Ombudsman Victoria Annual Report 06 Ordered to be printed Victorian government printer Session 2003 – 2006 P.P. no. 226 3
Letter to the Legislative Council and the Legislative Assembly
To
The Honourable the President of the Legislative Council and
The Honourable the Speaker of the Legislative Assembly
Pursuant to section 25 of the Ombudsman Act 1973 and section 102 of the Whistleblowers Protection Act 2001, I present to the Parliament the annual report of Ombudsman Victoria for 2005-06.
Yours sincerely
G E Brouwer OMBUDSMAN 5
Mission Independently investigate, review and resolve complaints concerning administrative actions of state government departments, local councils and statutory authorities; to report investigate the results to complainants and agencies; to report to Parliament; to improve accountability; and to promote fair and reasonable review public administration. resolve 7
Contents Year in review 9 Complaints by prison and daily 40 Whistleblowers 61 Strategic priorities 92 Complaints 11 average number of prisoner Statistics 61 Organisation 93 Own motion investigation 12 held in each prison in 2005-06 Detrimental action 62 Organisational change 93 Not an advocate 12 Access of prisoners to the 41 Complaints 63 Staffing 93 Whistleblowers Protection Act 2001 12 Ombudsman Difficulties encountered 63 Staffing trends 94 Good Practice Guide 13 Action on prisoner complaints 41 Use of powers 64 Staff profile as at 94 New jurisdictions 13 Major investigations during the year 42 Academic work 64 30 June 2006 Conflict of interest study 13 Investigation into drug 42 Coming year 64 Communications Unit 95 testing in prisons Future course 14 Case studies 65 Internal management 95 Investigation into conditions 42 Complaints statistics 14 Freedom of Information 67 and governance for persons in custody in Recruitment 95 Complaints received by agency 15 police cells and prisons Statistics 67 Complaints 17 Own motion investigation 67 Declaration of private 95 Investigation into the 43 interests Department of Human Services 19 handling, storage and Findings 68 Occupational health 95 Child protection 19 transfer of prisoner property Outcome of review 70 and safety Regional child protection 20 Areas of special interest 44 Case studies 71 Office-based 96 program Coming year 72 Opening exempt mail 44 environmental impacts Office of Housing 22 Transport Accident and WorkCover 75 Strip searches Internal reviews 96 Allegations of impropriety 22 Complaints 75 Use of high security and 44 Victorian Industry Juvenile justice centres 23 management units Raising awareness 76 Participation Policy Act 97 Disability Services 24 Access to health and 45 Case studies 76 Consultancies 97 Department of Education and Training 27 mental health services Coming year 78 Publications 97 Investigation into DET 27 for prisoners Outreach 81 Website 97 complaint-handling Smoking in prison cells 45 Access to the community 81 Performance table 2005-06 98 Registered training organisations 28 Death in custody 45 Outreach activities 82 Adoption of recommendations 102 Number of children 29 Case studies 46 International delegation visits 82 from Ombudsman Victoria undertaking study at a Other agencies Inspection functions 85 reports tabled in Parliament registered training Follow-up to the June 2005 own 49 Melbourne City Link 85 2005-06 organisation motion investigation into VicRoads Telecommunications interception 85 Legislation 103 Universities 30 registration practices RSPCA inspectors 86 Disclosure index 105 Local government 33 Improving responses to 50 Authorised officers 86 Financials 111 Significant investigations 33 allegations involving Inspection functions no longer 86 Whistleblowers Protection Act 2001– 137 Melbourne City Council 33 sexual assault with my office Ombudsman’s Guidelines and parking in Yarra Park State Trustees Limited 51 About Ombudsman Victoria 89 Freedom of Information 181 Investigation into parking 34 Investigation into the Victorian 52 About Ombudsman Victoria 91 infringement notices issued Taxi Directorate Index 187 Objectives and functions 91 by Melbourne City Council Other issues 55 Goals 91 Seasonal complaints 35 Telephone complaints 57 Complaint-handling 91 Case studies 36 Case studies 57 Corrections complaints 39 Access 91 Prison developments in 2005-06 39 Accountability 92 Prison population 39 Effectiveness 92 9 investigate Year in review review resolve 11
Year in review
This past year has been a busy one for my office as it contributed to the establishment of the Office of Police Integrity (OPI) and then commenced to disaggregate from its involvement with OPI. Early this coming year my office will move location to complete this process.
It has also been a year of significant contribution to improving public administration in my releasing four major public reports, two which address public sector wide issues. Complaints
Again I report on a significant increase in complaints within my jurisdiction, up 14 per cent compared to the previous year which was an increase of 15 per cent over the preceding year.
My office received 3,380 complaints and 11,587 telephone enquiries this year. Many of the accountability enquires were out of my jurisdiction and were referred to the relevant body or agency. year in Of the 3,515 complaints closed in 2005-06 the average time taken to close was 44.7 days with half closed within 23 days, an improvement on the previous year. access Of all files closed in 2005-2006 56.7 per cent were open for less than 30 days with a total of review 85 per cent of all files closed open for less than 90 days The complexity of complaints has also increased. My staff have been engaged in a greater level effectiveness of more complex investigations over the past year compared to previous years. This has been demonstrated by the number of own motion investigations and systemic reviews my office has completed over the past year.
In light of this trend, I conducted a review of my office, particularly focusing on structure, resources and processes, with a view to streamlining my operations as much as is possible. I will report on the outcomes in my next annual report. 13
Own motion investigations A further trend is the number of whistleblowers from within the Victorian public service at a senior level making PIDs. Some of these have led to significant findings. My office continues to focus on own motion and systemic reviews, with a view to improving public administration overall. When I believe that it is in the public interest to do so I report to As foreshadowed in my last report I intend to undertake a review of the operation of the Parliament on such issues. Whistleblowers Protection Act in the light of experience gained to date. My experience, together with public bodies that have been involved in responding to PIDs, will provide a Over the past year I made four such reports: basis for dealing with some of the difficulties encountered in the workings of the legislation. – June 2006—Review of the Freedom of Information Act Good Practice Guide
– April 2006—Investigation into parking infringement notices issued by Melbourne City Council In 2005 I began a project to assess individual departmental complaint-handling mechanisms – March 2006—Improving responses to allegations involving sexual assault against the Australian Standard. The first investigation was into complaint-handling by the Department of Education and Training (DET). In conjunction with this project, I decided to – December 2005—Investigation into the handling, storage and transfer of prisoner property in assist improvement in internal complaint-handling by providing a practical guide for all Victorian prisons government agencies.
I also conducted a number of other major investigations which, while not public reports, I launched the Good Practice Guide on 5 May 2006. It was developed in consultation with consumed significant resources and gained substantial improvements to agency practices. eight public sector agencies. Guidelines from Victorian agencies, other state Ombudsmen and the Australian Standard for complaint management were used in its development. Not an advocate The Ombudsmen Victoria (OV) guide is not protected by copyright and may be downloaded and customised to suit each agency. It may be found on the OV website. Increasingly I find I need to remind complainants that I am neither their advocate nor an apologist for the government agency complained about. My office is not a substitute for the courts or for New jurisdictions the Victorian Civil and Administrative Tribunal. Rather, my role is to independently investigate complaints about the administrative actions of departments and agencies. As an officer of My office has been given new jurisdictions during the year. Amendments to the Accident Parliament, I answer direct to Parliament for my actions. Compensation Act 1985 and Transport Accident Act 1986 extended my jurisdiction to include WorkCover agents and self-insurers. In December 2005 the Ombudsman Act was amended to There are times when I am not able to meet a complainant’s expectations. This is unfortunately a provide an audit function over inspectors under the Domestic (Feral and Nuisance Animals) Act. fact of life. Complainants may have unrealistic expectations. Not all complaints have achievable The Terrorism (Community Protection)(Amendment) Act 2005 gives me the power to receive and outcomes. However, I remain committed to the impartial and independent investigation of investigate complaints from persons detained under anti-terrorism legislation. I will also be government agencies’ actions. receiving an enhanced jurisdiction over private providers of child welfare services. Whistleblowers Protection Act 2001 Conflict of interest study
One clear trend for my office is the increasing number of determinations of public interest I plan to launch a joint project with Macquarie University to examine the nature and extent of disclosures (PIDs) under the Whistleblowers Protection Act 2001. While the total number of conflict of interest in the Victorian public service. As part of the study, complaints lodged with complaints received in 2005-06 was 82, up from 79 in 2004-05, complaints which I have my office over the past three years will be examined for incidences of alleged conflict of interest. determined as PIDs have increased by over 200 per cent. 15
Future course Complaints received by agency
My office continues to look at fresh ways to improve processes aimed at providing timely Agencies and authorities under the jurisdiction of the Department of Justice (DOJ) accounted complaint resolution. I will continue to work with public sector agencies to bring about fair for the largest percentage of complaints received by OV with 28 per cent, with local outcomes for complainants. I have been provided with some additional funds to replace the government accounting for 26 per cent of complaints. office complaints management system. This is a priority for my office in 2006-07. The Department of Human Services (DHS), Department of Infrastructure (DOI), Department of Complaints statistics Education and Training (DET) and Department of Sustainability and Environment (DSE) make up a further 33 per cent combined. Activity 2005-06 2004-05 2003-04 2002-03 2001-02 Complaint files raised The remaining 13 per cent is spread across the other public sector agencies and statutory authorities under my jurisdiction. General jurisdiction complaints 3,138 2,714 2,311 2,187 2,414 Complaints finalised 3,261 2,726 2,233 2,144 2,288 Freedom of information complaints Requests for Ombudsman files 4 12 2 8 9 Complaints about other agencies 156 169 179 199 156 Whistleblower complaints Complaint files raised 82 79 85 125 – Complaints finalised 94 62 107 121 – 17
Complaints This year my office conducted a number of complex investigations and resolved many less complex complaints through negotiation investigate with departmental representatives. review resolve 19
Department of Human Services
Child protection
In early 2007 I will assume new responsibilities for complaints about non-government agencies which deliver child protection services under contract with DHS. I am currently in discussions with government to ensure that I am adequately resourced to undertake this role.
I recognise that child protection is one of the most complex and demanding responsibilities of government. Significant investigations by this office are rarely released as public reports due to the sensitivity and confidentiality of individual cases. However such cases often raise systemic issues. One such case was the alleged abuse of an infant boy while in foster care.
DHS removed an infant and his sister from their parents in July 2003 because of concerns that the father had physically abused the daughter. Their removal followed a DHS investigation that accountabilitydepartment of was, in my opinion, well managed. The children were placed in foster care. The two children were placed with the foster carers for five months. The infant was subsequently admitted to hospital on three separate occasions, with increasingly serious accesshuman injuries. My investigation established gaps in child protection practice, deficiencies in DHS’s services supervision of its contract with the foster care agency and the assessment process followed by the agency to accredit the foster parents. effectiveness The Secretary accepted my recommendations for significant improvements to the administration of the child protection system. I recommended that any allegation of a child being abused while in the care of a community services organisation be reported to the Child Safety Commissioner. I also recommended that DHS should not renew its contracts with community service organisations unless it has considered a comprehensive report regarding the quality of the care it provides.
My concerns regarding DHS’s capacity to respond to allegations of abuse in care have led to the allocation of additional resources to that task. 21
I have been advised by the Secretary that since she received my recommendations the The department responded quickly to my concerns about individual cases identified by my government has announced $226 million in new funding for the child protection program. investigation and significant action was taken in several cases. The Secretary assured me that These additional resources should provide considerable assistance to DHS efforts to intervene a comprehensive strategy is being implemented to strengthen the child protection program earlier in cases of concern. in this region. I will liaise with DHS during the development of this strategy and monitor its implementation. Regional child protection program The following case my office investigated related to the inappropriate management of a I also investigated allegations about the performance of a rural region’s child protection complex case. program. I had received information from whistleblowers that many children were at increased risk as they did not have a case worker. Aboriginal heritage
During my investigation it was alleged that regional managers: In June 2005 I received separate complaints from the mother and father of a four-year-old boy with Aboriginal heritage. The boy’s parents complained that their son had been placed with – Failed to thoroughly investigate and intervene in cases where children are at risk another carer and they were being given limited access to him.
– Failed to follow established procedures and case practice standards The case was managed by the region in which the carer had links to staff members. A DHS manager identified the potential for allegations of bias to be made and recommended – Manipulated statistics to meet key performance indicator reporting targets that the case be transferred to a nearby region. A neighbouring region initially refused the – Excluded regional personnel from participating in an external review of child protection manager’s request for the case to be transferred. practice in the region. I found DHS delayed involving the Victorian Aboriginal Child Care Agency in the child’s care A DHS review had been conducted prior to my investigation which did not identify significant case despite his aboriginal heritage. I was also critical of DHS’s management of a conflict of interest practice weaknesses. in this case.
My officers interviewed 11 child protection supervisors about the service provided in the region DHS acknowledged that this case had not been handled well and agreed to review the child’s and spoke to other DHS staff who approached my office with concerns. Significant distrust of case plan. I was also advised that protocols involving Aboriginal and Torres Strait Island regional management was reported by a large number of staff in supervisory positions. children were under review and a policy on conflict of interest specific to child protection Experienced senior child protection staff stated that they lacked confidence in senior workers would be strengthened. management’s willingness to deal with their concerns about the quality of the service delivered by the region.
My officers also reviewed 34 cases concerning 57 children who were subject of notification to the region. In 26 cases involving 47 children the region may not have responded appropriately to children at risk. I noted high numbers of unallocated cases, including high-risk infants. A significant number of these cases were not receiving adequate intervention by child protection staff and I believe this may have left a number of children, including infants, in situations of serious risk. 23
Office of Housing Not properly assessed
Complaints against the Office of Housing (OoH) remain high. However, after being critical in my My office received information that applications for public housing to a metropolitan housing 2004 report I have noted the continuing development of the OoH’s internal complaint handling office had been approved without being properly assessed. The allegations were credible and processes. These processes now appear to be working well at head office level and I understand supporting evidence was provided. My officers met with senior regional OoH staff and an efforts are being made to implement change at local housing offices. agreement was reached about how the matter would be investigated. OoH engaged an external consultant and developed terms of reference based on advice from my office. The following case demonstrate how the OoH has responded proactively. I initially received information that 11 applications for public housing were approved outside Reimbursement of funds the usual approval processes. The consultant confirmed that information and identified a further 11 applications that had also been approved outside the usual processes. The complainant lives with her daughter, who is a registered client of Intellectual Disability Services. OoH has provided my office with weekly reports on this investigation as it continues to unfold and as the issues are addressed. I will continue to monitor its progress. The complainant was concerned about a seven month delay in processing her daughter’s claim for reimbursement of funds for respite care. She estimated that the OoH owed her daughter in excess of $200. Juvenile justice centres During the year, OV officers visited all juvenile justice centres across the state. Some young To assist the complainant my office referred her complaint to OoH’s Complaints Unit and asked people in custody also contacted my office either in writing or by telephone. for a report on the outcome. The Housing Appeals Office arranged for the claim to be assessed as a matter of priority, resulting in the complainant’s daughter receiving a reimbursement of I also reviewed the complaint and grievance procedures at Malmsbury Juvenile Justice Centre, $276.30. including meeting with detainees. I found this process useful. Many detainees were able to suggest an appropriate method to make a complaint. Several detainees reported they resolved problems through the complaint process. Detainees said they felt safe in the centre and few Allegations of impropriety reported having experienced bullying or intimidation.
I have also observed the OoH’s improved capacity to respond to allegations of serious The grievance process for staff also appeared to be operating reasonably effectively although maladministration or misconduct by its officers. In the following case it was apparent that the timeliness of action to resolve grievances could be improved. The centre’s manager departmental officers had not ensured applicants were eligible for public housing before undertook to address this issue. approving their application. Senior OoH and regional personnel cooperated with my staff to investigate the matter. 25
Disability Services
During the year my office received an increasing number of complaints regarding Disability Services. The following complaint demonstrates significant deficiencies in the handling of one such complaint by both the funded agency concerned and DHS.
Fully-funded training
A parent lodged a complaint on behalf of his intellectually disabled son about fees charged for services provided to his son. The Adult Training and Support Service (ATSS) requested his son pay fees in addition to the funding provided by DHS. The complainant had previously lodged an appeal with DHS and a review panel found the complainant’s son, a pensioner, had the capacity to pay the increased fees and therefore should.
I found the ATSS had charged fees for attendance at a program described as fully-funded by DHS. The service did not adequately explain the need to charge fees or the authority to impose them. The ATSS imposed these fees at a time when its budget was operating in surplus.
I also concluded that DHS’s poor definition of key concepts, such as what constitutes a ‘basic service’ or a ‘capacity to pay’, contributed to the dispute. The complainant has pursued the issue for four years before DHS reached a final position on the matter. I recommended DHS require the ATSS to reimburse the fees it has charged and DHS apologise to the complainant for its handling of the matter. I also recommended DHS define the terms basic services and capacity to pay.
My investigation also found that the ATSS had considered making an application to VCAT for an administrator to be appointed to manage the intellectually disabled person’s affairs if the investigate outstanding fees remained unpaid. I considered that this was inappropriate and recommended DHS enquire into the ATSS’s use of the Guardianship and Administration Act 1986 in this context.
DHS agreed to implement most of my recommendations however advised that it was not able to enforce my recommendation that the fees be refunded as the ATSS was a private provider. review I will review DHS’s implementation of these recommendations in the coming year. resolve 27
Department of Education and Training
In my last annual report I expressed concern about the handling of complaints by DET. Investigations by my office continue to identify poor complaint-handling by the department. The following case illustrates this.
Delay in attending school
A six-year-old boy was suspended and then expelled from his primary school. Due to his behaviour, the child had been attending school part-time prior to his expulsion. His father appealed to the regional director about his son’s expulsion. He contacted my office after DET upheld the original decision.
My officers interviewed the child’s father and several DET staff, and examined relevant accountability documents and policy. department of I found there was a delay of 11 weeks between the child being suspended, expelled and commencing at his new school. This was unacceptable as the child had no schooling during this period. I also found that DET did not follow its internal guidelines for the appeal process. accesseducation During my investigation DET found the child a new school. and training I recommended DET apologise to the child’s father and ensure his son was provided with a full time educational program, including any additional tuition or specialist resources he needs. I also asked DET to review its policies regarding part-time school attendance. DET accepted all effectiveness my recommendations.
