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ii 2001/2002 ANNUAL REPORT Contents
TABLE OF CONTENTS
THE YEAR IN REVIEW ...... 1 NEW DEVELOPMENTS...... 5 Whistleblowers Protection Act...... 5 Community Access and Youth Liaison Officer (CAYLO) ...... 11 POLICE COMPLAINTS...... 16 Introduction ...... 16 Importance of the Monitoring Role...... 17 Sound Foundations ...... 19 The Many Strands of Accountability...... 20 Police Research and Risk Unit ...... 21 Improving the System ...... 25 ‘One Stop’ Investigations...... 29 Overcrowding and Conditions In Police Cells ...... 34 Property in Custody...... 45 Allegations of Corruption – Work In Progress ...... 48 Statistics - 1992-2002...... 52 GENERAL COMPLAINTS...... 56 Introduction ...... 56 Community Services and Health...... 57 Corrections ...... 87 Local Government ...... 101 Transport ...... 122 Education...... 132 Other Matters ...... 139 CONFLICT OF INTEREST ...... 147 FREEDOM OF INFORMATION ...... 154 Introduction ...... 154 Requests For Documents Held by the Ombudsman’s Office ...156 Complaints Against Other Agencies...... 157 TELECOMMUNICATIONS INTERCEPTION...... 167 MELBOURNE CITY LINK ACT...... 168 OFFICE OPERATIONS ...... 169 Summary of Activities ...... 169 ADMINISTRATION, ORGANISATION AND STAFF...... 174 Establishment of Office ...... 174 Legislation ...... 174 Mission...... 176 Objectives...... 176 Strategies...... 177
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Staff...... 180 Outreach ...... 182 Declaration of Interests ...... 183 Publications ...... 183 FINANCIAL STATEMENTS ...... 185
iv 2001/2002 ANNUAL REPORT The Year in Review
THE YEAR IN REVIEW
Again, this year has been a busy one authority will investigate that for my office. I received disclosure. approximately 20,000 contacts from members of the public seeking The government has provided me assistance. with supplementary funding to enable me to employ three additional The greatest impact on the workload staff to fulfil the new responsibilities. of my office has been the The work generated has created an introduction of the new extremely heavy workload for my Whistleblower Protection legislation. office. This Act has imposed responsibilities upon the Ombudsman and, indeed, it As required by the new legislation, I may be said that the Ombudsman have formulated guidelines for plays a pivotal role in the new public bodies in dealing with the legislative scheme. receipt and investigation of disclosures. All public bodies The Ombudsman has been given the subject to the legislation must set up power to determine whether the within their own organisation information provided amounts to a procedures conforming with the Public Interest Disclosure. If it does, guidelines. the matter must be investigated I have the discretion to decide which This exercise has been an enlightening one for me. Since I was
1 2001/2002 ANNUAL REPORT The Year in Review appointed Ombudsman in 1995 I their administration or their have been encouraging, and, at provision of services to the public. times, cajoling, public bodies subject to my jurisdiction to set up their own Many public bodies have been very formal internal complaints handling responsive to the need for an internal systems. I have sought to do this for complaints system; others have been two reasons. less responsive. The new legislation now imposes a requirement on all Firstly, in the general jurisdiction of public bodies for setting up such a the Ombudsman, which covers state system. Those organisations which and local government administration, have already set up such systems I see my office as an office of last have had little difficulty in adjusting resort. Hence, when complainants to the new requirement, whilst those approach my office, but have not less diligent have had far greater attempted to resolve their concerns difficulty in establishing a system with the relevant public body, they under the new guidelines. are asked to do so. They are also invited to again contact my office if Any organisations in the latter they are not satisfied with the public category, who have complained body’s response. This not only about the onerous requirements of conserves my limited resources but the Ombudsman’s guidelines, have also, quite appropriately, gives the had short shrift from me. In my public body the first chance to opinion, the problem has been one of address the concerns of the their own making. I cannot possibly complainant. see how an efficient, competent, well-run organisation can carry on its Secondly, I believe that any public business without having a well oiled, body would reap the benefits of internal complaints handling system. having such an internal complaints handling system which, in my Another area of responsibility which opinion, is an essential management has required the employment of a tool. It alerts, or at least should alert, great deal of my resources this year managers in that organisation to has been Freedom of Information. what concerns are being raised about
2 2001/2002 ANNUAL REPORT The Year in Review
Whilst the total number of complaints have been finalised complaints has not grown whilst others continue under significantly, the complexity of the investigation. complaints has increased. As outlined in the Freedom of In addition to dealing with the Information section of my Report, I individual complaints, I am also received a number of complaints, in examining on a broader basis the particular, complaints from Members State Trustees’ response to a report of the Parliament, about significant by the Auditor-General in respect to delays in obtaining a decision on its handling of matters involving access to information. The Freedom represented persons. of Information Act requires an agency to deal with an application This year also saw the final wash-up for access within 45 days. of the Richmond Secondary College Unfortunately, many delays of well demonstration investigation which I over 100 days have been conducted as long ago as 1994. At experienced. This problem, I trust, the time I made a number of has now been redressed following recommendations to the Chief the formulation by the Attorney- Commissioner of Police, including General of new guidelines with a the institution of disciplinary charges focus on timeliness. against some members of the force involved in dealing with that Another area in which I have demonstration. expended substantial resources is the State Trustees’ office. I received a The Chief Commissioner accepted considerable number of complaints my recommendations and initiated about the State Trustees as a result of disciplinary proceedings but those media attention given through radio proceedings were prevented from station 3AW. The station, through proceeding by a Supreme Court writ its solicitors, forwarded to me taken out by the members concerned. complaints received from its listeners The writ suspended those and, in addition, the media attention proceedings pending the completion generated complaints direct to my of civil process instigated by office. At the time of writing, some protestors against the members
3 2001/2002 ANNUAL REPORT The Year in Review involved. It was agreed between the That Memorandum of Understanding members charged and Police has now been agreed to and thus Command that, if the writ was concludes the issues arising from this removed, Police Command would ancient investigation. not proceed with the disciplinary hearings until the civil litigation was Finally, as a result of publicity given complete. to criticism in my last Annual Report of the manner in which some local The delay was considerable and councils deal with parking eventually, in 2001, the Chief infringements, my office this year Commissioner decided, without has been deluged with complaints consultation, not to proceed with concerning such matters. These are those disciplinary charges. I described in more detail in the body disagreed with that course of action of this Report. and subsequently, the Chief Commissioner and I, in compliance with the legislation, took the matter to the Police Minister for a determination. The Minister sought legal advice from Crown Counsel and, on his advice, decided not to direct the Chief Commissioner to implement my recommendations.
The Police Minister asked that the Chief Commissioner and I enter into a Memorandum of Understanding where it was agreed that, in future, if the Chief Commissioner accepted my recommendations that the Chief Commissioner would not later change their decision without first consulting me.
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NEW DEVELOPMENTS
As mentioned in The Year in members of the public and Review, the 2001/2002 year brought employees of public bodies to come a number of significant changes for forward and make complaints about my office. One of the most serious wrongdoing within the public important developments was the sector. expansion of my role to include oversight and administration of the The Implementation new Whistleblowers Protection Act Process 2001 (WPA) which came into An extensive program of public operation in the middle of the education about the new legislative reporting period. scheme was undertaken by my office
both prior to and after its I am pleased to be able to report on commencement. the successful implementation of the new scheme and the extensive To ensure successful implementation activities of my office in the first six of the new process, I established the months of the WPA. position of a Whistleblowers Coordinator within my office. The WHISTLEBLOWERS Whistleblowers Coordinator receives PROTECTION ACT and assesses complaints and provides advice on the WPA to public bodies. The WPA commenced on 1 January
2002. The protection offered by this My officers spoke about the WPA at new legislation has encouraged 30 seminars and training sessions
5 2001/2002 ANNUAL REPORT New Developments and held 45 meetings with various referred back to the relevant public public bodies to assist them with the bodies for investigation. assessment and management of complaints made under the WPA. With regards to purported disclosures, which I determined fell Publications outside the scope of the WPA, two have been investigated under the I have established detailed guidelines Ombudsman Act 1973, another four about the WPA, which include were subject to substantial enquiries model procedures for the handling of under the Ombudsman Act 1973, and whistleblower complaints by public one has been investigated under the bodies. In addition, I published an Police Regulation Act 1958. Of the explanatory brochure, which remaining files, six are still under provides straightforward answers to consideration. the following questions: ‘Who can complain?’, ‘Who can complaints be To date, I have tabled before made against?’ and ‘What can the Parliament only one report under the Ombudsman do?’. WPA. The relevant investigation was of an employee of the University Investigations of Melbourne. I include a summary of this case below. From 1 January until 30 June 2002, my office raised 72 files in this jurisdiction and gave extensive The first six months of responses to 179 enquiries. Of the the WPA
72 files, 16 were protected Neither I nor my investigation disclosures. Of these, I determined officers knew what kind of response that 14 amounted to public interest the WPA would receive. Some disclosures (PID) within the meaning thought the response would be of the WPA. I assigned six of these subdued, others were expecting a PIDs to my office for investigation, deluge of complaints and enquiries. whilst four more were assigned to The reality is somewhere in between. the Chief Commissioner, one to the What was surprising was the number Auditor-General and three were of complaints received, which warranted investigation under the
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WPA. In my view, the protections forward, who would not ordinarily provided by the WPA have certainly have done so. prompted complainants to come
A summary of activities under the WPA
1 January – 30 June 2002
Total Files Raised 72
Protected Disclosures Made to Ombudsman 16
Public Interest Disclosures (PID) 14
Files still under consideration 6
Investigation of PID by Ombudsman 6
by Chief Commissioner 4
by Public Body 3
by Auditor-General 1
Alternative Procedure under Ombudsman Act 1973 2 Investigations under Police Regulation Act 1 1958 Alternative Procedure under Ombudsman Act 1973 4 Enquiries
Public Education
Inquiries 179
Meetings 45
Seminars 30
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Richard Gosper, the son of the Aims for the Next 12 former Commissioner of Melbourne Months and current member of the In the next 12 months I propose to International Olympic Committee, establish guidelines for the making Kevan Gosper. of complaints under the WPA and publish them on my website. Whilst After considering the allegations, I it will not be compulsory to follow determined that this was a public these guidelines, they will explain interest disclosure, which required how complaints should be set out investigation, and I advised the and describe the type of supporting complainant, as well as the information which I find helpful University, accordingly. when assessing whether a matter falls within the scope of the WPA. The complainant alleged that Ian Marshman, Senior Vice-Principal at The University of Melbourne the University, had suggested to the investigation Engineering Faculty that Richard On 20 February 2002, I received a Gosper, who had missed out on a complaint alleging improper conduct first round offer, should be selected by a senior University of Melbourne for a HECS funded place in the official. The complainant referred to second round of offers. the recently introduced Whistleblowers Protection Act 2001 The complainant further alleged that and asked that their identity not be the student in question had attained revealed during the course of any an ENTER (Equivalent National investigation. It was alleged that the Tertiary Entrance Rank) score of University had shown preferential 97.65 which was below the cut-off treatment to an applicant for a first mark of 98.05 required for the year HECS funded place in the Bachelor of Engineering/Bachelor of Bachelor of Engineering/Bachelor of Commerce course. The complainant Commerce course in 2002. The also claimed that Mrs Gosper called student was understood to be the Faculty repeatedly to find out
8 2001/2002 ANNUAL REPORT New Developments how her son could be selected into My investigation established that the the course. first selection round failed to achieve the number of offers sought by the During my investigation, over a Faculty in this course. As a result, dozen University staff and other the University made a decision to witnesses were interviewed. My offer a number of places in the investigation revealed that Richard second round to a group of students, Gosper had applied for special including Richard Gosper, who were consideration on the basis of an ranked equal next on the list with an illness which he experienced during ENTER of 98.0. the VCE. As a result, in addition to his actual achieved ENTER rank of While I was not able to conclude that 97.65, he was allocated a higher favouritism was shown, my estimated ENTER rank of 98.45 by investigation did highlight a number the Victorian Tertiary Admissions of systemic problems in relation to Centre (VTAC). the policy and processes applied to the selection of first year students. This estimated rank was subsequently reduced by the I found that the University did not Engineering Faculty to 98.0 as the have a uniform and consistent policy selection officer considered the on assessing applicants who are estimated ENTER of 98.45 to be too seeking special consideration due to high and inequitable, having regard illness or other disadvantage to the nature of the special experienced during their VCE circumstances claimed and in studies. comparison to other students who had also sought special I also established that there were no consideration. In consequence, guidelines available to selection Richard Gosper missed out on an officers to help them weigh various offer of a place in the Bachelor of considerations and that there was a Engineering/Bachelor of Commerce risk that applications were being course in the first round. assessed inconsistently.
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I concluded that the University the practical implications of some should improve its communication aspects of the legislation under strategies to ensure that both staff which this investigation was and clients are provided with clear, conducted as well as the nature of consistent and timely information the press coverage of this case. about selection policies and Specifically, the Vice-Chancellor processes. raised the matter of the consequences of the publicity given to the I made the following allegations made against Ian recommendations: Marshman.
That the University adopt a I expect that the reporting of my consistent policy on the treatment investigation, in which Mr of special consideration Marshman was exonerated, has gone applications and estimated some way towards addressing the ENTERs; concerns expressed in this regard by That this policy be clearly the Vice-Chancellor. communicated to all staff and
applied consistently; In view of the public attention given That the University clarify to this matter in the media, the nature internally the lines of of the allegations and the systemic responsibility and authority issues identified by my investigation, relating to its decision making and I presented a separate report to reporting processes; and Parliament on this case.
That the University review its internal and external communication strategies.
On 27 May 2002, the University responded to my tentative report and recommendations. While the University did not dispute any substantive matters of fact, the Vice- Chancellor expressed concern about
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COMMUNITY In particular, the CAYLO will ACCESS AND regularly review and investigate YOUTH LIAISON ways to develop innovative projects OFFICER (CAYLO) with key stakeholders to respond to the emerging issues affecting In December of 2001 I established opportunities of access to the the position of a Community Access complaints process by young people. and Youth Liaison Officer (CAYLO) within my office. I believe that Key work areas of the CAYLO are dedicated resources are required to to: make this office more accessible to establish, strengthen and sustain young people and that the the position within the government establishment of such a position will and non-government sector and the work towards remedying some of the Ombudsman’s office; barriers young people experience in accessing the complaints process. negotiate and establish vital partnerships with key stakeholders The duties of the CAYLO are (youth agencies, legal centres, essentially to promote the role of the community health centres, Ombudsman to young people of accommodation services, Local culturally and linguistically diverse Government, the Aboriginal and background, including Aboriginal ethnic communities) to provide youth, and to work towards creating referral and to support young a positive complaints culture within people in accessing the my office and within the many Ombudsman; and agencies and organisations engaged develop and implement a with young people. communications strategy to raise awareness and understanding The position has been established among young people and relevant from the ground up and I expect the service providers of the role and CAYLO to identify key work areas work of the Ombudsman. and to develop a number of approaches and strategies to address In the six months since the position access issues for young people. was established, the CAYLO has
11 2001/2002 ANNUAL REPORT New Developments been able to achieve significant support young people to understand progress and I am pleased to be able and make complaints to the to report on activities, as outlined Ombudsman. below. I believe that the provision of Database information cannot target young people alone, as it is imperative for Key contacts from appropriate advocates and other relevant workers service providers and organisations to have a sound knowledge of the have been collated by the CAYLO complaints process and to be able to into an impressive database for on- support young people in making a going information distribution, complaint. The more knowledge information sharing and referral workers have of what is required to purposes. make a complaint, the less frustration
these young people are likely to Initial referrals of young people to experience with the process. my Office have been received from ethnic community organisations, To assist service providers working youth accommodation services, with young people, the CAYLO has Legal Aid Offices, Young People’s updated “A Guide to Where Legal Rights Centre (Youthlaw), Problems May be Solved” and Victorian Aboriginal Legal Service, developed a new resource; School Focus Youth Program, “Strategies to Support Young People Parkville Youth Residential Centre to Make a Complaint to the and other youth agencies. Ombudsman’s Office”.
Information Provision These materials have been well received by participants in the The CAYLO provided information different forums attended by the about the role of my office to a wide CAYLO and are widely distributed spectrum of services and by my office. organisations. A number of key issues were discussed, the most frequently raised included youth friendly material and strategies to
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Youth Friendly Bi-lingual and Culturally Information Appropriate Information
The positive collaboration between In addition to the identified need for young people and my office has information about my office which produced comprehensive youth targets young people, I believe that information material such as; a youth Aboriginal youth also have a specific brochure, a poster and a wallet size need for information that cannot be information card. found in general youth information. In the next financial year, I will Youth Participation produce culturally appropriate information, focused on the needs of The views and participation of young Aboriginal youth. people were actively sought by the
CAYLO in developing a range of I will also produce a youth brochure information and publicity materials in ten different community languages for the office. The CAYLO involved in acknowledgement of the specific young people in every stage of the needs of refugee and newly arrived process, including: gathering of young people whose first language is information, discussions, artwork, not English. Many of these young design and layout and the written people have very little experience work. and knowledge of the different government systems in Victoria and Web Page may need assistance in understanding the role of the The CAYLO is presently working in Ombudsman through bi-lingual collaboration with young people literature and support to make a towards developing a plan for a complaint to my office. youth specific section on our web page that will give young people the opportunity to access my office Participation in Forums electronically. “Want to Whinge? Support Young
People to Use Complaint System”
was a ‘complaints forum’ delivered in May 2002 by The Youth Affairs
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Council of Victoria (YACVic) in knowledge of the Police, the law and partnership with my office, the Equal complaints processes. Opportunity Commission, the Telecommunications Industry Public Speaking Ombudsman, the Victorian Engagements and Aboriginal Legal Service and the Networking Welfare Rights Unit. After successfully completing a mail
out to all key stakeholders, the The forum provided individuals CAYLO was engaged in a number of working with youth an opportunity information presentations and to gain an understanding of different networking meetings. Below is a list complaint bodies and how each of some of the services and networks supports young people in accessing attended by the CAYLO during the the complaints process. Material and year: resources developed by the presenters are widely available from Young People’s Legal Rights YACVic’s web site. Centre (Youthlaw);
Adult Multicultural Education “The Racial and Religious Tolerance Services; Act (2001) – Arabic Community Youth Projects; Advocates Training” attended by the Melbourne City Mission – CAYLO provided an opportunity to Footscray; increase awareness of the Frontyard Youth Services; Ombudsman among advocates from Brosnan Centre – Jesuit Social the Arabic community of Victoria. Services
A workshop with Vietnamese youth Stopover Youth Housing; on “Police and the law” facilitated by Melbourne Youth Support the CAYLO at a one day forum Service; organised by the Victorian Vietnamese Community in Vietnamese Community in Australia Australia, Victorian Chapter; encouraged the young people to Maribyrnong Secondary develop practical solutions for College; improving their understanding and Western English Language School;
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North Richmond Community Support and Accommodation Health Centre; Rights Service; Western Region Student Welfare City of Melbourne Youth Co-ordinators Network; Services Forum; City of Yarra Youth Worker Western Young People’s Forum; Independent Network; and Malmsbury Juvenile Justice Hope Street Youth and Family Centre; Services. Parkville Youth Residential Centre; Outreach Service from Melbourne Juvenile Justice Frontyard Youth Centre; Services Youth Substance Abuse Service In acknowledgement of the (YSAS); vulnerability and lack of access to Kildonan Child and Family services experienced by some young Services; people, I established the “Victorian Catchment Youth Services; Ombudsman Youth Outreach” from Flemington and North Melbourne Frontyard Youth Services in King Community Centre; Street to overcome the fact that Darebin Council Youth Network; young people might sometimes The Centre for Multicultural hesitate to attend my Collins Street Youth Issues; office. Youth Affairs Council of
Victoria; The CAYLO is based at Frontyard Victorian Aboriginal Legal every Tuesday from 1.00 to 3.00 in Service; the afternoon. I believe that this Melbourne Legal Aid Office; outreach provides an opportunity for Bayside - Kingston Youth young people to approach the Network; CAYLO in a more familiar and Indo-China, Ethnic Chinese comfortable environment and for my Association; officer to get direct access to young Moreland Community Health people. Centre;
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POLICE COMPLAINTS
INTRODUCTION has meant the 2001/02 year has been a difficult one for my office. A In my past two annual reports, I number of high profile cases have identified areas for improvement in put extreme demands on my staff the police complaints system and while at the same time many called for strengthening of the initiatives to improve the system legislative framework underpinning have had to be held in abeyance. the present system. I have also written of the need for additional Despite this, the year has been a resources to enable my office to positive one and much has been conduct more of my own achieved. During 2001/02, I: investigations independently of Completed the investigation into police. conditions and overcrowding in
police cells, conducted under the Consideration of these matters by the provisions of both the Police government has been deferred Regulation Act and the pending an examination of the Ombudsman Act; recommendations contained in the “Johnson Report” on the Police Completed investigation of the Force and an extensive review of the large number of individual Police Regulation Act. complaints which arose from the World Economic Forum The deferral of consideration of demonstrations in September additional resources, in particular, 2000;
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Became involved in the police Walker, emphasizes the special review of the former Drug Squad contribution of the monitoring role. and the establishment and subsequent expansion of the Professor Walker argues that the CEJA Taskforce to investigate monitoring role is particularly allegations of corruption important because it focuses on involving members of the former changing the police organisation. Drug Squad; While he supports punishment of individual officers guilty of Introduced an outreach program misconduct, Walker maintains that to with particular emphasis on only punish the guilty leaves youth and ethnic and Koori untouched larger problems, such as communities, following the management failures, that are at the appointment of the Community root of police misconduct. Access and Youth Liaison According to Professor Walker: Officer; and
Further streamlined the office’s “These failures involve issues of monitoring and review role. recruitment, training, assignment,
supervision, and discipline. All of these factors combine to create IMPORTANCE OF distinct organisational cultures THE MONITORING within police departments. In too ROLE many departments, the organisational culture tolerates In his recent book, Police misconduct. In some instances, Accountability: The Role of Citizen management practices actively Oversight1, Professor Samuel contribute to unacceptable officer behaviour. Merely punishing
individual officers without 1 Walker, Samuel, Police Accountability: The Role of Civilian addressing the underlying Oversight, Oversight, Belmont, CA: management problems does not Wadsworth, 2001. result in lasting improvements.”
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Professor Walker argues that the Police now regularly use my office most important monitoring activity is as an independent resource. The policy review. Drawing on the Government has invited me to experience of three USA participate as a member of the metropolitan police oversight bodies Implementation Steering Committee, which send a steady flow of established to oversee an recommendations for policy changes examination of the recommendations to the law enforcement agencies for of the “Johnson Report” and to which they are responsible Walker review the Police Regulation Act. states that: Mr Brian Hardiman, Senior Assistant Ombudsman (Police “No single one of these Complaints), will be participating in recommendations is likely to make a this program as a member of the large difference in reducing “Police Integrity” project team. misconduct. But the cumulative effect of such recommendations is I have said many times that the focus likely to have two important long- of an Ombudsman complaint term effects. First, attending to a investigation must go beyond number of small issues can have an addressing a wrong and the important cumulative effect. We punishment of members involved in should think of this process in terms the misconduct and that it is of “housekeeping” or “minding the important to also examine the cause store.” Second, the process itself of the misconduct. This is the can change the organisational remedial aspect of complaint culture of a law enforcement investigation. agency, creating a climate of accountability in which the agency The examination and analysis of becomes accustomed to input from causes of problems has given my outsiders.” office over time an understanding of why problems arise, how best to I believe that police in Victoria have eliminate those problems, and how progressed beyond the simple to ensure that they do not recur. The acceptance of the monitoring and collective knowledge and experience investigative roles of my office. gathered by Ombudsman offices can
18 2001/2002 ANNUAL REPORT Police Complaints be a valuable resource in effecting an increased independent change, where change is necessary. investigative capacity, allowing me Whilst my involvement in the above to conduct at least one major project is conditional upon removing investigation at any one time. myself from participating in any situation which might compromise In the past I have been able to my role as Ombudsman or present a conduct investigations for which I conflict of interest, I believe that an lacked resources by seconding police Ombudsman should not be so aloof members to assist me. An example so as to deny independent advice and of such a situation is the recently expertise which may lead to better completed investigation into the administration, procedures and actions of police during the World practices. Economic Forum demonstration. My office conducted, totally SOUND independently of police, the FOUNDATIONS investigation into the ‘big picture’ of police planning, tactics and decision- The impact which the Government’s making, whilst a large number of review of the Police Regulation Act individual complaints by will ultimately have on my office is a demonstrators against specific police matter for the Government and members were examined under my Parliament. I would be disappointed supervision mainly by police if the solid foundations seconded to my office. Without the systematically laid down over the secondment of police members I last 14 years by police and my office would not have been able to were not recognised and built on. complete the second part of the investigation into the individual I would be particularly disappointed complaints in a timely manner. if the system were to be significantly altered on the basis of a perception While there are advantages in some that the current system is one of cases in seconding police for ‘police investigating police’. With particular investigations, relatively small additional resources, secondments should not be a my office would be able to achieve substitute for my own properly
19 2001/2002 ANNUAL REPORT Police Complaints resourced investigative capacity. A include session plans, trainer’s notes greater independent investigative and a student workbook. They offer capacity would substantially enhance practical advice and strategies for the credibility of the current system. dealing in an ethical and professional The fact that my office has not had manner with a wide range of matters. this substantial capacity should not The titles in the current series are: be overlooked in assessing the past Dealing With Criminal performance and potential of the Informers. existing system. Dealing with Sex Workers. Dealing with Drug Offenders. THE MANY Dealing with Confidential STRANDS OF Information. ACCOUNTABILITY Further packages are being Accountability has many strands. developed in relation to police driver One of the most important of those behaviour and women’s safety strands, I believe, is the need for strategies. police to adopt a forward thinking approach to identifying and I understand that in a recent speech, evaluating best police practice, in the Chief Commissioner of Police, particular, those measures which Christine Nixon, referred to the promote ethical behaviour. historically tenuous relationship
between police and researchers. I An important project initiated and believe that the relationship between completed this year by the researchers and police oversight Professional Practices Division of bodies is, with some exceptions, the Ethical Standards Department similarly problematic. (ESD) is the “Best Practice” series of videos and educational packages, One of the universal problems which highlight the pitfalls police experienced by Ombudsman bodies members may face when dealing in dealing with researchers’ requests with certain high risk situations. My for information is the problem of office has participated in the confidentiality. Another major production of these packages, which problem is the lack of uniformity in
20 2001/2002 ANNUAL REPORT Police Complaints the data held by civilian oversight measure the outcomes of their units bodies and police. and members and, ensure risk levels are more or less equal, compare and Until recently, the perception by contrast the performance of like some academics of the police units and officers. In this way, wider complaints scheme as a system of research into good practices is tied ‘police investigating police’ has into internal evaluation. proven to be a particular barrier to academic research in Victoria. In this way, policing becomes subject Happily, there are signs that the to a continuous process of quality situation is changing and there is assurance, the police organisation recognition among a number of becomes a learning organisation, academics and researchers that it is and operational officers and action neither practical nor desirable to based researchers join in the same remove police entirely from agenda and program – the participation in any system of improvement of policing.” accountability. POLICE RESEARCH I am firmly of the view that research AND RISK UNIT and evaluation of policing methods are an important part of police I have suggested in previous annual management improvement and I reports that there would be merit in support the comments made by the providing my office with an Chief Commissioner as an independent research capacity. introduction to the work of the However, as police command Research and Risk Unit of the ESD: maintains its commitment to the Research and Risk Unit (RRU) of “Good police practices are the ESD and the Unit remains scientifically tested to see how they responsive to my office’s work in what circumstances and with suggestions for risk analysis and what outcomes. Validated good research, it seems to me that the case practices are then built into for my office having its own protocols and codes of practice and research capacity is very much police are required to use them. reduced. Internally, police organisations
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Below I discuss examples of improvement of information initiatives undertaken by the RRU, management procedures; the some prompted by issues raised by improvement of awareness of my office as a result of my own litigation and risks to police investigations. The initiatives members and the identification demonstrate the advantage of what of high risk areas such as the is, essentially, a flexible and execution of search warrants. complementary complaints system in Victoria, which avoids duplication or As a result of the RRU’s report, a the need for cumbersome and police Civil Litigation Division has prescriptive legislation. been established and a number of policies and procedures have been Review of Civil Litigation introduced to reduce both the risks Against the Victoria and the causes of civil litigation. Police 1990-2000
The RRU undertook this project in Drugs and Alcohol in the 2001 to research the growing trend Workplace – Research into Drug and Alcohol of litigation claims against police. Testing The aims of the project were to: In January 2002 the RRU was tasked Identify aspects of the police to research the issue of drug and force’s performance that lead to alcohol testing in Victoria Police. complaints and writs; The aims of the project were to: Develop strategies aimed at review the literature on drug reducing vulnerability of the and alcohol testing both force to civil litigation; nationally and internationally Improve the force’s ability to and to make recommendations offer defence to civil writs in regarding the operations of a appropriate cases; and drug and alcohol testing Research and identify a number programme for Victoria Police; of key issues such as the need and
to review the period for evaluate the current draft drug retention of police records, the and alcohol policy and to make
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recommendations regarding the Security Intelligence Group, the proposed implementation of a State Event Planning and Emergency drug and alcohol testing Response Division and the programme. Superintendent of Division 1 Region 1 which covers the site of the The completed comprehensive report demonstration. has been subject to discussion between Victoria Police and the The project revealed the good work Police Association and has been an already done by the Force Response important component to the Unit in relation to issues identified introduction of drug and alcohol during the WEF demonstrations, testing in the Victoria Police force. particularly in relation to the strengthening of training and Investigation of Police planning procedures. Action at the World Economic Forum The RRU report addressed most of Demonstrations the main issues raised in my report and should assist in the future The RRU was tasked to provide a planning of police response to synopsis of issues identified in my similar demonstrations. report of June 2001 on the World
Economic Forum (WEF) In 2001, the RRU also completed a demonstration with the intention to report into the effectiveness of highlight areas of risk and to assist discipline functions within Victoria operations and field commanders in Police. It was found that the range planning for future demonstrations of sanctions available to hearing and major events. officers was too narrow and focussed
on punitive rather than on remedial The project brought together key measures. stakeholders including: the Force
Response Unit (FRU), the A second report has now been Complaints Investigation Division of completed which identifies a range the ESD, the Freedom of of new sanctions/remedial Information Unit, the Civil interventions and the way in which Litigation Division, the Protective
23 2001/2002 ANNUAL REPORT Police Complaints they might be used by hearing conflict of interest with the potential officers. for corruption where detectives in the unit initially conduct probity Corruption Prevention checks on potential brothel operators Strategies and subsequently are tasked to investigate those same operators. This issue has assumed considerable prominence since the revelation of In addition to these specific projects, serious allegations against members the RRU continues to produce of the former Drug Squad. regular risk assessments on members However, prior to the identification with the aim of providing local of problems with the former Drug managers with information designed Squad, the RRU had initiated contact to facilitate the introduction of with the management of the strategies to minimise the causes of Organised Crime Squad (OCS) of complaints. Similarly, the RRU the Crime Department with the aim provides a detailed complaint of introducing corruption prevention analysis service to regional strategies within that squad. The management. intention was to use the OCS as a test vehicle for a range of corruption prevention strategies which might be Networking Risk Analysis and Intelligence applied across the whole of the Experience Crime Department and, later, to the police force as a whole. In my experience, sharing information between jurisdictions is The former Drug Squad problems important and I am pleased to note have highlighted the need to give that the RRU has been instrumental priority to the examination of the in forming a national working group high risk units and other areas of the of intelligence practitioners with a force to determine appropriate view to implementing the following management strategies to minimise objectives: the risk of corruption. One high-risk Developing and adopting a area already identified by the RRU is national framework for the the Vice Probity Unit of the OCS. The RRU has identified a substantial
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identification of corrupt and making of complaints, particularly in unethical police behaviour; relation to youth, various ethnic groups and members of the Koori Identifying indicators for community. The appointment of a unethical and corrupt Community Access and Youth behaviour; Liaison Officer is one of the Researching into an Early measures I have adopted to Warning System (EWS) to overcome these barriers. identify risk behaviour; and
Developing other intelligence The adoption of informal means of products as required. handling complaints, including what police refer to as the Public Incident IMPROVING THE Resolution (PIR) procedure, has SYSTEM provided a more ‘user friendly’ and satisfactory alternative to formal Reliance on complaint statistics investigation. As with all systems, alone as a performance measure can constant review and improvement be highly problematic and indeed are needed to ensure procedures are misleading. Some may see reduction relevant and effective. in the number of complaints received as one of the primary aims of the With this in mind, I have included system. While measures which below, material provided to me by reduce the cause of complaints need the Victorian Aboriginal Legal to be introduced, it is also important Service Co-operative Limited to capture as many legitimate (VALS), which offers a number of grievances as possible to ensure constructive criticisms and accountability of individual police recommendations for the design of and to enable the development and an alternative dispute resolution maintenance of best practice in system for members of the Koori police management and discipline. community to replace the current PIR procedure. It seems to me that To achieve this capturing of many of these recommendations may grievances it is necessary to reduce have wider application and are the impediments or barriers to the timely because of the ESD’s current
25 2001/2002 ANNUAL REPORT Police Complaints review of the PIR procedure as a confront police, even as part of result of surveys indicating that the an “informal” process, can be a procedure could be improved. daunting experience for an Indigenous person. “Improving access to Victoria Police alternative PIR does not guarantee that dispute resolution underlying issues specific to services for Indigenous Indigenous people’s concerns peoples. will be taken into consideration.