In accepting the recommendations of the Ombudsman, the department has revised its policy regarding part-time attendance and intends to distribute information shortly to schools and principals reminding them of their obligations in relation to section 53 of the Education Act 1958. A written apology was provided to the child's father by the regional office. The regional director has also had a face to face meeting with the father to discuss the matter. Investigation into DET complaint-handling
Last year I reported I was reviewing DET’s complaint-handling processes against the relevant Australian Standard 4269-1995. The Australian Standard 4269-1995 contains 13 essential elements for managing complaints and disputes. These are commitment, fairness, resources, visibility, access, assistance, responsiveness, charges, remedies, data collection, systemic and recurring problems, accountability and reviews. 29
My investigation of the department’s management of complaint-handling in schools and Based on 2004 data from the Office of Training and Tertiary Education, approximately 700 regional offices concluded that DET only met three of the 13 elements contained in the children aged under 15 years and 23,000 15 to 17-year-olds participate in government funded standard. Vocational Education and Training (VET) each year. Government-funded school-based apprentices are included in these figures. These figures do not include all children involved in DET’s complaint-handling in schools and regional offices only partially met six elements and VET as a large number are trained on a fee-for-service basis. did not meet four. The most problematic aspects of DET’s complaint-handling practices were its lack of ability to assess against the Australian Standards its responsiveness, collection of data Number of children undertaking study at a registered training organisation regarding complaints, identifying and responding to recurring problems and ensuring the accountability of staff handling complaints. Organisation 15-17 year olds Under 15 year olds
I recommended that DET implement centralised and consistent performance measures for Training and Further Education 15,273 293 complaint-handling across schools and regional offices. This would encourage feedback and Institutions (TAFE) enable continuous improvement across all schools and regional offices.
DET responded that action was being taken to provide better complaints information to the Private Registered Training Organisations (RTO) 4,607 157 public. Other measures such as better training of staff and strengthened data collection mechanisms would also be implemented. DET also responded that with the exception of Adult and Community Education Centres (ACE) 3,222 219 serious complaints, central responsibility for complaint-handling performance, reporting and collating data was contrary to the government’s commitment to self-managing schools. In the case brought to my attention, it was alleged that a teenage boy was sexually assaulted I do not consider that my recommendations or the Australian Standards are in conflict with by a trainer while at a registered training organisation. I understand the child was attending the government’s commitment to those principles. Most complaints are handled locally with the RTO during school hours, while enrolled as a student at a school. While the police could not a minimum of formality and this should continue. The role of DET should be to assess the substantiate the assault, the complaint raised a number of issues. performance of schools and its own regional offices and intervene where performance is The particular registered training organisation caters for children from a very young age. unsatisfactory. I will continue to address the issues with DET over the coming year. It also takes children from interstate. This creates an environment where children are Registered training organisations potentially vulnerable. My investigation identified the staff in the RTO were not subject to mandatory reporting Following a complaint to my office, I identified a significant issue about how registered training obligations or the usual checks on teachers. I recommended that DET develop a memorandum organisations protect children from harm. The Victorian Qualifications Authority (VQA) registers of understanding to ensure a registered teacher monitors the well-being and safety of students such organisations to provide courses normally undertaken in, or designed to be undertaken in, attending the RTO. This proposal was agreed to. the post-compulsory years. Where the course is a Vocational Education and Training (VET) course, the VQA uses the Australian Quality Training Framework standard for registration. 31
Universities
I reported last year on my conduct of a review of complaint-handling by Victorian universities. I am currently reviewing the implementation of the recommendations of that report and will provide an update in my next annual report.
Many complaints against universities can be resolved informally. However I have investigated a small number of cases involving allegations of serious misconduct.
Fabricated results
A teacher at a university alleged a staff member had fabricated student results. I determined the matter was a public interest disclosure under the Whistleblowers Protection Act 2001 and conducted an investigation.
I received sworn evidence from a teacher at the university that staff had been involved in the alleged practices. The university’s records were inspected but were not useful as they did not provide a complete record of student attendance and assessment.
I referred the disclosure to the university for further investigation as I considered the university was best placed to examine the conduct of its officers. I also suggested the university review its record- keeping practices. The university confirmed it is conducting further investigations into this matter and giving consideration to the systemic issues identified. I will monitor the university’s investigation. investigate review resolve 33
Local government
Local government enquiries and investigations cover a broad range of administrative actions from processes about infringement notices and permits to assessing vehicle registration practices. It is one of the two largest areas I received complaints from this year. Significant investigations
I conducted two major investigations into the City of Melbourne parking operations during the year. One investigation was reported to Parliament in March. Both investigations highlighted poor administrative and management practices for processing infringement notices by the council. The City of Melbourne has instigated several changes in its processes as a result of my investigations. Melbourne City Council and parking in Yarra Park accountability A woman complained she received a parking infringement notice (PIN) for parking on a council- owned reserve which she believed was a free parking area while attending an event at Rod Laver local Arena on the weekend. She explained that many other motorists had similarly been issued a PIN for parking on the reserve. I also received the same complaint from another motorist. accessgovernment Under Melbourne City Council laws it is illegal to park on a reserve without the appropriate authority. The council initially decided not to withdraw any PINs because it considered they had been issued correctly.
effectiveness From evidence I obtained it is clear that people were able to drive their vehicles on to the reserve because two bollards had been removed from an entry provided for maintenance vehicles. The council issued 159 PINs on the first day. The following week the bollards had still not been replaced and motorists again entered the reserve. The council issued a further 193 PINs.
Most of the fined motorists complained to the council about the unreasonableness of the PINs being issued, even though an offence had been committed. Thirty-one motorists said they had been directed into the park by police officers and parking attendants at a nearby parking area.
The council claimed that it issued the PINs in order to prevent damage to the park but I noted it had taken no action to prevent further damage after the initial reports.
I considered the council acted unreasonably in that it failed to prevent motorists gaining access to park on the reserve and the council agreed to my recommendation to withdraw all outstanding PINs and refund all monies. As a result of this investigation new processes have been implemented by the council. 35
Investigation into parking infringement notices issued by Melbourne The council accepted my recommendations and confirmed it would undertake a City Council comprehensive review of all branch business processes and systems.
In February 2005 I began an investigation into allegations that Melbourne City Council, on behalf I also recommended that the Docklands Authority refund the $50 PINs incorrectly issued of the VicUrban Development Authority, was improperly issuing PINs in the Docklands area. between May and October 2002. The allegations concerned the management of traffic and parking services and public funds. Seasonal complaints My investigation into council services to the authority in the Docklands covered the Some local government complaints, such as rates, property valuations and fire hazard removal, authorisation of parking officers and prosecutors penalties attached to the PINs issued, are made at regular times of the year. administration of PINs and the enforcement process for PINs. Rate collection is regulated by the Local Government Act 1989 and interest may be added to I found that a large number of PINs were incorrectly issued; PIN processes required review to rates not paid by the due date. If the lump sum payment is not made by the due date in mid ensure they complied with the law; and some PINs were incorrectly registered with the PERIN February, interest is calculated from 1 July or the date that the rates were declared, whichever is Court. I also found there were serious issues about the management and structure of the the later to the date that the lump sum of rates are paid in full. Many ratepayers are not aware council’s Traffic and Parking Branch. of the regulations related to this process and complain to me during February and March when In April 2006 I tabled my report of the investigation in parliament. A full copy may be found on the council advises them of the interest added to their rate charges. my website at www.ombudsman.vic.gov.au. Property valuations are similarly subject to regulations that require any objection to the value I made the following recommendations to the council. set by a council be made within two months of the date of the rate notice. Councils are obliged under the Act and regulations to disclose in the notice of rates and charges the ratepayer’s – Refund the 146 PINs and associated court costs paid by motorists issued with PINs in the rights to object to a rate or charge or valuation. I receive complaints during the latter part of Docklands that were incorrectly registered with the PERIN Court each year from ratepayers who would have liked to have objected to a property valuation, but have been advised by their council that the time for receipt of objections has passed. – Refund the 287 PIN fines collected as a result of PINs being incorrectly issued for an offence under the Crown Lands (Reserves) Act in the Docklands I also receive complaints each summer from ratepayers who receive infringement notices and charges from councils for failing to keep their properties clear of fire hazards. Some acknowledge – Review its PIN processes to ensure they comply with the law they received a warning from their council at the start of the fire risk season, but complain they – Review the management, structure and reporting lines of the parking branch in light of my did not receive subsequent warnings before the council took enforcement action. report and the independent consultant’s report Many who complain are concerned when their council arranges for the fire risk on their – Ensure the correct and lawful processes are in place its dealing with the Docklands Authority, property to be cleared by a commercial contractor. The complaint is often because the council especially relating to the issue of PINs charges the property owner a price higher than the actual cost charged by the commercial contractor. Usually the issues in such matters are straight forward and resolved by explaining – Develop an appropriate debt recovery strategy based on legal advice. the relevant regulations.
I can investigate the actions of local government staff, but not elected councillors. However, if I receive a complaint under the Whistleblowers Protection Act 2001 I am able to investigate decisions and actions of the elected councillors. 37
Case studies A costly error
Fire hazard A man complained to Civic Compliance Victoria that he received 33 parking infringement notices issued in error. He lodged a complaint with me because Civic Compliance Victoria had A woman complained that her council had acted unfairly in issuing a fire hazard infringement not responded to his appeal, and he had incurred significant legal costs. notice. She considered the council had not clearly stated the requirements for clearing the land. She also believed the council should not have issued the notice when it was clear she had DOJ acknowledged that Civic Compliance Victoria made an error in issuing the infringement attempted to address the problem. notices but did not acknowledge liability. On my request DOJ reconsidered this matter and Civic Compliance Victoria provided compensation to the complainant to cover his legal costs. I found the infringement notice had been issued correctly and the complainant had been given ample time to clear her property. I considered it reasonable that a council act promptly on Misleading information issues of safety that involve the wider community. A motorist complained that a PIN had been wrongly issued and there was misleading Shared wall information on the notice on how the penalty could be paid.
A woman complained that the building department at her local council was not responding to The complainant believed the wording could be understood to mean the motorist did not have her complaint and victimising her. The department had placed a building order on her property to respond to the notice if he took the option of taking the matter to court. I agreed with his relating to the instability of a shared wall between her property and her neighbour’s. interpretation. The council had no means of knowing if the notice had simply been ignored by the motorist or if the motorist was opting to await court action. The complainant alleged she had been in discussions with the building department for many years. During this time no satisfactory outcome had been reached with the council nor had the I contacted the council which advised it had changed the wording on its PINs. The revised council presented any options for resolving the complaint. wording provided clear information about the action the motorist could take. The council also accepted the complainant had misunderstood what was required and in recognition of that My office wrote to the complainant explaining that the council’s building department was error withdrew the PIN. following proper procedure and acting within its powers. I also advised that the council had given a reasonable explanation to the complainant. Despite this, the complainant was still vigorously pursuing her complaint.
To break the stalemate my office organised a meeting for both parties. The result was that the complainant and the council both clarified the issue and agreed on how to progress. The complainant understood the process and was made aware of her options.
I generally do not investigate complaints where there is a right of review by a court unless I do not believe it would be reasonable to expect the person to take that action or it is required to avoid an injustice. Infringement notices issued for parking, red light cameras and ticket offences for public transport usually do not meet these criteria.
The reasons for this are twofold. Firstly, I do not have determination powers—courts do. Secondly, where there are differing versions of what took place, the courts are the best way of resolving where the truth is. 39
Corrections complaints
My office received a large number of complaints from prisoners and their families about the administrative actions of Corrections Victoria and both public and private prisons throughout the year. Prison developments in 2005-06
Bendigo Prison closed in December 2005. Two new prisons opened in the first half of 2006. The first prisoner intake at the new Marngoneet Correctional Centre in Lara began in March 2006. This medium security prison has an operational capacity of 300 beds for sentenced male prisoners and provides treatment programs for drug and alcohol as well as other programs for prisoners.
The Metropolitan Remand Centre in Ravenhall began taking prisoners in May 2006 and is accountability expected to impact on both the high number of persons held in police cells and the placement corrections of remand prisoners in the Melbourne Assessment Prison and Port Phillip Prison. complaints Prison population access There were 3,638 prisoners—232 women and 3,406 men—held in Victorian prisons in April 2006, up by 84 from last year. In 2005 almost half of the male prisoners were held in two private prisons—Port Phillip Prison run by GSL Corrections Services and Fulham Correctional effectiveness Centre run by GEO. In 2006 with the opening of the new public prisons—Metropolitan Remand Centre with 600 beds and Marngoneet Correctional Centre with 300 beds—the proportion of prisoners held in private prisons is likely to be lower. 41
Complaints by prison and daily average number of prisoners held in Access of prisoners to the Ombudsman each prison in 2005-06 It is important that prisoners have good access to my office. My office is the only oversighting Male prisons No. complaints Daily prisoner average organisation that has a right of entry into prisons to investigate complaints. Maximum security Most complaints I received were in writing or made during visits to prisons by my staff. During 2005-06 all prisons were visited at least twice, with the larger prisons visited three or more Port Phillip (private) 123 738 times. The regular visits allowed prisoners to directly speak with my officers about specific Barwon 62 395 complaints, many of which are resolved on the spot. The visits also provided an opportunity Melbourne Assessment Prison 39 264 to inspect and audit areas of particular concern. Communication between prisoners and Ombudsman staff is confidential and exempt from censorship by the prison authorities. Medium security Each prison is required to have internal complaint procedures for prisoners and I intend to Loddon 27 391 examine these more closely. In addition, the Corrections Inspectorate, a unit within DOJ, monitors Fulham (private) 60 786 the performance of prisons and their compliance with procedures and standards. This unit also conducts ‘Healthy Prison’ reviews and investigates major incidents in prison. I have advised DOJ Ararat 40 372 that I will be reviewing the role and functions of the Inspectorate this coming year. Minimum security Dhurringile 8 155 Action on prisoner complaints Beechworth 7 109 A major focus over the past year has been to ensure conditions for persons in custody are humane and meet duty of care obligations, that prisoners are treated fairly and their human Langi Kal Kal 3 100 rights are protected. Female prisons When a prisoner complains to me, my staff make an initial assessment. Some complaints are Maximum security referred to other agencies for action because they are outside my jurisdiction. For example, Dame Phyllis Frost Centre 38 200 prisoner complaints about the quality of medical treatment are generally referred to the Health Services Commissioner and complaints about parole decisions are referred to the Adult Parole Minimum security Board. After acknowledging receipt of the complaint, the officer makes enquiries to the Tarrengower Prison 3 37 appropriate prison or Corrections Victoria and requests a response within a specified time. Upon receipt of the response, the officer will assess whether the prison has acted within The total number of complaints relating to DOJ was 878. Of these 410 were received directly standards and procedures and, where required, ensure concerns are rectified. from individual prisons. A further 190 related to Corrections Victoria and 39 were about correctional matters such as prison transport, the Adult Parole Board and Community Corrections. A total of 43 complaints related to the Melbourne Custody Centre. The remaining 196 complaints related to other agencies. 43
It is important to ensure prisoners and their families know they can turn to the Ombudsman My officers examined policies and procedures for the care and responsibility of persons in when they have problems with prison administrative actions. It is equally important for prison custody by Victoria Police relating to police cells and Corrections Victoria relating to prisons. officers and prison management to be aware of my functions and powers. Information sessions They also inspected specific conditions and access to basic services and amenities for persons are also held by my investigators for new prison officers and as part of ongoing training. held in custodial facilities.
My office also keeps up to date with new developments—changes in legislation and policy, I found that in police cells there was overcrowding, long stays for some detainees due to new or changed operating procedures and regulations and trends in prisoner population. ineffective transfer arrangements into the prison system, concerns about duty of care procedures, contractual obligations were not satisfactorily met and I identified many I am not satisfied with the current telephone access by prisoners to my office. While the instances of a lack of access to basic amenities for detainees. general public can use a toll free 1800 number to call my office, no such service exists for prisoners. I believe that needs to be changed to bring Victorian prisons in line with most other Concerns about conditions in prisons included inadequate access to health services, in Australian jurisdictions. Following my discussions with Corrections Victoria, a toll free number particular mental health services, and obstacles to access for many basic amenities for for prisoners will be available from July 2006. prisoners. A number of recommendations were made to Victoria Police and Corrections Victoria. My report will be released in the next reporting year. Major investigations during the year Investigation into the handling, storage and transfer of prisoner property As Ombudsman I can, in addition to dealing with individual complaints, use my own motion powers to investigate concerns which come to my attention. In December 2005 I released a report on the way prisons handle prisoners’ property. Complaints about prisoner property have been a major source of complaint to my office. There appeared to Three systemic reviews were conducted during the reporting year using my own motion be significant systemic issues underlying these complaints. As part of my investigation all public powers. and private prisons were visited by my officers who examined property handling and storage Investigation into drug testing in prisons procedures across the prison system. Over 100 interviews were conducted with staff and prisoners. Policies and standard operating procedures were reviewed and property storage I was concerned about the number of complaints from prisoners regarding the accuracy of drug arrangements inspected. Procedures at an interstate prison were also examined for comparison. testing. A positive test can result in sanctions being imposed under the Victorian Prisons Drugs The investigation found the computer system at the heart of the prisoner property Strategy 2002. My investigation found there were inaccurate verifications and administrative management system was not used effectively. One of the main failings was inaccurate or errors by the private health provider in reviewing and assessing medical documentation incomplete recording of property on the database. Lack of training and support for staff using relating to prescribed medication. There were also weaknesses in the collection, storage, the database also led to less than optimal use of the computer system. While the database was transport and interpretation of urine test results which may have contributed to incorrect fully operational and networked across the public prisons, private prisons did not have direct findings. In my December 2005 report I recommended improvements to the drug testing access to the network. This led to problems with the transfer of property information when procedures. prisoners were transferred between public and private prisons.
Investigation into conditions for persons in custody in police cells and prisons A further concern was that the storage systems for prisoner valuables were inadequate and During this year the conditions for persons held in custody in police cells and in prisons were included the use of filing cabinets rather than secure containers. The investigation revealed also subject of an own motion investigation undertaken jointly with the Office of Police systemic problems in all aspects of handling, storing and transferring prisoner property. Integrity. The investigation included visits to all major prisons and a large number of police watch-houses across Victoria. 45
I recommended the inadequacies in the administration of prisoner property across prisons be Use of high security and management units addressed including: A number of high profile prisoners and some prisoners who exhibit violent or disruptive behaviour are held in management and protection units. The restricted regime in these units – All Victorian prisons should have access to a fully integrated computer program to enable included physical separation, limited movement within the prison and reduced access to prison property to be effectively and efficiently managed amenities and visitors. Conditions in these units are inspected when my officers visit prisons. – Consistent policies on cell clearances, cell searches, property compensation, property storage, Access to health and mental health services for prisoners transport, and property handling should be developed and promulgated for all prisons One of the major challenges in prison is to ensure the safety and wellbeing of its inmates, – Property officers should directly enter and accurately record property data on to a computer including access to reasonable medical care and treatment. While I usually refer complaints database program about the provision of health services to the Health Services Commissioner, I still handled a number relating to inadequate access to these services. In particular I am concerned that – All property officers should receive appropriate training in the new E*Justice system prisoner access to mental health services is insufficient. I am reviewing this issue as part of my own motion investigation into conditions in custody. – A storage limit for property should be established and managed by Corrections Victoria Smoking in prison cells – Property lists should be provided to prisoners on entry to a prison On 1 March 2006, the Tobacco (Amendment) Act 2005 introduced new non-smoking laws in – Sealed and individually identifiable plastic property tubs should be introduced Victorian public places. Exemptions allow smoking to occur in prison cells and exercise yards. I have since been made aware that on 8 April 2004 a smoke-free environment was introduced for – Uniform storage systems should be developed for valuables across all Victorian prisons. all public prisons with progressive implementation and enforcement. Prisoners are being fined at some locations under the Corrections Act 1986 and not under the Tobacco (Amendment) Act 2005. DOJ accepted all my recommendations and has commenced to implement them. I will continue to closely monitor the impact of the various measures taken to reduce prisoner complaints Deaths in custody about their property. Although the number of deaths in custody in Victoria remains below the national average, I intend to closely monitor the coronial investigation and related enquiries to ensure that proper administrative Areas of special interest processes are followed and any recommendations made are effectively implemented. I have asked Opening exempt mail Corrections Victoria to promptly inform my office of any suspicious deaths occurring in prisons. I continue to be concerned about prisoner complaints about the opening of exempt mail under the Corrections Act. This includes not just mail to and from my office but also mail from the Commissioner of Corrections Victoria and to and from legal practitioners. It is clear more attention is needed to ensure proper labelling of envelopes for exempt mail occurs and that compliance with the legislation is actively monitored. Strip searches A number of complaints have come to my attention about the way strip searches of visitors and prisoners are conducted in some prisons. While I acknowledge the need for thorough searches for security and safety, proper procedures must be followed—in particular when women and children are involved. 47
Case studies
Prisoner transport—duty of care
Concerns about duty of care arose from a number of complaints when prisoners were being transported for long periods without toilet stops, food and water. A prisoner complained that he attended regular medical appointments in Melbourne but due to a medical condition could not climb into the escort van. Approaches by the prisoner to officers at Port Phillip Prison failed to resolve the matter.
Enquiries conducted by my officers resulted in a portable step being built to assist the prisoner to step into the van. In the interim, a sedan vehicle was used to transport the prisoner. In April 2006 Corrections Victoria gave instructions to improve this situation.
Prisoner placement
A prisoner wrote that he wished to be held at Langi Kal Kal Prison to be closer to his family at Geelong. The prisoner was held at Dhurringile Prison in the state’s north. Corrections Victoria rejected the prisoner’s application as Langi Kal Kal was predominately used as a prison for protection prisoners. Following my enquiries Corrections Victoria reconsidered the application and decided that to be held at a prison that allowed visits from family members would be better for the prisoner’s rehabilitation. The prisoner was transferred to Langi Kal Kal. investigate review resolve 49
Other Agencies
Follow-up to the June 2005 own motion investigation into VicRoads registration practices
During 2004-05 I conducted an investigation into the registration practices of VicRoads that was tabled in Parliament, in response of the number of complaints I receive about registration- related matters.
These include problems caused to motorists and enforcement agencies because of:
– Inaccurate information held on the vehicles register
– Confusion arising from processes for receiving registration payments accountability – The registration of vehicles ineligible for registration. other In June 2005 I publicly reported on the outcomes of the investigation. I made 40 recommendations to VicRoads and was advised that by May 2006, 24 had been or accessagencies were in the process of being implemented, 11 were the subject of further consideration and five were being addressed by an alternative approach.
The actions taken to date included:
effectiveness – Stage 2 of a recall program to check registration for re-birthed and grey vehicles started in March 2006 with the expectation of 1400 vehicles to be checked over a period of 17 months
– Conflict of interest training programs introduced for VicRoads staff
– Development of a proposal for a new or revised database and registration computer program.
Identity crisis
A young woman complained she had lost several thousands dollars because VicRoads had registered her vehicle as being manufactured in 1998 when in fact it was made in 1992. An investigation found that the 1992 vehicle was imported to be used as replacement parts only and not as an entire vehicle. The vehicle was registered after an engineer acting as an agent for VicRoads provided false inspection information on the registration application. It was also found that the vehicle was one of three imported vehicles that adopted the identity of a wrecked 1998 vehicle. Acting on legal advice VicRoads paid the complainant compensation. 51
Improving responses to allegations involving sexual assault – Limited specialist training for agency employees responding to reports of sexual assault
In March 2006 I tabled in Parliament my report on my own motion enquiry into how – Deficiencies in some aspects of police practice relating to sexual assault investigations government agencies, including Victoria Police, DHS, DOJ and DET respond to allegations – Significant lack of understanding within the community about sexual assault. involving sexual assault. My enquiry involved extensive consultation. The information and insights provided by individuals, agency representatives, service providers The enquiry included: and key interest groups were valuable and greatly assisted in developing the recommendations. – An analysis of relevant complaints made to the Ombudsman or the Police Ombudsman from Many of the issues are complex and have serious consequences for the community, particularly 2000 to November 2004 for the well-being of some of the most vulnerable. Implementation of some of the – Consultation with a wide range of agencies, service providers and key interest groups, recommendations will require a whole-of-government approach. including representatives of people who face significant barriers in reporting sexual assault I note that in the 2006-07 budget the government has addressed one of my recommendations or may not report sexual assault due to cultural or other issues by providing funding for additional forensic nurses based in public health services around – An invitation to the general public for written submissions about personal experiences of Victoria. This means that more victims, particularly those in regional Victoria, can be examined reporting sexual assault to government agencies, and suggestions about how agencies by a qualified practitioner within 24 hours. might improve their response to such reports The budget also included funding for a range of initiatives to reform the ways in which the – The development and distribution of a discussion paper Improving Responses to Allegations criminal justice system responds to sexual assault. These reforms are being implemented by Involving Sexual Assault to relevant stakeholders on 4 February 2005 DOJ and DHS and other entities including the courts, the Office of Public Prosecutions, Victoria Police and the Victorian Institute of Forensic Medicine. A number of governanace mechanisms – A forum on 23 February 2005 for key agency representatives to discuss cross-agency issues. will ensure that the Sexual Assault Advisory Committee, which will continue its role of guiding the reform process across government and related agencies, and the Sexual Assault Reform The enquiry found: Unit within DOJ, which will drive coordination at the operational level, lead the development – Inconsistent understanding of mandatory or other reporting requirements of a cultural change strategy and research priorities to support this and future reform phases.
– Differences in the way government agencies categorise and collect information In addition, a new resource for schools was recently released advising schools on the department’s policy for responding to allegations of assault. – Difficulties in identifying offending patterns and systemic issues State Trustees Limited – A lack of formal inter-agency liaison processes Complaints involving State Trustees Limited (STL) are often very practical matters and I have – Process issues in agencies where employees are accused of sexual assault been satisfied with efforts made by STL to promptly resolve concerns. – A lack of uniform vetting of employees working with vulnerable people 53
Financial affairs I recommended the following improvements:
The father of an STL client raised two issues with my office regarding the administration of his – Closer alignment of taxi-cab and hire car industry legislation with legislation governing the daughter’s financial affairs. He claimed STL had not resolved a taxation issue or investigated public transport system, especially in the area of accreditation and service standards his belief that a lawyer had overcharged his daughter while she was interstate. He had contacted STL about these issues several times but no resolution had been reached. – Broader consultation with the industry to provide advice on important matters
After a request for information from my office, STL discovered that the taxation matter had been – VTD-led programs to address public concern over the safety of passengers and the service resolved, but this had not been communicated by the area of STL that deals with taxation to the delivered by the taxi-cab industry case manager. STL agreed the delay was unacceptable and offered an apology to the complainant. – Better handling of complaints about its own services and staff, and complaints by the public As a result of my enquiries, the complainant met with the personal financial consultant and about the taxi-cab and hire car industry discussed options for resolving the remaining issue. It was later confirmed with me that – Agreements with other agencies about access to information be updated and implemented appropriate action would be taken. – Ongoing monitoring of serious criminal convictions incurred by taxi-cab drivers, relevant to Investigation into the Victorian Taxi Directorate the continued fitness to hold a driver’s certificate
Due to complaints I received and a general level of disquiet about the performance of the – Enhanced capacity to enforce the legislation relating to the industry and alternative ways to Victorian Taxi Directorate (VTD) in the media, I began an own motion investigation into VTD in deal with issues such as touting by hire car drivers August 2005. – Upgraded audit, risk management and quality control standards VTD was established within the Department of Infrastructure (DOI) and is responsible for regulating the taxi-cab and hire car industry. It is also responsible for the tow truck industry – Review of policy, procedures and record keeping relating to taxi-cab security cameras to align but my investigation did not cover this area. with Victoria Police instructions governing access to images from security cameras for investigative and evidentiary purposes In Victoria there are 4,336 taxi-cab licences, about 10,000 active drivers, approximately 26,000 persons licensed to drive taxi-cabs, and 632 hire car licences. The industry generates about – More relevant staff training $320 million per year. – Greater resources be made available to VTD by DOI. VTD had been reviewed 13 times in the past five years by other bodies but I found that many DOI accepted my recommendations and has already implemented some of them. I will monitor recommendations had not been actioned. the implementation of the recommendations and review progress in late 2006. My investigation identified that key areas of the VTD administrative action were deficient. My investigation provided some examples of poor administrative practice. There was a lack of strategic direction within VTD and inadequate policy, written procedures and guidelines, systems, records management and reporting. 55
What taxi Other issues
A taxi driver allegedly scared a female passenger in a taxi after he tried to sell her guns and A small number of complaints are received each year about statutory authorities relating to drugs during her trip. As soon as she was dropped off, the woman telephoned the taxi’s depot, gaming and racing, the State Revenue Office, Consumer Affairs Victoria and regulatory and Depot A, to make a complaint and gave the taxi vehicle number. The subsequent events legal bodies within government portfolios, such as the Registrar of Births Deaths and indicated inability to contact the taxi, driver or operator. She was advised there was no such Marriages. Two examples are outlined below. taxi and the number was assigned to a 1998 Ford which was no longer in use due to its age. She stated she would make a report to Victoria Police and terminated the call. Birth certificates: addressing customer needs
Depot A later traced the car number to Depot B. Depot B advised Depot A that the taxi I received a complaint about the process and length of time involved in obtaining a copy of a belonged to Depot C and was decommissioned in 2004. Depot A reported this information to birth certificate from the Registrar of Births, Deaths and Marriages. The customer had paid the the VTD. However, they did not have the complainant’s name and contact details. They advised $17.50 fee, however after four months had not received a copy of his birth certificate. Upon the VTD that the matter was being reported to the Sunbury police station. investigation it became clear that the Registry had twice tried to explain the application requirements to the customer, but was unable to issue a birth certificate because they had not Due to poor recording of information the complaint was never resolved. received the required identification documents from him. After my involvement, the Registry contacted the customer and the birth certificate was subsequently sent. Wrong advice As a result of this, the Registry has changed its process in dealing with non-complaint A hire car operator complained about the issue of hire car licences. applications to assess whether a phone call is needed to explain the application requirements Mr A, obtained an information sheet from the VTD of conditions for his country hire car to customers who may be elderly or who speak English as a second language. In place since licences. There was no stipulation of a non-transferable period as this condition was removed April 2006, this additional step aims to improve the application process and better address by the VTD some years ago. customer needs.
Mr A then purchased a country hire car licence from another country hire car company owner, Still living there Mr B. All transfers must be approved by the VTD in writing before they can take place. A complaint was made about the Sheriff's office and how long it took to execute a notice to The documentation sent to Mr A by the VTD included an information sheet outlining the vacate premises. A Sheriff’s officer visited the premises on three occasions but the person who licence conditions. One of the conditions was that the licence is not transferable for a period had supposedly vacated was simply not home at the time. Therefore, after three attempts, the of four years. Sherriff’s office concluded that the person had moved out, when in fact this was not the case. Mr A sought clarification about this condition in writing from the VTD as it was his Following my intervention, the Sheriff’s office investigated the circumstances including understanding from the earlier advice that this condition was no longer applicable. The VTD whether standard operating procedures were adhered to and whether there was misconduct acknowledged that this was correct and that the information was sent in error. It apologised. by the officer involved. As a result, the Sheriff’s office has developed a new training package Not long after this incident, Mr A sold one of his licences to Mr C. Mr C’s information sheet for its staff and has implemented procedures to ensure that management receives timely contained the condition that had been superseded, thus repeating the error. information about the execution process. 57
Telephone complaints
A large proportion of complainants approach my office by telephone. The Telephone Complaints Team is responsible for explaining to complainants the steps to take to lodge a complaint and the options for resolution. A significant number of telephone call complaints were outside my jurisdiction. My office has an important role in providing referrals to the relevant agencies including industry-based complaint resolution schemes such as the Energy and Water Ombudsman (Victoria) and the Banking Ombudsman.
My office generally does not investigate a complaint if the complainant has not complained to the agency first. This gives the agency an opportunity to address the issue.
The team handled approximately 11,587 calls during the year with an average of 45 telephone enquiries per day. The majority of complaints calls within jurisdiction is about local councils, VicRoads and the services provided by DHS and DET. Many complaints can be resolved accountability by telephone. telephone Case studies accesscomplaints Pensioner rates The complainant claimed the council would not accept his application for a pensioner rebate when paying his rates. It advised him that his pension card was inadequate as it displayed a effectiveness different residential address. He was advised to contact Centrelink. The complainant said that he had recently moved and not yet been issued with a new card. He had already gone through this procedure with the council when registering his dog and previously supplied them with the appropriate Centrelink information.
My officer contacted the council who advised that a search of the council’s records confirmed they already had the complainant’s pension details. It agreed to deduct the pensioner rebate of $163.60 from his rates. 59
Home sweet home Show me the money
The complainant alleged State Trustees Limited (STL) had failed to pay the rent for her The complainant stated he was to receive a lump sum payment of approximately $80,000 intellectually disabled son’s flat and he was being evicted. She stated her son was living with from WorkCover to be forwarded to STL. He claimed STL advised him there was no record of his partner who also suffered from an intellectual disability. They were expecting the birth of payment and instructed him to contact WorkCover. The complainant confirmed with their first child. WorkCover that the payment had been forwarded to STL.
The complainant stated STL agreed it would pay her son’s portion of the rent but was unwilling STL advised a payment was made to them by the WorkCover agent but without identification. to pay the rent for his partner. Due to the lack of identification, the money was held in the common fund until a bank remittance was received. As a result of my office’s enquiries, the money was then transferred My office contacted STL which confirmed a more recent agreement between STL and the to the complainant’s account plus interest earned. complainant’s son that all rental payments were to be made from his funds. STL acknowledged that the complainant was given incorrect information. STL advised that an initial payment My officer clarified the reasons for the delay and confirmed the payment had been transferred. had been made to the real estate agent and it was waiting for correct rental details. My office was satisfied that no further action was required. Eviction was avoided.
My office contacted the complainant and clarified the agreement and advised of the positive outcome for her son.
Please fence me in
The complainant said she had contacted her landlord, the Office of Housing (OoH) in August 2005 to arrange for her boundary gate to be repaired. She was advised that the works had been placed on a priority list to be done within seven days. The complainant claims she waited three weeks and the repairs had not been undertaken. During that time her dog escaped from the backyard via the damaged gate and was struck by a car. The dog required extensive surgery.
My office contacted OoH and within a few days the repairs to the gate had been completed. OoH also informed me it was discussing compensation for the injuries sustained to the complainant’s dog.
My office contacted the complainant and confirmed that these actions had been taken. I was satisfied that OoH had taken the appropriate corrective steps. 61
Whistleblowers
The Whistleblowers Protection Act enables any person, including public entity employees and non-employees to disclose to me or the particular public body, allegations relating to improper conduct by a public officer or public body.
I manage, assess and investigate whistleblower disclosures and issue guidelines to which public bodies must adhere. The guidelines are included in this report and are also available on my website. Statistics 2005-06 2004-05 Total disclosures received 82 79 accountability Public interest disclosures (PID) 29 12 Protected disclosures 3 18 Investigation of PID accesswhistleblowers By Ombudsman 14 4 By public body 14 7 By Auditor-General 2 1 effectiveness Alternative procedures Under Ombudsman Act 12 31 Police Regulation Act 1 4 No jurisdiction 35 14
(These figures include cases carried over from the previous year.)
These figures show that the number of PIDs increased significantly from the previous year. I investigated 14 and referred another 14 to the relevant public body for its investigation. I also referred 2 matters to the Auditor-General for his investigation. 63
Detrimental action Protected disclosure coordinators play a vital role in managing the welfare of whistleblowers and ensuring that performance management issues are clearly identified and addressed A number of whistleblowers made allegations that detrimental action was taken against them consistently with established policies and procedures. Whistleblowers can feel vulnerable in an in reprisal for making a protected disclosure. Detrimental action is a serious offence that organisation after making a disclosure and it is important that they are treated with sensitivity. attracts a penalty of 240 penalty units and/or two years imprisonment. Complainants commonly allege they have been bullied, harassed or given different duties with less Most organisations welcome the opportunity to identify, stop and prevent corrupt behaviour responsibility and without having agreed to the change. Some allegations concern more serious and the Whistleblowers Protection Act 2001 is an important tool for improving accountability action such as termination. I recently concluded an investigation into one such allegation. and confidence in public sector bodies.
Reprisal or management of performance issues Complaints
I received a disclosure from a whistleblower which made allegations about substantial This year I received an increased number of disclosures including: mismanagement of public resources by a statutory body. A further disclosure made one month later alleged detrimental action in reprisal for making the disclosure. – Substantial risk to public health or safety
The disclosure regarding financial mismanagement was referred to the Auditor – General for – Conduct involving substantial risk to the environment investigation under the provisions of the Act. I am required to retain investigations of alleged – Public officers acting dishonestly detrimental action. – Public officers acting with inappropriate partiality The whistleblower alleged that the reprisal action included: being stood down while being investigated for a performance matter, being threatened with termination, being terminated – Conduct affecting the honest performance of a public body’s functions and having their witness for the Australian Industrial Relations Commission hearing being threatened with termination if they appeared in support of the whistleblower. – Detrimental action against the whistleblower.