These issues relate to past The Public Incident Resolution (PIR) history of Indigenous people’s complaint procedure is promoted by interaction with police and the police as user-friendly first port-of- consequent fears and feelings of call complaints procedure for “less powerlessness etc. serious” complaints. However the PIR does not guarantee that casual nature of this procedure, with there be an equal opportunity for little emphasis on the benefits of a the Koori complainant to clarify structured mediation/conciliation the problem which has brought process, may be in itself a means of about the complaint from his or dismissing Koori people’s concerns her perspective. and disempowering them in the process of making a complaint. There is no guarantee of cultural support, nor of any recognition VALS concerns with the PIR for of the cultural needs of the Kooris are: complainant.
It most frequently requires the An opportunity to discuss the complainant to attend the police complaint with the offending station. officer is at the discretion of the police officer in charge of the It assumes that informal PIR. This may be declined, or it “discussion” of the complaint may be imposed. In either case, with a police officer can there is no process to take into adequately resolve the conflict. consideration the Koori It denies that to present oneself complainant’s preference, nor to let alone be assertive and guarantee adequate culturally
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inclusive support for the acceptable dispute resolution process complainant. to deal with the less serious complaints of Koori people. If the offending officer is called
in to participate in the VALS therefore recommends that to discussion of the complaint, a replace the current PIR procedure an police officer acting as alternative dispute resolution system “mediator” or “conciliator” be designed for Kooris based on the cannot be impartial. A police following principles: officer is likely to be biased in favour of his fellow officer and 1. Information. Explanation is therefore unable to guarantee should be available to Koori that the PIR is a fair dispute complainants by police detailing all resolution process. available options within the police complaints process. Options should Police are not specifically include effective ways of making trained in mediation and do not complaints informally as outlined in therefore have adequate skills to the suggestions below. The police provide mediation services. should provide clear, simple details There is no guarantee that the of the complaint making options complainant will be given available. It is crucial for people to adequate feedback about the be armed with adequate information way the police have decided to about the processes, procedures and “resolve” the dispute. likely outcomes of lodging a If the complainant agrees to the complaint so that they can make a PIR “settlement” or the way the fully informed choice. police have resolved the dispute, 2. Legal advice. The Koori there is no avenue for recourse if complainant must be encouraged to there are further related get legal advice prior to the informal concerns for the complainant, or dispute resolution process, and be if the offending police officer able to get further legal advice if “re-offends”. necessary during the course of that
process. To sum up, the PIR procedure is not a fair process and is therefore not an
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3. Culturally inclusive support. A 6. Neutrality of the venue. A place VALS Client Services Officer or away from the police station should other recommended community be made available for a mediation support person should accompany involving the two parties face to the complainant at all complaint face. making stages and be able to act as 7. Efforts to reduce an advocate throughout the process. disempowerment. At the mediation Police should ensure that cultural of a dispute it should not be possible requirements are met by consulting for the police to bring in a senior with the complainant and cultural officer who might cause further support person. intimidation by cross-examining the 4. Training and expertise of the complainant, forcing resolution of “mediator”. The mediator or the dispute, or providing any adjudicator of “less serious” disputes authority-figure support for the between Koori complainants and offending officer. offending officers must be 8. Fair process. During the course adequately trained by an accredited of the mediation, the mediator must Alternative Dispute Resolution ensure there is recognition and training body. He or she should be consideration of the underlying able to deal with the full range of issues (cultural concerns, historical disputes that are likely to occur, have background causing fear etc) the professionalism necessary to surrounding the complaint and provide fair and accessible affecting the Koori complainant. processes. The training must consist There must be opportunity for the of awareness of the local Koori Koori complainant to seek advice culture. from an advocate or legal support 5. Neutrality of the “mediator”. during the process. The “informality” or casual aspect of 9. Fair settlement or resolution. the procedure should take into The resolution of the complaint account that neutrality of the should be made with acceptance and mediator must not be compromised agreement of both the Koori by being a police officer who has complainant and the offending police taken any part in the investigation of officer/s. If the disputing parties do the complaint.
28 2001/2002 ANNUAL REPORT Police Complaints not meet face to face, then the The Police Association has also mediator should make sure the Koori raised with my office a number of complainant is involved in cases involving complaints made by negotiating the outcome of the police. These complaints also complaint. indicate a need for an expanded and enhanced use of alternative dispute If police acknowledge that achieving resolution procedures within the fair settlement between parties in police force. dispute resolution is a worthy goal, then the partnerships of equality ‘ONE STOP’ currently evolving between the INVESTIGATIONS Koori community and the police through the Aboriginal Justice The former Police Complaints Agreement, 2001 and its Regional Authority, Hugh Selby, observed in Aboriginal Justice Advisory his 1986/87Annual Report “One Committees (RAJAC) will be Ombudsman unit, rather than that upheld. plus a motley collection of lesser specialists, offers cost savings, The partnerships are designed to rotation of staff (which is essential), recognise that they operate within a single focus for the community, two (or more) culturally distinct and certainly more influence upon worlds, that of the Koori both administration and communities and of the police and Government.” the wider society. Any interaction between these worlds must therefore It seems to me that the demise of the be respectful of each others’ Police Complaints Authority after realities, practices and laws. There only 22 months demonstrates that must be accountability for actions specialist Ombudsman run the risk of and behaviour, within each group creating an ‘us and them’ or, and to each other. In this way too, alternatively, an overly familiar and an effective dispute resolution comfortable relationship with the process will answer to the needs of agency which they are tasked with both parties.” investigating.
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Perceptions are important and I am Central After Hours Assessment and aware that many police are Bail Placement Service (CAHABPS) reassured by the fact that they are outside business hours. subject to exactly the same scrutiny as the many other agencies which The procedures provide that DHS come within my general jurisdiction. may arrange for a representative to Examples of investigations be present at the remand hearing to conducted jointly under my police put alternative options to the Bail and general jurisdictions are set out Justice. If DHS indicates that it below. intends to send a representative then the remand hearing must be arranged Applications by police to in a timely and structured manner to remand children accommodate the Bail Justice and DHS staff and to minimize the time Both the Department of Human Bail Justices spend at police stations. Services (DHS) and Victoria Police My discussions with DHS staff assert in various policy and suggest that, although police procedural documents that the procedures do not go to this level of remand in custody of children who detail, there is a working expectation are alleged to have committed an that police members will contact offence is only to be considered as a CAHABPS prior to seeking the last resort. This is consistent with attendance of a Bail Justice. the Children and Young Persons Act
1989 which provides that children My attention was drawn to this issue are to be proceeded against by when I received a complaint from a summons, other than in exceptional young person in the care of DHS that circumstances. officers of that Department had not
attended an application made by The Victoria Police Manual states police to a Bail Justice for her to be that where a remand in custody is to remanded to a Juvenile Justice be recommended to a Bail Justice Centre. and the child is not legally represented, the informant must My initial enquiries revealed that notify the local DHS regional office DHS had been contacted by police during business hours or the DHS
30 2001/2002 ANNUAL REPORT Police Complaints regarding the application to remand was remanded by the Bail Justice. the child. The child concerned did When considered in conjunction not wish to pursue an individual with the data obtained in relation to complaint against police. young persons who have been remanded, there were 25 cases out of I decided to make enquiries to 114 where police either did not ascertain whether the procedures for contact the service or are alleged to dealing with children subject to a have not done so in a timely manner. remand application are operating effectively and to establish whether There are circumstances where this case was a rare failure to comply police are not obliged to contact with procedures or whether it was CAHABPS, for instance if the young indicative of a wider problem. person is legally represented. It is also possible that in some instances Information obtained from DHS where the remand occurred shortly indicated that over a four month after business hours that police may period a total of 54 children were have contacted the regional office of remanded to DHS Juvenile Justice DHS. This could not be established facilities outside business hours. Of from the data provided by these, CAHABPS was not contacted CAHABPS. in 15 cases (27.7%). I was advised that four young persons who had There were also a few instances been remanded without contact with where the remand application may CAHABPS had subsequently been have been initiated after the closure released at their next court of CAHABPS at 3 am. The service appearance. provided by regional offices and CAHABPS does not span a twenty- I was also advised that in 10 four hour period. There is a gap in instances during the relevant period service between the closure of CAHABPS were contacted, but CAHABPS at 3 am and the opening police and/or the Bail Justice were of regional offices the next business not prepared to wait for the service day or the resumption of CAHABPS to complete an assessment. In four at 9.30 am on weekends and public of these instances the young person holidays.
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cooperative and effective The procedures are silent in respect implementation of the operating to what steps should be taken by procedures, amend some outdated police members outside the references in the operating CAHABPS operating hours if they procedures and ensure the are considering applying for a child procedures provide guidance to to be remanded in custody. police about their responsibilities in circumstances where the CAHABPS However, the data obtained from service is unavailable. DHS does not include instances where applications for remand were I have also advised police and DHS refused or where children were that I intend to review the operation remanded overnight in police cells, of the procedures again during the in certain prescribed regions of the coming year. state, where this is permitted. Joint investigations by Information provided by CAHABPS DHS and police suggests that police comply with the I became aware of the following operating procedures in about 65% matter because of a complaint made to 83% of cases. Even the more by DHS regarding the conduct of a generous estimate of likely police officer during an investigation compliance seems to indicate a conducted by DHS child protection significant problem in police workers. DHS was investigating compliance with the operating concerns that the mother of a two procedures relating to the remand of week old infant was drug affected, children. thus impairing her ability to care for
the child. I have provided police with details of cases where it appears that The child protection workers CAHABPS were not contacted. investigating the matter requested
police assistance due to concerns that I have also recommended that police the father of the child may react conduct a further analysis of the violently to their investigation. The data, liaise with DHS to ensure the police supervisor who was consulted
32 2001/2002 ANNUAL REPORT Police Complaints by the child protection workers child protection worker’s search was established that a number of arrest illegal and, in any case, neither of the warrants had been issued for the police officers believed that the father for failing to appear at court. powder was an illicit drug.
Police accompanied the child The mother denied that the substance protection workers to the family was a drug although there is some home and a swift and orderly entry disparity in the accounts of what the and arrest of the father was effected. mother said. A police officer remained on the premises whilst the child protection According to the police involved, the workers spoke with the mother. police supervisor asked the mother what the substance was and she During the conversation one of the replied that it was sugar. A child child protection workers saw what protection worker alleged that the she believed was a small amount of police supervisor asked the mother if marijuana and a plastic bag the substance was salt and she containing a small quantity of white agreed with this suggestion. powder. The child protection worker picked up the plastic bag and handed The supervisor then flushed the it to her colleague who placed it in substance down the toilet. her pocket before later handing it to According to him, he did so to make a police officer. a gesture regarding the illegal nature of the child protection worker’s The police officer handed the bag to search. his supervisor when he returned from assisting his colleagues place the It was concluded that the father in the divisional van after the supervisor’s actions constituted an arrest. According to the supervisor, acute lack of judgement and his he asked the mother if she had given supervisory responsibilities were the child protection workers withdrawn. permission to search the premises and she replied that she had not. It While I am satisfied that the poor was the supervisor’s opinion that the judgement demonstrated by the
33 2001/2002 ANNUAL REPORT Police Complaints police officer has been addressed, I of the adequacy of speed limit signs have now commenced own motion in the Domain and Burnley Tunnels enquiries, regarding the role of the when the limit is less than the normal child protection workers in this 80kph and I am still pursuing that matter. issue.
City Link Tunnel OVERCROWDING In June 2001 I received a complaint AND CONDITIONS IN from a motorist who had been issued POLICE CELLS with an infringement notice by the Traffic Camera Office for exceeding Over the past ten years the number the speed limit of 40kph in the of sentenced prisoners and prisoners Domain Tunnel. The traffic camera on remand who are held in police had detected his speed as 77kph. He cells pending transfer into the asserted that the speed limit prisons system has steadily displayed at the time was 80kph. increased. This has caused dissatisfaction among both the police The issue was raised with the Traffic and the prisoners entrusted to their Camera Office who had received care. numerous similar complaints. Enquiries disclosed that a workman The police are dissatisfied because had incorrectly placed an 80kph sign managing large numbers of prisoners near the road works before the requires resources, which could be temporary speed limit restrictions better and more appropriately used to were removed. perform the functions and duties of policing. The prisoners are It was acknowledged that motorists dissatisfied because they are denied were entitled to rely on the the proper care, privileges and authenticity of that sign and accommodation available to the infringement notices issued at the majority of prisoners held in relevant time were withdrawn. correctional facilities.
This incident and observations by one of my staff has raised the issue
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Background spent by prisoners in the police cells. I took the view that it was in the Police cells which are used as public interest that I investigate these prisons are regulated pursuant to the complaints. provisions of the Corrections Act 1986 and Corrections (Police Gaols) Investigation Regulations 1995. The duration for which a prisoner maybe retained in a To gain a better appreciation of the particular police cell varies problems and complaints, one of my depending on the category of the investigation officers visited a police station concerned. Obviously, number of police stations, police cells were never intended for interviewed complainants and police use as prison cells. The standard of and inspected the cells. cell-block accommodation and other facilities at police cells is very basic, The standard of cells in police suitable only for the briefest term of stations varies from nineteenth- detention. century bluestone structures to air- conditioned buildings constructed in The number of prisoners in both the past ten years. The majority are corrections prisons and police cells inferior to corrections prisons in a varies daily but, in the course of the number of respects. past decade, the number of prisoners has exceeded the capacity of the All police cell-blocks lack sufficient prison system. space to enable police to properly manage large numbers of prisoners. Some prisoners can serve their whole Limited numbers of individual cells sentence in police cells without make the segregation of drunks, being admitted to a prison. It is not female prisoners, remand prisoners, uncommon for prisoners to serve minor offenders and unruly prisoners between twenty and thirty days in from the mainstream prisoners police cells. difficult, if not impossible, at many stations. Secure outdoor exercise I received complaints about the areas, purpose-built kitchens, sick conditions in police cells, bays and visiting rooms do not exist overcrowding and length of time in the vast majority of police
35 2001/2002 ANNUAL REPORT Police Complaints stations. Pre-prepared meals are physical confrontation between provided by outside contractors, police and prisoners. stored in refrigerators and freezers and heated in microwave ovens. The need to provide services to prisoners, to maintain appropriate Smoking is prohibited and the more supervision and to operate the modern cell blocks are largely recording and reporting systems devoid of natural light. Lights are imposes heavy demands upon the left on at night so that prisoners can personnel of each police station. be monitored by surveillance These demands must be considered cameras. by station management when allocating members for normal All of these factors make for policing duties within their district. dissatisfied prisoners, particularly It follows that an increase in time those who have previously been in spent caring for prisoners leads to a the prison system and are aware of commensurate decrease in the time the conditions and privileges spent providing policing services to available in the prisons. These the general community. prisoners are also aware of the order of priority which applies to the Complaints received by my office transfer of prisoners from police included: the state of cleanliness of cells into the prison system. cells, hygiene, lack of access to fresh air and daylight, lights being left on The combination of prisoners’ in cells at night, poor quality or frustration and dissatisfaction with inadequate food, an inability to the current system, together with obtain and smoke cigarettes, lack of overcrowding and excessive periods access to telephones and letter of time served in police cells, leads writing facilities, lack of visiting to unruly behaviour, vandalism, opportunities and facilities, assaults, self-mutilation and other difficulties with laundry and clothing forms of behaviour designed to exchange, a lack of exercise ensure early transfer to prison. Such facilities, difficulties in relation to conduct places heavy demands on segregating prisoners and delays in police and, on occasions, has led to obtaining medical attention.
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except in the showers. A number of complaints were Battery/electric razors are not a received in relation to the standard of viable option insofar as it is not cleanliness and hygiene in the cells possible to properly disinfect or in particular, showering and shaving sterilise them. There does not appear facilities as well as blood and vomit to be any viable alternative to the spills in cells. current practice of allowing prisoners to shave only under strict Generally speaking, the watch house supervision. areas which were inspected by my Investigation Officer were Concern was expressed in relation to reasonably clean given the age and blood spills and vomit in cells. condition of the premises, but some Evidence suggests that blood spills are so old that they are never likely resulting from self-mutilation and to appear clean. In some places the assaults are a common occurrence standard of cleanliness of the and that vomiting is prevalent showers required attention. There amongst drug users. was evidence of mould and soap scum in some showers. Cell cleaning practices vary greatly. At some locations, blood spills had The standard of cleaning varied not been cleaned at all as some greatly. At some locations the cells police refuse to do so, whilst, in were cleaned regularly by contract other stations, police clean such cleaners, whilst at others, prisoners spills as soon as possible. Most of did the cleaning themselves. the police who were interviewed by my Investigation Officer were At the majority of watch houses conscious of the problem and their showering was not permitted for practice has been to either place the security reasons. At some locations, area out of action or isolate the area prisoners were allowed to shave until the services of specialist prior to court appearances and at cleaners can be obtained. At a most locations disposable razors number of stations, the area is hosed were supplied, however no shaving down as soon as possible. cream or hot water was available
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As a result of my recommendations night, as he had not seen daylight for arrangements are now in place for a period of fourteen days. stricter supervision and monitoring of cleaning. Operating procedures My recommendation that premises have also been developed to ensure used to house corrections prisoners that blood and vomit spills are be modified to enable prisoners promptly cleaned and proper access to fresh air and daylight has precautions are undertaken in this not been implemented due to the cost area. involved. However, there are ongoing discussions about possible Many of the complaints received cell design guidelines. related to the lack of access to fresh air and daylight. Most of the newer Two of the most common facilities are air-conditioned and kept complaints made by prisoners related at a constant temperature. At only to lights being left on in cells at night one of the newer facilities, Sunshine, and the turning on and off of did prisoners have access to fresh air dimmers during the night. in the exercise yard. Three of the older facilities inspected, Mildura, Whilst I accept that a minimum level Sale and Morwell, had access to of light is required for proper fresh air and sunlight through outside supervision and monitoring of exercise yards. prisoners, there is no need for dimmers to be turned on and left on Some of the newer facilities have all night. Police have agreed to areas where natural light is visible, develop operational instructions in but in limited amounts usually relation to the use of dimmers. through small windows on the perimeters of exercise areas. At The complaints in relation to food Bendigo and Preston there was no concerned the lack of variety, poor access to outside light or fresh air. nutritional value, size of meals, lack One of the prisoners at Bendigo of proper preparation and meals asked my investigation officer what being “out of date”. the time was and, when told, further questioned whether it was day or
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Generally, the meals examined by pooled and handed out as a reward my investigation officer were for good behaviour. Prisoners have adequate. The meals are prepared in complained that it is unfair that they accordance with instructions of should be required to pool their dieticians and are deemed sufficient cigarettes so as to supply others. for the needs of an ordinary male person. As the variety of the menu is I have recommended that smoking limited, it is possible that prisoners continue to be permitted at the who remain for any length of time in discretion of watch house keepers at the cells may become bored with the locations where it is appropriate to food. All meals are individually do so and that the practice of pooling prepared in plastic takeaway cigarettes be discontinued. containers and heated in microwave ovens prior to distribution. Generally, there are no facilities for Preparation of meals can be a time prisoners to make or receive consuming exercise for watch house telephone calls. While many watch keepers. Random checks conducted house keepers are prepared to make as part of my investigation did not calls on behalf of prisoners and identify any instances of “out of deliver messages, I received a date” food. number of complaints of alleged failure to do so. Similarly, letter Smoking is generally not permitted writing facilities are generally not in police cells, however, where there available to prisoners. are outside exercise yards, prisoners are permitted to smoke. The I recommended that both these forms majority of prisoners are smokers of communication be made available and denying them cigarettes creates to prisoners to enable them to seek tension. The lack of consistency in legal advice or to make complaints relation to smoking creates to my office. difficulties as prisoners argue that if they can smoke at one location, they I also recommended that a register should be allowed to smoke at all be maintained of all messages locations. Some watch house received and delivered on behalf of keepers insist that cigarettes be prisoners including a notation signed
39 2001/2002 ANNUAL REPORT Police Complaints by the prisoner indicating receipt of difficult for prisoners to have access all incoming messages and to clean clothes. particulars of the outcome of outgoing messages. Police are Prisoners in police cells are clearly considering how these disadvantaged by the lack of exercise recommendations can be facilities and amenities. Very few of implemented. the cells inspected had any access to areas where prisoners could exercise, In most of the watch houses visited be in fresh air or see daylight. Most there were no adequate facilities for prisoners spend the majority of their visits by relatives or friends. Any waking hours sitting around in cells such visits are subject to the or exercise yards, which encourages discretion of the watch house keeper them to become bored, tense and and occur under the supervision of a frustrated. In an attempt to alleviate member, placing further demands on the boredom, most cell areas are police resources. I have supplied with television sets. recommended that legislative However, radios are not supplied. In amendments be made to ensure that some stations newspapers and corrections prisoners are able to magazines are supplied. Books are receive their visit entitlements. generally not encouraged because of the possibility of contraband being Laundry facilities do not exist in smuggled in. I did not make any police cells. Prisoners are required specific recommendations in relation to do their washing in the shower or to these matters. basin and hang the laundered items over cell doors to dry. Fresh Overcrowding creates immense clothing is generally supplied by problems in relation to the need to family or friends if they reside close segregate various types of prisoners. enough to do so, on an exchange Watch house keepers are required to only basis every one or two days. constantly juggle accommodation Unless the prisoner has family or according to the necessity for friends in the close vicinity of the segregating female prisoners from watch house, it is often extremely male prisoners, protection prisoners
40 2001/2002 ANNUAL REPORT Police Complaints from mainstream prisoners and where those arrested for drunkenness juveniles from adults. are released into the care of another person or establishing detoxification Segregation is also required for centres where those arrested for disciplinary or management drunkenness could be lodged. purposes. Often these requirements mean that cells cannot be utilised to Approximately 70% of prisoners their full capacity with the result that admitted to police cells are victims overcrowding occurs in other areas of substance abuse and a large of watch houses. As a consequence number are carriers of of segregation, prisoners are often communicable diseases which may moved from one watch house to expose other prisoners and staff to another wherever a bed is available the risk of infections and disease. in an attempt to overcome overcrowding. Moreover, prisoners One of the most serious deficiencies on remand cannot be separated from in the current system is the lack of convicted prisoners. medical examination of prisoners held in police custody. When a A common complaint from prisoners prisoner enters a corrections prison, relates to the noise and disruption he/she is immediately medically caused by drunks. In most stations, examined, providing the opportunity a separate “drunks” cell is to identify the presence of a maintained, however, the constant communicable disease. yelling and banging on cell doors creates problems for other prisoners. I received complaints about In some of the newer establishments, inordinate delays in prisoners these cells have been located as far receiving medical attention. Whilst I away from the general cells as found that there were delays on possible. occasions, these delays were no greater than those encountered in the If drunkenness is to continue to be public hospital system. In the treated as a criminal offence, I majority of cases, the response rate believe that consideration should be would be similar to that experienced given to extending the program by people attending private practices.
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It must be borne in mind that these prisoners should include a medical officers are all involved in requirement that enables prisoners to their private practice and their be collected after court each day and, attendance is dependent upon the similarly, arrangements should be competing priorities of their made to ensure that prisoners can be practices. received at the Remand Centre or prison out of normal hours. There is also a lack of facilities for medical examination in watch The Correctional Services houses. None of the stations visited Commissioner indicated that by my officer had a medical planning for the new Remand Centre examination room or couch. All is well under way with an anticipated lacked the basic facilities. Medical commissioning date by the end of practitioners are forced to examine December 2004. prisoners in the cells, interview rooms or other available rooms. I also recommended that the possibility of establishing regional Other Recommendations remand centres associated with existing country prisons be Following my investigation, I evaluated. recommended that construction of the new Remand Centre proceed In the event that all entrants to the expeditiously and, when completed, prison system continue to pass that it be used to house all remand through the Melbourne Assessment prisoners. Provision should be made Prison en route to their initial prison, for all prisoners who are attending I recommended that the process be metropolitan and near metropolitan expedited so as to alleviate any courts and who are unable to be bottleneck in the system. returned to their respective prisons, to be housed overnight at the The Correctional Services Remand Centre, unless it is Commissioner indicated that options impractical to do so due to distance. to extend reception times at the
Melbourne Assessment Prison will I also recommended that any be considered. The Commissioner contracts for the transport of
42 2001/2002 ANNUAL REPORT Police Complaints opined that additional prison for human habitation due to age, capacity, including the condition, lack of basic facilities or a commissioning of the new Remand combination of all these factors. I Centre, together with the revised recommended that immediate prisoner transport schedules, should arrangements be made to house assist in moving prisoners through corrections prisoners elsewhere until the system quickly, thus maximising such time as the cells are properly vacancies at the ‘front end’. upgraded or replaced.
I also recommended that greater use Police replied that the building of be made of teleconferencing new stations at Heidelberg and facilities in relation to bail Preston are to be completed by the applications and adjournments. end of the financial year 2002/03. A Greater use of these facilities may new station is planned for Morwell well have a twofold effect: with an expected completion date in December 2004. A reduction in the number of
prisoners requiring transport to In my view, “B” Class cells are and from courts, as well as the totally unsuitable for holding need for overnight/longer stays correctional prisoners and I when applications are heard in recommended that these cells only country courts; and be used in cases of extreme Additional prisoners may apply emergencies and that no prisoner be for bail, who currently will not kept for longer than 3 days in any do so, because if they are “B” Class cell or cells in any 28 day unsuccessful, they have no consecutive period. guarantee they will be returned
to their respective prisons and In the interim, if it is not possible to may then be required to spend move prisoners to a correctional excessive periods of time in facility within the three day period, police cells. then it will be necessary, in my
opinion, to upgrade some of the “B” In my opinion, some “A” Class cells, Class cells so that prisoners are namely the cells at Bendigo, Preston, supplied with accommodation and Heidelberg and Morwell are not fit
43 2001/2002 ANNUAL REPORT Police Complaints facilities commensurate with the facilities separate from police United Nations Standard Minimum facilities could be established. Rules for the Treatment of Prisoners. This could be done in most However, I accept that it would be localities associated with the impractical to expect that all “B” larger courts, at very little Class cells be upgraded. expense. For example, Geelong, Ringwood, Frankston and In any cases where sentenced Dandenong. In this regard, prisoners are detained in police cells facilities already exist at for a period longer than three days, I Sunshine and are contained in the recommended that they should be plans for the new police station at credited with Emergency Heidelberg; and Management Days on the same ratio Consideration be given to as provided for in the Correctional acquisition of a centrally located, Regulations. large, multi-storey building
which could be properly fitted In the event that the proposed out and converted into a low remand centre does not proceed or if security prison to house there are problems associated with minimum security prisoners, thus the collection of prisoners who have freeing up prison beds for attended court and their return to a prisoners currently held in police correctional facility, I recommended cells. that consideration should be given to the following alternatives in relation The situation in relation to the to the metropolitan remand solution: country, I believe, would require
The Correctional Services separate alternative arrangements Commissioner assume and I recommended that separate responsibility for all “correction custodial facilities be established at prisoners” held in police cells as police stations adjacent to or in close soon as possible. Whilst this proximity to the larger court houses hybrid arrangement will create throughout the State. These facilities certain management and should generally only be used for a logistical problems in existing maximum stay of up to five days, police cells, suitable custodial except where the necessity arose for
44 2001/2002 ANNUAL REPORT Police Complaints prisoners to be kept longer for court continuing problems encountered in purposes. the transfer of property between police and the various service Whilst a number of my providers. recommendations have been acted upon, others are still under Missing mobile phone consideration. I am pleased to report A prisoner’s property was in a sealed that the overcrowding problem has bag when he was received at the significantly improved with Melbourne Custody Centre from additional prison beds now in use police custody. The accompanying and the provision of further documentation listed a mobile additional beds due for completion phone. The seal remained unbroken by the end of 2002. I continue to for the duration of his stay at the monitor this situation on a regular Melbourne Custody Centre. The basis. prisoner was subsequently transported by Group 4 to the PROPERTY IN Melbourne Assessment Prison and CUSTODY on that day, a Group 4 officer and the prisoner signed the record as Lost property continues to be a being “Correct on Transfer”. common problem experienced by However, when the sealed bag was prisoners and those detained in opened at the Melbourne Assessment police custody, resulting from Prison there was no mobile phone. inadequate record keeping and poor management of property at various The prisoner’s property had clearly stages of the property handling not been checked by police prior to process – by police, within prisons, transfer to the Melbourne Custody between prisons, and by transport Centre or by Melbourne Custody contractors. I discuss this issue in Centre staff prior to handing it over greater detail later in the Report2. to Group 4 for transfer to the Melbourne Assessment Prison. The complaint described below is one example which highlights the Complaints about property in police custody continue to constitute a 2 See Corrections.
45 2001/2002 ANNUAL REPORT Police Complaints significant proportion of complaints receipts or the failure to accurately against police. These complaints record property and exhibit details. arise from police failure to make detailed records of all property Seizure of firearms seized, failure to issue receipts at the Police seized three firearms from a time of or as soon as practicable after licensed owner on the basis that the seizure and poor management of storage for the firearms was property within police stations. inappropriate. Police issued no receipt. The complainant stated that The extent of such failures was well police had informed him that the illustrated in the much publicised firearms would be returned when he ESD search and audit of the St Kilda obtained suitable storage, however, Criminal Investigation Unit and police failed to do so despite having Embona Task Force offices in May been advised that new storage 2000 when firearms, knives, and facilities had been installed. The drugs were found secreted in various police member concerned was work locations. counselled for failing to issue a receipt to the complainant. Enquiries revealed that the premises had not been searched since the Missing balls opening of the St Kilda police In the course of investigating a complex in 1986. report of the armed robbery of a
cigarette delivery van, police At the time of writing, police had executed a search warrant at the introduced a new risk based home of the complainant. Police did ‘verification inspection’ regime, not locate any property specified in which concentrates on monitoring the warrant but seized other property high-risk areas such as prisoner suspected to be stolen. Police issued property management. no receipt until two weeks later
when the complainant’s solicitor I hope that this measure will assist wrote to police asking for a receipt in reducing cases such as those and demanding that the property be described below where the common returned. The complainant stated failings have been the timely issue of that approximately twenty new
46 2001/2002 ANNUAL REPORT Police Complaints cricket balls were not returned to then to the Melbourne Assessment him. Prison.