My investigation was unable to find a nexus between these actions and the whistleblowing. These disclosures tend to be very complex in nature and in some instances require the There was no evidence to suggest that the officer responsible for the action knew the identity assistance of expert advisors. I have been grateful for the support provided by a number of of the whistleblower. My investigation concluded that the allegation was unsubstantiated. universities and professional organisations in providing access to experts who have been willing to assist on a pro bono basis. In order for my office to be able to establish a case for the prosecution of an offence against the detrimental action provisions of the Act, evidence is required to support a link between Difficulties encountered knowing the identity of the whistleblower and the detrimental action being in reprisal for the During a number of investigations of public interest disclosures, it became apparent that whistleblowing. some senior public officers in management roles do not fully understand the Whistleblowers Protection Act. For example, one senior officer felt it was his duty to share the details of my investigation with all members of the entity’s board. My officer pointed out the obligations of confidentiality pursuant to the Act and explained that the purpose is to protect the identity of the whistleblower. 65
The Melbourne City Council case study provides a further example of lack of understanding by Case studies senior management of my role and powers of investigation. Senior management were initially reluctant to supply information without being summonsed. My Deputy and senior Improper use of property and equipment management of the council met resulting in a greater level of cooperation. In September 2005, I determined a disclosure about the Department of Sustainability and As a result of my investigation the council agreed to work with my office to ensure that senior Environment (DSE) to be a PID and referred it to DSE for investigation. I monitored the management, staff and councillors are aware of the role of my office and my powers of investigation and outcomes. investigation. DSE investigated allegations that a departmental officer improperly used its property and Use of powers equipment. Some of the allegations were substantiated. As a result of the investigation I recommended that DSE: A number of current investigations required me to request documents from private entities and non-public officers. It was necessary to use my coercive powers on a number of occasions to – Establish policy about the management, issue, maintenance and personal use of its summons persons to produce documents and attend to give evidence. equipment and facilities
Academic work – Reinforce existing record keeping instructions for the allocation of its resources
I continued to contribute to a three-year collaborative national research project led by Griffith – Review the conduct of relevant employees and take appropriate action. University, Queensland into the management and protection of whistleblowers in the Australian public sector. This important initiative is being funded by the Australian Research DSE agreed to the recommendations. Council, six Australian universities and fourteen industry partners, including leading public Internal investigation—allegations substantiated sector integrity and management agencies from six Australian governments. The major objective of the project is to identify and promote current best practice workplace responses to In February 2005 I determined a disclosure to be a public interest disclosure and referred it to public interest whistleblowing. DHS to investigate. Coming year It was alleged a manager took assets and equipment for personal use and arranged for the sale of assets without proper process or accounting. It was further alleged the manager employed a As foreshadowed in my last report I intend to undertake a review of the operation of the family member without an open process and without considering issues of conflict of interest Whistleblowers Protection Act in the light of experience gained to date. My experience, along and favouritism. with those of public bodies that have been involved in responding to PIDs, will inform a critical analysis of the successfulness of the current legislative framework in achieving the Act’s stated The DHS investigator substantiated these allegations and concluded that the manager objectives of encouraging and facilitating disclosures, providing protections for whistleblowers contravened government policy and procedures and the Public Sector Code of Conduct. DHS and ensuring that disclosed matters are properly investigated and dealt with. took disciplinary action and recommended implementing and updating asset registers and ensuring all staff knew their obligations to comply with internal policies and procedures regarding property.
I agreed with these proposals. 67
Freedom of Information
The Freedom of Information Act 1982 (FOI Act) provides members of the public rights of access to information in documentary form that is in the possession of prescribed agencies of the Government of Victoria. The Act came into operation on 5 July 1983.
I have jurisdiction to investigate complaints about freedom of information (FOI) requests where they relate to an administrative action, for example a delay in processing a request, a document that cannot be found or which it is claimed does not exist, or any fees or charges imposed. Statistics FOI grounds for complaints Delays in processing 45 accountability Lost or non-existent documents 58 Unreasonable charges 3 freedom of Voluminous requests 2 Refused access to documents 11 accessinformation Intervention by Ombudsman 2 Other 31 Total 152 effectiveness Requests for documents dealt with by the Ombudsman’s office 8 Own motion investigation
In May 2005 I commenced an own motion investigation into the FOI Act. I published a discussion paper on the FOI Act and received over 63 submissions. Together with the submissions, my office examined written materials provided by the departments and Victoria Police. My investigation officers also interviewed key stakeholders and examined selected FOI files.
I tabled my report on the investigation to Parliament in June 2006. In particular I investigated the performance of the 10 state government departments and Victoria Police in implementing the Act and included a wider review of the Act itself. My investigation focused on the FOI policies, practices and procedures of the departments and Victoria Police and other legislative aspects of FOI. 69
Findings – Waiting for ‘noting’ of decisions by Ministers’ offices, despite the Attorney-General’s guidelines stating that an FOI officer should only wait five days I concluded that the present Act is able to operate effectively with some minor amendments, subject to leadership and direction from departmental and agency executives. I also found the – Ministers’ offices being consulted at the end of the request being processed, instead of early FOI policies and procedures of the departments and Victoria Police generally worked well. in the process However my investigation also found requests for policy-sensitive documents were often poorly – Time taken to seek clarification of requests. handled and I criticised the failure to assist applicants. I found that in many cases statements of reasons were inadequate. The material facts on which Some of the more significant findings were: the decision was based were not stated and the documents for which exemption was claimed – Many cases of avoidable delay—in several cases notification of the decision to the applicant were not identified or linked to the reasons given. was unduly delayed I was particularly concerned about delays by DHS and Victoria Police. In the case of DHS, I noted – Some cases where the file suggests that the reasons given for refusal of access were many requests involve such a volume of material that they could not reasonably be finalised in incorrect, wrong grounds were claimed for exemption or statutory criteria were not less than 45 days although DHS was generally showing diligence in handling these more considered complex matters.
– Many cases where reasons given for decision were inadequate, both at first instance and I recommended Victoria Police make increases to FOI staff resources to ensure it was able to upon internal review process requests within the statutory period. Victoria Police were unable to meet the statutory time requirement in a large proportion of cases. Its 10 FOI officers each handled an average of 200 – In several cases examined the reasons given for claiming exemptions were misleading. In requests per year compared with the 10 departments’ officers handling 48.5 requests per year. some cases departments insisted requests were unclear or voluminous with little or no justification. My investigation revealed that few Victorian agencies fully comply with the publication requirements of Part II statements. I consider that it is not acceptable for departments and – Applicants were frequently denied information which would help them re-formulate their other agencies to ignore statutory provisions or choose to implement those provisions as they requests or understand the response to their request, leading to some inappropriate see fit and not in accordance with the statute. outcomes The examination of FOI files and discussions with FOI managers highlighted the importance of – Inappropriate procedures and, in some cases, poor or incorrectly used precedent cases leadership in setting the culture for dealing with FOI. The evidence suggests that greater affected the outcome. support from DOJ could help both benchmark and improve the performance of all agencies by providing a leadership role. My investigation revealed that delay in processing FOI requests was still a major issue within the departments and Victoria Police.
I found that delays were being caused by:
– Insufficient resources, such as lack of staff and poor internal procedures
– Delays by program areas in informing the FOI officer of the outcome of its document search 71
Outcome of review – Provide details of what searches have been undertaken or where a document was last known to have been where documents do not exist or cannot be located I made recommendations for some legislative changes relating to: – Consult with applicants in cases of multiple requests where an agency believes it will not be – The publication of information about the agency functions and the information held by able to process them within 45 days, over their priority and if appropriate negotiate to them (Part II of the Act) reduce the scope of the requests.
– Formal provision to allow irrelevant parts of documents to be deleted only where that is The Attorney-General endorsed my report. The following case studies represent the types of FOI consistent with the applicant’s wishes complaints I received and supported the need for my review. They also highlight where DOJ could provide greater support to agencies via practice notes. – Additional time for consultation with third parties whose interests may be affected by the release of information Case studies arising from the investigation – The reverse-FOI provisions in section 50(2)(e) of the Act Requested information obtained
– Amendment of the provisions on personal information for consistency with the Information An applicant requested access to statistical information from DOI. DOI responded to him 15 days Privacy Act and the Health Records Act later advising that the information did not exist. The applicant telephoned DOI nine days after that and was advised the information had now been received and he could resubmit his request with a – Adoption of a definition of next-of-kin new application fee. The applicant complained to me that the agency should have waited for the information to be received before responding as it had 45 days to process the request. – Some amendments to clarify my role and jurisdiction. DOI advised it conducted enquiries to determine how long it would take for the requested information The investigation identified poor communication in requests for policy-sensitive information as to become available. It said that an external organisation collects the requested data and it may take a systemic issue. I found it was common for an agency to advise applicants that a request was from two to four weeks to reach DOI. In light of this advice DOI decided to respond directly. unclear and ask for clarification because processing it would be voluminous. In my view a request should not be declared voluminous if it has been deemed too unclear to enable the I considered it was unreasonable for DOI to advise the applicant that the information did not exist agency to identify the documents requested. without advising in its response when the information may become available. I also considered it was unreasonable for the applicant to have to lodge a new request. In light of these findings, I made several recommendations for a greater leadership role in FOI for DOJ. As a result of my intervention, DOI agreed to provide the requested information to the applicant in accordance with his original request which was completed a few days later. DOI did not seek a new I recommended DOJ commence issuing practice notes to assist agencies to: application fee. The agency also accepted my recommendation that it will seek the applicant's – Consult with applicants if they find a request to be unclear and/or potentially voluminous approval to withdraw the request and submit it at a time when the information had been received.
– Not adopt artificial definitions or constructions of a request rather than clarifying the request with the applicant 73
Not in the spirit of FOI I received a complaint from an MP dissatisfied with the handling of his request by DHS. The MP sought access to media opportunity documents, development of media images and ministerial public relations plans. The MP was concerned about the delay in responding, the misleading nature of the first response and DHS’s refusal to process the request under section 25A—that the complaint was voluminous.
I found DHS’s handling of the request was inadequate and unreasonably delayed—82 days in total. DHS also unintentionally provided incorrect advice to the MP in its first response by advising all documents were available publicly when it had not identified all relevant documents.
I also found that a senior executive instructed FOI staff not to assist professional applicants by telephone. I believed this contributed to DHS’s failure to consult with the MP at an early stage to clarify his request and its failure to provide assistance in its first response.
I made two recommendations regarding consulting and assisting applicants. I also recommended that should the applicant wish to lodge his request again, DHS should assist him accordingly. DHS accepted my recommendations. Coming year
I look forward to the outcome of the legislative changes I recommended in my public report. I will also monitor administrative changes within the departments and Victoria Police. investigate review resolve 75
Transport Accident and WorkCover
On 1 October 2005 I established the Transport Accident and WorkCover Unit in response to amendments to the Accident Compensation Act 1985 and Transport Accident Act 1986. Changes to the legislation extended my jurisdiction to include WorkCover agents and certain delegates and increased my jurisdiction to include self-insurers. The extension of my jurisdiction to private bodies allows direct approach to the respondent organisations whereas previously the Transport Accident Commission (TAC) or the Victorian WorkCover Authority (VWA) investigated these actions.
The purpose of the specialised unit is to:
– Create strong networks for complaints resolution
– Raise the public and industry’s awareness of OV accountability – Educate the public and industry about the legislative change that has extended my jurisdiction transport – Assist industry to improve their complaints management. access Complaints accident and The common complaints I received during the year were: workcover – Failure to respond to requests effectiveness – Failure to pay for treatment – Delays in making a decision
– Failure to communicate a decision
– Failure to communicate the evidence considered and reasons for a decision
– Conflict of interest
– Access to information.
I also receive complaints about the Medical Panel, Accident Compensation Conciliation Service (ACCS), premiums and WorkSafe. 77
The number of complaints received compared to previous years has increased since the Six-year limit introduction of the new legislation. Two hundred and twenty-five enquiries regarding the TAC and VWA industries were resolved quickly due to my officers establishing contacts in the When an employer makes a payment of weekly compensation to an injured worker it seeks industry who can respond promptly. The remaining 148 complaints required further reimbursement for the payment from its WorkCover agent. Companies acting on behalf of investigation due to the complexity and sensitivity of the issues. employers seek to recover any unpaid or missing WorkCover compensation reimbursements. A company complained to my office about VWA’s policy of applying a six-year limitation on 2004-05 2005-06 reimbursements. The policy was based on the six-year time limit in the Limitation of Actions TAC 49 98 Act. The company complained that VWA would not enter into discussions regarding those VWA 122 293 cases involving the six-year policy. Total 171 391 My officers made enquiries about this complaint. VWA advised it had already begun developing new policies and procedures regarding outstanding reimbursements but the new The significant increase in complaints received during the year would appear to be due to the policy did not address the six-year limitation issue. VWA agreed that the new reimbursement publicity given to my enhanced jurisdiction, coupled with the enhancement of my role. processing system would provide an internal review mechanism for employers aggrieved by a decision of VWA to apply the six-year limit. This would lead to a more transparent decision- Raising awareness making process and provide an opportunity for disputes to be resolved without the need to My officers regularly meet with representatives of TAC, VWA, WorkCover agents and the self- revert to costly litigation in the courts. insurers to resolve complaints and improve service delivery. They also meet with other VWA also extended this opportunity to include workers who sought similar reimbursements. interested parties such as MPs, union representatives, Union Assist, WorkCover Assist, the Medical Panel, ACCS, service providers, advocates and solicitors. TAC investigating common law claims
My aim is to raise the awareness of my office through meeting key stakeholders and targeted I received a complaint that the TAC did not have the statutory power to use sections 127 media in the industry explaining my role and enhanced jurisdiction. My officers have given and 127A of the Transport Accident Act 1986 when investigating common law claims. presentations at the Australian Lawyers Alliance State Conference and to groups such as the Under section 127 an employer of a person injured in a transport accident must provide Self Insured Association of Victoria’s Injury Management Forum and education fora. My office TAC with information it requires. There are penalties for non-compliance. also distributes a quarterly bulletin on current issues to the TAC WorkCover industry. I found that under a claim form authority TAC is able to request information from an employer. My officers have visited the WorkCover agents to obtain an overview of their complaint In most circumstances a TAC client entitled to no-fault compensation has signed the authority. management processes. This provided a valuable insight into what complainants might The relevant protocol states that where an employer refuses to provide the information experience and allowed informal discussions about strengths and barriers to these processes. requested using the authority, TAC will “…explain and, if necessary, rely on section 127 to require such documents and information to be furnished.” Case studies Section 127 may be used when a TAC client has not signed the authority. Section 127A is only The following case studies illustrate my office’s activities. relied on if the provisions of the Transport Accident Act 1986 are breached.
I am satisfied that TAC’s use of section 127 was lawful in this circumstance. The TAC also agreed to consider seeking specific employment enquiry authorities from clients who bring damages actions where no claim form authority had been signed. 79
Coming year
There are 39 self insurers who represent about 10 per cent of all WorkCover employers. Their claims management teams are often difficult to make contact with as they are small and located across the state. The Self Insured Association of Victoria will continue to provide my office with a channel to communicate and educate the people who manage these claims and complaints.
I propose continuing to provide information to the industry to improve their administration of the schemes. This will include feedback to the industry on enquiry outcomes and focusing on complaint themes in the latest OV bulletin issued in June that addressed conflict of interest. investigate review resolve 81
Outreach
I appointed an outreach co-ordinator in December 2005. The outreach program aims to raise awareness of my office and its function and build relationships with community organisations. The program assists direct delivery of complaint services in metropolitan and regional Victoria and develops strategies to improve access to my services for disadvantaged and disabled groups within the community.
The program is tailored to meet the needs of people who often have a very limited knowledge of my office and may need additional support to access my services.
To assist agencies understand my role and powers my office held several forums for government departments on key areas of my jurisdiction such as the Whistleblowers Protection Act 2001 and the Freedom of Information Act. My office also responded to requests from accountability agencies for presentations on specific functions. As part of improving access for regional Victorians I went to Ballarat, Morwell and Shepparton to meet local councillors, MPs, key community and agency representatives. Members of the community were invited to personally discuss their complaints with my officers. Over 40 accessoutreach complaints were received from the public. Other outreach trips were made to Bendigo, Sale, Bairnsdale and Geelong.
Staff from my office also attended the Where the Heart is Community Festival, an event effectiveness coordinated by the Royal District Nursing Service to inform, resource and support people at risk of homelessness in the community. My officers spoke with participants, gave advice and referrals and took complaints. Over 300 people attended. Access to the community
My office provides a free service. In partnership with community organisations and accountability bodies, the outreach program will continue to improve access for all Victorians. 83
Outreach activities Unit Meeting Visit Presentation/ Forum/ Inspection/ conferences training complaints Community 15 1 4 10
TAC WorkCover 10 37 7 1
Legislative Compliance 2 4
Justice 1 3 25
Infrastructure 4 2
OV general 11 2 6
Total 36 44 22 8 35 145 International delegation visits
My office hosted international delegations and provided training for government employees from a number of countries in South East Asia. OV contributed to training programs developed by the Australian National University, Monash University and the Commonwealth Ombudsman by delivering seminars and workshops on public accountability, investigation skills, human rights and anti-corruption techniques. The participants were mostly employed within government organisations within Vietnam, Thailand and Indonesia and worked in a variety of human rights protection programs and complaint-handling organisations. investigate Two officials from the Office of the Ombudsman Thailand also spent one week in my office gaining work experience. review resolve 85
Inspection functions
I have a number of statutory functions to inspect the records of law enforcement agencies in Victoria to monitor their compliance with relevant legislative requirements.
These functions are carried out by inspections officers acting under my delegated authority. Melbourne City Link
The Melbourne City Link Act 1995 enables Victoria Police to receive restricted tolling information as defined in that Act for law enforcement purposes. Police may seek information for the purposes of investigating indictable offences and specified road safety and other laws. Police are not to disclose or use the information other than as specified in the legislation.
My role under the Ombudsman Act 1973 is to inspect the records of Victoria Police to ensure accountability they comply with the requirements of the Melbourne City Link Act 1995. Under the City Link Act inspection I can request Victoria Police to keep specific records to enable me to carry out my function. Two inspections were carried out during the reporting year to determine compliance. In accordance with the Ombudsman Act, a report on this year’s inspections was given to the access functions Minister for Police and Emergency Services, with copies to the Attorney-General and the Chief Commissioner of Police. effectiveness Telecommunications interception The Telecommunications (Interception)(State Provisions) Act 1988 (the State Act) enables Victoria Police to lawfully intercept telephone conversations in accordance with the Commonwealth Telecommunications (Interception) Act 1979.
My function is to inspect the records of Victoria Police to determine the extent of its compliance with the following matters.
– Documents connected with the issue of warrants to be kept
– Records to be kept relating to:
• applications for warrants; and • restricted records created under warrants 87
– Security aspects of the retention of restricted records
– Documents to be given to the Minister and Attorney-General
– Keeping and destroying restricted records.
Two inspections were carried out during the reporting year. My inspections report was provided to the Minister for Police and Emergency Services, the Attorney-General and the Chief Commissioner of Police.
The government intends to amend the State Act to transfer this inspection function to the Special Investigations Monitor from 1 July 2006. RSPCA inspectors
Under the Ombudsman Act I monitor compliance with the Prevention of Cruelty to Animals Act 1986 by officers of The Royal Society for the Prevention of Cruelty to Animals (Victoria) Incorporated (RSPCA) who are approved as inspectors under that Act.
The RSPCA continues to review and implement procedures about the training and operations of its inspectors. My officers participate in this process to ensure that compliance with the legislation is fully supported by RSPCA internal policies and procedures. Authorised officers
Under the Domestic (Feral and Nuisance) Animals Act 1994 I now monitor officers contracted by local or state government and their compliance with this Act. investigate My officers will be liaising with the relevant authorities to determine how best this new function will be discharged. Inspection functions no longer with my office Last year’s annual report provided information on legislation awaiting proclamation that would review have given me further inspection functions relating to certain law enforcement agencies.
The Acts referred to in this respect were the Crimes (Controlled Operations) Act 2004 and the Surveillance Devices (Amendment) Act 2004. These inspection functions will now be conducted by the Special Investigations Monitor. resolve 89 investigate About Ombudsman Victoria review resolve 91
About Ombudsman Victoria
As Ombudsman I provide a free, impartial and independent service to all Victorians who have a complaint about a Victorian public sector agency. I have jurisdiction over 600 such agencies including 79 local municipal and shire councils, 12 professional boards, universities and government schools, public and private prisons and authorised officers on public transport. I can also monitor investigations of private agencies contracted to perform activities for government agencies and investigate private agencies associated with the Transport Accident Commission (TAC) and WorkCover. Objective and function
Ombudsman Victoria (OV) promotes fair and reasonable public administration and enhances accountability in the Victorian public sector. accountability My principal function is to independently enquire into any administrative action taken by a government department, public statutory body or local council and to report the results to about ombudsman complainants, departments, statutory authorities and Parliament, as appropriate. access victoria Goals Complaint-handling effectiveness – Resolve complaints concerning administrative actions taken by Victorian Government departments, local councils, agencies and statutory bodies.
– Determine whether a disclosure of improper conduct under the Whistleblowers Protection Act 2001 warrants investigation.
– Ensure compliance with the Freedom of Information Act 1982.
– Issue clear and balanced reports on the outcomes of investigations into complaints. Access
– Ensure the public has ready access to the services of OV.
– Provide an independent means of having grievances against public sector agencies impartially examined. 93
Accountability Organisation
– Enhance accountability of Victorian state and local government agencies to the public and The following chart represents the organisation of OV as at 30 June 2006. Parliament.
– Assist agencies to identify systemic issues through own motion investigations and engage with them in remedial action. Effectiveness
– Ensure OV strives to achieve excellence and professionalism in all aspects of its work. Strategic priorities
OV has a number of strategic priorities for 2006-07, including:
– Continue to proactively identify and assist public sector agencies with systemic administration difficulties.
– Continue to engage with the community to promote access and further develop OV’s outreach program.
– Continue to maximise the professional skills and experience of staff.
– Further improve means to measure OV’s performance.
Organisational change
In my last annual report I identified 2004-05 as a year of significant change for my office following the establishment of the Office of Police Integrity (OPI) in November 2004. Now the separation of OV and OPI has been substantially completed, I have reviewed the structural layout of OV as well as its practices and procedures. Staffing
The Ombudsman is the Chief Administrator of Ombudsman Victoria under the Public Sector Management and Employment Act 1988. Apart from the Ombudsman, all employees of OV are employed subject to the Act. 95
Staffing trends Communications Unit
Staffing numbers in OV as at 30 June over the past 10 years are shown in the table below. The Communications Unit informs Parliament, relevant stakeholders, the media and the broader community about OV’s work and objectives. The unit prepared media releases, 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 brochures, website content and special reports to the Parliament. It also assisted the 26 25 27 25 26 23 26 34 54 47 Ombudsman with the preparation and placement of speeches and articles and opinion pieces to newspapers and other publications. The unit responded to enquiries from journalists and Notes: coordinated communications activities undertaken by the Ombudsman and the executive. Up to 2004 some investigations officers were employed on a casual basis to undertake particular tasks. Those casual staff are not included in the table. Internal management and governance Employees in 2005 and 2006 included a number of staff from Information Services, Communications and Business Services who were shared resources with the newly created OPI. Recruitment Staff profile as at 30 June 2006 Staff recruitment at OV is subject to the principles of merit and equity. Staff recruited have The profile and gender details of staff on the payroll as at 30 June 2006 were as set out in the table. appropriate professional and occupational backgrounds. The office follows established Victorian Male Variation from Female Variation from public service guidelines. previous year previous year OV employees are encouraged to undertake appropriate training and attend relevant seminars Executive/Investigation Division and conferences to enhance their skills and ensure their professional knowledge is Ombudsman 1 - - - comprehensive and up-to-date. Deputy Ombudsman 1 - - - Declaration of private interests Assistant Ombudsman - - 1 - Executive assistants - - 2 -1 My senior officers have lodged declarations of their pecuniary and other interests. I have lodged Investigation officers 12 - 5 16 -1 a corresponding declaration with the Department of Premier and Cabinet. These are made on Communications 1 2 - 1 +1 appointment and updated annually or more frequently as circumstances change. 2 Information Systems 2 +1 1 - These declarations assist to ensure that where there is an actual or potential conflict between Records Management 3 - -1 3 - personal interests and the independence and impartiality essential to the work of my office I, or Business Services and Information the officer having that conflict, is disqualified from playing any role in that matter. 4 - 1 -1 Management 4 Total 22 -5 25 +2 Occupational health and safety
Notes: OV is committed to occupational health and safety and the general health and wellbeing of 1. The Communications Unit currently serves OV and OPI. staff. Some of the initiatives that took place during the year were: 2. The Information Systems Unit currently serves OV and OPI. During the reporting year it has been establishing separate IT systems for each office. – Reducing harm from smoking—the workplace and office motor vehicles are smoke-free 3. The Records Management Unit was created during the reporting year. It established separate records management environments. Participation in office-funded QUIT programs during office hours are available systems for OV and OPI. One staff member is on maternity leave. to staff and the reasonable costs of any treatment regimes coming out of such programs 4. The Business Services Unit was renamed the Business and Information Management Unit late in the year. is reimbursed. The newly named unit manages both the business services and information management functions of OV. 97
– Caring for eyesight—employees are entitled to eyesight tests recommended by the National Victorian Industry Participation Policy Act Health and Medical Research Council of Australia. OV will meet the cost of the tests and any reasonable cost of spectacles that may be prescribed. The Victorian Industry Participation Policy Act 2003 requires public bodies to report on the implementation of the Victorian Industry Participation Policy (VIPP). Departments are required – A free on-site influenza injection program. to apply the VIPP in all tenders over $3 million that have their primary impact in metropolitan Melbourne and over $1 million for those that have their primary impact in regional Victoria. Office-based environmental impacts OV had no tenders in the reporting period to which the VIPP applied. OV leases premises in a private sector office tower building in the CBD. During 2005-06 it also shared accommodation, staff and other resources with OPI during its establishment. It has Consultancies therefore not been possible to separately measure the use of some resources such as water, or to meaningfully quantify per employee, for example, the use of energy and the production and OV engaged no consultants during the reporting period where the total project fee exceeded recycling of wastes. $100,000.
Nevertheless, OV contributes to Victoria’s Environmental Sustainability Framework and is Four consultants were engaged during the reporting period, at a total cost of $127,474, examining means to ameliorate its environmental ‘footprint’. Initiatives being pursued include: excluding GST. – Reducing power usage in terms of both per square metre and per employee. Publications
– Purchasing energy supplies from green energy sources. The following publications were produced by OV during the reporting period and are all available on the OV website. – Recycling of waste, including paper, cardboards and plastics. Publication Date – Encouraging a reduction in the use of private cars by providing on-site bicycle parking and shower facilities for those who wish to cycle or walk to and from work. Review of the Freedom of Information Act June 2006
OV will be able to quantify some of these measures during 2006-07 and will report on them in Good Practice Guide to Complaint Handling May 2006 the annual report for that year. Investigation into parking infringement notices issued by April 2006 Internal reviews Melbourne City Council Improving responses to allegations involving sexual assault March 2006 It is OV policy that where a complainant expresses dissatisfaction with our handling of their Investigation into the handling, storage and transfer of complaint, we will conduct a review of the file. This is undertaken by a more senior officer who December 2005 has had no prior dealings with the matter. prisoner property in Victorian prisons
Over the past year there were 21 requests for review, none of which, after review, led to Annual Report September 2005 substantial changes to the investigation outcomes. Website
Ombudsman Victoria operates a website at http://www.ombudsman.vic.gov.au. 99
Performance table 2005 – 2006
Goal Aim Performance in 2005 - 2006 Goal Aim Performance in 2005 - 2006 Complaint handling Complete 50 per cent of all – 56.7 per cent of all files closed were Access continued Produce easily-accessible information – Published four Whistleblowers Resolve complaints concerning complaint files within 30 days. open for less than 30 days on areas of OV’s jurisdiction Protection Act 2001 fact sheets administrative actions taken by and four Freedom of Information Victorian Government Complete 80 per cent of all – 85 per cent of all files closed were Act fact sheets on the website at departments, local councils, complaint files within 90 days. open for less than 90 days www.ombudsman.vic.gov.au agencies and statutory bodies. – Published media releases Further assist agencies in their – Launched the Good Practice complaint resolution processes Guide in May 2006. Contribute to niche publications to – Contributed to the following provide specific target audiences publications: Access Appoint a specialist Outreach – An outreach coordinator was with information – Noticeboard – Association for Ensure the public have ready Coordinator appointed in December 2005 Children with a Disability: access to the services of OV. September 2005 Provide an independent means Use the OV website to improve access – Addition of an online complaint form – RACV Royal Auto: December 2005 of having grievances against – Information sheets made available in public sector agencies impartially several languages – Workers Compensation Report: examined. October 2005 – Printed information made available online – Workers Compensation Report: March 2006 – Published information about outreach activities on the website at Organise and participate in targeted – 36 meetings with community- www.ombudsman.vic.gov.au activities, meetings and presentations based organisations to community groups – 44 education visits to Visit regional areas to meet with – Held four major regional visits in respondent agencies community groups, Ballarat, Morwell, Bendigo and state and local government Shepparton – 22 presentations to community groups representatives and the public – Participated in the East Gippsland Field Days in Bairnsdale – 4 visits to regional areas attended by the Ombudsman and/or his deputy – 10 visits to juvenile justice centres and secure welfare centres for education and taking complaints – 25 visits to prisons for education and taking complaints 101
Goal Aim Performance in 2005 - 2006 Goal Aim Performance in 2005 - 2006
Accountability Provide reports to Parliament on own Tabled the following reports to Effectiveness Improve internal systems to increase – Upgraded the office document Enhance accountability of motion investigations that address Parliament: Ensure OV strives to achieve effectiveness management systems Victorian state and local systemic problems in public excellence and professionalism – Launched new intranet for improved government agencies to the administration – Investigation into the handling, storage in all aspects of its work. internal communications public and Parliament and transfer of prisoner property in Victorian prisons - December 2005 – Undertook detailed training needs – Improving responses to allegations analysis to identify training priorities for involving sexual assault - March 2006 2006-2007 – Investigation into traffic infringement – Introduced a ‘knowledge bank’ to notices issued by Melbourne City share staff skills within the office Council - April 2006 Create a Transport Accident and – The new unit was created in – Review of the Freedom of Information WorkCover Unit to ensure effective September 2005 Act - June 2006 complaint-handling in these areas of – Made enquiries into 391 complaints new jurisdiction – Made 48 visits to various groups to Monitor recommendations made to – A total 77 recommendations were explain the new jurisdictions agencies in tabled reports made in the four reports tabled. – Launched a quarterly update bulletin – All the recommendations have to keep respondents informed either been accepted, endorsed or addressed by the relevant agencies Encourage secondments to and from – Three officers were seconded to OV See Recommendations Page 102 state government agencies to build – Two OV officers have been seconded experience and understanding of Ensure awareness of public reports – 1,252 mentions of OV in to other state government agencies issues and complaint-handling through media coverage the media, including: practices • 804 broadcast mentions • 448 print mentions Help agencies to improve their own – Held eight forums and training (figures obtained from complaint-handling processes sessions on Ombudsman jurisdiction, Media Monitors) managing FOI requests and whistleblower matters. – Launched the Good Practice Guide for Complaint Handling. 103
Adoption of recommendations from Ombudsman Victoria reports Legislation tabled in Parliament 2005 – 2006 The Ombudsman is empowered by the following legislation.
Report Total number of Status Number of Respondent agencies Act Responsible Minister Purpose recommendations recommendations still to be Ombudsman Act 1973 Premier Provides for the appointment in Victoria of an Ombudsman implemented and details the Ombudsman's role and functions.
Investigation into the 9 All recommendations 3 ongoing Department of Justice handling, storage and accepted Corrections Act 1986 Minister for Corrections Empowers the Ombudsman to investigate complaints about transfer of prisoner actions of contractors managing prisons or police gaols. property in Victorian prisons. December 2005 Improving responses 35 All agencies have Ongoing Department of Human Freedom of Information Attorney-General Creates a right for the community to access information to allegations responded positively to Services Act 1982 in the possession of government agencies and provides the Ombudsman with specific powers in relation to the involving sexual the recommendations Department of Justice assault. March 2006 investigation of FOI complaints and other related functions. Department of Education and Training Victoria Police Investigation into 7 All recommendations Ongoing Melbourne City Council Telecommunications Attorney-General Enables Victoria Police to obtain warrants to intercept and (Interception) record telephone conversations and empowers the traffic infringement accepted VicUrban notices issued by (State Provisions) Ombudsman to audit police records to ensure compliance Melbourne City Act 1988 with the Act. Council. April 2006 Note: this function will be transferred to the Special Review of the 11 - Legislative All recommendations Ongoing Office of the Attorney-General Investigations Monitor during the next reporting period. Freedom of 6 - Process accepted Department of Treasury Information 9 - Administrative and Finance Whistleblowers Protection Attorney-General Empowers the Ombudsman to investigate disclosures Act. June 2006 Department of Innovations, Act 2001 of improper conduct engaged in by public bodies and Industry and Regional public officers, including members of Parliament and Development municipal councillors. Department of Sustainability and Environment Transport (Miscellaneous Minister for Transport Empowers the Ombudsman to investigate complaints Department of Primary Amendments) Act 2003 about the actions of officers employed by private transport Industries companies in exercising statutory duties in the detection of offences committed on public transport. Department of Human Services Animals Legislation Minister for Agriculture Empowers the Ombudsman to monitor compliance with: (Animal Welfare) Act 2003 Department of Justice – the Prevention of Cruelty to Animals Act by approved inspectors of the RSPCA in their exercise of certain Department of Infrastructure powers to enter, inspect and search premises; and Department of Premier – the Domestic (Feral and Nuisance) Animals Act 1994 by and Cabinet certain persons appointed by DPI and local councils. Department of Victorian Communities Department of Education and Training Victoria Police 105 investigate Disclosure index review resolve 107
Disclosure index
The Annual Report of Ombudsman Victoria is prepared in accordance with all relevant Victorian legislation. This index has been prepared to facilitate identification of the office’s compliance with statutory disclosure requirements.
Legislation Requirement Reference Ministerial Directions Report of Operations Charter and purpose FRD 22A Manner of establishment 13, 91 FRD 22A Objectives, functions, powers and duties 91, 92 FRD 22A Nature and range of services provided 5 accountability Management and structure disclosure FRD 22A Organisational structure 93 Financial and other information FRD 22A Statement of workforce data and merit and equity 93, 94 access FRD 22A Summary of the financial results for the year 114 – 116 index FRD 22A Significant changes in financial position during the year 114 – 116 FRD 22A Operational and budgetary objectives and performance against objectives 91 – 103 effectiveness FRD 22A Major changes or factors affecting performance n/a FRD 22A Subsequent events n/a FRD 22A Application and operation of Freedom of Information Act 1982 67 – 72 FRD 22A Compliance with building and maintenance provisions of Building Act 1993 n/a FRD 22A Statement on National Competition Policy n/a FRD 22A Application and operation of the Whistleblowers Protection Act 2001 61 – 65 FRD 22A Details of consultancies over $100,000 97 FRD 22A Details of consultancies under $100,000 97 FRD 12 Disclosure of major contracts 97 FRD 22A Statement of availability of other information 97 FRD 22A Occupational health and safety 95 FRD 15A Executive officer disclosures 95 FRD 10 Disclosure index 107 FRD 24 Reporting of office-based environmental impacts by government departments 96 FRD 25 Victorian Industry Participation Policy disclosures 97 109
Legislation Requirement Reference Ministerial Directions Financial Statements
Financial statements required under Part 7 of the FMA SD 4.2(c) Compliance with Australian accounting standards and other 117 authoritative pronouncements
SD 4.2(c) Compliance with Ministerial Directions 114 – 116, 133, 134
SD 4.2(d) Rounding of amounts n/a
SD 4.2(a) Statement of recognised income and expense 116
SD 4.2(c) Accountable officer’s declaration 134 SD 4.2(f) Model Financial Report 134 SD 4.2(b) Statement of financial performance 114
SD 4.2(b) Statement of financial position 115
SD 4.2(b) Statement of cash flows during the year 116
Other disclosures in notes to the financial statements FRD 9A Departmental disclosure of administered assets and liabilities 128 – 129,132
FRD 11 FRD 11 Disclosure of ex-gratia payments n/a
FRD 13 FRD 13 Disclosure of parliamentary appropriations 114 – 116 FRD 21A FRD 21 Responsible person and executive officer disclosures 129 – 130 investigate FRD 23 FRD 23 Superannuation liabilities and disclosure 132 review resolve 111 investigate Financials review resolve 113
Independent audit report Office of the Ombudsman
To the Members of the Parliament of Victoria and the Ombudsman Scope The Financial Report The accompanying financial report for the year ended 30 June 2006 of the Office of the Ombudsman consists of an operating statement, balance sheet, statement of recognised income and expense, cash flow statement, notes to and forming part of the financial report, and the accountable officer’s and chief financial officer’s declaration. Ombudsman’s Responsibility The Ombudsman is responsible for: – the preparation and presentation of the financial report and the information it contains, including accounting policies and accounting estimates – the maintenance of adequate accounting records and internal controls that are designed to record its transactions and affairs, and prevent and detect fraud and errors. Audit Approach As required by the Audit Act 1994, an independent audit has been carried out in order to express an opinion on the financial report. The audit has been conducted in accordance with Australian Auditing Standards to provide reasonable accountability assurance as to whether the financial report is free of material misstatement. The audit procedures included: – examining information on a test basis to provide evidence supporting the amounts and disclosures in the financial report – assessing the appropriateness of the accounting policies and disclosures used, and the reasonableness of significant access financials accounting estimates made by the Ombudsman – obtaining written confirmation regarding the material representations made in conjunction with the audit – reviewing the overall presentation of information in the financial report. These procedures have been undertaken to form an opinion as to whether the financial report is presented in all effectiveness material respects fairly in accordance with Accounting Standards and other mandatory professional reporting requirements in Australia, and the financial reporting requirements of the Financial Management Act 1994, so as to present a view which is consistent with my understanding of the Office’s financial position, and its financial performance and cash flows. The audit opinion expressed in this report has been formed on the above basis. Independence The Auditor-General’s independence is established by the Constitution Act 1975. The Auditor-General is not subject to direction by any person about the way in which his powers and responsibilities are to be exercised. The Auditor-General and his staff and delegates comply with all applicable independence requirements of the Australian accounting profession. Audit Opinion In my opinion, the financial report presents fairly in accordance with applicable Accounting Standards and other mandatory professional reporting requirements in Australia, and the financial reporting requirements of the Financial Management Act 1994, the financial position of the Office of the Ombudsman as at 30 June 2006 and its financial performance and cash flows for the year then ended.