Police claimed cricket balls had been From the outset of my investigation seized but were returned to the there was difficulty establishing complainant upon his release the whether or not a mobile phone had same day from police custody. been amongst the youth’s property However, police had failed to record when arrested. The arresting officer the seizure of cricket balls and had stated there was no phone, only a not obtained any written verification mobile phone hands free set, but from the complainant that these some of the property sheets drawn items had been returned. During my up as he was moved from one police investigation it also became apparent station to another listed a “digital” that police did not take the seized telephone and hands free set. These property before a magistrate until records also indicated that the hands two weeks later. The police member free set had been collected by his was counselled for failing to comply mother but none of the records with procedures in relation to the contained any description of the recording of seized property and for digital telephone. The property sheet failing to take all seized property forwarded with the sealed bag of the before a Magistrate without delay, as youth’s property to the Melbourne required by police procedures. Custody Centre also listed a digital telephone but there was no digital telephone when the bag was Stolen phone unsealed at the Melbourne The mother of a young man arrested Assessment Prison, the seal being and charged in connection with car intact when received at the theft complained that a yellow Nokia Melbourne Custody Centre. 5110 mobile phone belonging to him was lost whilst he was in police My office’s enquiries established custody. The youth had been moved that the youth had in fact stolen a between police cells at several police yellow Nokia 5110 mobile phone stations before being transferred to which had been in one of the the Melbourne Custody Centre and vehicles stolen by him, and that this
47 2001/2002 ANNUAL REPORT Police Complaints phone could not have been on him at property and an instruction was the time of arrest as it had been issued that the brand name or located subsequently in another identification marks/number of any stolen car. In view of this evidence property coming into police custody and the fact that there was no should be recorded. evidence the youth owned a mobile phone, the complaint was found to ALLEGATIONS OF be unsubstantiated. CORRUPTION – WORK IN Most unsatisfactorily, the origin of PROGRESS the references in some police station property sheets to a mobile phone On Sunday 29 July 2001 over 50 could not be established. However, ESD investigators were involved in as my investigation disclosed several the arrest phases of Operation HEMI deficiencies in the recording and – a covert investigation into handling of the youth’s property by allegations of corruption involving a police, it seems most likely a result serving and a former member of the of failure to accurately record and Drug Squad, which had commenced describe property and the failure to some six months earlier. check all property in the presence of the youth prior to his transfer from On that day, Detective Sergeant police custody to the Melbourne Rosenes of the Drug Squad and four Custody Centre. If a check had been other offenders were arrested for carried out by police prior to sealing allegedly trafficking in commercial the property bag at the time of quantities of a drug of dependence. transfer to the Melbourne Custody Over 50,000 ecstasy tablets were Centre, the discrepancy between the seized. property records and property actually held by police would have Subsequently, former Detective come to light prior to property Senior Constable Paton, who had leaving police custody. resigned as a member of the Drug Squad on 22 March 2001, was also Police were counselled in relation to charged as a result of the the recording and handling of the investigations conducted under
48 2001/2002 ANNUAL REPORT Police Complaints
Operation HEMI, with trafficking Replacement of the Drug Squad commercial quantities of a drug of by a Major Drug Investigation dependence. These charges resulted Division; primarily from the misuse of the An enhanced selection process Drug Squad’s so-called Chemical for drug investigators; Diversion Program. Introduction of a maximum
five year continuous tenure in On 2 August 2001, the Corporate the Major Drug Investigation Management Review Division Division; Project Group (CMRDPG) commenced a comprehensive review Introduction of psychological, of the Drug Squad. The review’s drug and alcohol testing of terms of reference and methodology members working in the Major were developed in close consultation Drug Investigation Division; with my office. The review, headed Improved management, by Detective Superintendent Terry auditing and accountability Purton, identified a substantial practices; number of issues in the management, accountability, structure, and Immediate suspension of the administrative processes of the Drug Controlled Chemical Deliveries Squad. In its report of 28 November program and a review of the 2001, the review team made some program as a strategy to combat 144 recommendations. Some of the drug manufacturing and key recommendations of the review, trafficking; many of which have already been Introduction of new legislation adopted, include: to enable the timely disposal of
Establishment of a special 10 seized drugs; member task force (Operation Adoption of a new Informer CEJA) to probe allegations of Management System with audit corruption by members and and compliance safety former members of the Drug mechanisms for greater Squad; accountability; and
Introduction of tamper proof exhibit bags for drug storage.
49 2001/2002 ANNUAL REPORT Police Complaints
headed by an Acting Commander On 5 December 2001, I wrote to the and, in addition to the appointment Chief Commissioner of Police of more police resources, the endorsing most of the Taskforce now includes a dedicated recommendations made and raising accountant and barrister. some further issues for consideration. I am unable to provide detail of this extremely sensitive investigation as I intend to discuss these and other it relates to serious allegations of issues in more detail in a separate corruption and improper conduct report to Parliament on Operation which need to be fully and CEJA. The CEJA Taskforce was thoroughly investigated. established to investigate allegations of corruption within the former Drug I am confident the results of the Squad. The Taskforce, which operation will be revealed over the effectively commenced operations in course of the next 12 months. The February 2002, was headed by public’s right to know must be Detective Inspector Peter De Santo balanced with the need to preserve of the Corruption Investigation the integrity of the investigation and Division of ESD and compromised it is important that information approximately 10 members. which may compromise the on-going investigation is not exposed My officers actively oversaw the prematurely. work of the taskforce and have been involved in joint investigations and In addition to the CEJA Taskforce, intelligence gathering. the Corruption Investigation Division of ESD (CID3) continues to The Taskforce prepared an interim investigate a range of allegations of investigation report on its activities corruption and serious criminality to 30 June 2002 in order to involving members of the police determine its future direction and force. During the year, the Division resourcing needs. As a result, the completed approximately 90 Taskforce has been expanded and investigations of varying degrees of upgraded. The Taskforce is now complexity including Operation
50 2001/2002 ANNUAL REPORT Police Complaints
Hemi. Other completed operations charged as a result of further include: investigations which are to conclude shortly. Operation Keck – the result of I trust that these brief details will this investigation was in the serve to provide some reassurance to arrest of a former member who the community that investigation of has recently pleaded guilty to police corruption in Victoria is very attempting to obtain property by much a case of a great deal of ’work deception and use of a false in progress’. document.
Operation Poker – this investigation resulted in the arrest of a current serving member and two other persons who have been charged with conspiracy to pervert the course of justice.
Operation Marah – the result of this investigation was the arrest of a member who has been charged with the theft of 9 motor vehicles and 9 counts of handling stolen goods. It is alleged that this member was involved in the theft and rebirthing of stolen motor vehicles.
Four other members have been charged with serious criminal offences as a result of other investigations conducted by the Division and it is anticipated that some 10 other persons, including seven police members, will be
51 2001/2002 ANNUAL REPORT Police Complaints
STATISTICS - 1992-2002
3 Cases put 92-93 93-94 94-95 95-96 96-97 98-99 99-00 00-01 01-02
Total number 1,805 2,167 2,093 2,345 2,237 1,943 2,004 2,065 2,201 % put directly to police 47.6% 38.4% 37.8% 34.8% 32.5% 48.7% 42.9% 44.6% 42.5% % put to the Ombudsman 52.4% 61.6% 62.2% 65.2% 67.5% 51.3% 57.1% 55.3% 57.5%
Investigations Completed 92-93 93-94 94-95 95-96 96-97 98-99 99-00 00-01 01-02
cases 1,225 1,113 1,099 1,192 966 1,118 958 1,209 1,335 specific complaints / allegations 2,824 2,687 3,603 3,698 2,851 2,437 1,866 1,575 1,742
Of completed police investigations, where at the instigation of the Ombudsman: 92-93 93-94 94-95 95-96 96-97 98-99 99-00 00-01 01-02
(a) there was further investigation by the Ombudsman 2.0% 2.8% 2.6% 3.1% 3.1% 1.7% 3.0% 3.7% 2.2% (b) there was further police investigation 4.1% 3.4% 5.1% 3.4% 5.0% 3.8% 2.6% 4.0% 2.7% (c) the police took other further action 2.3% 4.8% 13.5% 4.9% 6.9% 3.8% 8.3% 8.1% 4.4% (d) other queries were raised with police 13.8% 16.4% 12.6% 11.1% 12.0% 8.9% 11.9% 7.4% 3.9%
Percentage of cases where there had been a prior police complaint investigation 92-93 93-94 94-95 95-96 96-97 98-99 99-00 00-01 01-02
6.3% 6.1% 6.4% 8.3% 7.8% 5.9% 6.6% 5.7% 7.0%
3 See Commentary.
52 2001/2002 ANNUAL REPORT Police Complaints
Outcomes, by percentage, of specific complaints (allegations) 92-93 93-94 94-95 95-96 96-97 98-99 99-00 00-01 01-02
Following treatment of specific complaints / allegations (a) withdrawn, clarified or conciliated 9.7% 18.9% 17.5% 23.1% 25.5% 45.5% 23.7% 25.9% 29.1% (b) not established - on the facts 41.5% 27.8% 26.9% 28.2% 31.0% 25.9% 41.5% 46.6% 42.5% - the facts could not be determined 32.4% 36.4% 44.0% 37.6% 31.8% 18.1% 18.2% 11.8% 14.0% (c) established 14.5% 12.4% 11.6% 11.1% 11.7% 10.5% 16.6% 15.5% 14.4% (d) net substantiation rate 16.1% 15.3% 14.1% 14.4% 15.9% 19.2% 21.7% 21.0% 20.3%
Complaints resolved quickly / less formally 92-93 93-94 94-95 95-96 96-97 98-99 99-00 00-01 01-02
Complaints put to the Ombudsman resolved quickly/less formally than by investigation or not requiring action
564 922 981 1,017 1,054 930 950 893 973
Cases on hand 92-93 93-94 94-95 95-96 96-97 98-99 99-00 00-01 01-02
Cases on hand as at the end of the reporting year 527 436 447 577 482 290 362 324 287
53 2001/2002 ANNUAL REPORT Police Complaints
Thus, under the heading “Cases put”, I have Commentary included both public complaints and In previous annual reports I have referred to internally generated investigations. police ‘complaint’ statistics. This year I have deleted the descriptor ‘complaint’ because According to ESD statistics, the proportion many of the cases now monitored and of public complaints received has fallen by reviewed by my office are not truly more than 50% to around 500 over the past complaints but involve a range of incidents 10 years. which either by agreement or by legislation trigger notification to this office. The number of serious complaints, particularly allegations of assault, has A legislative trigger is the investigation of declined over the past decade. However, I any allegation of ‘serious misconduct’ by believe that the number of public complaints police and includes, for example, in the ESD figures may be under represented investigations prompted by a risk analysis of because public incident resolution cases and a particular member or a police unit. some other minor categories of complaints Incidents which result in hospitalised injury have not been included. of a member of the public or a police member are another trigger which results in One of the challenges for next year is to notifications to my office. achieve greater consistency between the statistics held by my office and those held by Further triggers include police use of ESD. capsicum spray, firearms and police pursuits resulting in injury or property damage. Two figures in particular demonstrate improvements in the police complaints The purpose of monitoring and reviewing the system. The first is the significant reduction investigation of such incidents is to identify over the past ten years in the number of any systemic or individual performance complaints where it has not been possible to deficiency which may have been behind the determine the facts. Inconclusive incident. Like public complaints, they are a investigations are unsatisfactory to police and window into policing activities and provide complainants alike and it seems to me that insight into where improvements might be the reduction to the current level of 14% of made either in the provision of service or in investigated cases reflects the better the avoidance of unnecessary risks. documentation and reporting of incidents, particularly in relation to hospitalised injuries
54 2001/2002 ANNUAL REPORT Police Complaints because often there is contemporaneous evidence available even before public complaints are received.
The second significant statistic is the reduction of the number of cases on hand at the end of the reporting year to some 287 cases. This figure demonstrates the improved timeliness with which the majority of complaints are handled.
55 2001/2002 ANNUAL REPORT General Complaints
GENERAL COMPLAINTS
DISTRIBUTION OF COMPLAINT ALLEGATIONS
2000/01 2001/02
Corrections 746 699
Local Government 477 685
Community Services and Health 409 430
Administration 386 249
Housing 158 142
Worker’s Compensation 123 125
Planning & Sub-divisions 86 104
Education 104 101
INTRODUCTION Overall figures are slightly higher During the 2001/2002 reporting than those for the previous reporting period 3495 complaint allegations year. The large increase in local were finalised, compared with 3417 government complaints appears to be in 2000/2001. Of those allegations, primarily due to a substantial 3,199 were within my jurisdiction increase in parking complaints. This and 269 fell outside jurisdiction has been the result of considerable (compared with 3168 and 249 publicity given by the media to the respectively in 2000/01). discussion of parking infringement
56 2001/2002 ANNUAL REPORT General Complaints complaints in my previous Annual Protective Services Report. Complaints
After increases in recent years, the The number of prisoner complaints number of complaints about the child has fallen from the higher level in protection program of DHS the previous year. However, stabilized this year with 305 community services and health allegations received, compared to issues rose slightly continuing the 319 in 2000/2001 and 282 in steady growth in such complaints. 1999/2000.
The fall in general administration I am informed that, during the same complaints was caused by the period, Protective Services received introduction of new categories of 37976 notifications alleging that complaints which contain issues children were at risk of harm. I am previously included in the also advised that, as at 30 June 2002, Administration figures. there were 4975 children on protection orders. In this context, the COMMUNITY number of allegations made to my SERVICES AND office about the child protection HEALTH program amounts to 0.8% of the total notifications received by DHS. This Complaints involving the care of indicates that the complaints children has again dominated the received by my office represent only type of complaints which I have a small fraction of Protective received against the Department of Services interactions with the public. Human Services (DHS).
Complaints about DHS are During the period in review, I remarkably diverse. The variety of received 430 complaints compared complaints received underscore the with 409 for the previous period. Of complexity of the child protection the complaints received, 305 or 71% program and the emotionally charged related to child protection. issues which frequently arise, as illustrated by the following remarks.
57 2001/2002 ANNUAL REPORT General Complaints
1999/2000 2000/01 2001/02 Type of Complaint (368) (409) (430)
Adoption 6 4 4 Ambulance 6 4 4 Aged Care 4 6 6 Child care (pre-schools) 2 6 7 Disability Services 14 17 23 Hospitals 14 8 14 Breach of Act/Regulations - - 17 Carer Payments - - 5 Protective Services 282 319 305
Psychiatric Services 10 30 26 Public Health 1 - 3 Records 10 2 3 Supervision - - 3 Other matters 19 13 10
Complaint handling However, the creation of a new processes in child Ombudsman and Complaints protection Resolution position in the DHS head In my last report I foreshadowed that office towards the end of the I would monitor the efforts of DHS previous reporting period appears to to improve its own complaint have resulted in a significant handling in the child protection improvement in the quality of reports program. provided by DHS. The officer has also assisted my staff in resolving At the commencement of the year I some of the more straightforward held concerns regarding the quality complaints. and timeliness of reports provided to me by DHS in response to I have long been an advocate of a complaints received by my office. role for the DHS head office in
58 2001/2002 ANNUAL REPORT General Complaints complaints management. For several of changes were also made to senior years I was ‘swimming against the staff positions in the region tide’ of ever increasing devolution of concerned. responsibility to regions. However unfashionable my views may have Inadequate responses to children at risk been in this era, I remain convinced that the central program divisions of Between June and August 2000 I departments must be involved in received four complaints regarding monitoring the quality of services the involvement of a DHS region provided through their regional with six siblings ranging in age from offices. six months to twelve years old. The complainants included the children’s The following case, in my opinion, mother, two carers and an Approved demonstrates some of the worst Community Service which was excesses of regionalisation. I have responsible for the children’s provided a considerable degree of placements. detail regarding this case in order to illustrate the circumstances which, in The range of complaints received in my view, justify direct intervention relation to this case illustrates the by the DHS head office. complexity of the child protection program. They ranged from In this case, the region concerned allegations of unnecessary paid little heed to a senior DHS intervention by the region to review conducted at my request, of complaints that child protection the circumstances of a group of workers had failed to take sufficient children who appeared to be at risk. action to protect the children. The region’s intransigence was such that it advised the head office that it The most serious matters related to a would not implement the reviewers’ poor investigation by the region of a recommendations even if directed to disclosure of sexual abuse; failure to do so. After vigorous intervention respond appropriately to information by my office, DHS took decisive concerning the sexualised behaviours steps to ensure a proper of the children and to decision consideration of the case. A number making processes concerning the
59 2001/2002 ANNUAL REPORT General Complaints proposed return of the children to the that this alleged disclosure was ever family home. investigated. This information was received at about the time the I should emphasize that my role is children were removed from the care not to advocate for the complainant of their parents for other reasons. nor act as apologist for DHS. In matters concerning the care of I also found that subsequently, the children I believe my responsibility region failed to adequately respond is to ensure that DHS’ actions are in to an incident where one of the accordance with the law, reasonable, children, a ten year old boy, and taken in the best interests of the allegedly sexually abused the children concerned. daughter of his carer.
Whilst most complaints to my office The region’s file did not adequately are made by parents of children record the incident and there appears involved with protective services, I to have been little response by DHS am not obliged to pursue the matter officers, however, the Community in the manner which best suits the Service organisation supporting the parents interests. It is entirely placement consulted with the region possible that, as ultimately occurred and obtained permission to refer the in this matter, my involvement may boy for counselling. actually result in more, rather than less, intervention by DHS, should The DHS file records a telephone this be the most appropriate call made by the child protection outcome. worker to the carer to check on the child’s progress. The carer informed The first apparent failure of the the worker that the child had region to respond appropriately disclosed to his counsellor that he occurred when it received had been sexually abused but refused information alleging that one of the to identify the perpetrator. children had disclosed that inappropriate sexual behaviour was A second file note, dated some three occurring between two of the weeks later, appeared to record the siblings. I could find no evidence carer informing the same child
60 2001/2002 ANNUAL REPORT General Complaints protection worker by telephone that in responding to the information that the child had disclosed to his the child was disclosing sexual abuse counsellor that someone had abused from 21 days to 15 minutes. him. The child protection worker was not The file indicated that, following the able to explain the circumstances second telephone conversation, the surrounding these two notes except child protection worker consulted to suggest it might have occurred due Victoria Police’s Sexual Offences to an error in the transcription of his and Child Abuse Unit about the hand written notes to CASIS. I disclosure. In response to enquiries recommended to the Secretary that by my office, the police officer DHS conduct a disciplinary named in the DHS file could neither investigation regarding the recall such contact, nor find any management of the file by the child mention of it in police records. protection worker concerned. The However, she commented that if Secretary accepted my police took no action then it is recommendation. possible that no record would have been made, nor would she be likely When the child protection worker to remember the case. did visit the child to follow up on the disclosures, the file indicates that the Further enquiries by my office child did not disclose that he had revealed that the second file note was been abused himself but he did not entered onto the departmental disclose the incident with the carer’s CASIS system until some months child. The child protection worker after the conversation was supposed also noted that he could not be to have occurred. In fact, the note certain that the child had not been a was recorded only after I had written victim of sexual abuse and that to the Acting Secretary of DHS further assessment was required. expressing concern that allegations of sexualised behaviour of the I could see no evidence in the DHS children did not appear to have been file of any consultation between the investigated. The effect of the child protection worker and the second note was to reduce the delay child’s counsellor regarding the DHS
61 2001/2002 ANNUAL REPORT General Complaints investigation. The child protection Shortly after, a case plan was worker confirmed that he had no formulated for the family, contact with the counsellor before confirming the goal of returning the his investigation although he states children to the care of the mother. he left telephone messages for her. The plan identified specific changes and tasks which would need to occur It is notable that DHS’ own in order for this goal to be achieved. guidelines regarding the The plan described the protective investigation of sexual abuse issues as relating to domestic emphasize the complexity of the violence, physical harm and disclosure process and indicate that substantial emotional trauma, but did the building of trust between the not identify sexual abuse as a child and the investigator is a protective issue for the children, significant factor in the management despite objections from some of such investigations. In this professionals present at the case plan instance the child had already meeting. commenced making disclosures of sexual abuse to a counsellor. It The case plan meeting minutes would therefore seem axiomatic that record a decision for the children to any further investigation by the be assessed by a psychologist, with region as to whether the child had particular reference to one of the been sexually abused would require children’s sexualised behaviours. careful coordination with the The minutes record that a participant counsellor. In fact, the child’s questioned : contact with the counsellor was “… why the risk of Sexual Abuse suspended for some time as the had not been included in the plan. region pursued further assessments The Chairperson explained that the sexual abuse was not a of the children from another substantiated concern” professional. As the child’s counsellor put it: I could see no reason why the case plan should not have contained plans “I mean, how many times did he have to disclose? And to another regarding how the sexual abuse person - that would have been concerns raised by the child’s quite traumatic for him” disclosures were to be addressed.
62 2001/2002 ANNUAL REPORT General Complaints
The Act does not limit case plans to assessment process”. A more “substantiated” matters, but instead detailed report was provided to DHS, requires that it contain all significant indicating that: decisions relating to the present and “From the outset it was obvious a future care of the children, including formal assessment was not possible as the children refused to their placement and access cooperate in the assessment arrangements. process”
The region appeared to have placed It is my view that this plan should, at considerable weight on this a minimum, have included clear assessment in subsequent decisions strategies to: regarding the children. In fact, the further investigate the possibility two youngest children, one an infant that the child had been sexually and the other aged three years, were abused; reunited with their mother following ensure the child received this assessment. It is apparent that a counselling in relation to their formal assessment was not sexually inappropriate conducted due to a lack of behaviours; cooperation by the children.
manage the risk posed by the It seemed to me that the only child to their siblings, decision documented in the case particularly in the context of plan, which specifically responded to access; and the concerns regarding the children’s investigate and manage the wide sexualised behaviour, appeared not ranging concerns regarding the to have been implemented. siblings sexually inappropriate
behaviour. After preliminary enquiries with the
region, I wrote to the Acting The children were subsequently Secretary and requested that a formal referred to a psychologist who review of the case plan be advised the region in writing that conducted. DHS agreed and gave “there was no evidence or disclosure the responsibility for this task to the of sexual abuse” but also that “the Community Care Division in the children refused to cooperate in the head office. Two senior and
63 2001/2002 ANNUAL REPORT General Complaints experienced officers were appointed failing to make provision for her children’s safety” to conduct the review. “… the current case plan is not
adequate to ensure the protection The review team examined the of the children.” extensive file documentation and The report also documented abusive interviewed senior staff from the relationships between various region, the Approved Community members of the sibling group. Service and the counsellor who had received the child’s disclosure. The The region disputed the review review team adopted DHS’ standard team’s findings. Despite the review risk assessment framework to concluding that the children would analyse information and formulate be at significant risk if returned their recommendations. I understand home without significant changes that the reviewers provided their being demonstrated by the family, report to the region and subsequently the region not only confirmed the met the regional staff to discuss their ultimate goal of reunification, but findings. also accelerated the process.
A copy of the review report was I then received information about provided to my office. It included plans to introduce unsupervised comments that: overnight access between two of the “…it is unreasonable to assume elder children and their mother and that [the father] will be capable of taking steps to ensure the safety of younger siblings. I was surprised by his wife and children.” this decision because, in addition to “…there is evidence of contact the concerns identified by the review between [the parents] at the family home while the children have been team, the decision would result in the at home.” child who had allegedly abused his “The violence…. [between the carer’s four year old daughter having parents] …appears to be escalating” unsupervised access with his three “Moreover, there is a year old sister. I had noted likelihood…..That any of the comments in the review team’s draft children left in the care of [the mother] may not have their safety report that the boy was displaying ensured as a consequence of [the “serious sexual victim/perpetrator mother] drinking to excess and behaviours, including sexually
64 2001/2002 ANNUAL REPORT General Complaints predatory behaviour against a young understanding of the circumstances and facts could not girl”. The review officers had also endorse the reviewers direction commented that if the child was under direct cross examination returned to their mother under the The recommendation of the reviewers if requiring present circumstances, then the implementation through “lawful possible harm to his three year old direction” will require out of Region implementation” sister was assessed as being extreme.
I also noted a signed memorandum I wrote to the Secretary of DHS and from the manager of Direct Care the Minister for Community Services from the region stating: outlining the information I had “It is the Region’s firm view that received and advising of my because of the intensive intention to formally investigate involvement and assessment carried out in this case, that the DHS’ handling of the matter. case direction proposed by the Region is the correct one.”
During my subsequent investigation It is not the role of the Ombudsman it was revealing to examine the files to adjudicate on conflicting pertaining to the review conducted professional opinions such as those by the DHS head office. A facsimile held by the review team and the from a regional manager to a head regional staff. I am, however, office manager made it clear that the concerned that DHS’ internal region did not accept the review processes were unable to resolve the team’s finding: assessment and decision making “The review of the Case Plan dilemmas posed by this case without given the preceding factors in the view of the Department of Human an extraordinary degree of Services, [region] is factually intervention from head office. incorrect and by logic is a flawed and inappropriate course of action….. It is also concerning that a region can Information held on the have little regard for the findings of a Department of Human Services, [region] case file through a review conducted by two senior staff transparent and full examination as a direct consequence of a request through a Court would not sustain the review’s recommendations, from the Ombudsman to the further Department of Human Secretary of DHS. Not only was the Services, [region] staff working with the family and having a full region unwilling to accept the
65 2001/2002 ANNUAL REPORT General Complaints recommendations of the review team the ground. .. and I just believe that’s a true indication of where but it also indicated that it would not Protective Services in [region] is cooperate in their implementation, at. We just run by the seat of our pants and the way things are should DHS decide to adopt them. going I wouldn’t be surprised if we had a death”
Shortly after I had written to the Another child protection worker Secretary and the Minister, decisive advised that he was managing this steps were taken to ensure a proper case whilst performing higher duties consideration of the case and a in a supervisory position, the first number of changes were made to such time he had been allocated such senior staff positions in the region higher duties. However, due to the concerned. The case plan was also lack of staff in his team, this worker subject to a further review to ensure retained the case management duties it provided adequate protection of in addition to his supervisory the children and the access described responsibilities. above did not proceed.
Particularly concerning were I should point out that it was obvious comments made by the Acting to me that the region’s child Manager of the region’s child protection program was under protection program that: extreme stress. One of the child protection workers interviewed ‘…there was no space, physically or mentally, to do some planning during my investigation commented: because everybody was working such long hours and they were all “…the whole infrastructure of our so tired and I feel that, at all office is, probably was, and still levels, it doesn’t matter which is, completely inadequate…. its level we were looking at, within been proven that we’ve been cut the Child Protection area, that to the bone, we’ve had nothing, people were pushed to the brink we’ve lacked resources, lacked and that they couldn’t make people on the ground, we’ve decisive decisions and that lacked money to do anything. …. includes myself” there is no budget, basically we
couldn’t put things into place - we didn’t have the money, and we I concluded that inadequate support haven’t had it for years, and and supervision had contributed to things haven’t changed. And that’s why people leave this job, the unsatisfactory manner in which that’s why we turn staff over, we the case had been managed and just haven’t got the resources on
66 2001/2002 ANNUAL REPORT General Complaints recommended that DHS conduct an audit to ensure that staff were The Secretary’s response not only receiving supervision in accordance dealt with the issues raised by the with departmental guidelines. The complainant but also referred to Secretary accepted my other matters that had been identified recommendation. by DHS officers who had reviewed the file during the preparation of the The above case required extensive Department’s report to me. DHS intervention on my part to achieve a advised that its investigation of proper consideration of the matter by certain concerns for the safety of the DHS. Toward the end of the child had been inadequate and that it reporting period I dealt with another had failed to ensure the Children’s case where, in my opinion, child Court was provided with important protection workers failed to information regarding the case. I adequately discharge their was advised that disciplinary action responsibilities. However regrettable had been taken in response to the the failings identified by this case, inadequacies identified and that other DHS’ response was in striking remedial management action had contrast to its response to the earlier been taken. case. Matters such as the one described Transfer of Case above are an important test of DHS’ Management management capacity. I believe that Responsibilities a determination to identify, I received a complaint from a parent acknowledge and resolve instances that DHS had failed to arrange a where performance is unsatisfactory, timely transfer of case management ultimately enhances the responsibilities between two regional Department’s capacity to protect and offices. The parent complained of a support those vulnerable children lack of support arising from the and families who depend upon on it. delay. My office assisted the parent, who was illiterate, to document his complaint before I wrote to the
Secretary requesting a report regarding the matter.
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Complaint Resolution at approached me again to express Local Level dissatisfaction with the outcome. In each of these four cases subsequent Whilst the above case demonstrates formal enquiries have found no the need for central involvement in reason to be critical of DHS. It must the complaints process, I am of the be noted that one of the most opinion that most complaints can, proactive and effective regions in and should be, resolved at a local dealing with complaints referred by level. When I receive a complaint my office, is the same region which alleging a serious adverse outcome managed the case I outlined earlier in for a child, or where the complaint this section. involves complex legal and procedural aspects, I am adamant Advising Families of Review that the head office should play a Processes decisive role. However, the vast Families in contact with the child majority of complaints do not require protection program need to be such intervention and it appears that adequately informed as to what steps an overwhelming proportion of they can take if they are dissatisfied complaints referred directly to with action taken by DHS. The regional officers by my staff are following case illustrates that this is successfully resolved. an area where DHS can improve its
performance. Often, all that is required is for a regional manager to agree to discuss Seeking redress directly with the complainant their I received a telephone enquiry from a concerns in more detail. In such non custodial father complaining of cases my office usually has no an investigation by child protection further role, except to explain to the workers. The father was unaware of complainant that if these steps do not the matter until it proceeded to court resolve the issue then they are as a consequence of applications welcome to contact my office again. made by the mother. Pursuant to a
Family Court Order, the father had During this year my office redirected access to his children. My office 43 complainants back to regions. advised him to write to DHS seeking Only four complainants have
68 2001/2002 ANNUAL REPORT General Complaints specific information about any not only once a protection order had determinations made by DHS been made by the Children’s Court. regarding his children and advice on avenues by which such Whilst examining the DHS files I determinations could be reviewed. also became aware that a child protection worker had told the The father subsequently received a children’s mother that she “…does response from the Regional Director not have to send the boys to access which he forwarded to my office. until the matter has been The complainant was advised that investigated by DHS…” I could see allegations of abuse had been no lawful basis for DHS to provide substantiated by DHS and he was this advice, as it appeared to invited to pursue DHS’ internal encourage the mother to breach an review processes regarding the Order of the Family Court. I advised decision. It was apparent that had he the Secretary of my concern that, not directly questioned DHS at the since child protection workers suggestion of my office, he would believed that access between the not have been informed by the DHS children and the father should be either of its substantiation decision prevented pending the investigation, or his entitlement to seek an internal the children’s safety relied on the review of the decision. mother acting contrary to a Court Order. Surely better protection could My enquiries also revealed that, due have been provided to the children to a decision of the Court of Appeal, concerned. parents and children in contact with the child protection program have a DHS conceded that the actions taken much broader right to seek a review to encourage the mother to breach of DHS decisions by the Victorian the Family Court Order were Civil and Administrative Tribunal inappropriate. than previously understood. It is now apparent that such reviews can I have since been advised that DHS be sought throughout the period of will develop a brochure explaining DHS’ involvement with a family and various avenues of redress available to people aggrieved by the decisions
69 2001/2002 ANNUAL REPORT General Complaints and actions of child protection make contact with their daughter and workers. I understand that this grandson to ascertain that they were brochure will be provided to families not being abused by their daughter’s at the first point of contact with partner. The grandparents DHS. In my view, this step should complained that the only contact go some way to making the child made by DHS was by way of a protection complaints system more telephone call which was monitored accessible to those who are by the daughter’s partner. The dissatisfied with the actions of DHS. grandparents advised that a few weeks after they approached DHS, Failure to act their daughter and grandson were
During the year some media admitted to hospital suffering attention was given to allegations numerous injuries. that DHS failed to allocate child protection workers to cases where I immediately sought advice from preliminary assessment indicated the Secretary who confirmed that a that the children concerned were at notification was received alleging risk. While complaints made to my that the child was exposed to office do not suggest a systemic domestic violence between his problem, the following case mother and her partner. DHS was illustrates the potential consequences also notified that the child exhibited of an inadequate assessment. some concerning behaviours such as bedwetting and aggressiveness. The Inadequate assessment initial assessment of the notification The grandparents of a child was that it had arisen due to a complained that DHS had ineptly custodial dispute concerning the handled their concerns for the safety child. of their four year old grandson. The grandparents claimed that they DHS confirmed that a child contacted a child protection worker protection worker contacted the because their daughter had ceased child’s mother by telephone and that contact with them and had been seen she denied that her relationship was with bruises to her face and body. violent or that she had been injured. The grandparents asked DHS to However, over the next couple of
70 2001/2002 ANNUAL REPORT General Complaints days DHS also received further was subsequently issued and contact from the child’s extended arrangements made to ensure that the family expressing concern and child was appropriately cared for and requesting that child protection protected. workers visit the child. The Secretary advised me that a Five days after receiving the review of DHS’ response to the notification, a child protection notification had determined that the worker contacted the school where investigation and assessment of the the child and mother had attended an child’s circumstances were orientation program a day earlier. incomplete. The review concluded The school principal, who had not that: insufficient weight had been previously met the child nor his given to information provided by the mother, reported that they had child’s extended family; the school presented well and that the mother principal’s assessment of the child did not appear to have any facial may have been limited by having injuries. Fifteen days after receiving only met the child once; and more the notification DHS closed the case weight should have been given to a after assessing that no further previous disclosure of domestic involvement was required. violence by the mother.
A few days later DHS was advised The Secretary also advised me that that the child and his mother had the DHS file was not up to date at been admitted to hospital. Child the time the decision to close the protection workers attended the case was made. I was advised that hospital and ascertained that the the region’s capacity to process new child had a broken arm, grazes, cuts notifications had been affected at the and bruises to his face. The child time by industrial action bans which had told the treating doctor that he coincided with a peak number of had been abused by his mother’s de notifications received. facto partner. Medical examinations established that some of the child’s DHS’ response to the findings of its injuries predated the most recent review was to reinforce to child incident. A protection application protection workers that assessments
71 2001/2002 ANNUAL REPORT General Complaints must take into account the child protection workers were intimidation of parents where family incorrect. violence is alleged. A review of staffing and work allocation Given the stakes and the highly practices in the region was to be emotive issues involved it is not undertaken to ensure that staff surprising that those concerned with experience and supervision is the welfare of a child may not accept commensurate with the demands on that action taken by DHS has been the program. Further work is being adequate to ensure the protection of undertaken at a state wide level to the child. develop better systems to monitor regional demand and workforce In such complaints it is not my role capacity so that DHS can better to make my own judgment about the target areas of the child protection safety of the child. My role is to program that may be vulnerable to ensure that DHS follows the correct excessive demand or workforce process, undertakes a diligent stress. investigation, makes assessments based on a reasonable analysis of the The preceding case is not typical of evidence and acts in accordance with complaints received by my office the relevant legislative principles. alleging that DHS has failed to act to protect children. It is more common An example of such a complaint was for complainants to assert that one made by a non custodial father judgments made by child protection regarding the alleged physical abuse workers are inadequate to ensure the of his three year old daughter. safety of the child. Acting on Allegations These complainants do not allege The complainant said that he that matters are not fully followed up reported to DHS that the child’s by DHS; rather they allege that some grandmother had noted bruising particular aspect of the investigation which the child had allegedly was inadequate or simply that they disclosed had been caused by the believed the conclusions reached by mother’s de facto partner. The complainant was dissatisfied that an
72 2001/2002 ANNUAL REPORT General Complaints investigation by child protection abuse had occurred. DHS made a workers had, in his view, not led to follow up visit approximately two action being taken to protect his weeks later and a check of the daughter. child’s body found no further bruises. My enquiries determined that an investigation had commenced the I concluded that DHS’ investigation day after the allegations were made had been thorough and the to the DHS After Hours Service. A conclusions reached were consistent bruise was noted on the child and an with the evidence. However, I also explanation for the bruise was sought accept that the complainant’s from the child’s mother. DHS also concerns were genuinely held, even obtained a medical opinion which if they were not substantiated. indicated that the bruising was consistent with the mother’s Excessive intervention explanation of accidental injury. Another common complaint is that DHS’ intervention into the sanctity DHS interviewed the child who and privacy of a family is often made comments regarding being excessively intrusive. It is physically disciplined but also gave undoubtedly a distressing experience indications that supported the for a parent to become aware that an mother’s explanation of an anonymous person has alleged to accidental injury. DHS concluded DHS that they have harmed, or at that the child was susceptible to least, failed to protect their child. leading questions and was easily Even when child protection workers distracted due to her young age display exemplary tact and which tempered the reliance that sensitivity it is understandable that could be placed on her evidence. some parents react with anger and resentment to the subsequent Evidence was also obtained from an investigation by child protection adult, considered a credible witness workers. by child protection workers, who was residing in the family home at The degree of distress that families the time, and who advised that no can experience in these
73 2001/2002 ANNUAL REPORT General Complaints circumstances was illustrated during matter could be resolved. The the year by a complaint received parents stated that they had spent an from a parent regarding the means by anxious Easter pondering the nature which DHS initiated contact with the of the allegations against them. family. DHS advised me that a visit was not An anxious Easter made to the family after the initial The parents complained to me about contact with the child protection how DHS initiated its notice of worker on Easter Thursday as the investigation following a notification child protection worker was required alleging that the parents had failed to to respond to another urgent seek medical attention for a wrist notification. DHS also considered injury sustained by their primary that the telephone conversation with school aged son. the father had allayed the parents’ concerns, lessening the urgency to The child protection worker visited complete the investigation. DHS the family home on Easter Thursday understood that the father had and finding no one at home left a accepted the arrangement for a home note on DHS letterhead which visit by the worker after the stated: weekend. “Please contact me in relation to a notification regarding your However, DHS also acknowledged children” that it would have been more appropriate to have made the initial The father stated that he made visit after the Easter weekend. A contact with the child protection letter of apology was sent to the worker later that same day but an family and the region reviewed its interview could not be arranged until procedures to ensure such situations the Tuesday following the Easter were not repeated. holiday. The parents questioned why the note had been left on Easter People who are concerned about Thursday rather than delivering it on excessive intervention by DHS the following Tuesday when there generally have access to a prescribed would have been less delay until the avenue for seeking redress. The
74 2001/2002 ANNUAL REPORT General Complaints courts provide a forum for parents at a case plan review meeting the and children who wish to dispute chairperson foreshadowed a decision DHS’ protection applications, whilst to abandon attempts by DHS to case planning decisions may be reunify the children with their reviewed through internal procedures mother and instead to support the and by the Victorian Civil and grandparents in their application to Administrative Tribunal. Where a the Family Court for residency of the reasonable means of redress through children. A few weeks later, a a court or a tribunal is available, it is further review chaired by a generally appropriate that I simply subordinate officer decided to advise the complainant of that reinstate the plan to reunify the remedy. children with their mother. The children were returned to the Use of authority mother’s care in a staged manner
Decisions about intervention by DHS until, after some weeks, the mother are made within a statutory requested that they be removed from framework and are subject to her care because she was unable to procedural guidelines and cope. The children were returned to delegations that dictate the level of the care of their grandparents. seniority of a child protection worker who is allowed to make such The officer who chaired the second decisions. Two cases stood out case plan review meeting did not during the year where it became have the Secretary’s delegation to apparent that protective workers change the case plan. It also became were acting outside their delegated apparent that a Family Support authority. Worker who was supposed to have commenced working with the mother to assist with the reunification The mother or the process had not done so due to a grandparents heavy workload. I received a complaint from the grandparents of two children who were subject to a Custody to Secretary Orders. I was advised that
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Suspension of contact I received some complaints A similar complaint related to a regarding the welfare of children mother receiving a letter from a child who are in the voluntary care of protection worker suspending her Approved Community Services. contact with her son. In response to Voluntary placements are generally my enquiries DHS advised that the short term arrangements designed to decision was incorrect and that the provide care in emergency situations, officer concerned did not have the such as illness or a family crisis. delegation to make it. After the The parents retain guardianship of matter was reviewed by a senior the children. Complaints received officer, DHS decided to re-instate the included allegations of inappropriate mother’s access; to seek a placement behaviour by caregivers, the refusal for the child closer to his mother’s by the services to provide the parents residence; and to work toward the with contact details for their eventual reunification of the child children, and inadequate planning and mother. processes.
In response to my concerns The services which provide such regarding these incidents, the voluntary placements are outside of Secretary advised me of initiatives my jurisdiction and my role is undertaken by DHS in respect to limited to liaising with DHS to staff training, procedural guidelines, ensure that the complainant can administrative practices and quality access an adequate process to pursue improvement strategies being their concerns. I advise the deployed within the program. complainant that if DHS does not resolve the matter, they are welcome Provision of care to children to contact my office again as complaints about DHS’ response are Similarly to last year, I received very within my jurisdiction. few complaints regarding the quality of care being provided to children by I will continue to monitor these Approved Community Services complaints and have initiated under contract to DHS. enquiries with DHS concerning its
own scrutiny of voluntary
76 2001/2002 ANNUAL REPORT General Complaints placements with Approved was concerned to note that the Community Services. At this point I common reporting frequency is am not yet able to determine whether expected to be three times per year the relatively small number of compared with the previous regime complaints received this year of quarterly reports. I have represents an emerging issue. expressed my reservations to the Secretary regarding any overall The Secretary of DHS has informed reduction in the reporting obligations me of initiatives in the monitoring of of agencies who are case managing contracted cases which include: statutory clients of DHS. improvements to information technology; a new procedure of Lead tenant placements exception auditing activated when I was contacted by a 17 year old contractors fail to meet routine youth who was subject to a reporting expectations; changes to Guardianship to Secretary Order. He guidelines on the management of had recently been evicted from a lead contracted cases; and efforts to tenant placement with an Approved improve opportunities for children Community Service, contracted to and young people to participate in provide him with accommodation the case planning processes. and case management services.
One change to the case contracting DHS advised me that the lead tenant guidelines is worthy of further model of residential care is designed comment. In the past agencies to provide young people with contracted to provide case independent living in a semi- management to statutory clients have supported environment. been required to provide progress reports to DHS on a quarterly basis. The model attempts to replicate the These arrangements are being ‘real world’ experience of the rental amended to the extent that the market, hence residents are required reporting frequency is now to pay rent and can be evicted. determined according to the Young people incur a notice of circumstances of each case. Whilst I eviction if they have not paid four agree with this change in principle, I weeks rent, unless other
77 2001/2002 ANNUAL REPORT General Complaints arrangements are negotiated. A placement. These issues were to be second notice is issued if they have addressed in the region by requiring not paid for six weeks and a third DHS officers to liaise with and final notice is issued if rent contracted case managers at least remains unpaid for eight weeks. once a month regarding client progress and by supervisors auditing I was advised that eviction, or compliance with this expectation. placement breakdown, generally occurs when these notices have been I asked the Secretary whether the ignored or where there is a constant Residential Tenancies Act 1997 breach of house rules. Generally, applied to such placements. DHS staff exercise considerable latitude advised me that, in certain before a young person’s placement is circumstances, agencies providing discontinued. I was also advised that lead tenant placements may be DHS and the agency find an required to comply with aspects of alternative placement option in line that Act if they change a placement with the general case plan direction. without obtaining the case planning approval of DHS. DHS is taking In this instance I was advised that, steps to ensure that all relevant not only had the complainant agencies are advised of the received notices of eviction which he implications of this advice. had not responded to, but he had been intimidating other residents. Maintaining confidentiality
The service and DHS made In my last annual report I referred to alternative accommodation complaints where I found that DHS arrangements for the complainant. officers improperly disclosed confidential information regarding The Secretary acknowledged that statutory clients to members of the communication between the service public. I am pleased to report this and DHS was inadequate in the six year that despite receiving similar months leading up to the placement allegations, no such improper breakdown and that the service had conduct by DHS officers has been not given sufficient notice to DHS of substantiated. its intention to terminate the
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Breach of privacy ? Double trouble I received a complaint from a past The complainant, who lived next client of DHS whose girlfriend was, door to the proposed CRU, argued at the time of the complaint, a that the facility was inappropriate to statutory client of DHS. The the character of the area; that DHS complainant and his girlfriend had not adequately considered alleged that a DHS officer had alternative and more suitable accessed his file and provided properties; that DHS could have confidential information regarding obtained better value for taxpayers his juvenile justice record to warn money in a neighbouring suburb the young woman against a where property is cheaper; and that relationship with the complainant. clients of the facility might present a The young woman claimed that the risk to children and families in the DHS officer read directly from the area. As DHS is not obliged to seek file when speaking to her. planning permission from the local
council to establish such a facility, A DHS investigation established that the usual means of seeking redress the complainant’s file was, at all through a planning appeal are not times, archived in a separate available to residents who disagree location. An audit confirmed that with a decision to establish a CRU in the DHS officer had not accessed the a particular location. complainant’s electronic file. I concluded that there was no evidence I was advised by DHS that the cost to support the allegations. of purchasing and making necessary modifications to the property was Disability Services less than the average for such facilities. I was also informed that DHS operates and funds Community the neighbouring suburb already had Residential Units (CRU’s) for people five CRUs. I advised the with disabilities. During the year I complainant that I did not accept the received a complaint regarding the proposition that CRUs should only establishment of one such facility in be established in suburbs where the an outer suburban location. lowest purchase prices are available.
In my view, the inevitable
79 2001/2002 ANNUAL REPORT General Complaints consequence of such a policy would In essence, DHS believed that the be to concentrate the location of overall suitability of the property for CRUs into a small number of its intended purpose outweighed any suburbs, contrary to longstanding drawbacks associated with being policy directions for disability located next door to a double story services. I also informed the house. I agreed. complainant that DHS had advised me that it did not intend to place DHS has advised me that it is now residents who demonstrate reviewing its guidelines regarding ‘challenging behaviours’ in this the selection of such facilities in CRU. recognition of the difficulty of finding suitable properties in certain DHS advised that one other property suburbs without potential for in the suburb had received overlooking by neighbours. DHS preliminary consideration but did not foreshadowed that the new meet a DHS guideline that: guidelines will permit the purchase “Sites next to multi-story blocks of of properties neighbouring double flats or double story houses are not story houses providing the privacy acceptable” needs of CRU residents can be met.
I established that the complainant’s Juvenile Justice home located next door to the In my last annual report I advised proposed CRU was a double story that I had commenced regular visits property. In response to my further to the Juvenile Justice Centres enquiries, DHS advised that the operated by DHS. During the year policy not to purchase properties my staff visited the Melbourne next to double story houses was Juvenile Justice Centre on three intended to protect the privacy of the occasions, Parkville Youth residents of CRUs and, in this case, Residential Centre twice and any privacy issues could be resolved Malmsbury Juvenile Justice Centre by minor works such as erecting twice. My officers spent trellis. The need for works to be considerable time during each visit undertaken would be assessed once explaining the role of my office and the clients had taken up residence. answering questions from detainees.
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Operational staff at the centres engaging a dietician to assist with provided generous assistance to my menu development, providing staff during these visits and several opportunities for detainees to discuss took the opportunity to ask questions their dietary requirements with and discuss issues of concern. health services staff upon admission, introduction of a rolling 28 day The complaints emerging from these menu, providing additional low fat visits are similar to those raised by products and introducing alternatives prisoners in the adult correctional that reflect the cultural diversity of system. Property, leave, mail and detainees. food are amongst those everyday issues raised by detainees in the These changes at Malmsbury were juvenile justice system. Most of the subject of critical media attention these matters relate to issues of during the year. ‘Insiders’ claimed communication or are minor the meals were better than those problems easily resolved by the available to many citizens. In my centres. However, there have also opinion, a more relevant comparison been matters that raise more serious can be made with the facilities and questions about some aspects of the services provided in the adult management of the centres. correctional system. DHS has a duty of care towards children and young Meals people residing in its juvenile
The quality of meals provided to correctional facilities and must, in detainees was an issue raised by my view, provide facilities, services detainees at Malmsbury Juvenile and opportunities that are at least Justice Centre. A common subject equal to, and preferably in excess of, of complaints was the request for those provided in the adult penal meals reflecting the cultural diversity system. In recent years adult of the detainees. prisoners have been provided with more choice and variety in their DHS advised that it took a number of meals and it is, in my opinion, initiatives to improve the quality and appropriate that Juvenile Justice variety of meals provided at Centres mirror these developments. Malmsbury. The measures included
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I am advised that detainees at the the detainees, who had previously Malmsbury Juvenile Justice Centre spent time in adult correctional have made positive comments facilities, to an adult prison in order regarding recent changes to the menu to defuse the situation. at the centre. Sniffing out the facts! Restrictions on detainees During a visit to the Melbourne speaking in their first Juvenile Justice Centre detainees language complained to my staff about the During a visit to the Melbourne toiletries provided by the centre. My Juvenile Justice Centre my staff were investigation officer was provided approached by three detainees who with samples of these products and claimed that they were not allowed noted that they were of the quality to speak in their first language. Staff that one would expect in motel at the centre advised that certain standard accommodation. However, restrictions had been imposed due to the label of a deodorant provided to concerns that the three detainees had 15-21 year old males at this facility been involved in stand over tactics stated that it “glides on with a subtle and might also pose an escape risk. feminine fragrance”. The restrictions only applied in parts of the centre, and at times where My investigation officer queried there was an increased risk of these whether it might be possible to behaviours. provide an alternative fragrance and was advised that the particular My officers liaised with senior DHS product was chosen due to its staff and questioned whether the ban indestructible container and DHS was appropriate or effective as a was not aware of a more gender strategy to deal with the detainees’ specific product in a similar behaviour. DHS ultimately accepted container. A search of the internet that the practice of preventing and a telephone call to the detainees conversing in their own manufacturer of the product language was insupportable and that confirmed that the company any security concerns should be manufactured fourteen different addressed on their own merits. DHS scents all packaged in the same type took action to transfer the oldest of
82 2001/2002 ANNUAL REPORT General Complaints of a container. After this on the floor before staff left the information was relayed to DHS, it isolation room. agreed to arrange for the purchase of a more masculine product. Statements provided by staff involved in the incident did not The investigation of support the complainant’s allegations against staff in allegations. A consulting neurologist Juvenile Justice Centres who treated the complainant advised During the year I received a number that there was “no clear evidence of of complaints from detainees about any physical injury”. I was satisfied assault by staff in Juvenile Justice that the evidence did not support the Centres. complainant’s allegation.
In one complaint a 19 year old My enquiries did reveal a failure by female detainee alleged that officers DHS to follow its own procedures in restraining her had used excessive relation to the investigation of force resulting in her being seriously allegations of assault by staff. DHS injured. She alleged that one of the has a clear policy that such staff had twisted her arm behind her allegations must be referred to police back unnecessarily and claimed that for investigation. This was not done this action had led to permanent until after my office became nerve damage. involved.
The incident occurred after staff Unfortunately, this was not the only intervened in a violent altercation case to come to my attention during between the complainant and another the year where allegations against detainee. The complainant refused staff were not referred to police for to cooperate with a decision to place investigation in a timely manner. I her in isolation and staff alleged that am aware of other matters where she attempted to strike them whilst internal investigations have being forcibly placed in the isolation proceeded in circumstances where room. The staff accounts of the the appropriate course of action incident indicate that she was would have been to refer the matter restrained and placed on a mattress to police. In my view, best practice
83 2001/2002 ANNUAL REPORT General Complaints should entail early consultation throwing punches at a detainee. The between DHS officers and police to investigator recommended further determine the conduct of the investigation of the allegation. investigation. DHS’ management When the investigator’s report was and internal disciplinary obligations forwarded to my office four months should not compete with the role of later, after review by some of DHS’ the police to investigate alleged most senior officers, there was no offences. evidence that any action had been taken to act upon the staff member’s My concerns also relate to the statement. There was certainly no quality of disciplinary investigations indication that any attempt had been conducted by DHS. In August 2001 made to interview the detainee I received complaints from four concerned or report the allegation to detainees at the Melbourne Juvenile police. Justice Centre who alleged that they had been assaulted by staff at the In response to my criticism, DHS centre. A further complaint was referred the allegations to a received from another detainee some consultant for review and a further days later. investigation was conducted. I have been advised that disciplinary action I was sufficiently concerned with the was taken in respect to two of the poor quality of DHS’ own incidents. investigation of these allegations that I requested that further investigations Of perhaps greater concern was the be conducted. My concerns related failure of senior management in to DHS’ failure to interview crucial DHS to identify the flaws in the witnesses and to follow up on all investigation. The original available avenues of enquiry. investigator reported their findings DHS by the end of November 2001. The most astonishing example involved a statement made by a staff I received these reports in the middle member during the course of an of February 2002, accompanied by investigation alleging that he had two other reports from senior staff observed a colleague swearing and with line management responsibility
84 2001/2002 ANNUAL REPORT General Complaints for the centre and the Juvenile staff member had been trafficking Justice Program. Neither identified drugs to clients. At my instruction the significant shortcomings which he ascertained from the centre were immediately apparent to me. management that the allegations had not been reported to police. I was I am aware that a number of changes concerned that failure to refer the have recently been made to the allegations might compromise any management of Juvenile Justice criminal investigation of the matter Centres. Responsibility for the line by police and I immediately management of all centres has been contacted DHS to express my given to the Manager of Juvenile concern. Justice Custodial Services, an executive level position located Surprisingly, senior DHS staff were within the head office. I am also not aware of the allegations until I advised that DHS will be improving brought them to their attention. monitoring and feedback to its panel Daily reporting requirements have of contracted investigators in relation now been introduced to ensure that to the quality of work performed. any significant issues in the centres are brought to the attention of senior The recently appointed Executive executive staff in a timely manner. Director with responsibility for the operation of the centres has also DHS immediately referred the matter personally assured me that she is of to police but the internal like mind with regards to the need to investigation subsequently resumed. bring allegations of criminal I have received preliminary advice behaviour to the attention of the that the allegation was not police. substantiated and I am presently reviewing the DHS investigation. Drugs in Juvenile Justice Centres State Wards Trust Fund During a routine visit to a Juvenile The Ombudsman Act provides that I Justice Centre my investigation may decline to entertain a complaint officer became aware of a DHS more than 12 months old if the investigation into allegations that a complainant fails to give a
85 2001/2002 ANNUAL REPORT General Complaints satisfactory explanation of the delay the clarification provided by my in making the complaint. office was of assistance to the complainant. Occasionally complaints are rejected on this basis but if it is possible to clarify concerns an attempt is made to do so. During the year I received a complaint from a person who was a ward of the state until 1975. He claimed that former wards were entitled to receive a payment from the State Wards Trust Fund and that he had not received his payment.
Research undertaken by my office revealed that the State Ward Fund was set up to retain any funds held by the ward when he or she became a ward and money received whilst a ward.
The upkeep and expense incurred in keeping a ward could be deducted from that fund and any balance remaining when wardship ceased would be returned to the ward. No special payment to wards, as believed by the complainant, was involved.
As it appeared that he had no money when he became a ward and none was received during his wardship, no payment to him was due. Hopefully
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CORRECTIONS
Complaint allegations from prisoners concerning prison issues were at a similar level to the preceding year.
PRISON COMPLAINTS IN RECENT YEARS
Reporting year Allegations received % of total allegations 2001/02 699 22% 2000/01 746 23% 1999/00 562 20% 1998/99 771 27%
The main subjects of complaint over the same period included:
Subject of complaint 1998/99 1999/00 2000/01 2001/02 allegation
Visits 58 76 70 70 Lost/damaged property 84 43 78 69 Medical issues* 20 44 44 68 Classification/protection 44 41 56 52 Assault 14 24 43 Mail/phones 57 40 74 33 Harassment/victimisation 23 20 30 Requests not met 19 14 25 27 Drug testing 91 43 42 26 Employment/funds 40 44 53 23 Restricted regime 18 16 25 21 Rations/meals - 11 19 21
* Most referred to the Health Services Commissioner for action.
87 2001/2002 ANNUAL REPORT General Complaints
The following table details the main issues raised in complaints about each correctional facility.
CORE: (Total) 295
Main Issues: • Visits 36 • Medical 31 • Property 28 • Drug testing 18 • Mail/telephone 17 • Harassment / victimisation 15
Group 4 (Port Phillip): (Total) 173
Main Issues: • Visits 19 • Medical 18 • Property 17 • Assault 13 • Harassment / victimisation 12
ACM (Fulham & Melbourne (Total) 127 Custody Centre):
Main Issues: • Property 16 • Assault 15 • Medical 15 • Buildings and facilities 12 • Visits 11
Correctional Services (Total) 75 Commissioner
Main Issues: • Classification 35 • Detention in police cells 6
Juvenile Justice Centres (Total) 29
• Assault 7 • Inadequate investigation 6
88 2001/2002 ANNUAL REPORT General Complaints
The outcomes for complaint allegations concerning prisons were:
OUTCOME 2000/01 2001/02
No jurisdiction 1 - Withdrawn/discontinued 38 46 Referred to authority in first instance 93 81 Clarified 185 199 Resolved fully or partially 137 125
Not sustained 231 170
Accepted by authority as sustained and resolved 50 69 where possible Not sustained but remedial action taken 7 7 Formally investigated and sustained 1 1 Matter of government policy - 1 Other 1 - TOTAL 746 699
The program of visits to prisoners by concerning both public and private my staff continued during the year prisons. At the beginning of the and many concerns of prisoners were reporting period, a number of issues resolved on the spot. All prisons remained outstanding. The issues were visited at least once during the and the responses provided by the year with the larger prisons receiving Correctional Services Commissioner several visits. The program of visits are described below. was extended to Juvenile Justice Centres and I report on these in the Level of fines imposed in disciplinary hearings. Department of Human Services section. In response to my enquiries, the Acting Correctional Services Co-ordination Commissioner advised that substantial progress has been made In previous reports I have referred to in relation to both the level of fines issues I pursued with the imposed, and the standardisation of Correctional Services Commissioner
89 2001/2002 ANNUAL REPORT General Complaints penalties, across the system. I guidelines six months after their understand that new draft guidelines implementation. for drug and other disciplinary hearings have been generally Confiscation of Contraband endorsed by prison operators. These A prisoner complained that, during a guidelines will assist the hearing search of his cell, officers located a officer in considering the minimum $5 note which had not been issued to and maximum fines that may be him. The money was confiscated appropriate, taking into account the and the prisoner charged with a nature of the offence and individual prison offence of possessing circumstances. unauthorised property. The prisoner
was found guilty, sentenced to three In regard to my concerns regarding days loss of privileges and the note the level of fines imposed and the confiscated. He complained that, as relativity to wages earned by the Corrections Regulations provide prisoners, the Acting Commissioner for the confiscation of items “used in advised that a review of fines the commission of an offence”, no imposed by two of the prison power of confiscation arose in his operators indicates that the case. percentage of prisoners convicted in a Governor’s Disciplinary Hearing Regulation 66 (2)(e) of the who receive the maximum fine $100 Corrections Regulations 1998 is less than 20%. I was informed provides for forfeiture “if the article that the average fine is about $46. or substance was involved in the
commission of an offence”. It was The Acting Commissioner further considered that the use of the work advised that the new guidelines are “involved” rather than “used” as expected to result in a more standard claimed by the complainant rendered application of fines across the system that provision sufficiently broad to and reduction in the overall level of authorise the confiscation of the $5 fines. note. However, I advised the
Correctional Services Commissioner The Acting Commissioner undertook that it was unsatisfactory that the to review the impact of the draft power to confiscate contraband
90 2001/2002 ANNUAL REPORT General Complaints found in the possession of prisoners, property should be checked by other than a firearm, explosive prison staff in the presence of the substance or drug of dependence prisoner. should rely upon it being categorised Failure by prison staff packing as having been involved in the up property in the absence of the commission of an offence. I have prisoner to prepare a detailed list been advised that this matter is being of property cleared from the reviewed to ensure that appropriate prisoner’s cell. power of confiscation exists. Prisoners permitted to Prisoners’ property accumulate an excessive quantity of property when contractual Prisoners’ property continues to be a arrangements only allow three significant complaint issue, resulting boxes per prisoner to be from inadequate record keeping and transported. As a result, property poor management of property. has been left behind, posing Common and persistent problems logistical and security problems. identified by my office during the year in relation to prisoner property Release of property at request of included: prisoner without staff checking precisely what is being released Failure to describe property in and without adequate records of sufficient detail, particularly in the transaction. relation to jewellery, electronic
items and other valuables. A recent complaint concerning Failure to check property property handled by Fulham thoroughly and carefully prior to Correctional Centre illustrates transfer, to ensure that the several of the above problems. property transferred corresponds with the relevant property record. Prisoners often complain that Lost property they are not given the opportunity A prisoner transferred from the to check their property prior to Fulham Correctional Centre to Won transfer. I have consistently Wron Prison complained that some stressed that, prior to transfer, of his property had not arrived at the destination. My enquiries revealed
91 2001/2002 ANNUAL REPORT General Complaints that three boxes of property were to check the prisoner’s property prior listed as transported for the prisoner to transfer, that the documentation when transferred from Fulham to accompanying the property that was Won Wron and the property sheet first transferred was inaccurate and which detailed the property was that there should have been stamped “Correct on Transfer” and documentation describing property apparently signed by the prisoner. transferred subsequently.
The prisoner initially complained to In my previous report I emphasised staff at Won Wron Prison that not all that responsibility for collecting, listed property had arrived at Won recording and securing prisoners’ Wron. Fulham Correctional Centre property rests with the forwarding advised Won Wron that two further institution. boxes had been located and would be forwarded. The following complaint highlights problems encountered as a result of Two boxes were transferred ten days failure by staff at the forwarding later, however, the accompanying institution to check property prior to paperwork did not contain a transfer. description of the property, but merely indicated the number of Missing jewellery boxes. A female prisoner taken to the Melbourne Custody Centre for a The prisoner complained to my court appearance complained that a Office two months later that some cross and chain taken from her on property was still missing. On arrival, were not returned when she visiting Fulham, a member of my was left the centre later that day. staff learned that clothing belonging to the prisoner was still at Fulham. My office was informed that Group 4, which is responsible for The prisoner was compensated for transporting prisoners between the property he claimed was still prisons, usually handed back missing. The facts of this case jewellery to female prisoners rather clearly illustrate that staff had failed than carrying it with other property
92 2001/2002 ANNUAL REPORT General Complaints in the escort vehicle to be handed is an ongoing issue and one that he is over at the destination. keen to address.
The prisoner was compensated on I was advised that, in the longer the basis that the records did not term, the Criminal Justice indicate that the property had been Enhancement Program (CJEP) will returned to her. The Melbourne provide a computerised module for Custody Centre agreed to make it recording and tracking the movement clear to staff that they are responsible of prisoners’ property across the for checking all property when a prison system. The Acting prisoner is leaving and for ensuring Commissioner had hoped that this that the prisoner signs the record new system would be operational in before handing the secured property the near future, however, it appears over to Group 4 for transport. this will not happen until at least late 2003. In the 2000/01 Annual Report I referred to the fact that I had advised In light of the relatively distant the Correctional Services implementation timeframe, the Commissioner of the need for a Acting Commissioner has continued uniform practice to be adopted by to seek an agreed interim system prisons in relation to recording across providers which will achieve prisoner property. a consistent approach, and thorough and accurate recording of prisoners’ In response, the Acting property and its movement between Commissioner accepted that there facilities, including courts. An in- has been an inordinate number of house computerised system known lost property complaints in recent as Safeguard has been developed and years. I was informed that efforts to is being trialled in CORE prisons. address the issue have not been The system features: helped by the very high number of a comprehensive database with prisoners in the system and the easy data entry and sorting; associated high rate of movements history of all property recorded between facilities. The Acting and who recorded or amended Commissioner acknowledged that it the record;
93 2001/2002 ANNUAL REPORT General Complaints
ability to move property and Centre. The industry was being used prisoners to any prison, so that to supply components for an outside instead of both sending and organisation. The contract expired receiving prisons writing out and was not renewed. The prison property cards or sheets, these initially decided not to pay the records are transferred on the prisoners anything except the database; unemployment rate. The prisoners, who wanted to work, indicated that interface with Prisoner no other jobs were available and they Information Management believed that they should be paid the System (PIMS); normal working rate. The prison built in security levels allowing authorities originally did not wish to varying levels of access to do so, but after discussions with my records; Office, agreed to pay the working comprehensive set of reports; rate. and Arunta telephone system ability to record what property prisoners have in their cells and Arunta telephone system, operated automatically allocate cell by Telstra, is used in all Victorian points. Any staff member can prisons. It allows prisoners to make enquire and print cell property calls to approved recipients and and points reports. enables the monitoring of calls by prisons. In the past two years I I am advised CORE has offered to reported on a number of problems make the software available free of related to the telephone system charge to private prison providers identified in complaints received by once the system has been trialled and my office, particularly the high cost evaluated. to prisoners of making calls. I have been advised that the Northern Lack of Employment Territory Corrections Service has A number of prisoners complained installed an Optus telephone system that they became unemployed as a in its prisons and that this system result of the permanent closure of an provides prisoners with access to industry within Fulham Correctional discounted call rates. All the
94 2001/2002 ANNUAL REPORT General Complaints jurisdictions in Australia are to be unsuitable for security reasons. watching the NT experience with All remand prisoners are now issued interest and I have been advised that with distinctive identity passes so the Correctional Services that they can be easily identified as Commissioner will be reviewing the remand prisoners. situation when the current contract with Telstra to operate the Arunta Detention in Police Cells system is nearing its end. I am During the course of the year I pleased to report that very few completed an investigation complaints regarding phones were concerning Conditions and received during the reporting period. Overcrowding in Police Cells. In the Remandee’s Rights course of the past decade, the A remand prisoner held at Dame number of prisoners has exceeded Phyllis Frost Centre (DPFC) the capacity of the prison system to complained that she was not hold them. Consequently prisoners permitted to wear her own clothes have been detained in unsatisfactory contrary to her right to do so. She police cells for lengthy periods, those described the item she was seeking cells not being conducive to long to wear as a white V-neck top with term incarceration. sleeves. The Corrections Act provides that remand prisoners may A summary of the report is contained wear their own clothing unless it is in the Police Complaints section of considered to be unsuitable. this report. I have made However, they can also choose to recommendations designed to wear prison clothing. The Manager, improve the situation pending the DPFC advised that the complainant construction of new prisons and the was required to wear prison clothing implementation of new strategies when she was working. He added which, hopefully, will control the that a new policy which has since problem. been implemented allows remand prisoners to wear their own clothing Prison Drug Strategy unless they are placed in the The case studies set out below management unit where it is deemed illustrate the issues raised with my
95 2001/2002 ANNUAL REPORT General Complaints office during the year in relation to I raised the case with the the Prison Drug Strategy. Correctional Services Commissioner on the basis that a delay of over three Double penalty ? months in bringing the matter to trial A prisoner complained about a resulted in the prisoner receiving a double penalty in relation to the further three months contact visit ban prison’s drug strategy. He said that a in addition to the one already served. small amount of cannabis was found The Commissioner agreed that the in his possession and, in double penalty was unjust and consequence, his contact visits were restored the prisoner’s contact visits. cancelled for three months. The The Commissioner also agreed that matter was also referred to police this problem would be taken into and, at the end of three months, he account in finalising the revised was told that contact visits would not Prison Drug Strategy. resume until any charges were finalised. Test on recapture Contact visits were resumed A prisoner escaped from prison and following involvement of my office, was recaptured two months later. On pending the outcome of police return he was required to provide a enquiries. urine sample and, on it being positive to cannabis, he was A short time the later prisoner was convicted of a prison offence. He convicted of the charges and fined in asserted that he should have been the Magistrates’ Court. Contact given the 28 days grace period visits were again cancelled by the provided to new arrivals at the prison on the basis that the Prison prison. I raised the issue with Drug Strategy provided that a corrections officials who agreed that finding of guilt on a drug charge it was unfair not to treat the test as a resulted in a prisoner being accorded reception sample and the conviction Identified Drug User (IDU) status was cancelled. which carried with it loss of contact visits.