MELBOURNE Edward M. Hay 25 September 2006 Acting Auditor-General 115
Operating Statement Balance Sheet For the year ended 30 June 2006 As at 30 June 2006
Notes 2006 $ 2005 $ Notes 2006 $ 2005 $
Income Current Assets
Grants 1(b), 2 5,536,763 13,619,525 Cash on Hand 1,000 1,000
Resources Received Free of Charge 1(k), 2 32,049 – Receivables 4 16,853 76,289
5,568,812 13,619,525 Total Current Assets 17,853 77,289
Expenses Non-Current Assets
Employee Benefits 1(h), 3 3,578,355 6,855,049 Property, Plant and Equipment 5 1,109,695 3,400,026
Depreciation and Amortisation 1(d), 3 154,746 125,355 Total Non-Current Assets 1,109,695 3,400,026
Capital Asset Charge 1(i) 18,000 57,220 Total Assets 1,127,548 3,477,315
Resources Provided Free of Charge 1(k) 187,881 _
Supplies and Services 1,821,467 6,597,046 Current Liabilities
Finance Lease Interest 1(f) 2,839 6,079 Payables 6 905,853 2,771,127
5,763,288 13,640,749 Interest Bearing Liabilities 7 21,765 28,437
Net Result for the Period 9(a) (194,476) (21,224) Provisions 8 526,104 1,139,992
Total Current Liabilities 1,453,722 3,939,556 The above Operating Statement should be read in conjunction with the accompanying notes. Non-Current Liabilities
Interest Bearing Liabilities 7 18,819 187,956
Provisions 8 76,489 62,653
Total Non-Current Liabilities 95,308 250,609
Total Liabilities 1,549,030 4,190,165
Net Liabilities (421,482) (712,850)
Equity
Contributed Capital 9(b) 550,149 64,305
Accumulated Deficit 9(a) (971,631) (777,155)
Total Equity / (Deficit) (421,482) (712,850)
The above Balance Sheet should be read in conjunction with the accompanying notes. 117
Statement of Recognised Income and Expense Note 1. Summary of Significant Accounting Policies For the year ended 30 June 2006
Notes 2006 $ 2005 $ Statement of Compliance Net Income Recognised Directly in Equity – – This general purpose financial report has been prepared on an accrual basis in accordance with Net Result for the Period (194,476) (21,224) the Financial Management Act 1994, Australian Accounting Standards and Urgent Issues Group Interpretations. Accounting Standards include Australian equivalents to International Financial Total Recognised Income and Expense for the Period (194,476) (21,224) Reporting Standards (A-IFRS). The above Statement of Recognised Income and Expense should be read in conjunction with the accompanying notes. The financial report was authorised for issue by G Brouwer (Ombudsman) on 29 August 2006. Cash Flow Statement Basis of Preparation For the year ended 30 June 2006 The financial report has been prepared on the basis of historical cost, except where noted. Notes 2006 $ 2005 $ Cost is based on the fair values of the consideration given in exchange for assets. Cash Flows from Operating Activities In the application of A-IFRS, Management is required to make judgments, estimates and Receipts from Government 8,255,923 13,597,030 assumptions about carrying values of assets and liabilities that are not readily apparent from Payments to Suppliers and Employees (6,810,870) (11,668,420) other sources. The estimates and associated assumptions are based on historical experience
Capital Asset Charge (18,000) (57,220) and various other factors that are believed to be reasonable under the circumstance, the results of which form the basis of making the judgments. Actual results may differ from these Finance Costs (2,839) (6,079) estimates. The estimates and underlying assumptions are reviewed on an ongoing basis. Net Cash Inflow/(Outflow) from Operating Activities 16 1,424,214 1,865,311 Revisions to accounting estimates are recognised in the period in which the estimate is revised Cash Flows from Investing Activities if the revision affects only that period or in the period of the revision and future periods if the revision affects both current and future periods. Payments for Property, Plant and Equipment (1,903,398) (1,854,159)
Net Cash Inflow/(Outflow) from Investing Activities (1,903,398) (1,854,159) Judgments made by Management in the application of A-IFRS that have significant effects on the Financial Statements and estimates with a significant risk of material adjustments in the Cash Flows from Financing Activities next year are disclosed throughout the notes in the Financial Statements. Proceeds from Capital Contribution by State Government 485,844 – Accounting policies are selected and applied in a manner which ensures that the resulting Repayment of Finance Leases (6,660) (10,652) financial information satisfies the concepts of relevance and reliability, thereby ensuring that Net Cash Inflow/(Outflow) from Financing Activities 479,184 (10,652) the substance of the underlying transactions or other events is reported. Net Increase In Cash Held – 500 The Office of the Ombudsman (“the Office”) changed its accounting policies on 1 July 2005 to Cash at the Beginning of the Financial Year 1,000 500 comply with A-IFRS. The transition to A-IFRS is accounted for in accordance with Accounting Cash at the End of the Financial Year 1,000 1,000 Standard AASB 1 ‘First-time Adoption of Australian Equivalents to International Financial
Non-Cash Financing and Investing Activities 17 Reporting Standards’, with 1 July 2004 as the date of transition. An explanation of how the transition from superseded policies to A-IFRS has affected the Office’s financial position, The above Cash Flow Statement should be read in conjunction with the accompanying notes. financial performance and cash flows is discussed in note 19. 119
The Office has also elected to apply Accounting Standard AASB 2005-4 and 2005-6 (b) Objectives and Funding ‘Amendments to Accounting Standards’ (June 2005), even though the Standards are not required to be applied until annual reporting periods beginning on or after 1 January 2006. The Office handles complaints concerning administrative actions taken by Victorian Government Departments, Victorian statutory authorities and local councils under the The accounting policies set out below, except for those in respect of financial instruments, Ombudsman Act 1973; determines whether a disclosure of improper conduct under the have been applied in preparing the Financial Statements for the year ended 30 June 2006, Whistleblowers Protection Act 2001 warrants investigation; and ensures compliance by the comparative information presented in these Financial Statements for the year ended designated agencies with the provisions of the Freedom of Information Act 1982. 30 June 2005, and in the preparation of the opening A-IFRS Balance Sheet at 1 July 2004, the Office’s date of transition. The Office has not restated comparative information for financial It aims to improve the accountability of State and local government agencies to the public instruments, as permitted under the first-time adoption transitional provisions. The accounting and the Parliament, and to promote fair and reasonable public administration. policy changes relating to financial instruments did not have any material effect on the Balance The Office is predominantly funded by accrual based Parliamentary appropriations for the Sheet as at 1 July 2005. provision of outputs. These appropriations are received by the Department of Premier and (a) Reporting Entity Cabinet and on-forwarded to the Office in the form of grants.
The Financial Statements include all the controlled activities of the Office of the Ombudsman. (c) Income With the approval of the Minister for Finance under the Financial Management Act 1994, the All income received by the Office is generally required to be paid into the Consolidated Fund. reporting entity for the year ended 30 June 2005 included the activities of the Office of Police Income becomes controlled by the Office when it is appropriated (to the Department of Integrity, which was established in November 2004. In that initial reporting period for the Premier and Cabinet) from the Consolidated Fund by the Victorian Parliament and applied to Office of Police Integrity, it was considered appropriate for practical reasons to combine the the purposes defined under the relevant appropriations Act. financial information of that new entity with that of the Office of the Ombudsman. The Office of Police Integrity has prepared separate Financial Statements for the year ended 30 June 2006. Income from the outputs the Office provides to Government is recognised when those outputs Assets and liabilities de-consolidated as opening balances for the Office of Police Integrity at have been delivered and the relevant Minister has certified delivery of those outputs in 1 July 2005 are: accordance with specified performance criteria. Property, plant and equipment 2,820,057 (d) Depreciation of Property, Plant and Equipment Provisions 459,000 Depreciation is calculated on a straight-line basis to write off the net cost or revalued amount Payables 2,361,057 of each item of property, plant and equipment over its expected useful life to the Office. Administered Resources Estimates of remaining useful lives, residual values and depreciation method for all such assets are reviewed at least annually. The expected useful lives applicable for the years The Office administers, but does not control, certain resources on behalf of the Victorian ended 30 June 2006 and 30 June 2005 were as follows: Government. It is accountable for the transactions involving those administered resources, but does not have the discretion to deploy the resources for achievement of the Office’s Building Fitouts 10 years objectives. For these resources, the Office acts only on behalf of the Victorian Government. Computer Equipment 4 years
Transactions and balances relating to these administered resources are not recognised as Office Equipment 4 years revenues, expenses, assets or liabilities within the body of the Financial Statements, but are Furniture and Fitting 10 years disclosed separately (see note 18). 121
(e) Impairment of Assets (g) Payables
All non-current physical assets are assessed annually for indications of impairment. If there is These amounts represent liabilities for goods and services provided to the Office prior to the an indication of impairment, the assets concerned are tested as to whether their carrying value end of the financial year and which are unpaid. The amounts are unsecured and are usually exceeds their recoverable amount. Where an asset’s carrying value exceeds its recoverable paid within 30 days of recognition. amount, the difference is written off by a charge to the Operating Statement except to the extent that the write-down can be debited to an Asset Revaluation Reserve amount applicable (h) Employee Benefits to that class of asset. Provision is made for benefits accruing to employees in respect of wages and salaries, annual The recoverable amount for most assets is measured at the higher of depreciated replacement leave, long service leave and sick leave when it is probable that settlement will be required and cost and fair value less costs to sell. Recoverable amount for assets held primarily to generate they are capable of being measured reliably. net cash inflows is measured at the higher of the present value of future cash flows expected Provisions made in respect of employee benefits expected to be settled within 12 months are to be obtained from the asset and fair value less costs to sell. It is deemed that, in the event of measured at their nominal values, using the remuneration rate expected to apply at the time of the loss of an asset, the future economic benefits arising from the use of the asset will be settlement. Provisions made in respect of employee benefits which are not expected to be replaced unless a specific decision to the contrary has been made. settled within 12 months are measured as the present value of the estimated future cash (f) Leases outflows to be made by the Office in respect of services provided by employees up to reporting date. The liability is classified as a current liability where the Office does not have an Leases are classified as finance leases whenever the terms of the lease transfer substantially unconditional right to defer settlement for at least 12 months after the reporting date. all the risks and rewards of ownership to the lessee. All other leases are classified as operating leases. Superannuation Defined contribution plans Assets held under finance leases are recognised as assets of the Office at their fair value Contributions to defined contribution superannuation plans are expensed when incurred. or, if lower, at the present value of the minimum lease payments, each determined at the inception of the lease. The corresponding liability is included in the Balance Sheet as a Defined benefit plans finance lease obligation. The amount charged to the Operating Statement in respect of defined benefit plan Lease payments are apportioned between finance charges and reduction of the lease obligation superannuation represents the contributions made by the Office to the superannuation plan in so as to achieve a constant rate of interest on the remaining balance of the liability. Finance respect to the current services of current Office staff. Superannuation contributions are made charges are charged directly against income. to the plans based on the relevant rules of each plan.
The lease asset is depreciated on a straight line basis over the term of the lease, or where it is The Office does not recognise any defined benefit liability in respect of the superannuation likely that the Office will obtain ownership of the asset, the expected useful life of the asset to plan because the Office has no legal or constructive obligation to pay future benefits relating the Office. Lease assets held at the reporting date, being motor vehicle leases, are being to its employees; its only obligation is to pay superannuation contributions as they fall due. depreciated over 1 to 3 years. The Department of Treasury and Finance administers and discloses the State’s defined benefit liabilities in its Financial Statements. Operating lease payments are charged to the Operating Statement in the periods in which they are incurred, as this represents the pattern of benefits derived from the leased assets. 123
(i) Capital Asset Charge 2006 $ 2006 $
The capital asset charge is imposed by the Department of Treasury and Finance and represents Note 2. Income the opportunity cost of capital invested in the non-current physical assets used in the provision Income from Government of outputs. The charge is calculated on the carrying amount of non-current physical assets. Grants from the Department of Premier and Cabinet (note 1(b), 1(c)) 5,536,763 13,619,525 Resources Received Free of Charge (note 1(k), 17) 32,049 – (j) Contributed Capital Total Income 5,568,812 13,619,525 Consistent with UIG Interpretation 1038 Contributions by Owners Made to Wholly-Owned Public Sector Entities, grants received for additions to net assets are designated as contributed capital. Note 3. Expenses Other transfers that are in the nature of contributions or distributions are also designated as The net result for the period includes the following expenses: contributed capital. Employee Benefits (k) Resources Provided and Received Free of Charge Salaries and Wages 2,975,379 5,396,664
Contributions of resources and resources provided free of charge are recognised at their fair Superannuation value. Contributions in the form of services are only recognised when a fair value can be reliably – Defined Contribution Plans 157,625 321,581 determined and the services would have been purchased if not donated. – Defined Benefits Expense 40,746 67,297 (l) Going Concern Basis Annual and Long Service Leave Expense 204,444 750,044 Other On-Costs 200,161 319,463 The liabilities of the Office exceed its assets. Despite this, the going concern basis continues to Total Employee Costs 3,578,355 6,855,049 be appropriate for these Financial Statements because the Office performs a statutory function Depreciation and Amortisation and is ultimately part of the State Government of Victoria, which guarantees payment of the Building Fitouts 52,351 8,962 Office’s debts as and when they fall due. Computer Equipment 69,818 78,245 (m) Functional and Presentation Currency Furniture and Fittings 27,174 26,671
These Financial Statements are presented in Australian dollars, which is the Office’s functional Motor Vehicles under Finance Lease 5,403 11,477 and presentation currency. Total Depreciation and Amortisation 154,746 125,355 Rental Expense Relating to Operating Leases Minimum Lease Payments 359,043 574,547 Auditors’ Remuneration 9,600 9,300
Note 4. Receivables Current: GST Recoverable 16,853 76,289 16,853 76,289 125
2006 $ 2005 $ 2006 $ 2005 $ Note 5. Property, Plant and Equipment Note 5. Property, Plant and Equipment (continued)
Building Fitouts – at Cost 528,213 586,786 Reconciliation of Movements (continued)
Less: Accumulated Depreciation (65,121) (12,770) Computer Equipment
Construction in Progress – at Cost – 101,040 Carrying Amount at Start of Year 875,623 70,942
463,092 675,056 Deconsolidation of Opening Balances for Office of Police Integrity (note 1(a)) (1,500,721) –
Computer Equipment – at Cost 862,317 1,308,320 Additions 431,841 882,926
Less: Accumulated Depreciation (399,379) (432,697) Net Transfers from Other Government Divisions 32,049 –
462,938 875,623 Transfers between classes 693,964 –
Furniture and Fittings – at Cost 202,135 1,684,399 Depreciation Expense (note 3) (69,818) (78,245)
Less: Accumulated Depreciation (58,672) (50,564) Carrying Amount at End of Year 462,938 875,623
143,463 1,633,835 Furniture and Fittings
Motor Vehicles under Finance Lease 49,902 227,637 Carrying Amount at Start of Year 1,633,835 75,760
Less: Accumulated Depreciation (9,700) (12,125) Deconsolidation of Opening Balances for Office of Police Integrity (note 1(a)) (1,048,389) –
40,202 215,512 Additions 220,582 1,584,746
1,109,695 3,400,026 Transfers between classes (635,391) –
Reconciliation of Movements Depreciation Expense (note 3) (27,174) (26,671)
Building Fitouts (including Construction in Progress) Carrying Amount at End of Year 143,463 1,633,835
Carrying Amount at Start of Year 675,056 45,796 Motor Vehicles under Finance Lease
Deconsolidation of Opening Balances for Office of Police Integrity (note 1(a)) (101,040) – Carrying Amount at Start of Year 215,512 23,221
Additions – 638,222 Deconsolidation of Opening Balances for Office of Police Integrity (note 1(a)) (169,907) –
Transfers between classes (58,573) – Additions – 203,768
Depreciation Expense (note 3) (52,351) (8,962) Depreciation Expense (note 3) (5,403) (11,477)
Carrying Amount at End of Year 463,092 675,056 Carrying Amount at End of Year 40,202 215,512 127
2006 $ 2005 $ 2006 $ 2005 $ Note 6. Payables Note 8. Provisions
Creditors and Accruals 353,998 2,747,282 Current:
Amounts Payable to Other Government Agencies 551,855 23,845 Employee Benefits
905,853 2,771,127 – Annual Leave 202,632 381,104
– Long Service Leave
Note 7. Interest Bearing Liabilities Expected to be paid within 12 months 29,531 60,007
Current: Secured Expected to be paid after 12 months 263,120 627,430
Lease Liabilities 21,765 28,437 – Performance Bonus 30,821 71,451
Non-Current: Secured 526,104 1,139,992
Lease Liabilities 18,819 187,956 Non-Current:
Aggregate Carrying Amount of Interest Bearing Liabilities Employee Benefits
Current 21,765 28,437 – Long Service Leave 76,489 62,653
Non-Current 18,819 187,956 Aggregate Carrying Amount of Provisions
40,584 216,393 Current 526,104 1,139,992
Lease liabilities are effectively secured as the rights to the leased assets revert Non-Current 76,489 62,653 to the lessor in the event of default.