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Wrong test result was that the first specimen should A prisoner complained that he had have been recorded as a positive, but been requested to provide two urine no charges would flow from this specimens several days apart. He being within the first thirty days. was informed that the result of the The second specimen was also first specimen was negative, but the positive but not conclusive of second specimen was positive to additional access. cannabis. The first specimen was provided by him within the first Despite the correct application of the thirty days of his coming into policy it seemed unreasonable, given custody. the circumstances and the charge may be withdrawn and privilege Under the Prison Drug Strategy, reinstated. before recent changes, a positive Residential Visits specimen to cannabis within the first thirty days was considered as a Residential visits are a privilege threshold specimen and no charges much sought after by prisoners. would result. A positive specimen to Such visits involve a prisoner’s cannabis after the thirty days would family residing with him or her for result in a charge. Consequently, he up to 24 hours in a specially was charged with a prison offence designated unit at a prison. and lost three months of contact visits on the basis of the positive Delay in changing rules specimen on the thirty-third day. He A prisoner complained that the objected, denying any access to Fulham Correctional Centre staff cannabis while in custody. insisted that prisoners must have been in prison for 18 months and On examining the circumstances and have been in regular contact with the seeking expert opinion, it could not proposed visitor(s) during that period be established, on the basis of the to qualify for such visits. He two sets of results, that the prisoner asserted that, in contrast to the had accessed cannabis within the prisons run by CORE, prisoners only limited time frame between the two had to have been in prison for three specimens. What was established months of a minimum term of 18
97 2001/2002 ANNUAL REPORT General Complaints months or more to be eligible. I officer to ensure that no-one has raised this issue with the been overlooked. Correctional Services Commissioner and received advice that the eligibility rule had been amended by Disciplinary Hearing the Commissioner in July 2000 to The complainant in this case, a long- that applied by ACM at Fulham. term prisoner, became involved in a The Commissioner advised that there dispute with prison officers at Port had been a delay in amending the Phillip Prison (PPP) and behaved in rules for CORE prisons but it was an allegedly abusive manner. An clear that the same rules applied in egg was thrown at the officers’ all prisons. station from the direction of a group of prisoners which included the complainant. The unit was locked- No Exercise Period down and the complainant was A prisoner at the Dame Phyllis Frost moved to the management unit Centre complained that she had been pending investigation. He was detained in the management unit and charged with abusing officers, and had not been allowed out of her cell damaging a mattress in his cell. At for a continuous period of 24 hours. an internal disciplinary hearing he was found guilty of both charges and I ascertained that staff had been fined $80 and $85. preoccupied with another prisoner for most of that day and had The prisoner asserted that he had overlooked the need to provide the waived the 72 hour notice period complainant with at least one hour’s required before a hearing could be exercise. Staff apologized to the conducted so that the charges could complainant for the oversight. be heard promptly, particularly as witnesses he wished to call were due I have been advised that a procedure for transfer. He complained that, by has now been put in place where the the time the charges were heard, one unit senior prison officer records all of his witnesses had been transferred out-of-cell times in the unit log book and he was not permitted to call and this is checked by a second unit other witnesses. The hearing officer
98 2001/2002 ANNUAL REPORT General Complaints stated that the prisoner had been the prison, his ID card was left on an refused permission to call witnesses officer’s desk. The prisoner was because the officer considered that able to identify the officer they were not relevant witnesses. concerned. The prison rejected the The prisoner stated that two complainant’s assertion that he had proposed witnesses were present returned the card and enclosed a when the alleged abuse was said to copy of a loss form allegedly signed have occurred and a third would state by the officer concerned. The that he gave the mattress to the signature on the document was that complainant in its damaged state. of an officer, not the one with whom The Operations Manager accepted the prisoner stated he left his ID that the complainant should have card. been permitted to call these witnesses and agreed to have the Enquiries were made by my office at charges reheard. By this time the Port Phillip Prison and as a result of prisoner had been transferred to a the absence of correct paper work, country prison and ultimately, the the prison agreed to reimburse the convictions were cancelled and the prisoner the amount which had been fines refunded. The Operations deducted from his funds. Manager also advised that he had been conducting training courses for officers in conducting hearings to Drug user by proxy ? avoid similar problems arising in the A visitor to a prisoner at Melbourne future. Assessment Prison was found to be in possession of cannabis seeds during a routine search. As a result, Need for Proper Record she was banned from visiting all Keeping prisons for a period of 12 months. A prisoner complained that his The prisoner, who had a minimum account had been debited for the cost security rating, was transported to a of replacing an ID card which he country prison but, on his arrival, allegedly had failed to hand in on his was advised without any explanation transfer from Port Phillip Prison to that he would be sent back to another prison. The prisoner was Melbourne. Officers made some adamant that, when he was leaving
99 2001/2002 ANNUAL REPORT General Complaints enquiries on his behalf and being denied an appropriate diet as discovered that the prisoner had an his Buddhist beliefs required that he Identified Drug User status and as eat chicken rather than beef. such, was not able to remain at his Enquiries made by my office with country location. The matter was Buddhist scholars revealed that they investigated by Correctional Services were unaware of any Buddhist group Commissioner staff and it was which requires its members to eat discovered that as a result of the ban chicken but not beef. The on his visitor that he was complainant was invited to provide inadvertently recorded as having an further information about his faith Identified Drug User status. Once and his teacher but, in the absence of the error was discovered, the records a response, I considered that further were corrected and the prisoner action was unwarranted. returned to his minimum security location.
Religious Issues
I have reported previously on problems concerning religious observance arrangements at prisons. I continued to receive complaints in this regard during the year. A complaint about inadequate arrangements for Muslim prisoners to meet their religious obligations during Ramadan was resolved through contacting the prison mullah who advised that he had been in discussions with prison authorities and was confident that suitable arrangements would be made.
Another complaint came from a prisoner who asserted that he was
100 2001/2002 ANNUAL REPORT General Complaints
LOCAL GOVERNMENT
The combined total of 789 local government and planning complaints received during 2001/2002 reflects a significant increase from the previous year Parking complaints increased by 227 from the previous year and total local government issues increased by 208.
LOCAL GOVERNMENT COMPLAINT 1999/00 2000/01 2001/02 ALLEGATIONS Local Government administration 357 477 685 Planning administration 74 86 104
TOTAL 431 563 789
The main issues raised by complainants, compared to the previous reporting year, included:
MAIN ISSUES 2000/01 2001/02
Parking 109 336 Planning permits and enforcement 77 88 Failure to enforce laws 59 60 Administration 29 54 Unreasonable enforcement of laws 28 39 Insurance Claims/Liability Claims 22 31 Rates Collection 36 23
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The outcomes of complaints for 2001/2002 were:
OUTCOMES Local Planning Government
Noted for purposes of information but 84 10 not action
Referred to authority in first instance 42 6
Withdrawn/discontinued 17 1
Clarified 162 40
Resolved 73 5
Not sustained 251 26
Sustained 47 13
No jurisdiction 9 3
TOTAL 685 104
Parking Infringements
Parking complaint outcomes 2001/2002
Referred to Authority in the First Instance 20
Withdrawn/Discontinued 18
Clarified 50
Resolved / accepted as sustained 68
Not Sustained 180
TOTAL 336
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In my last Annual Report I discussed defects in the process, for example, parking infringement issues, some of failure by local governments to which have now been resolved. provide adequate responses to pleas received in relation to infringement My discussion gained considerable notices. A number of the responses I attention from the media and not have examined simply state that the surprisingly, this resulted in a deluge authority does not consider that there of phone enquiries and written is any basis to withdraw the notice. complaints about parking matters In my opinion, such a response is being made to my office in inadequate, particularly where the 2001/2002. During the year, 336 complainant has gone to the trouble parking complaints were finalised of providing a detailed account of compared with 109 in 2000/2001 and why, in his or her view, the issue of 84 the previous year. The results of an infringement notice was my examination of those complaints unreasonable. are set out in the above table. I believe that there have been As I explained in my previous improvements in the handling of Annual Report, my role in these parking infringement issues by complaints is not to duplicate the council staff and contractors during function of the courts to determine the year. However, the fact that 20% the ultimate merits of an allegation. of these cases were resolved in However, if on examining the details favour of the complainant indicates of a complaint, I form a view that the that there is still room for facts of the matter are unclear or that improvement. In a number of to proceed with enforcement of the complaints, resolution came as a infringement seems to be result of my officers obtaining fuller unreasonable in all the details relating to the complaint. circumstances, I may then seek a Council officers reviewing a plea review of the matter by the parking need to be mindful of the need to authority. have a clear understanding of the complaint, the physical situation A common issue identified by my involved and the actions of parking office during the year involved
103 2001/2002 ANNUAL REPORT General Complaints officer issuing the notice, before ticket machine remained in place but making a decision. was inoperative. The loading zone sign read “Loading Zone except I have detailed below examples and Sunday”. All other parking cases where authorities withdrew restrictions in the area ceased at 5:30 infringement notices, following the pm and council officers involvement of my office, on the acknowledged that there was no need basis that to proceed would be for the loading zone to be available unreasonable. after this time. The complainant received infringement notices for Faulty ticket machines parking at times later than 5:30pm. Many complaints are received As the restriction was inconsistent asserting that ticket machines were with all other restrictions in the area faulty and were not accepting coins council officers accepted that it was and/or issuing tickets. One such case unreasonable to pursue in the City of Greater Geelong was infringements which occurred after rejected by council officers on the 5:30pm and the notices were grounds that the machine was testing withdrawn. The loading zone sign correctly until a council officer was changed to apply the restriction attempted to use the machine and from 9 am to 5:30pm. Complaints experienced the same problem as the were also received about the same complainant. The notice was loading zone in relation to offences withdrawn promptly. occurring between 9 am and 5:30 pm. Given that the parking signs were clear, the ticket machine carried Confusing restrictions a notice advising that the area was a Several complaints were received loading zone and the parking bay concerning a temporary loading zone lines had been painted yellow, I did in the City of Greater Geelong that not consider that there was any basis had previously been one hour for recommending withdrawal of parking between 9 am and 5:30 pm, those penalties. Monday to Saturday. As the loading zone was to revert to one hour parking following the completion of street construction work, the parking
104 2001/2002 ANNUAL REPORT General Complaints
Loading a taxi upon the evidence of the parking A taxi driver used a loading zone to officers that the chalk marks placed park while collecting a parcel. Taxis on the tyres were in original are entitled to use loading zones condition and that there was no whilst picking up or setting down evidence that the vehicles had been goods or passengers. As no moved. In these cases it was not passengers were seen by the parking possible to support the complaint and officer, an infringement notice was the complainants were advised that issued. On review, officers of the they had the option of paying the City of Melbourne accepted evidence fine or contesting the matter in court. that the driver had been collecting a Compassionate councils parcel and withdrew the notice. Contrary to popular belief that Extended parking council officers involved in A common complaint received by enforcing parking restrictions are my office involves motorists who devoid of compassion, a number of claim to have parked in a street notices were withdrawn in cases parking area for a period just short of where the council accepted an the allowable time, removed their offence occurred in extenuating vehicle from the area and returned to circumstances. These complaints park their car for a further period. included:
Medical emergencies; The relevant Road Rule provides that A person who parked in a “a driver must not park continuously loading zone when arranging on a length of road, or in an area, to floral tributes at a funeral; which a permissive parking sign applies for longer than the period Mechanical breakdowns; and indicated…..”. Inadequate signs.
In a number of instances council Urgent parking officers accepted evidence that a In one case the complainant asserted driver had removed the vehicle and that the parking infringement returned and the notices were occurred within the City of withdrawn. In others, officers relied Melbourne when parked in breach of
105 2001/2002 ANNUAL REPORT General Complaints the rules to visit a toilet urgently, a Inadequate signage situation which arose as a result of a In an area within the City of Greater medical condition. The driver Geelong, several narrow streets join provided a medical certificate to the a major street and, at all but one council but was advised that the intersection, there are signs matter would proceed. My enquiries delineating the parking area. The disclosed that the medical certificate complainant parked within 10 metres did not establish that the of that intersection and received an circumstances could have constituted infringement notice. One of my a medical emergency but merely officers inspected the area and attested to the patient’s condition. considered that the absence of signs One of my officers contacted the at that intersection had the tendency doctor who explained that the to trap motorists into believing that it patient’s need to visit a toilet would was permissible to park up to the have been extremely urgent. When I intersection. Council officers conveyed this information to the reviewed the situation, withdrew the council, the notice was withdrawn. notice and agreed to pursue the placement of parking signs at that Parking near intersections intersection. Previously, parking near intersections was permitted right up to the corner, where the intersecting Wrong machine street was a narrow lane. However, A student complained to my office the Road Rules Victoria now provide that she had purchased and displayed that parking is prohibited within 10 the appropriate parking ticket but metres of any intersection not received an infringement notice. My controlled by traffic lights, enquiries revealed that she had regardless of the width of the side purchased a ticket from a machine in street, unless permitted by parking an off street car park and not from a signs. machine in the street parking area. The City of Glen Eira accepted that the complainant had a clear intent to pay and the notice was withdrawn.
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Unsuccessful complaints The complainant declined to provide a copy of the videotape to my office, Not all complaints are resolved in despite several requests. He said that favour of complainants. Some he made this decision because the unsuccessful complaints are council failed to ask for the described below. videotape when the issue was first Video evidence ? raised and that he had reached an agreement with a television station to A complainant who received an give them exclusive use of the infringement notice from the City of videotape to publicise the failing of Stonington was not satisfied with the the council and the contractor. In the withdrawal of the notice. He absence of the video evidence and asserted that his vehicle was parked the fact that the council had earlier outside his home with a resident withdrawn the notice, there was no permit visible as required. The basis for my office to pursue the notice was issued for parking matter. without a permit, notwithstanding that the permit was displayed.
A duty on the driver The complainant claimed that he had A driver who received a notice for a video tape taken from his home parking in a no stopping zone security system showing that the asserted that the parking sign was parking officer did not seek to hidden by branches of a tree and that ascertain whether a permit was he was unaware of the prohibition. displayed before commencing to A photograph submitted by the issue the notice and that, upon complainant showed a pole with a observing the permit, the officer portion of a sign with red lettering continued to issue the notice. The clearly visible. complainant sought an apology from the council contractor and an One of my officers visited the site, assurance that parking officers would within the City of Banyule and be trained appropriately to prevent reported that on the side of the road similar inconvenience to residents. where stopping is prohibited, there
are six signs well placed and easily
107 2001/2002 ANNUAL REPORT General Complaints readable. The sign referred to by the Loading zone 1 complainant was partly obscured A driver who received an when viewed at an acute angle but infringement notice for parking in a was generally fully visible. My loading zone in the City of Yarra office contacted the council’s claimed that she had parked next to, Municipal Laws Co-ordinator who but not in, the loading zone. The also inspected the area and council’s response to her objection considered that the signs were letter was deficient in two respects. adequate. He asserted that the sign Firstly, it simply stated that she was in question did not warrant special not entitled to park in a loading zone attention but that the tree would be – a fact which was not disputed, and pruned in the course of regular failed to refer to any evidence that maintenance. As the complainant she had parked in a loading zone. had had to pass at least two other Secondly, the council made no effort parking signs to reach the position to obtain evidence from a witness where he parked, I was not able to referred to by the complainant. My conclude that there was any genuine office contacted the witness who said impediments in drivers becoming that he was not a friend of the aware of the parking prohibition. In complainant but had seen her in the my view, the council’s decision to area. He described where she was pursue the infringement was not parked and was adamant that her car unreasonable. was not within the confines of the loading zone. He added that the Obviously, drivers are expected to be loading zone was small and that the alert to the presence of parking signs parking officer may have been and cannot turn a blind eye to signs confused as to which set of poles the that are readily apparent. car was between. On the basis of my involvement and the additional Inadequate Investigation information, the council agreed to The following cases are examples of withdraw the notice. the failure of council officers to make adequate enquiries before rejecting pleas from drivers.
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Loading zone 2 A motorist complained that he was Following requests to speak directly issued with an infringement notice to the issuing officer, the council for parking in a loading zone. He admitted that they did not know why said that he had been driving a the notice was issued as the only courier vehicle, marked with the record they had was the information required signs, and had been making on the infringement notice and the a delivery to a nearby business. His officer who had issued the notice appeal was rejected with the briefest was unable to recall the of responses from the council. circumstances under which the infringement notice was issued. The complainant wrote to the council requesting advice on why the During the investigation of this infringement was issued, and again complaint the council contractor he received an inadequate response. advised that they had no clear He then contacted the council and guidelines from council in regard to explained his case. The complainant the use of discretion when was then told that he did not have considering appeals or pleas. Further adequate signage on his car. The enquiries with the council confirmed motorist provided the council with that no such guidelines existed. The information from his employer and council agreed to rectify the sign writer, confirming that the situation. vehicle did have the required signs, however the appeal was again Right parking meter ? rejected. A motorist parked in a 90° parking
area with meter parking. The bays My officer made enquiries of the were unmarked and he put coins in council contractors who had rejected the parking meter at the front right the appeals. The contractor was hand side of his car. He received an unable to explain why the appeal was infringement notice. rejected, and reluctantly admitted that they had not spoken to or He objected the issue of the obtained any notes from the officer infringement notice to the City of who issued the infringement notice.
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Yarra, explaining that the bays were end of the lane could not reasonably not marked and that he had put coins be observed by motorists making a in the nearest meter. right hand turn into the lane. Further enquiries with the City of Melbourne The council’s first response rejected revealed that the lane was blocked by the appeal stating that the meters bollards as described by the were in the middle of bays. The complainant at the time the second appeal was also rejected, this infringement was issued. The notice time stating that parking meters are was withdrawn by the council always at the left hand side of the following my involvement. bay and, therefore, he had put the coins in the incorrect meter. Invisible parking signs The responses were clearly The complainant parked at the side inconsistent and incorrect as the bays of a road near a Sunday market in the were not marked, and other parking Shire of Mornington Peninsula. She bays in the same street have meters received an infringement notice and at the right hand side of the bay. The then discovered that temporary no council accepted that the notice standing signs on small tripods had should be withdrawn. been placed along the road. These were hidden by parked cars. She could see no other signs. Her Wrong way detailed appeal to Council was A motorist received a notice for rejected, the council stating that parking in the incorrect direction in a permanent parking signs on normal one way lane. He appealed to the height posts existed. The council stating that signs at the complainant visited the site and entrance of the lane were unclear and made a further appeal as no such that the lane was blocked by bollards signs existed in the area in which she at the other end. parked. Again the appeal was rejected. The appeal was rejected. An inspection at the site by my officer Following a complaint to my office, clearly established that the sign at the my officer inspected the site and
110 2001/2002 ANNUAL REPORT General Complaints discovered that the parking signs approach to a liability claim. In were missing in that area. The some cases a complainant is not council agreed to withdraw the prepared to take the matter further notice and undertook to erect due to concern that the legal costs appropriate signs. will outweigh the cost of repairing the damage suffered. Liability Claims In some complaints examined by me The majority of local government during the year, the council involved complaints involving liability claims in the complaint had suitably relate to the rejection of claims qualified administrative and where a council does not give a full technical staff who, in my view, explanation for its decision. The could have resolved the dispute failure of a council or its insurers to without the need for the involvement fully respond to claims usually raises of my office. a belief on the part of the complainant that the council is Planning Permits, simply avoiding its responsibility. Building Permits and Enforcement In the past I have expressed my concern that many claims reviewed The processes involved with the by a council are referred directly to a application, appeal, variation, council’s liability insurers or approval, inspections, objections, lawyers, rather than to council staff and enforcement, of planning and experienced in the issue at the centre building permits are complex and of the claim. A typical complaint may confound the average person. received by my office may involve The involvement of private building negligence on behalf of a council’s surveyors and the role of the engineering staff and a referral to the Building Control Commission and Engineering Department may associated bodies adds to this confirm that the council is liable for complexity. the claim. My office is able to resolve most In my experience, the insurer or the enquiries in this area by advising lawyer generally takes a strict legal complainants of their rights, the
111 2001/2002 ANNUAL REPORT General Complaints process that should be followed and generally constructed in accordance any appeals or submissions that can with approved plans, although in one be made to council, VCAT, the area it was 60 mm too high. Building Control Commission and other bodies. The council advised the complainant that it intended to treat the non- A number of planning and building compliance as a minor variation. As complaints received during the year he had not objected to the original by my office related to matters where planning permit application, there the council had failed to fully was little he could do about the investigate alleged breaches of matter, except complain about the regulations or permits. minor variation.
Tennis court next door The council informed my office that One complaint I received involved a survey showed that the surface of the construction of a tennis court at the court was at the 1.10 metre level the rear of a residential property. in respect of the neighbour’s fence. When the next door neighbour A subsequent site inspection by one became aware of the planning of my officers revealed that the court application he approached the City had been built up to 600 mm above of Manningham and was told that the the level shown on the planning plans were not available but was permit. The council then advised assured that the council applied strict that no site inspection had been guidelines to protect neighbouring carried out and it had simply relied properties. The neighbour was on a plan prepared by the satisfied with this explanation and contractor’s surveyor. Following the made no further enquiries. involvement of my office, the council issued a direction requiring However, when the court was the tennis court owner to comply constructed the surface was level with the permit. with the top of the neighbour’s 1.66 metre high fence. The neighbour The average person usually struggles complained to the council and was with the complexity of the Building eventually advised that the court was and Planning Processes and many
112 2001/2002 ANNUAL REPORT General Complaints people believe that the system will done. However, the only option left protect them from unscrupulous to the owner was to take the matter builders. to the Supreme Court.
One case brought to my office The owner did not proceed with involved a small extension to a further legal appeal due to the costs timber residence. The total value and risks involved in taking such was in the order of $22,000. The action. builder did not complete the works in a satisfactory manner, and the private The project will have taken five building surveyor failed to take years to complete and the total costs appropriate action. The Building including legal costs will be n the Control Commission took action order of $110,000. Unfortunately, against the builder and the building there was no action that I could take surveyor and, following an to resolve this case. application to Victorian Civil and Administrative Tribunal (VCAT), a In another case, described below, I settlement agreement was reached, concluded that council officers failed requiring the builder to carry out to act appropriately in relation to a agreed works. breach of a planning permit.
Further disputes occurred which Shooting not allowed resulted in the builder and the A resident complained that the local building surveyor walking away council allowed a shooting event to from the project. be held at a shooting range near her property in contravention of the The builder and the building planning permit. surveyor were taken before VCAT for failing to meet the terms of the In the course of my investigation, I agreement but the case was ascertained that VCAT had ordered dismissed. The owner then that a permit issued by the council approached the chairman of VCAT for use of the land as a shooting who examined the case and agreed range be varied to include a number that an injustice may have been
113 2001/2002 ANNUAL REPORT General Complaints of conditions. One of those applicant who indicated that he had conditions was that: not intentionally sought to hold the event during school holidays and “shooting events must not be held: was surprised to learn that this From November through to April weekend was considered to be within (inclusive) the following year. the school holiday period. He also During any school holiday period, advised that the event was well public holiday or long weekend in advanced in its preparation. the States of Victoria and New South Wales …” Council officers had recommended that council advise him that no The applicant for the permit notified enforcement action would be taken if the council and others that he would the event was held as planned “as be holding a shooting competition there was a genuine belief that the over a specified weekend. school holidays ended on the Friday.” The council received an objection from the complainant asserting that At the time the recommendation was that weekend fell within the NSW made, council officers believed that school holidays and thus was in the event would be in breach of the breach of the permit. The weekend permit. I was advised that officers was, in fact, the weekend prior to the took into account the disruption that resumption of school. Council would be caused to those planning to officers obtained oral legal advice attend the event when recommending that the planned event did fall within to council staff they allow the the NSW school holidays as referred shooting event to proceed. I to in the permit approved by VCAT considered that those officers had an i.e. that the final weekend of the obligation to check on the veracity of holiday period was part of the school the information that they were holidays. considering.
A council meeting considered a Advice provided by the Acting Chief report on the application which Executive Officer stated that: included a statement from the
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“Legal advice confirmed the competitors from around Australia weekend formed part of the NSW were attending and accommodation school holidays and suggested and catering were booked. Council should consider how far advanced were the event Accordingly, Council took these preparations, having regard for a matters into account including the potential damages claim against short time frame having regard to Council, and the intent of the consent the particulars of the event. Events condition, suggesting the intent was are only conducted twice a year and to ensure there were less likelihood this issue arose only due to a of holiday makers in the vicinity. misunderstanding of school holidays are different by a week from Council contacted Parks Victoria Victorian schools.” who advised they would conduct a patrol the week end prior to the I sought clarification of any action event to ascertain the level of taken to seek compliance with the campers in the State Park & Creek VCAT Order and asked whether the reserves in the vicinity i.e. before the officers had verified the claims made Council meeting. Parks Victoria by the applicant. advised there were only 5 camps in the State Park, 2 of which were The Chief Executive Officer (CEO) along the creek, all well distant from advised: the site & none of which came from NSW (i.e. re NSW School Holidays). “Council, prior to the issue of the permit, received verbal advice from Council also received a letter from its solicitors on the matter and has the proponent explaining his belief since received legal advice and that the event was clear of school advice from the Department of holidays but unaware of the NSW Education, New South Wales. This school holiday difference. He advice appears to indicate that the provided a commitment to ensure weekend in question is not this didn’t happen again. He considered part of the subject school indicated he was well advanced in holiday period. preparations and that world class
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Council did not inspect records of matter. I added, that it seemed to me bookings or confirmed entries for the that officers had been examining event and does not normally, as part ways to allow the event to continue, of its business practice, do this for whereas their duty was to seek events run in the Shire. compliance with the order. In such circumstances, I considered that the It was assumed by the Planning recommendation made by officers to Department that an event such as council was not soundly based. this would be run in accordance with the requirements of the permit. The Mayor and the CEO attended Council issues in excess of 400 my office to discuss my views. They planning permits per year and does accepted that insufficient enquiries not audit all permits to verify had been made and that the report compliance. was too favourable to the applicant. I was advised that staff had been You will note in Council’s legal counselled. advice that it is recommended that Council have the VCAT decision The CEO further advised that the clarified to clearly indicate the times Shire had been able to recruit an that apply for a school holiday additional town planner and that this period and that an amendment to the should assist in avoiding similar permit be sought. Council will be problems in future. He provided a instructing its solicitors to commence list of 24 shooters who reportedly these proceedings due to the attended the event. He added that different views that may be applied.” only four or five shooters camped at the site. I advised the Mayor, the CEO and the Minister for Local Government In the light of the acceptance of my that I considered that the officers had conclusion by the Shire and action an obligation to check on the taken to avoid similar problems in veracity of information put to them future, I did not believe that further and that, in failing to verify the action by me was required. extent of the booking, they had failed to make proper enquiries into the
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Rates Action over unpaid rates A landowner, who owned several At times I have been concerned lots in the shire, complained to my about legal action taken by councils office about an ongoing dispute with to collect overdue rates. This matter the Melton Shire Council. After my has been raised in earlier annual office examined the relevant reports and remains an issue. I documentation, the owner was accept that landowners have a advised of his responsibility to pay responsibility to pay rates on time, rates on time. He agreed to pay the and are expected to contact council if outstanding charges, however, he they do not receive a rates notice. then informed my office that the However, for a variety of reasons a council had initiated action in the landowner may fail to make payment Supreme Court for the seizure and and fail to receive reminder notices, sale of real estate and that the legal for example, due to a change of costs up to that stage were in the address or the failure of a order of $2400. lawyer/conveyancer to notify council of the owner’s address. The owner Section 181 of the Local may then become liable for Government Act allows a council to substantial legal costs incurred by sell land to recover unpaid rates or council before he is aware of the charges where payment is more than oversight. three years overdue.
I am concerned that such legal costs The council in this case chose are incurred in some cases without instead to use Section 180 of the council making additional efforts to Local Government Act which contact the landowner. provides for covering of any debts
via council action. The debt was My office has had preliminary only a few months short of three discussions with the Municipal years old when the council took this Association of Victoria with the aim action. By deciding to take the of developing guidelines to reduce matter to court the council incurred this problem. substantial additional costs,
117 2001/2002 ANNUAL REPORT General Complaints compared with proceeding under apparently camping in swags, tents, Section 181. vehicles and other camping equipment, contrary to the signs The council was unable to provide erected at the entrance to the reserve my office with any reasons why it and Campaspe Shire’s Local Law No had not been prepared to wait the 2. The “Southern 80” water ski additional few months. The council event was programmed along the was advised by the landowner that he river that day. The complainant said would pay all outstanding costs, that he parked his vehicle away from except the costs associated with the the campers so as not to disturb Supreme Court action, and I asked them. the council to review and withdraw the costs, unless good reason could The complainant, being the be shown why this course of action registered owner of his vehicle, and had been taken. 52 other owners of vehicles noted to be in the reserve, were issued with In this area, as in others, I sometimes Infringement Notices fifteen days receive complaints relating to trivial later, with a penalty of $100, alleging matters which, in my view, could unauthorized camping, contrary to easily have been resolved by council Local Law No 2. officers using their initiative. The complainant appealed the issue Unjustly Fined for Catnap of the notice to him on the basis that A complainant who had visited a while he had been in the reserve, he river township early one morning, did not camp in the reserve. Council decided to drive to the nearby river rejected his appeal and the waiting for the local shops to open. complainant paid the fine and After parking his vehicle in a crown complained to me alleging reserve open to the public, he went unreasonable action by the council. for a short walk along the river bank and then returned to his vehicle to From my examination of the rest. He was sitting behind the circumstances, I ascertained that steering wheel. Also in the reserve enforcement officers went to the were other people who were reserve early in the morning to check
118 2001/2002 ANNUAL REPORT General Complaints for unauthorized campers. Being committed an offence. There are no wary of an angry response from “Owner Onus” provisions provided, campers woken and issued with permitting a notice to be served on infringement notices, they decided the registered owner of a vehicle. only to record the registration numbers of vehicles without In my view, the actions of the necessarily sighting or speaking to complainant could not be reasonably any person in the reserve. The considered to be “camping”. officers were unsure how many persons were actually in the reserve I concluded that the notice had been and whether they had camped wrongly issued and that it would overnight. They had not sighted the have been unjust for any alleged complainant and were unable to say offender to have to seek a remedy whether he was in his vehicle at the from a court. time the registration details of his vehicle were recorded. The council agreed to withdraw the When the complainant appealed notice against the complainant, to against the issue of the infringement refund the penalty he had paid and notice and provided an explanation not to proceed against any other of his movements, including that he vehicle owner who appealed against was resting in his vehicle, he was the issue of a notice. informed that council defined camping to mean; “the occupant of While I accepted that some vehicle any vehicle there was deemed to be owners who had paid the penalty, camping whether it be resting in the had prima facie admitted guilt, it was car or camping in a tent”. His likely that others, many of whom appeal was rejected. were from interstate, may have paid to avoid the considerable expense From my examination of the Local and inconvenience of defending any Law No 2, there was no definition of charge and were unaware of the “camping” provided and further, it opportunity to appeal to council to requires an authorised officer to have the notice withdrawn. serve an infringement notice on “a person” who the officer believes has
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On my recommendation, council Failure to keep any electronic agreed to contact any vehicle owner records. who had paid a penalty to ensure that those persons were aware that an In one major investigation in relation opportunity existed to lodge an to the City of Greater Geelong appeal. involving the sale of assets, a large development, and negotiations with Council also agreed to review its developers, almost all records were procedures for issuing infringement missing over an eighteen month notices and to add a definition of period, and there were examples of “camping” to the Local Law. all the common problems noted above. Failure to Keep Proper and Full Records: At times councils are reluctant to admit that records do not exist and All too often in the course of simply avoid answering detailed conducting simple enquiries or question posed by my office. formal investigations I find that councils have failed to keep proper Foundations covered up ? records. Some examples of poor A person, who purchased land from administration by councils evident in the City of Greater Geelong Council, complaints received by my office later found that foundations had been during the year included: left in the ground. The council had Failure to file correspondence earlier removed a substantial or working papers; structure from the land and the landowner complained to my office Failure to keep or record as he believed that the council was minutes of meetings and required to remove the foundations important telephone calls; before sale for development. Failure to record directions; Failure to keep copies of The developer wrote to the council submissions, reports etc; several times and the evasive answer by council led him to suspect a cover Lost files; and up. My office was able to quickly
120 2001/2002 ANNUAL REPORT General Complaints establish the simple truth that the council was not required to remove The developer had complained to the the footings when they demolished council but was told that the council the building, and that no records would be paying his subcontractor existed to show that the council’s the amount the developer owed him demolition contractor had been and that this amount would be required to remove the footings. The deducted from his security deposit. failure of council to either keep records or to provide comprehensive My office contacted the manager answers caused the complainant to concerned who agreed that they go to considerable efforts to establish would have to return the deposit if the facts. the builder took legal action. However, he believed that the builder would not do so due to the Security Deposit costs involved and the delays that A developer complained that the would occur to final approvals. His City of Monash would not return a view was that they were morally in security deposit at the completion of the right in taking such action. his project. The reason given by the City was that the developer had not I then contacted the CEO who made a payment to a subcontractor directed that the full security deposit on a matter in dispute between them. be returned.
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TRANSPORT
of the matter by the prosecution Public Transport officers. With privatisation of the bodies running train and tram services, In some cases the version of events those operations now fall outside my given by complainants varies from jurisdiction. However, the majority the version provided by the revenue of complaints concerning public protection officers. Where there is transport received by my office no corroborating evidence, it is not relate to infringement matters and, as possible to reach a conclusion and the decision to issue an infringement the matter can only be determined in notice is made within the Office of court where the parties give evidence the Director of Public Transport in on oath, can be cross-examined and the Department of Infrastructure, the Magistrate determines which those decisions remain within my version to accept, bearing in mind jurisdiction. that the onus of proof is on the prosecution. In addition, while I am unable to examine complaints concerning the In many complaints received by my conduct of employees of the office, the reason given by transport companies, I can review passengers for not having a ticket investigations of such complaints was that the ticket selling machines carried out within the Director’s were not working. The Director’s office. office is able to obtain computer printouts recording the operations of Similarly to parking infringement individual ticket and validating complaints, it is not my role to machines. In the course of determine the merits of an allegation. examining such complaints my However, if on examining the details office ensures that the Director’s of a complaint, I am of the view that office has made all appropriate there is no convincing evidence that checks to confirm whether or not the an offence occurred, I seek a review machines were operating. In some
122 2001/2002 ANNUAL REPORT General Complaints cases my enquiries established that, relevant. Authorised persons and while ticket machines were members of the police force are functioning, they were not fully empowered under the Transport Act operational in that they were not, at to obtain names and addresses if they all times, accepting all modes of believe on reasonable grounds, that a payment (notes, coins and credit person has committed, or is about to cards). The Director’s office has commit an offence. adopted procedures to ensure that all relevant checks are undertaken in “Authorised persons” may detain a this process. person if they believe, on reasonable grounds, that the person has Similar complaints have arisen in committed an offence and that their regard to non-working validating detention is necessary to ensure that machines. In a number of cases, the the person appears in court, to Director’s office has agreed to preserve public order, to prevent the withdraw infringement notices when continuation or repetition of the it could not confirm that the offence, or for the safety of members machines were fully operational at of the public or the person. Persons the relevant time. so detained must be passed to a member of the police force as soon In dealing with such complaints I am as is practicable. obliged to recognise that the law imposes an obligation on a person, A recent amendment to the Act who has “boarded a train, tram or clarifies that if an “authorised bus or has entered the paid area of a person” or member of the police railway station”, to purchase a ticket force suspects, on reasonable and to validate it. It is not an offence grounds, that a stated name and to fail to have a ticket if the address may be false they may passenger has been given “no request evidence of the correctness reasonable opportunity” to purchase of that name and address. Previously a ticket. the courts had upheld the action of inspectors seeking the passenger’s It is here that the issue of the name and address if an offence was machines being operational becomes detected. A number of passengers
123 2001/2002 ANNUAL REPORT General Complaints had queried this issue with my introduction of the automatic office. ticketing system.
One matter which has been the A friend suggested that she park her subject of complaint is the fact that car at her inner suburban home and ticket machines on board trams only travel to the city by train and then by accept coins. Some complainants tram to the hospital. Her friend had assert that, in circumstances when pre-purchased 2 x2 hour concession they had notes and insufficient coins tickets for her and advised her of the they had no reasonable opportunity need to validate her tickets. to obtain a ticket. Action on similar matters was deferred pending the On arrival at an unmanned station outcome of a test case recently the complainant said that she thought brought before the courts. I that she had validated one of the understand that the court’s decision tickets when she heard the validator handed down since, upheld the “beep”. She was also of the view contention that having insufficient that once having validated the ticket coins was not a valid defence in such she had satisfied the requirements for circumstances. travel by train and tram and proceeded on her way. The Valid Intention-Invalid complainant advised that on arrival Ticket at Spencer Street station as she was A person complained to me that her unsure about how to exit through the appeal against the issue of a automatic ticket barriers, she Transport Infringement Notice had approached an attendant at an open been unreasonably denied. barrier. She said that she showed her
ticket to the attendant and asked for The complainant was from country directions to the tram in Bourke Victoria and had travelled to Street. She believes that the Melbourne for the first of a series of attendant looked at her ticket and medical appointments at a city then gave her directions to the tram hospital. She said that she was not a stop. regular visitor to Melbourne and had not used the suburban public transport system since the
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The complainant said that she advised her that she would be fined boarded a tram in Bourke Street and and suggested that she could ask for again asked the tram driver for the matter to be reviewed. directions so that she could alight at the correct stop and catch a tram The complainant said that she along Swanston Street. She said that thought that she had validated her she was unaware of the requirement ticket when she heard the validator to again validate her ticket on the “beep” and had not seen any tram and the tram driver did not publicity on her local country make any mention of the television or local newspapers about requirement. the need to validate tickets prior to boarding each vehicle during the The complainant said that she journey. alighted from the tram when the driver beckoned to her. On boarding From the information provided, I a second tram to travel along was satisfied that the complainant Swanston Street, she sat down and did not have a valid ticket for any shortly afterwards was approached part of the journey when approached by a “ticket inspector’ who, on by the ticket inspector and therefore inspecting her ticket and her he was obliged to report the matter. entitlement to a fare at the Further, it seems that when the concessional rate, advised her that complainant heard the validating the ticket was not valid. machine at the railway station “beep”, she had not inserted the The inspector asked whether she had ticket in the machine in accordance any other tickets and she produced with the directions on the ticket and her second ticket and was advised the ticket was being rejected with an that it also, was not valid. The audible warning. The complainant complainant said that she advised the was not aware of the requirement to inspector of the sequence of events again validate the ticket for the in her journey and further, that she second and third legs of her journey. was from the country and not familiar with the system. After the I was also satisfied that the inspector recorded her details, he complainant had attempted to
125 2001/2002 ANNUAL REPORT General Complaints comply with the requirements of the Metropolitan Taxi and Hire Car automatic ticketing system and I Drivers’, current at the time of the could not find any evidence that she application, contains a reference to had attempted to gain an unlawful the VTD undertaking a preliminary advantage. Accordingly I asked the check of the police ‘persons of Department of Infrastructure to again interest’ file. The brochure does not, review the complainant’s appeal due however, elaborate upon the to the mitigating circumstances. The implications to the VTD’s appeal was successful. I advised the assessment of an application complainant of the decision and received from a person who is a provided her with detailed ‘person of interest’ to police. information about the requirements of the automatic ticketing system. Following preliminary inquiries with the Director of the VTD, I formed Victorian Taxi the opinion that the complaint should Directorate be pursued further.
A person complained to me that the An interview with the Operations Victorian Taxi Directorate (VTD) Manager of the VTD confirmed that had discriminated against him by the applicant had lodged an rejecting his application for a application without an Taxi/Hire Car Permit despite the fact accompanying Police Certificate. In that he was certain he satisfied all the accordance with normal procedure, criteria. The complainant said that the VTD checked the police ‘persons he had provided the VTD with clear of interest’ file which showed the police and medical certificates and applicant to be a ‘person of interest’. therefore believed that he had VTD advised that, in circumstances satisfied the permit criteria. It is where the VTD does not know why pertinent that the police clearance an applicant is a ‘person of interest’, was supplied by the applicant several it cannot issue a Skills Training days after the lodgement of his Passport (which enables the driver to application. undertake the necessary training
component of their qualification to A VTD brochure ‘Driver Training be granted a permit). I was informed and Testing Procedures –
126 2001/2002 ANNUAL REPORT General Complaints that it was necessary to establish permit. The document does contain what the applicant’s ‘person of a reference to the applicant’s need interest’ status related to, for a current, original, Police notwithstanding that he had Certificate and to the fact that the produced a clear Police Certificate. VTD will undertake a preliminary check of the police ‘persons of VTD advised that it has received interest’ file to verify whether they applications from people who are may be recorded with Victoria able to produce clear Police Police. When the Operations Certificates but have charges Manager was asked how a person pending against them and that the was to know that their application VTD has a right and an obligation to might be rejected because they take the nature of the charges into happened to be a ‘person of interest’ account before issuing a Driver’s to police without actually having a Certificate. I was informed that, in criminal record, he agreed that the the case of an existing holder of a information in the brochure was Driver’s Certificate who has serious deficient in this respect. He also charges pending, the VTD will acknowledged that a police record suspend that person’s certificate and would not automatically disqualify a remove their right to be a taxi driver person from being issued with a until the matter has been resolved. Driver’s Certificate. An applicant in a similar situation would not be issued a Driver’s I was informed that the VTD would Certificate until the VTD had take into account the nature and age satisfied itself as to why the of the offence and whether the applicant was a ‘person of interest’ offence is relevant to determining if to the police. the applicant is a ‘fit and proper’ person to hold a Driver’s Certificate. I noted that the ‘Driver Training and Testing Procedures – Metropolitan The criteria for assessing whether a Taxi and Hire Car Drivers’ brochure person is ‘fit and proper’ to hold a did not appear to cover the full Driver’s Certificate are not criteria used by the VTD in specifically described in the determining whether to grant a Transport Act 1983. Section 156 of
127 2001/2002 ANNUAL REPORT General Complaints the Transport Act, provides that the and proper’. The VTD’s ‘Guidelines licensing authority may grant or for Driver Certificate Criminal refuse to grant an application for a Records Check’ give some indication Driver’s Certificate. Section 157 of the impact that various then provides that: “the licensing occurrences are likely to have upon authority may by notice in writing the assessment of applications for suspend or revoke a licence, permit certificates, or upon the status of or certificate granted under this existing certificates. Division if it is satisfied that the holder of the licence, permit or In the applicant’s case, the VTD certificate is not a fit and proper followed up the reasons for his being person to hold that licence, permit or a ‘person of interest’. The applicant certificate. was invited to comment on the relevance of the information The Operations Manager explained disclosed about him to the that, in practice, a person’s status as consideration of his application for a ‘fit and proper’ is determined at the driver’s certificate. He was asked time of assessing their application why it would be unreasonable or because it would be a nonsense to inappropriate for his application to issue a Driver’s Certificate to a be refused on the basis that he was person because the words ‘fit and an unsuitable person to hold a proper’ are not contained in Section driver’s certificate. 156, only to subsequently suspend or revoke it because the licensing The applicant was subsequently authority is satisfied that the holder notified that his application was is not a fit and proper person. refused. I advised the complainant of my opinion, on the evidence, I The Operations Manager explained found that the decision to refuse his that, whilst there is some legal application was one which was precedent for the meaning of ‘fit and reasonably open to the licensing proper’, there are no specifically authority to have made. prescribed offences whose committal would render an applicant for, or As a result of my investigation, the holder of, a certificate not to be ‘fit VTD has printed a modified version
128 2001/2002 ANNUAL REPORT General Complaints of the ‘Driver Training and Testing Procedures – Metropolitan Taxi and VicRoads Hire Car Drivers’ brochure. The brochure now alerts applicants to the Inappropriate Form following: The previous VicRoads Vehicle
If the applicant is recorded on Registration Transfer form, used for the police ‘persons of interest’ the transfer of registration of motor file, a training passport will not vehicles, motorcycles, trailers and be issued until a current caravans, explained that stamp duty National Police Certificate is of $8 for every $200 or part thereof produced and the VTD is was payable on transfers. satisfied that the applicant is a fit and proper person to hold a During the year I received a driver’s certificate; complaint from a person who purchased a caravan. The An applicant’s criminal and complainant stated that she had traffic record, and advice of discovered, after sending the police matters pending against completed form and a cheque for the the applicant, are all relevant to transfer fee and stamp duty, that no determining whether an stamp duty is payable in relation to applicant is fit and proper to caravans or trailers. She pointed out hold a driver’s certificate; and that the form should clearly provide Criminal and traffic matters do this information. In response to not automatically disqualify an contact from my office, VicRoads applicant from obtaining a acknowledged that the form was driver’s certificate, as each deficient. I have been advised that a application is assessed on its new form containing the appropriate merits. information is now in use.
Demerit Points
Drivers who accrue 12 penalty points against their driver’s licence over a three year period are subject to licence suspension for three months.
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However, they have the option of accepted in the past that Vic Roads electing to extend the demerit point performed an administrative function period. If the election is made, the only in relation to the demerit points suspension is deferred but if the system and simply recorded the driver accrues any penalty points at points against the driver notified by all in the following 12 months, their Civic Compliance and had done so licence is suspended for six months. correctly in this case.
Paying the penalty for In circumstances where instructions others on infringement notices clearly direct I received a complaint from a driver that drivers should either: who was notified that he had accrued pay the fine; or 12 demerit points. He noticed that the calculation included two offences nominate the driver responsible; or which were the responsibility of elect to have the matter heard in others who had accepted their court, responsibility. The driver claimed it was clear that the complainant had that he had provided to Civic erred in seeking to pay and to Compliance, at the appropriate time, nominate the drivers at the same statutory declarations nominating time. those drivers and had also sent a cheque in payment of the fines. Accordingly, it was not possible to Civic Compliance denied that it had have the infringements cancelled. received the statutory declarations The complainant wanted to withdraw and had accordingly processed the his legal action but, if he did so, the payment in his name. As more than licence suspension would commence twelve months had passed, Civic as the time had expired for him to Compliance was unable to alter the elect to extend the demerit point record or reissue the fines. period. Ultimately, after intervention
by my office, the action was settled The complainant appealed to the on a basis which included reissuing Magistrates’ Court against the the notification letter thus enabling demerit points calculation. Lawyers the complainant to exercise the acting for Vic Roads advised that the option to extend the period. It is to appeal would fail as courts had
130 2001/2002 ANNUAL REPORT General Complaints be hoped that, in the light of the he would be entitled to a partial amount of work required to resolve refund. The complainant saw no this matter, he remains penalty free reason why he should be charged at for the 12 months period. all where the colour did not match the advertised colours.
Personalised Number My investigation revealed that Plates manufacturing processing difficulties I received a complaint from a person had been the cause of the plates who had ordered a set of being produced in a different shade personalised number plates in a dark of colour from that advertised. green colour to match his vehicle. VicRoads advised that the contractor Upon delivery he found that the has been instructed to ensure that plates were a quite different shade of coloured number plates match the green to that illustrated in the colours advertised. The complainant advertisement. The complainant was informed that his plates would alleged that when he approached be remanufactured in the colour he VicRoads about this matter he was had originally ordered at no informed that the different colour additional cost. was the result of a change by the contractor manufacturing the plates and that, if the plates were returned,
131 2001/2002 ANNUAL REPORT General Complaints
EDUCATION
reimburse the costs she had incurred Department of Education when she decided to transfer her son and Training to another school. Being the target of a bully can make school life miserable for a child. In I asked the Secretary of DET for a this case, the mother’s solution was report on its handling of the matter. to remove her prep-aged son from The Secretary advised that the the school at which he was bullied regional office had investigated the by a Grade 6 girl. The case also matter in accordance with formal gives some insight into the breadth complaint procedures set out in and sensitivity of many of the DET’s Principal Class Handbook. I responsibilities that Principals and was provided with a copy of DET’s teachers have for the children in their investigation report, records of care. meetings and the Principal’s written response to the allegations. I received a complaint from a parent about the Department of Education The Secretary’s report showed that, and Training’s (DET) handling of a although the parent had complained grievance against the Principal of the to DET regarding her concerns, she primary school her son had attended. had not been able to speak directly to The complainant was concerned the Principal about her son’s about the manner in which DET and experiences at the school. The the Principal had handled an incident parent also felt that these had come of bullying and complained that, about due to a lack of supervision although DET had found some of her and attentive care on the part of the concerns were valid, it did not school. propose to take any action against the Principal. The complainant The parent had reported to the informed me that, while DET had regional office that she was offered counselling to her son, it had concerned about a number of not apologised to her or offered to
132 2001/2002 ANNUAL REPORT General Complaints incidents which had occurred at the the bullying could not be school. She alleged that: identified.
The supervision and care given When she advised the Principal to her son by his class teacher that she was withdrawing her was inadequate. The parent son from the School, the claimed that when she raised Principal did not attempt to her concerns about her son discuss her concerns with her. returning from school each day with his lunchbox unopened, Finally, the parent was concerned and the fact that he had lost 3.5 about a telephone call she received kilograms in weight, the class from another parent advising her that teacher merely commented that the Principal had commented that she had been meaning to she was very disappointed that the discuss the problem with his complainant had withdrawn her son parents. The parent also from the school and that she had not claimed that the teacher had been consulted prior to the child failed to notice that her son had being withdrawn. The Principal had soiled his pants. allegedly commented that the complainant had severely affected After going to the toilet, her her son’s learning ability and child had been unable to open a friendships at the school. door to the building in which Additionally, the Principal had his class was situated and had allegedly attempted to discover why to find another door to access the complainant’s other child still the building. attended the pre-school from which Her son’s classmate could not her son had been removed. find a teacher to report that a
Grade 6 girl was bullying him. The Secretary’s report indicated that, The Assistant Principal advised in the course of its investigation, the her that the School would not regional office had: interviewed the take further action about her parent to establish the exact nature of son having been bullied her complaint; asked the Principal to because the girl responsible for respond to the complaint in writing; and interviewed the parent to whom
133 2001/2002 ANNUAL REPORT General Complaints the Principal was alleged to have of the day as to what the boy had made inappropriate comments about eaten. the complainant and her son. I asked the school for further The investigation report office information about the school’s usual indicated that, while the Principal policies and practices in this regard. had not been available to discuss the I was advised that the school’s complainant’s concerns with her, the timetable allows for children to take parent had been able to discuss the five minutes before recess to snack matter with the Assistant Principal. and 15 minutes between 12:45 pm The Assistant Principal was and 1:00 pm to eat their lunch. considered an appropriate person to deal with the parent’s complaint, as I was told that while some children she was responsible for student did not like to eat a lot at school, welfare and discipline within the teachers ensure that they drink plenty school. of fluids on hot days and that something from their lunch box is The region’s investigation found that consumed every day. the Assistant Principal had approached the class teacher about The region’s investigation found that the parent’s concerns regarding her the class teacher had a supply of son’s eating habits at school. clothing in her classroom which she provided to children when she The class teacher acknowledged she noticed they had wet or soiled their had commented that she had been pants. meaning to talk to the parent about this matter, however, she followed It was the class teacher’s practice to the comment up by meeting with the ask children if they had a good play boy’s parents and establishing a plan after recess and lunch to stimulate to ensure he ate his sandwiches discussion and for children to report rather than the fruit he had preferred any incidents. On this particular day, to eat in the past. The class teacher the child did not report any incidents then reported to the parent at the end and the class teacher did not observe
134 2001/2002 ANNUAL REPORT General Complaints the child showing any signs of coming to light, the Principal distress. reasserted DET and school policy on this issue with both the teacher The region’s investigation found that concerned, and at staff meetings. I the parent had approached the class was advised that the school has a teacher regarding her son’s concerns coloured label system, whereby about going to the toilet in the children wear the label when they go company of other children, as he to the toilet in pairs, and replace the preferred to use cubicles where he label on the blackboard ledge when could sit rather than stand at urinals. they return. This enables the teacher The class teacher offered to give a to keep track of the students. general talk to the class about going to the toilet and to advise the class The region had found that the that it was ‘okay’ for boys to sit Assistant Principal had adequately rather than stand. The class teacher investigated the incident of bullying also agreed to allow the boy to attend reported to her by the parent. The the toilet alone as the parent felt that Assistant Principal questioned the he would be more comfortable with boy about the incident, however, he this. was not able to provide any details. The Assistant Principal then asked The class teacher followed up on this the boy’s class about the incident. arrangement and the parent indicated Two of the boy’s classmates that her son was no longer wriggling indicated that they had witnessed the around in the car, in a hurry to go to incident. The Assistant Principal the toilet, during the trip home from took the three children to the place school. where the incident was said to have happened and was shown what had The region and the school were happened. One of the children concerned to find the class teacher indicated that she knew the girl’s had agreed to allow the boy to attend name and was very confident that the toilet unaccompanied, as this is she could identify her. The Assistant in breach of the DET’s policies and Principal took the child to see all the procedures regarding duty of care. students enrolled at the school with As a result of this information this name, however the child told the
135 2001/2002 ANNUAL REPORT General Complaints
Assistant Principal that none of the alleged, had told the complainant girls was the ‘right’ girl. that the Principal had commented to her about the complainant’s decision As the parent seemed to have to withdraw her son from the school. identified the girl responsible for the The parent reported that, while the bullying in discussion with the Principal had discussed the bullying region, I sought further information of the complainant’s child, no from the region and the school in derogatory comments had been made relation to this matter. I was advised about the parent or her son. DET that the parent did not identify the advised me that the region had girl to the school during its cautioned the Principal that investigation, nor did she advise the discussing one parent with another region of the girl’s identity until parent was unprofessional. Upon some months after she had enquiry by my office, the Principal transferred her child from the school. confirmed that she had indeed been cautioned about this matter. I also obtained a copy of the school’s policies on bullying, student welfare Finally, the region confirmed that the and discipline, and it was confirmed Principal did not discuss the that these policies were in place at complainant’s decision to withdraw the time the boy had attended the the child from the school with her. I school. The school has two teachers was also provided with evidence that patrolling school grounds during the school had given the complainant recess and lunchtime and the a refund of three-quarters of the bulk Principal and Assistant Principal supply component of the booklist stand outside the school grounds which remained unexpended because before and after school. The school her son had been withdrawn from the has a buddy system and trains school. students to be peer mediators to help other children settle their differences After reviewing the information where appropriate. made available to my office, I reported to the parent that, while I DET provided a copy of its record of appreciated that the unfortunate interview with the parent who, it was circumstances her son had
136 2001/2002 ANNUAL REPORT General Complaints experienced at school at such a reasonable policies and tender age were distressing to his procedures in place to prevent family, it seemed to me that the and deal with incidents of school had: bullying;
reasonable procedures in place adequately refunded her for to ensure it adequately monies paid to the school. supervised and gave attentive care to its students; I also advised the parent that it seemed to me that it was reasonable appropriate procedures in place that a Principal might wish to know to deal with parental concerns why a parent was transferring their about the welfare of their child to another school in children while at the school; circumstances where the child had appropriately responded to her recently been bullied. I also noted concerns about her son’s eating that, although her particular concerns habits; could have been handled more adequate practices in place to sensitively, there was no evidence to assist children who wet or suggest that the Principal’s soiled their clothes; behaviour attained a level of inappropriateness that would warrant adequately addressed concerns official censure by DET. regarding the class teacher’s failure to adhere to DET and school policy and procedures Victorian Tertiary regarding children attending the Admissions Centre
toilet in pairs and, in future, A student complained that her children will not be placed in tertiary course preferences on the the position of being outside Victorian Tertiary Admissions school buildings on their own Centre (VTAC) website had been during school hours; altered, without her knowledge, made reasonable attempts to shortly before the deadline for identify the girl responsible for making such changes. bullying her son;
137 2001/2002 ANNUAL REPORT General Complaints
In response to my enquiries, VTAC advised that students’ VTAC advised that: application numbers appeared on notices displayed at schools and When applications for tertiary were therefore accessible to others. admission opened, VTAC issued
all students with a Personal Fortunately, the complainant was not Identification Number (PIN) deprived of an enrolment opportunity comprising the student’s date of in the tertiary institution of her birth and students were advised choice as a consequence of the to change this PIN for reasons of unauthorised alteration. security and not to divulge it to
anyone else; As a result of the concern regarding The only way anyone could the breach of security and access to access a student’s details was to confidential information, VTAC use the correct combination of advised me that it would change its VTAC application number and procedures as follows: PIN; and All applicants will be required The original PIN based on date of to change their PIN on entering birth became invalid once a the system and a password will student effected a change to the be introduced. Once effected, PIN. this password will be required
for all future transactions. In the course of my investigation it VTAC staff will be instructed became apparent that the student’s to not issue any confidential details on the website had been information regarding VTAC accessed by a friend. This friend had matters without the password somehow obtained the student’s PIN, being quoted. possibly by contacting VTAC and claiming that she was the student and Security issues will be that she had forgotten her PIN, or by highlighted during VTAC’s using the PIN based on the annual briefing sessions with complainant’s date of birth. I was school career teachers.
138 2001/2002 ANNUAL REPORT General Complaints
OTHER MATTERS
recorded “in no other written Registry of Births, language other than English or in Deaths and Marriages extended English characters”. In November 2001 I received a complaint from a couple who were The couple argued that ‘ŋ’ is experiencing difficulties in commonly used as an English registering the birth of one of their character in linguistics and that its twin sons with the Registry of Births, use in Aboriginal languages is Deaths and Marriages. The almost universal. They were difficulty related to the characters concerned that the refusal may be used in the spelling of one of the discriminatory as it appeared that names. The children were of part other non-English characters such as Aboriginal descent and had been ‘ç’, ‘ö’ or ‘ñ’ appeared to be given traditional names by senior accepted for birth registration Aboriginal relatives in Arnhem purposes. Land. Their parents felt that it was important that the names be Preliminary enquiries by my office accurately recorded on the children’s confirmed that the Registry appeared birth certificates. to accept, on a case by case basis, names spelt with a range of The Registry refused to register the characters that would generally be name of one of the children with the considered non-English characters, spelling provided by the parents but not the ‘ŋ’ character. In response because it contained a non-English to further contact from my office, the character. The Registry argued that Registry sought advice from a a ‘tail n’ (ŋ) could not be accepted linguistic expert who confirmed the because the character is generally not use of ‘ŋ’ is common in written regarded as part of the written Aboriginal words. The Registry English language. The parents were agreed to register the birth and issue advised that all particulars in the a standard birth certificate off-line. birth register are required to be The Registrar advised that the reason
139 2001/2002 ANNUAL REPORT General Complaints that characters such as ‘ç’, ‘ö’ or ‘ñ’ of organizations which can assist are available is because they are part them. Doctors who provide of a standard commercial set of 156 supporting medical evidence also characters purchased for use by the seem to be unaware of the type of Registry in its databases. The evidence the Office of Housing Registry has been unable to locate a requires. In some cases, the character set that includes the ‘ŋ’ evidence is available but has not character as well as all the characters been supplied because the of the English alphabet. However, applicant/appellant/doctor was not the Registry undertook to review the advised of the issues that need to be situation during its next systems addressed. upgrade. The parents confirmed that they were happy with the outcome. The Office of Housing has extensive policy and procedure manuals which Housing describe evidence required to support applications or appeals. Relevant In discussions with officers of the sections of such manuals (or Department of Human Services summaries thereof) could be (DHS) and the Office of Housing my provided to applicants or appellants, staff have raised the issue of whether to assist in clarifying whether the persons applying for public housing, required evidence is, in fact, or existing public tenants applying available. Such evidence, if for transfers or appealing against a available, could assist the Office of decision, could be provided with Housing in making better informed written information detailing the decisions about applications or Office of Housing requirements as to appeals and may reduce the number the type of evidence necessary to of appeals to the Housing Appeals support such applications or appeals. Office as well as the number of
complaints to this office. Complaints received by my office indicate that many applicants or My request to DHS for a written appellants seem to be ignorant of the report on a complaint often results in evidence they need to produce to a resolution of the complaint, support their application or appeal following DHS’ review of the and in some cases they are not aware
140 2001/2002 ANNUAL REPORT General Complaints circumstances of the case, as provide evidence to enable indicated in the examples below. registration of the plan of subdivision. Following further Purchase of rental enquiries, DHS advised that the property subdivision of the tenant’s property A tenant complained that the had already re-commenced as part of Housing Appeals Office had rejected a batch of other title amendments. his appeal against the refusal by DHS agreed to proceed with the DHS of his application to purchase subdivision as a matter of priority the property he was renting. The and to offer the property for sale to decision was based on DHS’ policy the tenant as soon as the market not to sell a property unless there valuation of the property by the was a separate title to the property. Valuer-General was completed. The complainant’s property and an adjoining property owned by DHS were included on one title. DHS Priority housing delayed could not legally sell and transfer the due to medical needs property until the existing title was An applicant for public housing, subdivided. The subdivision process approved for priority allocation of a could be long and complicated and property on medical grounds, involve legal, survey and other costs. complained about the delay in being provided with housing. A DHS In the circumstances, I formed the report indicated that there had been a view that the decisions made by delay, owing to the substantial DHS and the Housing Appeals modifications needed to be made to Office appeared to be legally correct the property to be offered to the and in accordance with DHS’ policy applicant, who was disabled and which, in light of the potential costs reliant on her wheelchair at all times. of subdivision, I considered to be The extent of the modifications reasonable. However, my enquiries caused difficulties for DHS due to a established that a plan of subdivision need to prepare documentation to of the title had been lodged for undertake a tender process before registration with the Land Registry awarding contracts for the work. in 1994 but was rejected in 1999 However, DHS was able to offer the owing to the failure by DHS to applicant a choice of two other
141 2001/2002 ANNUAL REPORT General Complaints properties which had already been State Trustees modified for wheelchair use, one of In March this year a headline in a which satisfied the applicant’s local paper stated, “Woman, 93, requirements. ‘disappears.’ Relatives not told that
State took over her life.” The article Housing for a single stated that she was “taken away by mother men in white”, no relative or A single mother who was seven neighbour was informed and that months pregnant, complained about eight months later the house the delay in being offered a property, remained vacant with personal despite being told that she was at the papers and photographs scattered on top of the waiting list. My office the floor. requested a written report from DHS but also made telephone enquiries of On 15 March 2002 the Neil Mitchell the local Housing Office. Those program on Radio 3AW took up the enquiries established that the item describing the event as an applicant had been granted Early “official kidnapping.” In the Housing status but, owing to the following weeks that case, together priority of other applicants, she may with other complaints against State have to wait eighteen months for a Trustees and the Office of the Public property. However, in preparing the Advocate, was discussed by a range requested written report, DHS staff of speakers. When interviewed, the discovered that there had been an Premier stated that there was a right error in the processing of the of appeal to the Ombudsman. The application and that the complainant program invited listeners to submit should have been offered a property correspondence for referral to my some time previously. As a result, office for investigation. DHS offered the applicant a recently re-furbished two bedroom flat in the I responded that I would investigate area she preferred, overlooking a the complaints and consider the park and playground. The applicant issues raised in the context of State advised my office that she was very Trustees’ response to the broader happy with the property. issues of quality of service raised in the Report of the Auditor General,
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“Represented persons under State result of media coverage. At the Trustees’ administration”, May time of writing this report, nineteen 2000. I have considered a complaints are being formally comprehensive response from State investigated; other complaints have Trustees to the recommendations of already been resolved and some that report and I note that a number matters are being reviewed. of major changes have already been implemented. Legislative Responsibilities
The media coverage highlighted I received a total of sixty items of public confusion about the respective correspondence from the radio roles of the VCAT Guardianship program’s solicitor. Some List, the Public Advocate, and State correspondents expressed opinions Trustees. The term “State Trustees” or views on the subject but did not was used very broadly. have an identifiable complaint. Responsibility for decisions about Some correspondence was the person’s welfare from admission anonymous. Other matters had to hospital or Nursing Home to sale previously been investigated by me of their house or property was and resolved and these files may be allocated publicly to State Trustees. reviewed in the course of this current report. The VCAT Guardianship List, which commenced operations in July 1998, After an initial assessment of the replaced the former Guardianship correspondence, including contact and Administration Board. The with the complainants, I decided to Guardianship and Administration proceed with formal investigations of Act 1996 sets out the role of the fifteen complaints. These include Tribunal, “..to protect adults who as the circumstances of the admission a result of a disability are unable to to hospital, and subsequently to make reasonable decisions in respect residential care, of the ninety-three of their personal circumstances or year old woman referred to in the estate. “ media, and the management of her estate. A number of further The Tribunal can appoint a guardian complaints have been received as a to make decisions on behalf of the
143 2001/2002 ANNUAL REPORT General Complaints person on matters such as The administrator is responsible for accommodation and health care the general care and management of and/or appoint an administrator to the estate of the represented person. manage the person’s estate. The The Guardianship and Public Advocate may be appointed Administration Act 1996 states “It is as guardian. I have no jurisdiction to the duty of the administrator to take investigate a decision by the possession and care of, recover, Tribunal but I am able to investigate collect, preserve and administer the the reports prepared by staff of the property and estate of the Public Advocate for the Tribunal and represented person and generally to the subsequent actions and decisions manage the affairs of the represented of the guardian. person and to exercise all rights statutory or otherwise which the Any person can make an application represented person might exercise if to the Tribunal for the appointment the represented person had legal of a guardian and/or administrator capacity.”(s 58B (b)) and can nominate whom they wish to take that role including a family The public frequently confuses the member, lawyer or private trustee roles of guardian and administrator company. State Trustees is often and there is often some overlap. For appointed where families fail to example, a guardian may make a agree on an appropriate decision that the represented person administrator. Those persons who be admitted to residential care. The have been deemed unable to make administrator is not involved in that reasonable judgments in respect of initial decision and does not advise their estate and for whom State on the appropriateness of the Trustees have been appointed accommodation, but does advise administrator by the Guardianship whether the represented person’s List, are called “represented funds are adequate to cover the persons”. A core component of State initial and ongoing fees and arranges Trustees’ business is the provision of payment of fees. In lifestyle personal administration services to questions, such as quantity of represented persons. personal allowance, the guardian and
144 2001/2002 ANNUAL REPORT General Complaints the administrator may need to administering the estate” and “in consult. consultation with the represented person taking into account as far as Emerging Themes possible the wishes of the
In the investigations I am conducting represented person.” A number of a number of themes are already complainants allege that the wishes emerging. One theme, highlighted in of the represented person and of the Auditor-General’s report and in family members have not received the earlier 1998 report by KPMG, is sufficient attention. This allegation the need for improved is often raised in the context of a communication both with the decision to sell the represented represented person and with families; person’s house and personal greater personal access to staff and property. Another vexed area is the administrators and timely response to question of the amount of personal telephone calls and correspondence. funds that are made available to the individual, how that decision is State Trustees staff are frequently made, and whether the represented dealing with individuals and families person receives personal funds at a time of crisis. The decisions that within a reasonable period of time. have to be made are often painful and family conflicts and divisions Another theme emerging is the may be heightened. There is a perception by complainants that perception by a number of insufficient attention is given to complainants that there has not been dealing with personal belongings. sufficient attention to the human These items including letters, dimension of administration. documents and photographs have little or no commercial value but An administrator must act in the best may have significant emotional, interests of the represented person. cultural or historical value to the Section 49 of the Guardianship and family and perhaps to the Administration Act 1996 defines that community. as acting “in such a way as to encourage and assist the represented There have also been a number of person to become capable of complaints in regard to commissions,
145 2001/2002 ANNUAL REPORT General Complaints fees and charges and access to the receipt of US$200,000 by the represented person’s financial Director of Gaming, from statements. The latter can create a International Game Technology as a problem where there may be tension contribution towards the cost of an between the privacy of the individual investigation conducted by the and the need to keep family members Director of Gaming, into actions of involved and informed. Another that company. area of complaint is caused when legal fees are incurred to the estate I determined to investigate the and I am investigating allegations of receipt of this money under the unnecessary and excessive legal fees. provisions of Section 14 (1) of the Ombudsman Act as an Own Motion Once the investigations are investigation. completed, my findings will be reported to Parliament. I concluded that the acceptance of the payment from International Office Of Gambling Game Technology as a term of Regulation settlement for concluding the investigation was inappropriate and a In April 2002 I presented a separate poorly judged decision. report to Parliament in relation to an investigation I conducted into the
Office of Gambling Regulation
(OGR).