Assets Pledged as Security 602,593 1,202,645
The carrying amounts of non-current assets pledged as security are:
Motor Vehicles under Finance Lease 40,202 215,512 129
2006 $ 2005 $ (d) Fair Value of Financial Assets and Liabilities Note 9. Equity and Movements in Equity The carrying amount of financial assets and financial liabilities recorded in the Financial Statements approximates their fair values (2005: net fair value). (a) Accumulated Deficit The fair values and net fair values of financial assets and financial liabilities are determined Accumulated Deficit at the Start of the Period (777,155) (755,931) as follows: Net Result for the Period (194,476) (21,224) – the fair value of financial assets and financial liabilities with standard terms and conditions and Accumulated Deficit at the End of the Period (971,631) (777,155) traded on active liquid markets are determined with reference to quoted market prices; and
(b) Contributed Capital – the fair value of other financial assets and financial liabilities are determined in accordance with generally accepted pricing models based on discounted cash flow analysis. Balance at the Start of the Period 64,305 64,305
Capital Contributions During the Period by Victorian State Government 485,844 – 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. Balance at the End of the Period 550,149 64,305 None of the classes of financial assets and liabilities are readily traded on organised markets in Note 10. Financial Instruments standardised form. Note 11. Responsible Persons (a) Financial Risk Management Objectives In accordance with the Ministerial Directions issued by the Minister for Finance under the The Office does not enter into or trade financial instruments, including derivative financial Financial Management Act 1994, the following disclosures are made regarding responsible instruments, for speculative purposes. persons for the period. (b) Credit Risk Exposures Names The persons who held the positions of Minister and Accountable Officer in the Office during The Office does not have any significant credit risk exposure to any single counterparty or any the financial year were as follows: group of counterparties having similar characteristics. The credit risk on financial assets of the Office which have been recognised in the Balance Sheet is generally the carrying amount, net of Responsible Minister The Hon Steve Bracks, MP, Premier any provisions for doubtful debts. Accountable Officer George Brouwer, Ombudsman
(c) Interest Rate Risk Exposures Remuneration Remuneration received or receivable by the person holding the office of Ombudsman, in It is considered that the Office is not exposed to any interest rate risk. The only interest bearing connection with the management of the Office during the reporting period, was in the income assets or liabilities are the motor vehicle lease liabilities, with respect to which the interest rate bands shown below: is fixed for the term of the lease. The weighted average interest rate for lease liabilities for the year ended 30 June 2006 was 6.5% (2005 - 6.3%). $310,000 - $319,999 ($250,000 - $259,999 in 2005)
Amounts relating to Ministers are reported in the Financial Statements of the Department of Premier and Cabinet. 131
2006 $ 2005 $ Other Transactions Note 14. Commitments for Expenditure Other related transactions and loans requiring disclosure under the Directions of the Minister Operating Lease Commitments for Finance have been considered and there are no matters to report. Commitments for minimum lease payments in relation to non-cancellable operating Note 12. Remuneration of Executives leases, not recognised as liabilities, are payable as follows:
The numbers of executive officers, other than the Accountable Officer, whose total Within one year 406,630 629,159 remuneration exceeded $100,000 during the reporting period, are shown in their relevant Later than 1 year but not later than five years 1,678,959 2,880,735 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 Later than five years 24,976 720,173 bonus payments, long service leave payments, redundancy payments and retirement benefits. 2,110,564 4,230,067 Total Remuneration Base Remuneration Income Band 2006 2005 2006 2005 No. No. No. No. Finance Lease Commitments $10,000 – $19,999 – 1 Commitments in relation to finance leases are payable as follows: $130,000 – $139,999 – 2 – 1 $140,000 – $149,999 – 2 1 2 Within one year 23,957 41,665
$150,000 – $159,999 1 – Later than one year but not later than five years 19,847 204,526 $160,000 – $169,999 – 1 Later than five years – – $170,000 – $179,999 – 1 Minimum Lease Payments 43,804 246,191 $190,000 – $199,999 1 – $200,000 – $209,999 1 – Less: Future finance charges (3,220) (29,798)
Total Numbers 2 5 2 5 Total Lease Liabilities 40,584 216,393 Total Amount ($) 363,374 730,818 349,374 600,614 Shown in the Financial Statements as:
Current (note 7) 21,765 28,437 Note 13. Contingent Liabilities and Contingent Assets Non-Current (note 7) 18,819 187,956 There are no contingent liabilities or contingent assets for the Office of the Ombudsman at 40,584 216,393 30 June 2006 or 30 June 2005. 133
Note 15. Superannuation Note 17. Non-Cash Financing and Investing Activities
No liability is recognised in the Balance Sheet for the Office’s share of the State’s unfunded During the period, assets amounting to $32,049 were transferred to the Office from other superannuation liability. The State’s unfunded superannuation liability has been reflected in the Government Divisions and accounted for as resources received free of charge in the Operating Financial Statements of the Department of Treasury and Finance. Statement. During the previous reporting period, motor vehicles with a fair value of $203,768 were acquired by means of finance leases. However, superannuation contributions for the reporting period are included as part of salaries and associated costs in the Operating Statement of the Office. Note 18. Administered Items
The Office made contributions to the following major employee superannuation funds during In addition to the specific operations of the Office which are included in the Balance Sheet, the period: Operating Statement and Cash Flow Statement, the Office administers or manages activities on behalf of the State. The transactions relating to these State activities are reported as Defined Benefit Funds Government Superannuation Office Administered in this note. During the year ended 30 June 2006, the only administered – Revised Scheme transactions were the receipt of revenue from the Victorian WorkCover Authority and Transport – New Scheme Accident Commission (totalling $478,000) for the conduct of investigative services. There were no administered transactions during the previous reporting period. Accumulation Funds VicSuper The Office of the Ombudsman does not have any contributions outstanding to the above Funds Note 19. Impacts of Adoption of Australian Equivalents to International Financial Reporting Standards and there have been no loans made from the Funds. The bases for contributions are determined by the various schemes. The Office of the Ombudsman changed its accounting policies, other than its accounting Note 16. Reconciliation of Net Result for the Reporting Period to Net Cash policies for financial instruments, on 1 July 2004 to comply with A-IFRS. The transition to Inflow from Operating Activities A-IFRS is accounted for in accordance with Accounting Standard AASB 1 ‘First-time Adoption of Australian Equivalents to International Financial Reporting Standards’, with 1 July 2004 as the 2006 $ 2005 $ date of transition. The Office changed its accounting policies for financial instruments effective
Net Result for the Reporting Period (194,476) (21,224) from 1 July 2005 (refer note 1).
Depreciation and Amortisation 154,746 125,355 The transition from superseded policies under Australian Generally Accepted Accounting Principles (AGAAP) to A-IFRS had no material impact on the Office’s Balance Sheet at 1 July Resources Received Free of Charge (32,049) – 2004 and 30 June 2005 or on its Operating Statement and Cash Flow Statement for the year Change in Operating Assets and Liabilities, net of effect of deconsolidation of ended 30 June 2005. Office of Police Integrity
(Increase)/Decrease in Receivables 59,435 (75,222)
Increase/(Decrease) in Payables 1,577,610 1,404,752
Increase/(Decrease) in Provisions (141,052) 431,650
Net Cash Inflow from Operating Activities 1,424,214 1,865,311 135
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 Standing Direction 4.2 of the Financial Management Act 1994, applicable Financial Reporting Directions, Australian Accounting Standards and other mandatory professional reporting requirements.
We further state that, in our opinion, the information set out in the Operating Statement, Balance Sheet, Statement of Recognised Income and Expense, Cash Flow Statement and Notes to the Financial Statements, presents fairly the financial transactions during the year ended 30 June 2006 and financial position of the Office as at 30 June 2006.
We are not aware of any circumstance, which would render any particulars included in the Financial Statements to be misleading or inaccurate.
Peter Goddard G E Brouwer Chief Financial Officer Ombudsman investigate Department of Premier and Cabinet Office of the Ombudsman
Melbourne Melbourne 29 August 2006 29 August 2006 review resolve 137
Whistleblowers Protection Act 2001– investigate Ombudsman’s Guidelines review resolve 139
Contents
Whistleblowers Protection Act – 141 Receiving a disclosure 151 Possible criminal charges, legal action 161 Management of the person 174 Ombudsman’s Guidelines How can a protected 151 and disciplinary proceeding against whom a disclosure Objects of the Act 141 disclosure be made? Criminal offences 161 is made Who is subject to the Act? 141 To whom must a protected 151 Detrimental action 161 Powers with respect 174 The role of the Ombudsman 142 disclosure be made? Breach of confidentiality 161 to witnesses Establishing written procedures 143 Mechanisms for the receipt 152 Obstruction of the Ombudsman 161 Legal representation and other 174 Contents of whistleblower 144 of disclosures Provision of false information 162 support to witnesses protection procedures Assessing a disclosure 153 Civil action 162 Immunity from disciplinary 175 action Establishing a reporting system 144 Protected disclosures 153 Managing the welfare of the 162 What reporting structure 145 Improper conduct 154 whistleblower Criminal conduct 175 to adopt Examples of improper conduct 154 Internal and external 163 Problems with an investigation 175 Roles and responsibilities of 146 Corrupt conduct 154 whistleblowers conducted by a public body those involved in the internal Examples of corrupt conduct 155 Appointing a welfare manager 163 The Ombudsman may take over 176 the investigation reporting system Substantial mismanagement 156 Reporting back 164 Action on completion 177 The Protected Disclosure 146 of public resources Managing expectations 165 of investigation Coordinator Substantial risk to public health 156 Occurrence of detrimental action 165 Model reporting system for 147 and safety, or the environment Collating and publishing 178 Consequences for whistleblowers 166 statistics a large organisation Detrimental action 156 implicated in improper conduct, or General information 179 Model reporting system for a 148 Examples of detrimental action 156 disciplinary matters The role of the Ombudsman 179 small organisation Reasonable grounds for belief 157 Errors to be avoided 167 Freedom of Information 179 Ensuring confidentiality 148 Notification of the decision 158 Investigations 168 Contact details 179 Protecting the whistleblower 149 Public interest disclosures 158 Who can carry out the 168 from reprisals To show or tend to show 158 investigation? Establishing a confidential 149 improper conduct or Investigation by a public body 169 electronic and paper filing system detrimental action Terms of reference and 169 Education and training to ensure 150 Determination of a public 159 authorisation knowledge by personnel interest disclosure Preparation of investigation plan 170 Receiving disclosures 150 Determination that the 159 The investigator 171 disclosure is not a public Monitoring by the Ombudsman 171 interest disclosure Natural justice 171 Flowchart 160 Recording information 172 Confidentiality requirements 173 141
Whistleblowers Protection Act – Ombudsman’s Guidelines Objects of the Act
The main objective of the Whistleblowers Protection Act 2001 (the Act) is to encourage and facilitate the making of disclosures of improper conduct by public officers and public bodies and establish a system for matters to be investigated. The Act provides protection to a person who makes a disclosure and remedies for the person where detrimental action has been taken against them. Who is subject to the Act?
Any person may make a disclosure about improper conduct by public bodies and public officers. accountability Public body and public officer are defined in section 3 of the Act. The types of bodies about which a person may make a disclosure include:
whistleblowers protection act– – government departments and agencies accessombudsman’s – statutory authorities guidelines – officers of municipal councils effectiveness – Government-appointed boards and committees – Government-owned companies
– Universities
– TAFE colleges
– public hospitals
– state-funded residential care services
– health services contractors
– correctional services contractors. 143
Public bodies excluded from the Act are courts, boards, tribunals, commissions and other bodies – Investigating disclosures presided over by a judge, magistrate or legal practitioner appointed under a statute. – Monitoring investigations where they have been referred to public bodies Public officers include: – Monitoring the action taken by public bodies where the findings of an investigation – Members of Parliament reveal that improper conduct has occurred
– Councillors – Reporting to Parliament where public bodies fail to implement recommendations made by the Ombudsman at the conclusion of an investigation – Council employees – Collating and publishing statistics about disclosures handled by the Ombudsman – Public servants – Educating and training public bodies. – University employees Establishing written procedures – Police officers In addition to being the potential subject of a disclosure, each public body is required by section – Protective services officers 68 of the Act to establish written procedures for handling disclosures. The procedures must – Administrative staff of the Chief Commissioner of Police facilitate the making of disclosures, the investigation of disclosures, and the protection of whistleblowers from reprisals by the public body or any officer, member or employee of the – Teachers public body. The procedures must be in accordance with the Act and these guidelines.
– Officer holders appointed by Governor in Council or a Minister. The Ombudsman may review the written procedures of a public body and their implementation. The Ombudsman may make recommendations to a public body as a result of such a review. Public officers excluded from the Act are magistrates and judges of a court or members of a It is the responsibility of the public agency to ensure that its policies and procedures reflect the tribunal, the Director of Public Prosecutions, the Auditor-General, the Ombudsman, the Director current Act, Regulations and Guidelines. Each agency should review its policies and procedures if Police Integrity, the Special Investigations Monitor, the Electoral Commissioner, and amendments are made to the Act, Regulations or the Ombudsman’s Guidelines. parliamentary and judicial staff. A public body must make a copy of its written procedures available to each of its members, The role of the Ombudsman employees or officers, and must have a copy available for inspection by members of the public The Ombudsman has a central role in handling disclosures of improper conduct made under during normal office hours free of charge. The procedures should also be located or linked on the Act. The role of the Ombudsman involves: any website maintained by the public body.
– Preparing and publishing guidelines to assist public bodies in interpreting and complying The following list of matters should be included in the written procedures of a public body to with the Act establish an effective internal reporting system for the Act. Further information about each matter listed can be found in the following sections of these guidelines. – Reviewing written procedures established by public bodies and making recommendations in relation to those procedures
– Determining whether a disclosure warrants investigation 145
Contents of whistleblower protection procedures – Keeping the roles of assessment and investigation of a disclosure distinct from welfare management of the whistleblower 1 Statement of support for whistleblowers – Identifying clear contact points for reporting whistleblower disclosures, including all relevant 2 Purpose of the procedures mail, phone calls and emails.
3 Objects of the Act – Ensuring a disclosure about the chief executive officer of a public body is immediately referred to the Ombudsman. 4 Definitions of key terms A clear internal reporting system will benefit a public body by: 5 The reporting system – Encouraging staff to raise matters of concern internally 6 Roles and responsibilities – Providing a reporting channel for disclosures that may otherwise never be reported 7 Confidentiality – Ensuring disclosures by whistleblowers are properly and appropriately assessed and 8 Collating and publishing statistics acted upon 9 Receiving and assessing disclosures – Ensuring the protection of the Act is fully available to all internal and external whistleblowers. 10 Investigations What reporting structure to adopt 11 Action taken after investigations The reporting system should be centralised. A centralised system of handling disclosures could 12 Managing the welfare of the whistleblower involve a small number of officers who report direct to the principal officer of an organisation. There are a number of benefits of a centralised system including: 13 Management of the person against whom the disclosure is made – Fewer people handling disclosures enhances confidentiality and thereby reduces the 14 Criminal offences likelihood of reprisals being taken against whistleblowers
Establishing a reporting system – Direct involvement of senior management in the reporting system appropriately reflects the seriousness of whistleblower matters A public body must establish a reporting system for the receipt, assessment and investigation of whistleblower disclosures. – As the occurrence of improper conduct is often a result of poor supervision within an organisation, senior management should take overall responsibility for the investigation Five chief requirements of any reporting system are: of these matters – Ensuring senior executive staff are involved and retain oversight – Avoids conflicts of interest by excluding line managers from the assessment and – Ensuring confidentiality of the information and the identity of the whistleblower is investigation of any disclosure maintained throughout the process – Reduces requirements for the training of staff. 147
Roles and responsibilities of those involved in the internal reporting system In a smaller public body the Principal Officer may decide to take on the role of protected disclosure coordinator. The protected disclosure coordinator must be contactable by external There are a number of ways a public body can set up a reporting system. The number of officers and internal whistleblowers, and have the authority to make enquiries of officers within the and their respective roles will depend on the size of the body and its structure in terms of organisation. regions or organisational units. An internal reporting policy should identify the officers who will be involved in the internal reporting system and clearly describe their individual roles. A large organisation, or an organisation with a number of geographic locations may wish to appoint a number of protected disclosure officers to assist the protected disclosure coordinator The Protected Disclosure Coordinator with the receipt of disclosures. However, I recommend that some central oversight be maintained by the protected disclosure coordinator to ensure accurate reporting on outcomes. Every public body must have a nominated protected disclosure coordinator. Model reporting system for a large organisation The protected disclosure coordinator has a central role in the internal reporting system. He or she will: There are a number of possible reporting systems a large organisation public body can establish. It may involve a number of different officers. For example, one reporting structure – Impartially assess each disclosure to determine whether it is a public interest disclosure could be represented as follows: – Coordinate the reporting system used by the organisation
– Be a contact point for general advice about the operation of the Act
– Be responsible for ensuring that the public body carries out its responsibilities under the Act and the Guidelines
– Liaise with the Ombudsman in regard to the Act
– Be responsible for carrying out, or appointing an investigator to carry out, an investigation referred to the public body by the Ombudsman
– Be responsible for overseeing and coordinating an investigation where an investigator has been appointed
– Where necessary, appoint a welfare manager to support the whistleblower
– Advise the whistleblower of the progress of an investigation into the disclosed matter
– Establish and manage a confidential filing system
– Collate and publish statistics on disclosures made
– Take all necessary steps to ensure the identity of the whistleblower and the identity of the person who is the subject of the disclosure are kept confidential
– Liaise with the chief executive officer of the public body. 149
Model reporting system for a small organisation Protecting the whistleblower from reprisals
In a smaller organisation, a possible internal reporting structure is represented below. Section 68 of the Act also requires public bodies to establish procedures for the protection of a whistleblower from reprisal by personnel for making a protected disclosure. Keeping the whistleblower’s identity confidential will assist in minimising the risk of reprisals.
Procedures should include ensuring whistleblowers are advised that it is in their own interests to keep disclosures confidential by only discussing related matters with authorised persons within the public body or officers of the Ombudsman’s office or other persons as authorised by law.
Also see page 156 for information about detrimental action that amounts to a reprisal and page 162 on managing the welfare of the whistleblower. Establishing a confidential electronic and paper filing system
To prevent breaches of the confidentiality requirements and to minimise the possibility of Ensuring confidentiality detrimental action, public bodies must establish a secure electronic and paper filing system. Public bodies must ensure that: Policies and procedures need to take into account the obligation to ensure non-disclosures of confidential information except in accordance with the Act. – All paper and electronic files are secure and can only be accessed by authorised officers
Section 22 of the Act requires any person who receives information due to the handling or – All printed material is kept in files that are clearly marked as a Whistleblowers Protection Act investigation of a protected disclosure, not to disclose that information except in certain matter and include a prominent warning on the front of the file that criminal penalties apply limited circumstances. These include: to any unauthorised divulging of information concerning a protected disclosure
– Where exercising the functions of the public body under the Act – Any files saved onto a floppy disk or CD-Rom or other disc are password protected
– When making a report or recommendation under the Act – Any other material, such as tapes from interviews, are stored securely with access only to authorised officers – When publishing statistics in the annual report of a public body – The security of communications between nominated officers and/or contracted officers, i.e. – In criminal proceedings for certain offences in the Act. sensitive information or documents are not emailed or faxed to a machine to which staff However, the Act prohibits: have general access; personal delivery of documents is the best way to ensure confidentiality.
– The inclusion of particulars in any report or recommendation that is likely to lead to the identification of the whistleblower
– The disclosure of particulars in an annual report and other reports to Parliament that might lead to the identification of a person against whom a protected disclosure is made.
A breach of section 22 constitutes a criminal offence. 151
Education and training to ensure knowledge by personnel For the protections of Part 3 of the Act to apply a disclosure must be made in accordance with Part 2 of the Act. Disclosures made under Part 2 of the Act are called protected disclosures. All personnel should be provided with all relevant information and given appropriate training to ensure they are familiar with policies, procedures, the relevant parts of the legislation, particularly How can a protected disclosure be made? their confidentiality obligations and resulting consequences of a breach of the Act. Part 2 of the Act provides that a person may make a disclosure:
Receiving disclosures – Orally Owing to the confidentiality requirements for whistleblower disclosures, public bodies must – In writing establish a reporting system that enables a possible disclosure under the Act to be identified as early as possible. The source of possible whistleblower disclosures include: – Electronically
– Correspondence, including faxes – Anonymously.
– Phone calls This means that disclosures may be received from anonymous sources, including unverified email addresses, phone calls, by facsimile, in a conversation or meeting. If the disclosure is made – Emails orally, the public body should ensure that contemporaneous notes are made of the disclosure. – In person approaches by staff or members of the public. If the disclosure comes from an email address from which the identity of the person making the If a public body has a separate complaints system, then those officers who deal with the receipt disclosure cannot be determined the disclosure should be treated as an anonymous disclosure. and assessment of complaints must be made aware of the Act, and what matters may fall Any person can submit an allegation or complaint. The Act does not require the individual to under the Act. be an employee of the public body they are complaining about, or a public sector employee. Similarly mail centres, front desk staff, online services units and other employees must be The complaint must be made by an individual and not by a company, organisation or group made aware of the general nature of whistleblower disclosures and the established reporting of people. channels so that identified disclosures are dealt with appropriately. To whom must a protected disclosure be made?