In October 2001, the Minister for Gaming drew my attention to the
146 2001/2002 ANNUAL REPORT General Complaints
CONFLICT OF INTEREST
Over the years and on a number of The complainant freely occasions, my predecessors and I acknowledged that he had conducted have had cause to write about the a number of LEAP checks on his issue of conflict of interest in the estranged family and it was clear that Annual Report. This year is no he continued to be of the opinion that exception and the following cases there was nothing wrong with his serve to demonstrate that there is still actions in this context. a distinct lack of understanding of this concept in the community. In his letter of complaint he stated that what he had done “… was not Police Personnel Matter done for any reward. No member of the public was to ever have The first case concerns a Sergeant of knowledge of this enquiry. It was a Police who was aggrieved about the very minor mistake ….”. fact that he had been issued with an
Admonishment Notice for a “clear By way of background, the Victoria breach of Force Policy and for Police computer-based Law conduct which was likely to diminish Enforcement Assistance Program public confidence in the Victoria (LEAP) provides police with online Police Force”, following an audit of access to a database of particulars the LEAP system (the Police records relating to crime reports and system). associated dealings between police
147 2001/2002 ANNUAL REPORT General Complaints and victims/offenders/members of principle with this view and the the public. matter was under active consideration with a possible Information held on the LEAP outcome being the introduction of a system is strictly confidential and is computer security (reason for solely for official police use. access) screen. Release of such information to an unauthorised person is prohibited Early in the year, I received an e- and LEAP computer screens display mail from the LEAP Management a warning that “LEAP or related Unit which stated: information must not be used or accessed, directly or indirectly, for “Subject: Special Bulletin to all personal use”. LEAP users The following warning will became In my response to the Sergeant, I part of a special bulletin posted on pointed out that information the LEAP site. Members logging on contained on the LEAP system is must first read the message before highly confidential and should be they can proceed onto the LEAP used for official police duty only, system. Secondary to this the and that I viewed his unauthorised warning message will be published access of LEAP very seriously. I on the LEAP Intranet site (on the sent him a copy of the relevant front page and the top of major extract from my 2000/2001 Annual pages). Report to highlight the importance of The message will state: this issue. Any inappropriate use of LEAP
or LEAP information will result I also suggested to Victoria Police in disciplinary action being that there was a need to strengthen taken. current instructions and procedures LEAP information is not to be in relation to LEAP to prevent the accessed for personal use. very conduct that the complainant ‘Personal use’ includes any had admitted to having engaged in. access of information that At the time of writing last year’s relates to any person with Annual Report, police had agreed in
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whom you have any direct or Area Manager acted within the indirect personal association. approving authorities of an Area Manager in 'declaring goods surplus LEAP audits are conducted to need’ in accordance with the RAV randomly to identify misuse. Delegations Manual. The report LEAP records can be stated that: programmed (tagged) to alert “The Area Manager however failed when they are accessed. to seek or obtain the approval of the Typical examples of tagged Director of Operational Services to records are Sports Stars, 'dispose of the surplus goods' and in Celebrities, Politicians, etc.” doing so, exceeded the level of an Area Manager's delegated authority. Rural Ambulance Further, the Area Manager failed to Victoria advise the Corporate Services The second case arose as a peripheral Division of the disposal of the goods issue associated with my review of as prescribed in the RAV the investigation into an allegation Delegations Manual.” that the sale of surplus equipment from a Rural Ambulance Victoria On the matter regarding the disposal (RAV) workshop provided a of goods that had been deemed personal benefit to one of RAV’s unsafe for continued use in RAV, the area managers. The complaint, made investigation found that the Area by colleagues of the manager, was Manager's actions were conducted in that he had arranged to sell the haste and were not prudent as a equipment in question to a local senior manager in obtaining proper builder. verification from the purchaser of their status to deal with goods that The complaint was investigated by may present a risk to subsequent RAV and I was subsequently users. RAV was satisfied that, in provided with a report on the disposing of the surplus RAV goods, investigation. In relation to the the Area Manager did not derive any disposal of goods, RAV was satisfied personal gain or benefit from the that the goods had a written down transactions. value of less than $1,000 and that the
149 2001/2002 ANNUAL REPORT General Complaints
In relation to the Area Manager's From the file, it was apparent that the conduct in dealing with a number of manager had initially told RAV’s staff at his branch, the investigation investigators that his only found that he failed to meet the relationship with the builder, to standards of conduct expected of a whom the equipment was sold, was senior manager. In particular: in the context of the latter having been asked to provide a quote to The Area Manager failed to repair fascia at the particular treat the matters raised by staff ambulance station. It transpired that in relation to these goods in a this advice had been untrue and that serious and considered manner; the manager and the builder had been and in the past, and still were, engaged in The defensive and intolerant a number of significant private response accompanied by the business dealings. inaccurate explanation of how,
where and to whom the goods The consensus of opinion also were disposed, created seemed to be that the money RAV significant doubt in the minds received for the equipment of subordinate staff that proper purchased by the builder was more and transparent disposal than adequate. This gave rise to the procedures had been used. question as to why the builder would
have been prepared to pay the sum RAV advised that it had taken involved for a trailer-load of administrative disciplinary action equipment which the manager against the manager. himself had described as “obsolete
and unsafe”. Because of the breadth of the matters which had been raised in the I speculated that the likely answer to complaint I had received from the this question was that the builder was manager’s colleagues, I then advised doing the manager a favour and that, RAV that I wished to review the if this was indeed the case, the relevant investigation and I asked for manager was then indebted to the the file relating to this matter. builder. It also seemed to me that
the manager’s professional position
150 2001/2002 ANNUAL REPORT General Complaints as an employee of RAV, was already indicated to me that the manager had compromised as a result of his many a poor understanding of both the private business dealings with the concept and implications of conflict builder which, I gathered, he had not of interest. disclosed to RAV in the past. I had earlier obtained a copy of In writing to the Chief Executive RAV’s “Conflict of Interest Policy” Officer of RAV, I stated that I and noted that they do cover the kind believed that the builder’s close of association which existed between business association with the the manager and the builder. I stated manager placed him in a potentially to RAV that I believed that there was favourable position, compared with valid evidence indicating that the that of his competitors, in respect of manager had failed to comply with contracting for future building works the procedure in relation to conflict to be undertaken by RAV, and that of interest and I asked that this was clearly undesirable. consideration be given to this matter. I sought confirmation that the In my same letter to RAV, I noted manager had now complied with the that the manager was reported to procedure as it related to both have stated at his interview that “he outside employment and personal has had business dealings with (the interests. builder), he does not socialise with (him). There is no direct personal I was subsequently advised by RAV relationship e.g. he doesn’t have him that the above matter had been to BBQ’s or over to dinner.” specifically addressed in respect of the manager’s circumstances. I was In his follow-up letter to one of the also advised that, across the investigators, he also stated that he organisation, RAV proposed to had “given detailed evidence of (his) reinforce the policy in the following personal and business transactions manner: a presentation was to be with (the builder) that would indicate made to senior managers in each that (they) only have a business division to review the “Conflict of connection and no social Interest Policy” and its implications connection”. These statements in the way they perform their work,
151 2001/2002 ANNUAL REPORT General Complaints and RAV would institute a formal of the consultancy, I sought process for requesting statements of comment about the matter from the disclosure of interests which may Vice Chancellor of RMIT have the potential to represent a University. Conflict of Interest. In response, I was provided with a RMIT University report into the allegation as well as the advice that, having conducted a The final case described below is review, the University’s Internal still in train. Audit Group concluded that the
anonymous allegations made to my In June 2002, I received what was office could not be substantiated. described by the writer of the letter to me as an ‘Anonymous Public The report confirmed that one of the Interest Complaint’ under the owners of the consultancy, which is Whistleblowers Protection Act 2001. a business partnership between a Since the complainant was husband and wife, is employed as a anonymous, I did not regard the full-time member of the staff of the content of the letter as a ‘disclosure’ University, and that the business had under the Whistleblowers Protection indeed been contracted for the Act 2001 and chose to pursue the provision of consulting services. matter under the Ombudsman Act
1973. As I understood the situation, the
consultancy in question as well as The letter, purportedly from a two other consultants, had been member of the staff of RMIT invited to submit quotations to University, stated that a consultancy, undertake the relevant consulting allegedly owned by a member of the services, based on the University’s full-time staff of the University, had past experience with them. The been engaged by the University to report stated that the agreement with provide consulting services for some the consultancy was not contrary to $30,000 in contravention of the the University’s “Outside Activities policies of the University. Having Policy”. However, in my view, the obtained a ‘Business Name Extract’ policy does not seem to relate to the which listed the names of the owners
152 2001/2002 ANNUAL REPORT General Complaints situation in question, which is of the context of this particular ‘Private Paid Outside Work’ to be investigation. undertaken for RMIT University, the staff member’s employer.
I was concerned that the Internal Audit Group’s report made no reference to the obvious conflict of interest which had been demonstrated by the consultancy’s performance of work for the University. I noted that RMIT University’s Conflict of Interest Policy document appeared to cover the circumstances involved in this case.
I have recently notified the Vice Chancellor of RMIT University of my decision to conduct an investigation, under Section 17(1) of the Ombudsman Act 1973, into the allegation that the consultancy has been inappropriately engaged by the University to provide consulting services, and that the University has generally failed to demonstrate fair, open and adequate processes and procedures associated with the granting of such contractual work.
I have raised a number of specific issues with the Vice Chancellor in
153 2001/2002 ANNUAL REPORT Freedom of Information
FREEDOM OF INFORMATION
INTRODUCTION to the tribunal a report on the outcome of the investigation. Under the provisions of the Freedom of Information Act 1982 (FOI Act) I Lost documents – Section 27(1)(e) have responsibility for the five specific areas, described below. Where an agency claims that a document does not exist or cannot be Voluminous requests – located, there is a requirement under Section 25A (8) the FOI Act for the agency to notify I may investigate complaints where the applicant of the avenue of an agency refuses to process a complaint directly to my office. My request on the grounds that, to do so, function under this provision is to “ would substantially and establish that a thorough and diligent unreasonably divert the resources of search has been undertaken by the the agency from its other agency. operations”. Charges certificates - Section 50(2)(c) Applicants also have a right of review to the Victorian Civil and Where a dispute occurs between an Administrative Tribunal (VCAT) applicant and an agency about the and, if an applicant exercises that imposition of charges, the applicant right and I have investigated the may apply to VCAT for a review of matter, then I am required to provide that decision. Prior to the Tribunal considering the matter, the FOI Act requires the applicant to obtain from
154 2001/2002 ANNUAL REPORT Freedom of Information the Ombudsman a Certificate stating request of a party before the tribunal that the matter is one of sufficient or of my own motion. importance for consideration by the Tribunal. So far as the $20.00 Apart from these five specific application fee is concerned, the FOI responsibilities, it has always been Act is silent as to any avenues of my view that any action taken or redress available to an applicant if decision made by staff of an agency there is a dispute on the payment of under the FOI Act is an that fee. Applicants usually seek the administrative action within the assistance of my office in such terms of the Ombudsman Act 1973. circumstances under the provisions Therefore, all such actions or of the Ombudsman Act. decisions under the FOI Act can be reviewed by me under the Delay certificate– Section Ombudsman Act. 53(2)
Either prior to or after the expiration One exception occurs when of the 45-day processing period, an applicants who have been refused applicant can complain to my office access to documents sought, that there has been an unreasonable complain to me of the delay by an agency in dealing with a unreasonableness of that decision request. If, after investigation, I and seek my investigation of the form the view that there has been an agency’s refusal to provide access to unreasonable delay, I can issue a material. certificate to the applicant which enables that applicant to appeal Under the provisions of section 50 directly to VCAT on what is a (2) of the FOI Act, applicants who deemed refusal of the request. are refused access to documents they have sought, have a right of review Intervention – Section 57 directly to VCAT.
Where an agency refuses access to documents requested by an Pursuant to section 13(4) of the applicant, I have the power to Ombudsman Act 1973 I have no intervene before VCAT, either on the jurisdiction to investigate matters where a complainant has a right of
155 2001/2002 ANNUAL REPORT Freedom of Information appeal to a tribunal unless I consider refusing access to documents. that, in the particular circumstances, Clearly, Parliament intends such it would not be reasonable to expect applicants to exercise their rights the complainant to resort to that through the established scheme and remedy or that the matter merits not rely on the more general, non- investigation in order to avoid specific remedy that may exist in injustice. other legislation such as the Ombudsman Act 1973. Through the FOI Act, Parliament has set up a detailed statutory scheme for applicants to challenge decisions
REQUESTS FOR DOCUMENTS HELD BY THE OMBUDSMAN’S OFFICE
Requests for documents dealt with by Ombudsman's Office
2000/01 2001/02 Requests 30 15 Appeals to Victorian Civil & 5 - Administrative Tribunal
My office has been exempted from This provision effectively exempts the provisions of the FOI Act with all the investigative material of my the passing of the Whistleblowers office from the FOI Act. Protection Act 2001. Notwithstanding such exemption, when applications for access to Section 114 of that Act amends the documents are received from a Ombudsman Act 1973 by inserting a complainant, I provide a restricted new section 29A. form of access to material outside of the provisions of the FOI Act.
156 2001/2002 ANNUAL REPORT Freedom of Information
COMPLAINTS AGAINST OTHER AGENCIES
Complaints received in relation to requests to other authorities
Section of Freedom of Complaints received Complaints finalised Information Act 2000/01 2001/02 2000/01 2001/02
27(1)(e) Lost documents 76 73 92 71 50(2)(a) Charges - - - - Certification 53(2)(a) Delay 1 1 - 1 Certification 57 Intervention - 1 - 1 25A Voluminous 7 6 4 5
Enquiry or investigation under the Ombudsman Act
Delay 41 48 40 48 Refusal of access 5 14 8 12 Grounds Other 14 27 19 27 for complaint Reasons statement - 2 - 2 Charges 4 3 7 6
TOTAL 148 175 170 173
157 2001/2002 ANNUAL REPORT Freedom of Information
The 173 complaints finalised in 2001/2002 were completed by my office following an enquiry or an investigation with outcomes shown in the tables below.
Minor enquiry
2000/01 2001/02 Lack of jurisdiction 6 2
Referred to agency 1 10
Discontinued / withdrawn / treated as 5 7 withdrawn
TOTAL: 12 19
Substantial enquiry
2000/01 2001/02 Lack of jurisdiction - 7
Discontinued / withdrawn 1 1
Clarified / rectified or partially rectified 60 43
Not sustained on facts or facts 70 63 indeterminable
Issued – charges certificate - -
Rejected - charges certificate - -
Rejected – intervention - 1
Rejected – delay certificate - 1
Intervention - -
Sustained but not remedial 5 3
Sustained – other 19 31
TOTAL: 155 150
158 2001/2002 ANNUAL REPORT Freedom of Information
Investigated
2000/01 2001/02 Sustained 3 4
Rectified in full - -
Not sustained on facts or facts - - indeterminable
Withdrawn - -
TOTAL: 3 4
Voluminous requests
My office receives many enquiries with a view to making the request in from complainants and agency staff a form that removes the grounds for regarding the workings of section refusal. In my opinion, the parties 25A of the FOI Act. By their very need to approach any consultation nature, large or voluminous requests with an open mind and a genuine cause disruption to agencies and if desire to give some ground in an agency staff were required to process effort to ensure a reasonable such a request then it is possible that resolution to the problem. it "...would unreasonably divert the resources of the agency from its Unfortunately, consultation does not other operations." On that basis, always resolve the impasse, leading such requests can be classed as to a formal decision by the agency voluminous and may be refused. not to process the request as provided by section 25A of the FOI. Prior to refusing a request of this Complaints may then be made to my nature, section 25A(6) of the FOI office regarding the reasonableness Act requires the agency to advise the of such decisions. applicant of the intention to refuse access and to invite the applicant to When investigating complaints of consult with a nominated officer this nature, I maintain the view that it
159 2001/2002 ANNUAL REPORT Freedom of Information is necessary for agency staff to amicable resolution to the impasse consider the request and to make that occurs. It is certainly one of the some attempt at processing the considerations that I take into request. I believe that it is essential account when examining complaints that, at the very least, an attempt be made to me regarding decisions made by FOI staff to identify some made under section 25A of the FOI of the documents that may be Act. covered by a voluminous request. This allows the FOI staff to obtain a Lost documents sample of documents that can be Where documents requested by an used as a basis for calculating an applicant cannot be located, the estimate of time involved in the applicant can complain to my office identification and collation of pursuant to section 27(1)(e) of the requested documents and the FOI Act. My responsibility is subsequent examination of those simply to establish that the agency documents to identify exempt concerned has conducted a thorough material. search for the requested document.
FOI staff need to identify possible There are other considerations such areas within an agency that may hold as the need for consultation with a requested document and to adopt a third parties and the making of methodical search procedure to copies or edited copies of the locate the identified documents. documents for release. Relatively accurate time periods can be In some circumstances where obtained from the sample documents documents cannot be located, I may and an overall time factor can be extend my enquiries to establish computed on the estimate of the total whether a requested document or file number of documents involved. at one time existed and why it now
cannot be located. If evidence exists The use of such information during that documents did exist but cannot the consultation process with an be found, I then give consideration to applicant usually goes a long way to the records management practices of explaining some of the difficulties the agency concerned. faced by agencies and may lead to an
160 2001/2002 ANNUAL REPORT Freedom of Information
Missing photographs the period in question. The required I received a complaint from a person photographs were not located. who, as a result of an alleged assault by her employer in October 2000, From my examination of the had attended a suburban police available material, it was clear to me station to report the incident to that the photographs did at one time request that photographs be taken of exist but had subsequently been the injuries she had sustained. In misplaced. Although the searches February 2002, the complainant conducted by police appeared to applied to the police FOI unit for have been sufficiently thorough, I access to relevant documents remained concerned that the regarding the alleged assault, photographs had been misplaced. I including the photographs taken of therefore decided to pursue further her injuries. She was provided with enquiries with police. The police a large number of documents, FOI Manager subsequently attended however, the photographs were not the VFSC and examined all located and the complainant was photographs taken at the suburban advised of her right to contact my police station for the date nominated office under the provisions of section by the complainant. 27(1)(e) of the FOI Act. The missing photographs were Following my enquiries, the police located on a roll of film designated provided details of the unsuccessful to the Criminal Investigation Unit of searches conducted for the missing the suburban police station. This photographs. The searches included was not earlier considered because it enquiries made with the uniformed was a uniformed member who member who took the photographs facilitated the taking of the and other members who acted on the photograph and those conducting the reported allegation of assault. earlier searches assumed that the Enquiries were also made of the photographs would have been taken Victoria Forensic Science Centre with the camera allocated to the (VFSC) where an examination was uniform branch. conducted of all photographs taken at the suburban police station during
161 2001/2002 ANNUAL REPORT Freedom of Information
Charges charge imposed by an agency has a right of review to VCAT. However, There are two types of charges that prior to seeking a review by the can be imposed under the FOI Act. tribunal, applicants must first obtain my certification that the matter is one Application lodgement fee of sufficient importance for VCAT A fee of $20 must accompany every to consider. FOI application. This application fee can only be waived or reduced on the During the reporting period I did not basis that the payment of the fee receive any requests for the issue of would result in hardship to the a certificate under section 50 (2)(c) applicant. A claim for waiver must of the FOI Act. be made to the agency at the time the request is lodged, together with However, I did receive a number of relevant information and evidence to complaints about the alleged support the claim of hardship. unreasonable imposition of charges by agencies. The legislation is silent on an applicant’s right of review for any Cost of being a serial dispute that may arise regarding the complainant ? requirement to pay the application I received a complaint from a person fee or decisions made regarding the who claimed that a charge of $68 refusal to waive the fee on hardship imposed by a country hospital to grounds. Applicants often approach cover the labour and photocopying my office seeking assistance and I costs of an FOI application he made deal with such complaints under the was unreasonable. The complainant Ombudsman Act. stated that he was the holder of a current Health Care Card and Access charges because he held such a card, the hospital had waived the requirement Charges can be imposed by an to pay the application fee of $20. agency for the processing of the The hospital insisted that the access request and the costs associated with charge of $68 had to be paid before the provision of access to documents. documents would be released. An applicant dissatisfied with any Following my enquiry, the hospital
162 2001/2002 ANNUAL REPORT Freedom of Information advised that the applicant had been a not accept the hospital’s claim that it ‘serial complainant’ over a number had taken staff considerable time to of years. The hospital claimed that extract relevant documents. The investigations of those complaints applicant’s records were held on the had been tedious and time one file and were easily identified. consuming and were never When my investigation staff put the substantiated. The hospital provided above matters to the hospital’s FOI me with additional information as to officer, the charge was waived in the make up of the charge of $68, full. being search time and photocopy costs. Delay
I did not issue any delay certificates After considering the hospital’s under the terms of section 53(2) of response, I was concerned that the the FOI Act. I did, however, receive imposition of the $68 charge may a substantial number of complaints have been made on irrelevant about unreasonable delay by grounds. There were a number of agencies in processing requests. My reasons why I believed there was a investigations into delay complaints case for the charge to be waived. revealed that there were a number of Firstly, the hospital had waived the extenuating circumstances put application fee in full on the basis forward by agencies for delays that the applicant was a pensioner occurring, including: who held a Health Care Card. Therefore, it was clear that the failure by the applicant to hospital considered the applicant to comply with the requirements be impecunious. Secondly, for the for submitting a proper request photocopy charges to be waived, the (section 17 (2)); relevant documents had to contain difficulty in interpreting personal type information. As the requests made; documents related to the applicant’s treatment at the hospital, there was complexity and nature of the no doubt that the documents in request which require question fell within the definition of considerable consultation personal documents. Finally, I did between FOI staff and the operational staff tasked with
163 2001/2002 ANNUAL REPORT Freedom of Information
searching for relevant procedures to ensure timely documents, delays caused by responses. other branches or units within the agency in responding to Section 21 of the FOI Act states that search requests from the FOI “an applicant is to be notified of a staff; decision on a request as soon as practicable but in any case not later number of requests and the than 45 days after the day on which range of documents involved; the request is received.” heavy workload within FOI
units; Clearly, there is a statutory staff shortages and the requirement placed on agencies to difficulty of agencies in respond to requests within 45 days. adequately resourcing FOI units There is no discretion to extend that because of the need to train period because of any or all of the new staff to deal with requests possible mitigating circumstances I where specialist knowledge is have detailed above. In addition, the required; Government has a policy of providing applicants with timely peaks and troughs involved access to documents in the with work-flow (this is possession of agencies. This policy exacerbated by some applicants is reflected in the Freedom of making numerous requests to Information Guidelines issued by the the one agency on the same Attorney General on 2 February date); 2000. In part, those guidelines state: requests simply being overlooked or, because of the “Agencies must respond promptly degree of difficulty, requests and within the timelines set out in the being put to one side; FOI Act for all matters related to voluminous requests; FOI applications and requests for internal reviews and appeals.” the requirement that agency
staff need to notify the “Principal officers must also ensure Minister’s office of sensitive that adequate resources are requests and the lack of proper
164 2001/2002 ANNUAL REPORT Freedom of Information available to fulfil their agency’s the identified problems. I believe obligations under the FOI Act. This that if the new guidelines are includes an agency’s ability to meet followed, delays will be avoided. statutory response periods Access to the guidelines can be prescribed in the FOI Act and orders obtained by visiting the web site of made by the Tribunal.” the Department of Justice (www.justice.vic.gov.au). It is clear that agencies have an obligation to implement measures to When dealing with complaints about ensure that they meet the statutory delay by agencies in responding to obligations imposed by the FOI Act requests, I am surprised at the and the Government’s expectations, apparent lack of communication as reflected in the Attorney between FOI officers and applicants. General’s Guidelines. This can only In my experience, applicants be achieved by allocating sufficient generally agree to a reasonable resources, if necessary on a extension of time provided that they temporary basis, to cope with the are informed, at the earliest increased workload. If the chief opportunity, of any difficulties faced executives of agencies do not by the agency in complying with consider additional resources to be a statutory timelines and are kept viable option to meet the statutory appraised of the situation. requirements of timeliness, they may consider it necessary to approach My suggestion to FOI officers is that their responsible Minister, seeking to they should always contact the have the time limits imposed by the applicant to advise them of any legislation extended by appropriate difficulties encountered in meeting legislative change for complex the prescribed time periods and to multiple third party applications. seek a reasonable extension of time to complete the request. Where an I met with the Attorney-General to applicant refuses to agree to an discuss my concerns. In extension, they should be advised of consequence of that meeting, the their right to lodge an appeal with Government issued further FOI VCAT at the expiration of the 45 day Guidelines that specifically address
165 2001/2002 ANNUAL REPORT Freedom of Information time period, on what is a deemed complainant believed that there had refusal of the request. been a deemed refusal of his request on the basis that the agency had not Intervention responded to the request within the statutory time period. The The criteria that should be complainant sought my intervention considered for my intervention in a before VCAT on that ‘deemed’ case before VCAT are set out in refusal of his request. I was already section 57 of the FOI Act. During investigating a complaint of delay on the year I received one request for behalf of the complainant and my my intervention. investigation actually found that the
agency had complied with the 45 day time period. I concluded that the Request for intervention applicant’s request for my An allegation was made that the intervention was not an appropriate decision on a FOI request had been one in the circumstances. delayed by an agency. The
166 2001/2002 ANNUAL REPORT Telecommunications Interception
TELECOMMUNICATIONS INTERCEPTION
The Telecommunications the examination of the security (Interception)(State Provisions) Act aspects concerned with the 1988 enables Victoria Police to retention of restricted records by lawfully intercept telephone Victoria Police; and, conversations in accordance with the the eventual destruction of all Commonwealth Telecommunications restricted records held by the (Interception) Act 1979. My police on the completion of all functions under this legislation are to due processes. inspect the records of Victoria Police to ensure that police are complying Under my delegated authority, a with the requirements concerning: special unit within my office was the administrative aspects established to conduct these audits of involved in police obtaining and Victoria Police. The audit of police executing telephone interception interception records has been warrants; undertaken on a continuous basis as the tracking of all restricted required by the Telecommunications records created by police as a (Interception)(State Provisions) Act result of telephone interceptions; 1988 and, in accordance with that Act, the findings of my officers have the tracing of restricted records been reported to the Minister for obtained as a result of telephone Police and Emergency Services, with interceptions transferred to copies to the Attorney-General and Victoria Police from other the Chief Commissioner of Police. interstate and Federal agencies;
167 2001/2002 ANNUAL REPORT Melbourne City Link Act
MELBOURNE CITY LINK ACT
Section 90B of the Melbourne City members of the police force Link Act 1995 enables Victoria who receive it; and Police to receive restricted tolling The use of any restricted tolling information for the purposes of information provided. enforcement of the criminal law.
Police members may not disclose or As a result of consultation between use the information, unless it is in my office and police, agreement was compliance with the requirements of reached on the nature of the records the legislation. that I believe should be kept to
enable me to perform my functions My role is to ensure that police under this legislation. members comply with the requirements of Division 3 of the An audit of police City Link records above mentioned Act relating to was undertaken as required by the maintaining of records. legislation.
Section 90C of this Act requires In accordance with the requirements police to create records relating to: of Section 25 A of the Ombudsman Certificates issued by Act 1973, the findings of my audits authorised police officers to have been reported to the Minister obtain restricted tolling for Police and Emergency Services, information; the Attorney General and the Chief Commissioner of Police. Any disclosure of restricted
tolling information by those
168 2001/2002 ANNUAL REPORT Office Operations
OFFICE OPERATIONS
SUMMARY OF ACTIVITIES
1999/00 2000/01 2001/02 ACTIVITY
Telephone enquiries 16,000 14,367 14,441 General Jurisdiction Complaints
Complaint files raised 2,035 2,130 2,414 Complaints finalised 2,831 2,142 2,296 Freedom of Information Complaints
Requests for Ombudsman files 21 23 9 Complaints about other agencies 153 136 156 Police Complaints Cases put directly to police(1) 860 933 938 Cases put directly to the Ombudsman 1,144 1,135 1,260
Staff (at 30 June)(2) 23.5 24 26.5 Budget(3) 2,900,000 2,700,000 3,170,653
(1) Includes internally generated police conduct investigations (2) EFT number includes contracted casual part-time employees (3) Excludes appropriation for Ombudsman's salary
169 2001/2002 ANNUAL REPORT Office Operations
GENERAL COMPLAINTS – FUNCTIONAL CLASSIFICATION
1999/00 2000/01 2001/02 Type
Acquisition of land 8 9 13 Administration 355 386 249 Apprenticeships 0 2 1 Attitude of staff 46 28 19 Cemetery/Crematorium Trusts 7 6 4 Compensation for loss of/damage to property by authority 10 7 5 Compensation for injury to person 0 0 3 Complaint Bodies 27 Contract with authority 12 19 17 Corrections 562 746 699 Drainage 23 33 11 Education 87 104 101 Employment 71 65 75 Environment protection 9 14 13 Facilities owned/controlled by authority 12 29 33 Fencing by authority 3 1 4 Finance 0 1 2 Fire hazards/noxious weed eradication 7 11 11 Community Services and Health 368 409 430 Housing 163 158 142 Justice - administration 60 80 61 Legislation/Regulations 4 4 4 Licence/registration - refusal to grant, cancellation - profession, trade, business, company 66 56 59 Local government 357 477 685 Payment of duties/fees 15 19 14 Planning & Sub-divisions 74 86 104
170 2001/2002 ANNUAL REPORT Office Operations
Public transport 57 43 57 State Trustee(1) 98 80 - Professional and Trade Registration(2) - - 27 Public Advocate(3) 8 4 - Public utilities 24 20 6 Rates - sewerage, drainage 12 3 1 Registration of Titles 9 3 10 Roads, freeways 0 0 0 Superannuation 43 16 18 Titles Office 2 10 1 Transport Accident Commission 103 97 94 Trustees and Advocacy(4) 50 Vehicle registration - drivers' licences 16 15 17 Water supply, sewerage & drainage schemes 0 0 0 Workers compensation 116 123 125 Other 24 4 7
TOTALS 2831 3,168 3,199
(1) From 2001/02 recorded under new category of Trustees and Advocacy. (2) Category introduced in 2001/02. (3) From 2001/02 recorded under new category of Trustees and Advocacy (4) Category introduced in 2001/02.
GENERAL COMPLAINTS OUTCOMES
(within jurisdiction)
1999/00 2000/01 2001/02 After preliminary enquiry – discontinued: For information only 30 270 323 Trivial, stale, etc. 52 72 89 Referred to appropriate authority 319 298 451 Treated as withdrawn 45 45 54 Sub-total: 446 685 917
171 2001/2002 ANNUAL REPORT Office Operations
After preliminary enquiry finalised as:
Discontinued 74 45 32 Clarified 734 738 718 Rectified/Resolved fully 184 215 235 Rectified/Resolved partially 101 129 152 Withdrawn 15 19 5 Treated as withdrawn 5 24 10 Not sustained on facts 607 631 617 Not sustained – facts indeterminable 67 61 49 Accepted by authority as sustained but not remediable 10 27 12 Accepted by authority as sustained - action will be taken 139 151 133 Matter of Government policy - being reviewed 0 0 2 Action taken which should resolve matter 9 30 24 Other 0 0 0
Sub-total: 1,945 2,070 1,989 After substantial enquiry finalised as:
Discontinued 6 4 6 Clarified 86 84 56 Rectified/Resolved fully 13 23 26 Rectified/Resolved partially 9 11 16 Withdrawn 0 0 1 Treated as withdrawn 0 2 1 Not sustained on facts 205 153 89 Not sustained – facts indeterminable 49 39 14 Accepted by authority as sustained but not remediable 9 14 10 Accepted by authority as sustained - action will be taken 42 46 39 Matter of Government policy - being reviewed 0 1 0 Action taken which should resolve matter 7 25 12 Other 1 2 Sub-total: 426 403 272 After investigation finalised as:
Discontinued after full rectification 0 0 1 Discontinued after partial rectification 0 0 1 Complaint clarified 2 0 0 Discontinued for other reasons 3 0 0 Action taken which should resolve matter 0 0 3 Complaint not sustained on facts 4 4 4 Complaint not sustained – but recommendation made 0 0 1 Complaint sustained 2 3 2
172 2001/2002 ANNUAL REPORT Office Operations
Complaint sustained and sufficiently rectified - no recommendation necessary 0 1 3 Complaint sustained - recommendation made and complied with 2 1 6
Complaint sustained - recommendation made and not yet complied with 1 1 0 Complaint sustained - recommendation made and not complied with 0 0 0
Sub-total: 14 10 21 TOTAL: 2,831 3,168 3,199
BEYOND JURISDICTION
Reason 1999/00 2000/01 2001/02 Not an administrative action 1 0 0 Respondent not a government department or a public statutory body 143 95 184 Within jurisdiction of Office of Fair Trading 30 0 Within jurisdiction of Legal Ombudsman 0 0 Within jurisdiction of Insurance ADR 2 0 Within jurisdiction of Industry Ombudsman 36 4 Governor's Office 0 0 Action taken in consequence of government policy or by Minister 8 1 0 Respondent not a Victorian authority 55 44 50 Decision made by court of law 16 19 31 Decision made by tribunal presided over by Judge, Magistrate or Barrister 14 17 20 Decision made by a legal adviser to the Crown 1 1 Decision made by a person in his capacity as Trustee 0 0 Ombudsman satisfied that aggrieved person has or had a remedy by way of proceedings in court of law 5 0 0 Personnel matters - Ombudsman satisfied that matter does not merit investigation in order to avoid injustice 0 0 Trivial, frivolous or vexatious or not made in good faith 1 0 0 Not made by the aggrieved person 17 0 0 Referred to Health Services Commissioner 0 5 Other 8 4 1 TOTAL: 268 249 296
173 2001/2002 ANNUAL REPORT Administration, Organisation and Staff
ADMINISTRATION, ORGANISATION AND STAFF
ESTABLISHMENT OF OFFICE The office of Deputy Ombudsman (Police Complaints) was established The office of Ombudsman was in May 1988 under the Ombudsman established in October 1973 under Act to investigate complaints against the Ombudsman Act 1973 to enquire police and to review and monitor into or investigate complaints against police internal investigations. Victorian Government departments and public statutory authorities. LEGISLATION
Later, in 1977, the jurisdiction of the The Ombudsman and Deputy Ombudsman was extended to Ombudsman (Police Complaints) are complaints against officers of empowered by the following municipalities. legislation.
Act Responsible Purpose Minister
Ombudsman 1973 Premier Provides for the appointment in Victoria of an Ombudsman and Deputy Ombudsman (Police Complaints) and details the Ombudsman's role and functions in relation to the investigation of complaints. The 1996 amendment provides that the Ombudsman has
174 2001/2002 ANNUAL REPORT Administration, Organisation and Staff
all the responsibilities, powers, authorities and duties and may perform all the functions of the Deputy Ombudsman during any period in which there is a vacancy in the office of the Deputy Ombudsman and an Acting Deputy Ombudsman has not been appointed.
Police Regulation Minister for Details the investigative, review and 1958, Part IVA - Police and conciliation functions of the Deputy Deputy Ombudsman Emergency Ombudsman (Police Complaints) (Police Complaints) Services concerning police conduct.
Freedom of Attorney-General Enables the community to access Information 1982 information in the possession of Government agencies and provides the Ombudsman with specific powers in relation to the investigation of FOI complaints and other functions.
Telecommunications Attorney-General Enables the Victoria Police Force to (Interception) (State obtain warrants to intercept and Provisions) 1988 record telephone conversations and empowers the Ombudsman to audit police records to ensure compliance with the Act.
Witness Protection Minister for Provides for a right of appeal to the 1991 Police and Deputy Ombudsman in relation to a Emergency decision by the Chief Services Commissioner of Police to terminate protection and assistance for a witness.
Melbourne City Link Minister for Empowers the Ombudsman to audit 1995 Transport access of police to City Link records.
Whistleblowers Attorney-General Empowers the Ombudsman to Protection Act 2001 investigate disclosures of improper and corrupt conduct engaged in by public bodies and public officers, including Members of Parliament and municipal councillors.
175 2001/2002 ANNUAL REPORT Administration, Organisation and Staff
MISSION disclosures can be made against public bodies and public To independently investigate, review officers, including Government and resolve complaints concerning departments, public statutory State and Local Government corporations, municipal agencies and/or officers and Victoria councillors and Members of Police; to report the results to Parliament. Parliament, the public and ensure compliance by complainants; to improve designated agencies with the accountability of State and Local provisions of the Freedom of Government agencies; and to Information Act. promote fair and reasonable public administration. Accountability
OBJECTIVES ensure compliance by Victoria Police with the requirements of Complaint Handling the Telecommunications (Interception) (State resolve complaints concerning Provisions) Act, and the administrative actions taken in Melbourne City Link Act; Victorian Government departments, public statutory enhance accountability of State authorities and by officers of and Local Government municipal councils; agencies to the public and to Parliament through the investigate certain serious functions of the Ombudsman's complaints against Victoria Office; Police and ensure that complaints concerning police account to Parliament for the conduct are properly operations of the Office; investigated; assist authorities in identifying
determine whether a disclosure systemic issues. of improper conduct under the Whistleblowers Protection Act warrants investigation. These
176 2001/2002 ANNUAL REPORT Administration, Organisation and Staff
Access the legislation, investigate or conciliate these complaints; • provide access for all members investigate on the of the public to an independent Ombudsman's own initiative means of complaint resolution. matters of public administration and decisions which appear Effectiveness unreasonably or unlawfully to develop the professionalism of affect persons, associations or the Office by the exchange of agencies; ideas and knowledge with receive and determine whether Australian and International disclosures of improper conduct Ombudsmen and similar against public bodies and complaint handling bodies. officers, including municipal councillors and Members of STRATEGIES Parliament, under the Whistleblowers Protection Act Complaint Handling warrants investigation, then
receive, assess and enquire into either conduct or monitor such or investigate complaints investigation. concerning administrative enquire into complaints actions taken in Victorian received concerning non- Government Departments, compliance by designated Public Statutory Authorities agencies with the provisions of and by officers of municipal the Freedom of Information Act councils; and perform other functions
independently review Victoria under the Freedom of Information Act; Police internal investigations of complaints made by members audit Victoria Police of the public against police or performance of obligations by members of the Police Force imposed by the against other members of the Telecommunications Force and, where required by (Interceptions) (State
177 2001/2002 ANNUAL REPORT Administration, Organisation and Staff
Provisions) Act, and the assist in educating public Melbourne City Link Act; officers in methods of eliminating grounds for decide appeals made pursuant complaint; to the Witness Protection Act in respect to the decision of the provide appropriate reports to Chief Commissioner of Police Parliament on the work of the to terminate protection and office; assistance for a witness; promote improved investigate complaints flexibly communication between and, where appropriate, authorities and the public; informally; identify and advise agencies of encourage conciliation of deficiencies in legislation, complaints in appropriate policies and practices. circumstances;
provide an advisory service to Access potential complainants in promote public awareness of relation to procedures and the roles and functions of the alternative methods for Ombudsman; resolving their grievances; endeavour to ensure that use the services of external disadvantaged groups are aware consultants when appropriate. of the functions of the Ombudsman's office and are Accountability assisted in contacting the office; enhance the independence and credibility of the office by provide a 24-hour telephone providing an impartial, referral service in respect of professional, objective and urgent, emergency complaints high-quality service in a timely, of police actions; fair and sensitive manner; use services of interpreters and develop appropriate working translators as required; relationships with respondent authorities;
178 2001/2002 ANNUAL REPORT Administration, Organisation and Staff
provide a service which is adopt and maintain modern sensitive to the cultural technology and systems within background of individuals who the office; approach the Ombudsman. participate in local, national and international meetings of Effectiveness relevance to the office.
employ appropriately skilled
and experienced officers and
ensure training and professional
development for all staff;
OFFICE STATUTORY / FUNCTIONAL ORGANISATION
Details as at 30 June 2002
Ombudsman
Deputy Ombudsman - Police Complaints
Ombudsman Act Police Regulation Act
General Police Jurisdiction Complaints Jurisdiction
Whistleblowers Protection Act
Witnesses Protection Freedom of Information Act Act Telecommunications (Interception) (State Provisions) Act
Melbourne City Link Act
179 2001/2002 ANNUAL REPORT Administration, Organisation and Staff
STAFF
The Ombudsman is the Chief Administrator of the Ombudsman's office. The Ombudsman reports directly to the Victorian Parliament.
Apart from the Ombudsman, all staff of the Ombudsman's office are employed subject to the Public Sector Management Act and the Regulations and Determinations made under that Act.
Organisation of Office Personnel as at 30 June 2002
Ombudsman Ombudsman
Deputy Ombudsman - Police Complaints [vacant]
Senior Assistant Senior Assistant Ombudsman Ombudsman [Police Complaints] [General Complaints]
Assistant Ombudsman [3 positions]
Community Administration Access/Youth Investigation Services Liaison Officer Officers
180 2001/2002 ANNUAL REPORT Administration, Organisation and Staff
Staff Profile as at 30 June 2002
Male Change Female Change from from previous previous year year
INVESTIGATION OFFICERS
Senior Assistant Ombudsman 2 0 0 Nil
Assistant Ombudsman 2 +1 1 Nil
Investigation Officer## 7 -1 4 +3
COMMUNITY ACCESS / YOUTH LIAISON
Community Access/Youth 0 +1 1 +1
Liaison Officer
ADMINISTRATION / SUPPORT
2 -1 4 0
Note ## - In addition, persons maybe selected from a panel of skilled investigation officers to be employed on a casual “as required” basis to undertake particular tasks or investigations.
follows established Victorian Public Internal Management Service guidelines for recruitment Issues purposes.
All recruitment of the office of the Both Investigation and Ombudsman is subject to the Administrative staff are encouraged principles of merit and equity. to undertake appropriate training and
attend relevant seminars and The office seeks to recruit staff with conferences, which will enhance appropriate professional and their skills and/or professional occupational backgrounds and knowledge.
181 2001/2002 ANNUAL REPORT Administration, Organisation and Staff
One personal grievance lodged require a visit to the designated area during the year was ultimately to interview witnesses or conduct dismissed by the Australian inspections. When visits to a Industrial Relations Commission. country region are necessary, the Actions were taken during the year opportunity is usually taken to also to remind staff of their arrange for my staff to visit country responsibilities under the Victorian prisons in the locality of the region Public Sector Code of Conduct. to be visited.
OUTREACH During the year, 21 country services programs were completed. Country Services Program Information Stand – Country Shows and Field This is a program that has been Days specifically developed for residents of Country Victoria. The purpose is The sole aim of placing an simply to provide similar information facility at country shows accessibility to the Ombudsman’s and field days is to promote the office to that which is available to existence of the office of the members of the public in Ombudsman to residents of country metropolitan areas. Victoria and attempt to publicise the services that are available through Advertisements are placed in local the office. country newspapers for a selected region, advertising the availability of During 2001/02, office staff one of my officers to discuss any participated in country shows or field concerns that residents may have days at Hamilton (September), with issues relating to Government Elmore (October), Wonthaggi administration. (January) and East Gippsland (May). All of the venues proved to be very The majority of enquiries can be popular and achieved the aim of dealt with at the time of the call. publicising the existence and However, there are times when services of the office to residents of matters raised by a caller may Country Victoria. In addition, the
182 2001/2002 ANNUAL REPORT Administration, Organisation and Staff office participated in the Senior could be reasonably perceived, Citizens Week 2001 activities. between the personal interest of an officer and the independence and Community Activities impartiality essential to the work of the office, the officer having that Once again, during 2001/2002 a conflict is disqualified from playing number of meetings were addressed any role in relation to the complaint after hours, by staff of the office. to which the conflict relates. The meetings were with a broad range of organisations, including PUBLICATIONS Service Clubs and specific interest groups, including ethnic community Information leaflets on the services organisations. of the Ombudsman are available on
request. The topics discussed were wide- ranging and included the functions Multiple copies may be obtained by and work of the Victorian contacting the Manager, Ombudsman as well as issues Administrative Services, Level 22, associated with the implementation 459 Collins Street, Melbourne 3000. of the Whistleblowers Protection Act Tel: 9613 6222; Toll free: 1800 806 2001. 314; Fax: 9614 0246; Email: [email protected]. DECLARATION OF INTERESTS Further information can be obtained from the Ombudsman’s home page Members of investigation staff have http://www.ombudsman.vic.gov.au. lodged with me declarations of their pecuniary and other interests. I have lodged a corresponding declaration with the Department of Premier and Cabinet.
The practice at the Ombudsman's office is to ensure that, where there is an actual conflict, or a conflict which
183
184
FINANCIAL STATEMENTS
OFFICE OF THE OMBUDSMAN
Financial Statements
For The Year Ended 30 June 2002
185 OFFICE OF THE OMBUDSMAN
Statement of Financial Performance For the year ended 30 June 2002
2002 2001 Notes $ $
Revenue from Ordinary Activities
Grants 1(b),2 3,287,871 2,642,620 Resources Received Free of Charge 2 1,121 - 3,288,992 2,642,620
Expenses from Ordinary Activities
Employee Entitlements 3 2,203,937 1,930,882 Depreciation 3 92,005 121,084 Capital Asset Charge 1(i) 4,497 12,473 Supplies and Services 956,650 671,943
3,257,089 2,736,382
Net Result for the Reporting Period 3 31,903 (93,762)
Total Changes in Equity (other than those resulting from transactions with Victorian State Government in its capacity as owner) 31,903 (93,762)
The above Statement of Financial Performance should be read in conjunction with the accompanying notes.
186 OFFICE OF THE OMBUDSMAN
Statement of Financial Position As at 30 June 2002 2002 2001 Notes $ $
Current Assets
Cash on Hand 500 500 Funds Receivable from Government Departments 303,761 101,539 Prepayments - 17,173
Total Current Assets 304,261 119,212
Non-Current Assets
Computer Equipment, Furniture and Fittings 4 63,430 105,754
Total Non-Current Assets 63,430 105,754
Total Assets 367,691 224,966
Current Liabilities
Trade Creditors and Accruals 153,858 31,069 Provisions 5 211,184 255,558
Total Current Liabilities 365,042 286,627
Non-Current Liabilities
Provisions 5 670,231 637,824
Total Non-Current Liabilities 670,231 637,824
TOTAL LIABILITIES 1,035,273 924,451
NET LIABILITIES (667,582) (699,485)
Equity
Accumulated Deficit (667,582) (699,485)
Total Equity / (Deficit) 6 (667,582) (699,485)
The above Statement of Financial Position should be read in conjunction with the accompanying notes.
187 OFFICE OF THE OMBUDSMAN
Statement of Cash Flows For the year ended 30 June 2002
2002 2001 Notes $ $
Cash Flows from Operating Activities
Receipts from Government 3,085,648 2,543,313 Payments to Suppliers and Employees (3,031,470) (2,526,398) Capital Asset Charge (4,497) (12,473)
Net Cash Inflow from Operating Activities 13 49,681 4,442
Cash Flows from Investing Activities
Payments for Computer Equipment, Furniture and (49,681) (4,442) Fittings
Net Cash Outflow from Investing Activities (49,681) (4,442)
Net Increase In Cash Held - -
Cash at the Beginning of the Financial Year 500 500
CASH AT THE END OF THE FINANCIAL YEAR 500 500
The above Statement of Cash Flows should be read in conjunction with the accompanying notes.
188 Notes to the Financial Statements 30 June 2002
Note 1. Summary of Significant Accounting Policies
This general purpose financial report has been prepared in accordance with the Financial Management Act 1994, Australian Accounting Standards, Statements of Accounting Concepts and other authoritative pronouncements of the Australian Accounting Standards Board, and Urgent Issues Group Consensus Views.
It is prepared in accordance with the historical cost convention, except with respect to long service leave liabilities, which are measured at the present value of expected future payments. The accounting policies adopted, and the classification and presentation of items, are consistent with those of the previous year, except where a change is required to comply with an Australian Accounting Standard or Urgent Issues Group Consensus View, or an alternative accounting policy permitted by an Australian Accounting Standard is adopted to improve the relevance and reliability of the report. Where practicable, comparative amounts are presented and classified on a basis consistent with the current year.
(a) Reporting Entity
The Financial Statements include all controlled activities of the Office of the Ombudsman.
Administered Resources
The Office may administer, but not control, certain resources on behalf of the Victorian Government. It would be accountable for the transactions involving those administered resources, but would not have the discretion to deploy the resources for the achievement of the Office’s objectives. For these resources, the Office acts only on behalf of the Victorian Government.
Transactions and balances relating to such administered resources are not recognised as revenues, expenses, assets or liabilities within the body of the Financial Statements, but, where applicable, would be disclosed in a separate note. There were no administered transactions or balances for the financial years ended 30 June 2001 or 30 June 2002.
(b) Objectives and Funding
The Office of the Ombudsman handles complaints about administrative actions made against State Government agencies or Local Government officers, investigates or reviews complaints made against Victoria Police Force members, determines whether a disclosure of improper conduct under the Whistleblowers Protection Act warrants investigation, and ensures compliance by designated agencies with the provisions of the Freedom of Information Act.
It aims to improve the accountability of Government agencies to the public and the Parliament, promote fair and reasonable public administration and investigate complaints fairly.
189 Notes to the Financial Statements 30 June 2002
The Office is predominantly funded by accrual based Parliamentary appropriations for the provision of outputs. These appropriations are received by the Department of Premier and Cabinet and on-forwarded to the Office of the Ombudsman in the form of grants.
(c) Acquisition of Assets
The cost method of accounting is used for all acquisitions of assets. Cost is measured as the fair value of the assets given up or liabilities undertaken at the date of acquisition, plus incidental costs directly attributable to the acquisition.
Assets acquired at no cost, or for nominal consideration, are initially recognised at their fair value at the date of acquisition.
(d) Revenue Recognition
Revenue becomes controlled by the Office when it has been appropriated (to the Department of Premier and Cabinet) from the Consolidated Fund by the Victorian Parliament and applied to the purposes defined under the relevant appropriations Act.
Revenue from the outputs the Office provides to Government is recognised when those outputs have been delivered and the relevant Minister has certified delivery of those outputs in accordance with specified performance criteria.
(e) Depreciation of Non-Current Assets
Depreciation is calculated on a straight line basis to write off the net cost or revalued amount of each item of non-current assets over its expected useful life to the Office. Estimates of remaining useful lives for all such assets are reviewed at least annually. The expected useful lives are as follows:
Computer Equipment 3 years Office Equipment 4 years Furniture and Fittings 10 years
(f) Leased Non-Current Assets
Operating lease payments are charged to the Statement of Financial Performance in the periods in which they are incurred, as this represents the pattern of benefits derived from the leased assets.
The Office has no assets under finance lease at 30 June 2002.
(g) Trade and Other Creditors
These amounts represent liabilities for goods and services provided to the Office prior to the end of the financial year and which are unpaid. The amounts are unsecured and are usually paid within 30 days of recognition.
190 Notes to the Financial Statements 30 June 2002
(h) Employee Entitlements
(i) Wages and Salaries and Annual Leave Liabilities for wages and salaries and annual leave are recognised and are measured as the amount unpaid at the reporting date, at current pay rates, in respect of employees’ services up to that date.
(ii) Long Service Leave A liability for long service leave is recognised for all permanent staff and is measured as the present value of expected future payments to be made in respect of service provided by relevant employees up to the reporting date. When assessing expected future payments, consideration is given to expected future wage and salary levels, experience of employee departures and periods of service. Expected future payments are discounted using interest rates on national Government guaranteed securities with terms to maturity that match, as closely as possible, the estimated future cash outflows.
The following assumptions were adopted in measuring present value:
2002 2001 Weighted average rates of increase in annual employee entitlements to settlement of the liabilities 6.9% 5.7%
Weighted average discount rates 5.7% 5.8%
Weighted average terms to settlement of the liabilities 19 years 17 years
(iii) Superannuation The amount charged to the Statement of Financial Performance in respect of superannuation represents the contributions made by the Office in respect of current staff, as determined under various Superannuation Acts.
(i) Capital Asset Charge
The capital asset charge is imposed by the Department of Treasury and Finance and represents the opportunity cost of capital invested in the non-current physical assets used in the provision of outputs. The charge is calculated on the carrying amount of non-current physical assets.
(j) Resources Provided and Received Free of Charge
Contributions of resources and resources provided free of charge are recognised at their fair value. Contributions in the form of services are only recognised when a fair value can be reliably determined and the services would have been purchased if not donated.
(k) Going Concern Basis
The liabilities of the Office exceed its assets. Despite this, the going concern basis continues to be appropriate for these Financial Statements because the Office is
191 Notes to the Financial Statements 30 June 2002
ultimately part of the State Government of Victoria which guarantees payment of the Office’s debts as and when they fall due.
2002 2001 $ $ Note 2. Revenue
Revenue from Government
Grants from the Department of Premier and Cabinet (note 1(b)) 3,287,871 2,642,620 Resources Received Free of Charge 1,121 -
Total Revenue 3,288,992 2,642,620
Note 3. Result for the Reporting Period
The net result from ordinary activities includes the following specific net gains and expenses:
Expenses Employee Entitlements Salaries and Wages 1,741,451 1,528,948 Superannuation 145,080 134,238 Annual and Long Service Leave Expense 198,913 162,068 Other On-Costs 118,493 105,628 Total Employee Entitlements 2,203,937 1,930,882
Depreciation Computer Equipment 92,005 121,084
Rental Expense Relating to Operating Leases Minimum Lease Payments 355,355 227,502
Auditors’ Remuneration 4,500 4,500
Note 4. Computer Equipment, Furniture and Fittings
Computer Equipment – at Cost 478,223 444,836 Less: Accumulated Depreciation (432,488) (339,082) 45,735 105,754
Furniture and Fittings – at Cost 32,908 15,213
192 Notes to the Financial Statements 30 June 2002
Less: Accumulated Depreciation (15,213) (15,213) 17,695 -
63,430 105,754
RECONCILIATION OF MOVEMENTS
Computer Equipment Carrying Amount at Start of Year 105,754 222,396 Additions 31,986 4,442 Depreciation Expense (92,005) (121,084) Carrying Amount at End of Year 45,735 105,754
2002 2001 $ $
Furniture and Fittings Carrying Amount at Start of Year - - Additions 17,695 - Depreciation Expense - - Carrying Amount at End of Year 17,695 -
Note 5. Provisions
Current: Employee Entitlements - Annual Leave 131,102 153,975 - Long Service Leave 80,082 101,583 211,184 255,558 Non-Current: Employee Entitlements - Long Service Leave 670,231 637,824
Aggregate Carrying Amount of Provisions Current 211,184 255,558 Non-Current 670,231 637,824 881,415 893,382
193 Notes to the Financial Statements 30 June 2002
Note 6. Equity and Movements in Equity
Accumulated Deficit
Accumulated Deficit at the Beginning of the Financial Year (699,485) (605,723) Net Result for the Reporting Period 31,903 (93,762)
Accumulated Deficit at the End of the Financial Year (667,582) (699,485)
Note 7. Financial Instruments
(a) Off Balance Sheet Risk The Office is not exposed to any off balance sheet risk.
(b) Credit Risk Exposures The credit risk on financial assets of the Office which have been recognised in the statement of financial position is generally the carrying amount, net of any provisions for doubtful debts.
(c) Interest Rate Risk Exposures The Office is not exposed to any interest rate risk. There are no interest bearing assets or liabilities.
(d) Net Fair Value of Financial Assets and Liabilities
The net fair value of financial assets and financial liabilities of the Office approximates their carrying amounts.
The carrying amounts and net fair values of financial assets and liabilities at the reporting date are:
2002 2002 2001 2001 On Balance Sheet Financial Carrying Net Fair Carrying Net Fair Instruments Amount Value Amount Value $ $ $ $
Financial Assets Cash on Hand 500 500 500 500 Funds Receivable from Government 303,761 303,761 101,539 101,539 Departments 304,261 304,261 102,039 102,039 Financial Liabilities Trade Creditors and Accruals 153,858 153,858 31,069 31,069 153,858 153,858 31,069 31,069
None of the classes of financial assets and liabilities are readily traded on organised markets in
194 Notes to the Financial Statements 30 June 2002 standardised form.
Net fair value is exclusive of costs which would be incurred on realisation of an asset, and inclusive of costs which would be incurred on settlement of a liability.
Note 8. Ministers and Accountable Officers
In accordance with the Ministerial Directions issued by the Minister for Finance under the Financial Management Act 1994, the following disclosures are made regarding responsible persons for the reporting period.
Names
The persons who held the positions of Minister and Accountable Officer in the Office during the financial year were as follows:
Responsible Minister
The Hon Steve Bracks, MP, Premier
Accountable Officer
Barry Perry, Ombudsman
Remuneration
Remuneration received or receivable by the Accountable Officer, in connection with the management of the Office during the reporting period, was in the range:
$170,000 - $179,999 ($170,000 - $179,999 in 2001)
Amounts relating to Ministers are reported in the Financial Statements of the Department of Premier and Cabinet.
Other Transactions
Other related transactions and loans requiring disclosure under the Directions of the Minister for Finance have been considered and there are no matters to report.
Note 9. Remuneration of Executives
The numbers of executive officers, other than the Accountable Officer, whose total remuneration exceeded $100,000 during the reporting period, are shown in their relevant income bands in the first two columns of the table below. The base remuneration of these executive officers is shown in the third and fourth columns. Base remuneration is exclusive of bonus payments, long service leave payments, redundancy payments and retirement benefits.
195 Notes to the Financial Statements 30 June 2002
Total Remuneration Base Remuneration Income Band 2002 2001 2002 2001 No. No. No. No.
$110,000 - $119,999 2 1 2 1
Total Numbers 2 1 2 1 Total Amount $226,719 $110,859 $221,719 $110,859
Note 10. Contingent Liabilities
There are no contingent liabilities for the Office of the Ombudsman at 30 June 2002.
Note 11. Commitments for Expenditure 2002 2001 $ $ Operating Lease Commitments
Commitments for minimum lease payments in relation to non-cancellable operating leases, not recognised as liabilities, are payable as follows:
Within one year 376,656 275,713 Later than 1 year but not later than five years 1,644,476 1,282,792 Later than five years 28,344 361,122
2,049,476 1,919,627
Note 12. Superannuation
No liability is recognised in the statement of financial position for the Office’s share of the State’s unfunded superannuation liability. The State’s unfunded superannuation liability has been reflected in the financial statements of the Department of Treasury and Finance.
However, superannuation contributions for the reporting period are included as part of salaries and associated costs in the statement of financial performance of the Office.
The name and details of the major employee superannuation funds and contributions made by the Office are as follows:
196 Notes to the Financial Statements 30 June 2002
Fund Contributions for the Contributions for the Year Year 2002 2001 $ $ Defined Benefit Funds Government Superannuation Office (GSO) 95,376 106,514 - Revised Scheme 23,670 19,794 - New Scheme Accumulation Funds VicSuper 55,624 32,370
Various Private Schemes 5,379 5,273
The Office of the Ombudsman does not have any contributions outstanding to the above Funds and there have been no loans made from the Funds.
The bases for contributions are determined by the various schemes.
The requirements of the Superannuation Industry (Supervision) Act 1993 are fully complied with.
Note 13. Reconciliation of Result from Ordinary Activities to Net Cash Inflow from Operating Activities
Result from Ordinary Activities 31,903 (93,762)
Depreciation 92,005 121,084 Change in Operating Assets and Liabilities (Increase)/Decrease in Prepayments 17,173 8,844 (Increase)/Decrease in Receivables (202,222) (99,307) Increase/(Decrease) in Trade Creditors and Accruals 122,789 (13,011) Increase/(Decrease) in Provisions (11,967) 80,594
Net Cash Inflow from Operating Activities 49,681 4,442
197 Notes to the Financial Statements 30 June 2002
Accountable Officer’s and Chief Financial Officer’s Declaration
We certify that the attached Financial Statements for the Office of the Ombudsman have been prepared in accordance with Part 9 of the Directions of the Minister for Finance under the Financial Management Act 1994, applicable Australian Accounting Standards and other mandatory professional reporting requirements.
We further state that, in our opinion, the information set out in the Statement of Financial Performance, Statement of Financial Position, Statement of Cash Flows and Notes to the Financial Statements, presents fairly the financial transactions during the year ended 30 June 2002 and financial position of the Office as at 30 June 2002.
We are not aware of any circumstance which would render any particulars included in the Financial Statements to be misleading or inaccurate.
198