Receiving a disclosure Part 2 of the Act provides that a person must make a disclosure to the appropriate person or When a public body receives a complaint, report or allegation of improper conduct or detrimental body for it to be a protected disclosure under the Act. As a general rule, a disclosure must be action, the first step is to determine whether the disclosure has been made to the right person or made to the public body that the complaint relates to, or to the Ombudsman. body and then whether the matter falls under the Act. Therefore, public bodies can only receive disclosures that relate to the conduct of their own There will be situations where a public body receives an allegation of improper conduct or members, officers or employees. If a public body receives a disclosure about an employee, detrimental action, but the person making the allegation has not referred to the Whistleblowers officer or member of another public body, the disclosure has not been made in accordance with Protection Act. If an allegation raises issues that may fall within the provisions of the Act, the Part 2 of the Act. The public body should advise the person making the disclosure of the correct public body should assess the allegations in terms of the Act. The protections of the Act may person or body to whom the disclosure must be made. In such circumstances they should be apply to a disclosure regardless of whether or not the individual making the disclosure advised to make their disclosure to the Ombudsman. specifically requests the protections. The assessment is made on the nature of the disclosure and not the intention of the individual making it. 153
The table below sets out the requirements for receiving a disclosure. Assessing a disclosure Person who is the subject of the disclosure Person/body to whom the disclosure must be made Where a public body receives information relating to the conduct of an employee, member or Employee of a public body That public body or the Ombudsman officer of that public body, it must assess whether the disclosure meets the criteria of Part 2 of Member of Parliament Speaker of the Legislative Assembly the Act to be a protected disclosure. If Part 2 of the Act is satisfied the agency must determine (Legislative Assembly) if the information also satisfies Part 4 of the Act to be a public interest disclosure. Section 28 Member of Parliament (Legislative Council) President of the Legislative Council requires the public agency to reach its conclusion about the disclosure within 45 days of Councillor The Ombudsman receiving it. Chief Commissioner of Police The Ombudsman or the Director, Police Integrity Protected disclosures Member of the police force The Ombudsman, the Director, Police Integrity or Chief Commissioner of Police A protected disclosure is a disclosure that satisfies Part 2 of the Act. A protected disclosure receives the protections outlined in Part 3 of the Act. To be assessed as a protected disclosure it Mechanisms for the receipt of disclosures must meet the following criteria:
The public body is responsible for any decisions or actions taken under the Act, the Guidelines – Did a natural person (that is, an individual person rather than a corporation) make the or the Regulations. Any correspondence and communication between the Ombudsman and the disclosure? public body will not be through an agent but generally will be between the Chief Executive Officer of the public body or, in some cases, its Protected Disclosure Coordinator. It is generally – Does the disclosure relate to conduct of a public body or public officer acting in their official not appropriate for an agency to use a lawyer or an agent to communicate with my office. capacity?
The prescribed procedures are set out in the regulations. Regulation 8 applies to disclosures to – Is the alleged conduct either improper conduct or detrimental action taken against a person public bodies. It states that oral disclosures must be made to a member, officer or employee of in reprisal for making a protected disclosure? the public body and written disclosures must be addressed and sent or delivered to the office of – Does the person making a disclosure have reasonable grounds for believing the alleged the public body. Hence, an agent cannot offer a separate telephone line, post office box, mail bag conduct has occurred? or other method to receive disclosures as this may have the effect of invalidating the disclosure. – If one or more of the above elements are not satisfied, the person has not made a disclosure In assessing and considering whether the information provided is a protected disclosure or a under the Part 2 of the Act. public interest disclosure, an agent may be involved for the purpose of taking statements and collating information. The agent can then provide advice to the public body, however, it is the A disclosure may be made about conduct that has occurred before the commencement of the public body that must decide that the information amounts to a protected disclosure or a Act on 1 January 2002 and where the person cannot identify the person or body to whom the public interest disclosure, not the agent. disclosure relates.
The Act only requires that an individual make the disclosure to the public body. The reporting procedures must be available to advise potential whistleblowers of the most effective way to raise their concerns. However, the disclosure does not have to be made in accordance with the public bodies’ preferred procedure. A disclosure may be made to any member, officer or employee of the public body. It is the responsibility of the public body to ensure that any allegation made that may fall under the Act is referred to the protected disclosure coordinator to assess the information. 155
Improper conduct The definition of “corrupt conduct” contemplates dishonesty, or at the least the foregoing of public interest for a private benefit. The Shorter Oxford English Dictionary defines corruption as to A disclosure may be made about improper conduct by a public body or public official. Improper induce a person to act dishonestly or unfaithfully; to make venal; to bribe. Hence, it is an offence conduct is defined in section 3 of the Act to mean conduct that is: of dishonesty. Dishonesty involves a lack of probity; a disposition to deceive, defraud or steal.
– corrupt; or The commonly understood meaning of corruption is further qualified in the Act by the requirement for the conduct in question to be a criminal offence or grounds for dismissal. – a substantial mismanagement of public resources; or This indicates that the conduct will only fall within the meaning of the Act where it is – a substantial risk to public health or safety; or dishonesty of a serious nature.
– a substantial risk to the environment. Similar legislation in NSW, entitled the Protected Disclosures Act 1994, adopts a definition of corrupt conduct that includes conduct of a specific type such as: The conduct must be serious enough that if proven would constitute a criminal offence or reasonable grounds for dismissal. (a) bribery (b) blackmail Examples of improper conduct (c) obtaining or offering secret commissions (d) fraud To avoid closure of a town’s only industry, an environmental health officer ignores or conceals (e) theft evidence of illegal dumping of harmful waste. (f) perverting the course of justice An agricultural officer delays or declines imposing quarantine to allow a financially distressed (g) embezzlement farmer to sell diseased stock. (h) election offences (i) tax and revenue evasions A building inspector tolerates poor practices and structural defects in the work of a leading local (j) forgery. builder. The list is obviously not exhaustive and, when in doubt, those with the responsibility for Corrupt conduct making a decision as to whether the conduct shows or tends to show that there was corrupt conduct, should contact the office of the Ombudsman for guidance. Corrupt conduct is defined by section 3 of the Act to mean: Examples of corrupt conduct – conduct of any person (whether or not a public official) that adversely affects the honest performance of a public officer’s or public body’s functions A public officer receives a bribe or receives a payment other than his or her wages or salary in exchange for the discharge of a public duty. – the performance of a public officer’s functions dishonestly or with inappropriate partiality A public officer favours unmeritorious applications for jobs or permits by friends and relatives. – conduct of a public officer, former public officer or a public body that amounts to a breach of public trust A public officer sells confidential information.
– conduct by a public officer, former public officer or a public body that amounts to the misuse of information or material acquired in the course of the performance of their official functions; or
– a conspiracy or attempt to engage in any of the above conduct. 157
Substantial mismanagement of public resources Reasonable grounds for belief
The use of the word “substantial” has the effect of confining the definition to a situation in The phrase “reasonable grounds for belief” requires more than a suspicion and the belief must which the mismanagement is of a significant or considerable degree. have supporting facts and circumstances. For reasonable grounds of belief, the usual test applied is whether a reasonable person would have formed that belief, having regard to all the Mismanagement should not be confused with “misuse”. Mismanagement is to manage badly circumstances. This test is an objective one, that is, whether a reasonable person, possessed of or wrongly, whilst misuse is wrong or improper use. For example, to use a government car for the same information that the person making the disclosure holds, would believe that the personal gain is a misuse rather than mismanagement. improper conduct had occurred. Reasonable grounds for a belief is also taken to require Substantial risk to public health and safety, or the environment something more than a reasonable suspicion. Nor can a belief be held to be based on reasonable grounds, where it is based on a mere The use of “substantial” has the effect of confining the definition to conduct that puts allegation, or conclusion, which is unsupported by any facts or circumstances. The existence of public health, safety or the environment at considerable or great risk. evidence is required to show that the reasonable grounds are probable. For example, it is not The risk is limited to public health or safety. This means the risk is not just to an individual but sufficient for a person to base a disclosure on the statement “I know X is accepting bribes to relates to conduct which affects, or has the potential to affect, a large class or group of the grant planning permits to Y developer”. This is a mere allegation unsupported by any further wider community. facts and circumstances. Detrimental action However, the requirement for facts and circumstances to be present to support a belief does not mean that it is necessary that the person have a prima facie case, merely that the belief The Act creates an offence for a person to take detrimental action against a person who has be probable. made a protected disclosure. Section 3 of the Act defines detrimental action as including: In some circumstances, hearsay or second-hand information may be used to establish – action causing injury, loss or damage; reasonable grounds for the belief, provided that the information is trustworthy. This may depend on how the person obtained the information, and the detail of the information. – intimidation or harassment; and The credibility of the whistleblower or individuals that have provided them with information – discrimination, disadvantage or adverse treatment in relation to a person’s employment, may also be considered in determining if the individual has reasonable grounds for the belief. career, profession, trade or business, including the taking of disciplinary action. Examples of detrimental action Notification of the decision Where a public body determines that a person has failed to make a disclosure under Part 2 of A public body demotes, transfers, isolates in the workplace or changes the duties the Act, the public body must advise the individual of its assessment. The public body should of a whistleblower due to the making of a disclosure. indicate on what grounds it has made its assessment and should advise the person of their A person threatens, abuses or carries out other forms of harassment directly or right of appeal to the Ombudsman about the public body’s determination. It may also be indirectly against the whistleblower, his or her family or friends. appropriate to advise the person of alternative avenues of redress. This should include advising the person that their concerns may be made through the public body’s general complaints A public body discriminates against the whistleblower or his or her family and mechanisms. associates in subsequent applications for jobs, permits or tenders. 159
If the reason for the determination is based upon the failure of the person to support To assess whether a disclosure shows or tends to show that a public officer has engaged in reasonable grounds for the belief that improper conduct has occurred, the public body should improper conduct, a public body must be satisfied that there is sufficient prima facie supporting ensure the person has had sufficient opportunity to support the allegations or to present material to demonstrate that the conduct has actually occurred. A mere allegation with no additional information prior to completing its determination. supporting evidence is not sufficient.
Section 28 of the Act requires a public body to reach its conclusion on a disclosure within 45 It may be necessary to question the whistleblower about his or her information and the days of receiving it. evidence he or she has or can point to as supporting his or her allegations.
A reassessment of the disclosure can be made if the person provides additional information to In order to reach a conclusion on whether a disclosure is a public interest disclosure a public support the allegations made. body may conduct discrete enquiries to obtain information that the whistleblower was unable to provide. Those inquiries may reveal information that supports the disclosure made by the Where a public body determines that a person has made a disclosure in accordance with Part 2 whistleblower, and lead the public body to conclude the disclosure is a public interest disclosure. of the Act, this disclosure is now referred to as a protected disclosure and must be dealt with in accordance with the Act. The next step requires the public body to assess whether the Determination of a public interest disclosure protected disclosure is a public interest disclosure. Where the public body concludes that the disclosure amounts to a public interest disclosure, Public interest disclosures section 29 of the Act requires the public body to within 14 days:
Once an allegation has been assessed as a protected disclosure, section 28(1) of the Act requires 1 Notify the person who made the disclosure of that conclusion; and an assessment to be made of whether or not it is a public interest disclosure. Division 2 of Part 4 (sections 28 to 32) of the Act sets out the process that applies to the determination made by a 2 Refer the disclosure to the Ombudsman for a determination as to whether it is a public public body. interest disclosure.
The threshold test for a protected disclosure to be a public interest disclosure is established in Determination that the disclosure is not a public interest disclosure section 28(2), as follows: Where the public body concludes that the disclosure is not a public interest disclosure, section In reaching a conclusion under sub-section (1) the public body must consider whether the 30 of the Act requires the public body to: disclosure shows or tends to show that a public officer to whom the disclosure relates– 1 Notify the person who made the disclosure within 14 days of that conclusion; and (a) has engaged, is engaging or proposes to engage in improper conduct in their 2 Advise that person that he or she may request the public body to refer the disclosure to the capacity as a public officer; or Ombudsman for a formal determination as to whether the disclosure is a public interest (b) has taken, is taking or proposes to take detrimental action in contravention of disclosure, and that this request must be made within 28 days of the notification. section 18. Notification to the whistleblower is not necessary where the disclosure has been made To show or tend to show improper conduct or detrimental action anonymously.
Legal interpretation of the phrase “shows or tends to show” generally indicates that the disclosure It is highlighted that if a determination is made that the disclosure is not a public interest must reveal or make known the conduct. Hence, the focus now shifts away from the reasonable disclosure, it does not alter the decision that it is a protected disclosure. The protections of grounds for the belief of the whistleblower. In making this determination the public body may Part 3 of the Act continue to apply in this situation. seek further information or conduct a discrete initial enquiry prior to finalising an assessment. 161
Flowchart Possible criminal charges, legal action and disciplinary proceeding
The flowchart below represents the assessment and referral process. WB stands for the The Act establishes a number of offences that are attached to a disclosure once it has been whistleblower (or person who makes the disclosure). determined to be a protected disclosure. Public bodies must ensure all nominated officers and staff are aware of the criminal offences created by the Act and other legal action that may be taken against them. Criminal offences Detrimental action
It is an offence for a person to take or threaten action in reprisal when:
– a protected disclosure has been made
– a person believes a protected disclosure has been made
– a person believes that another person intends to make a protected disclosure.
Maximum penalty: a fine of 240 penalty units ($25,155) or two years imprisonment or both: section 18. Breach of confidentiality
It is an offence for a person to divulge information obtained as a result of the handling or investigation of a protected disclosure without legislative authority.
Maximum penalty: a fine of 60 penalty units ($6,289) or six months imprisonment or both: section 22. Obstruction of the Ombudsman
It is an offence for a person to obstruct the Ombudsman in performing his responsibilities under the Act.
Maximum penalty: a fine of 240 penalty units ($25,155) or two years imprisonment or both: section 60. 163
Provision of false information Internal and external whistleblowers
It is an offence for a person to knowingly provide false information under the Act with the A person making a protected disclosure may be employed by a public body or may be a member intention that it be acted on as a disclosed matter. of the public. Public bodies are obliged to protect both internal and external whistleblowers from detrimental action taken in reprisal for the making of the disclosure. The management of Maximum penalty: a fine of 240 penalty units ($25,155) or two years imprisonment or both: both types of whistleblower will, however, be different. section 106. The main issue of difference is that internal whistleblowers are at risk of suffering reprisals in Civil action the workplace. A welfare manager must foster a supportive work environment and respond to any reports of intimidation or harassment. A whistleblower may take civil action against any person when they believe that detrimental action has been or may be taken against them in reprisal for the disclosure by applying to the Reprisals may also be taken against external whistleblowers. Public bodies should also appoint Supreme Court for: a welfare manager for an external whistleblower. A welfare manager of an internal or external whistleblower cannot be expected to go beyond what is reasonable for a public body in – an order that the person who took the detrimental action remedies it providing support to a whistleblower. The welfare manager should discuss the issue of – an injunction in any terms the Court considers appropriate: sections 20 and 21. reasonable expectations with the whistleblower.
A person who takes detrimental action against a person in reprisal for a protected disclosure is Appointing a welfare manager liable in damages to that person: section 19. The senior management of a public body must take responsibility for the welfare of a Disciplinary proceedings can be brought against a person responsible for established conduct whistleblower. The protected disclosure coordinator should appoint a welfare manager to that was subject of the investigation: section 81. monitor the needs of the whistleblower and to provide advice and support. Public bodies may wish to make use of an Employee Assistance Program for this purpose. In most circumstances, Managing the welfare of the whistleblower a welfare manager will only be required where a disclosed matter proceeds to investigation. However, public bodies are obliged to protect all persons who make a protected disclosure, The protection of genuine whistleblowers against detrimental action is essential for the regardless of whether that disclosure is determined to be a public interest disclosure and effective implementation of the Act. Management of a public body must be responsible for warranting investigation. ensuring whistleblowers are protected from direct and indirect detrimental action, and that the culture of their workplace is supportive of protected disclosures being made.
It is a requirement of the Act that public bodies establish procedures for the protection of whistleblowers from reprisals. The procedures must comply with the Act and with these guidelines. 165
The role of the welfare manager is to: Managing expectations
– Examine the immediate welfare and protection needs of a whistleblower who has made a It is important to ensure the whistleblower’s expectations are realistic. If a whistleblower disclosure and seek to foster a supportive work environment develops unrealistically high expectations, dissatisfaction may result with either the way in which the public body has dealt with the disclosure, or the outcome of the investigation. – Advise the whistleblower of the legislative and administrative protections available to him or her The whistleblower’s expectations in relation to the handling of the disclosure should be discussed at the outset of the making of the disclosure. This can be done by the protected – Listen and respond to any concerns of harassment, intimidation or victimisation in reprisal disclosure officer, the welfare manager or both. The whistleblower should be informed of the for making a disclosure objective of any investigation, what action the public body might be able to take, and the – Keep a contemporaneous record of all aspects of the case management of the whistleblower reasons why this decision has been made. including all contact and follow-up action Occurrence of detrimental action – Endeavour to ensure that the expectations of the whistleblower are realistic. If a whistleblower reports an incident of harassment, discrimination or adverse treatment that The welfare manager must not divulge any details relating to the disclosed matter to any would amount to detrimental action apparently taken in reprisal for the making of the person other than the protected disclosure coordinator, the investigator or the chief executive disclosure, the welfare manager or protected disclosure coordinator must: officer. All meetings between the welfare manager and the whistleblower must be conducted discreetly to protect the confidentiality of the whistleblower. – Record details of the incident Reporting back – Advise the whistleblower of his or her rights under the Act. Where the detrimental action is of a serious nature likely to amount to a criminal offence, Whistleblowers should be advised, in general terms, of the progress in investigating or otherwise consideration should be given to reporting the matter to the police and the Ombudsman. dealing with their disclosures and the timeframes that apply. An individual should be nominated by the public body to be the point of contact for the whistleblower for the purposes of keeping The taking of detrimental action in reprisal for making a disclosure can be an offence against the him or her informed of this information. The officer responsible would normally be the protected Act as well as grounds for making a further disclosure. Where such detrimental action is reported, disclosure coordinator, or the welfare manager. It should be a person who is readily accessible to the allegation must be assessed as a new disclosure under the Act. A public body must be the whistleblower and informed of the overall handling of the disclosed matter. extremely cautious about conducting enquiries or gathering information concerning an allegation of detrimental action, as a criminal offence may have been committed and any informal Section 83 of the Act requires the public body to advise the whistleblower of the findings of investigation may compromise the integrity of evidence. If the Ombudsman subsequently any investigation and any action taken by a pubic body as a result. determines the matter to be a public interest disclosure, the Ombudsman may refer it to the Chief Commissioner of Police for investigation. 167
Consequences for whistleblowers implicated in improper conduct, Errors to be avoided or disciplinary matters The Queensland Criminal Justice Commission (CJC) compiled the following list of errors to be The management of the welfare of an internal or external whistleblower may become complicated avoided in managing whistleblowers. It can be found on page 29 of the CJC’s publication when the whistleblower is implicated in misconduct, whether that misconduct is related to the Exposing Corruption – ACJC guide to whistleblowing in Queensland, published in October 1996. disclosure made or not. The general obligations of a public body in relation to handling and The following organisational errors in the management of whistleblower disclosures occur investigating a disclosure and protecting the whistleblower still apply. A whistleblower is not more often than many may think and can have serious consequences. The actions have the protected from the reasonable consequences flowing from any involvement in improper conduct. potential to effectively contaminate the relationship between the whistleblower and the Section 17 of the Act specifically provides that a person’s liability for his or her own conduct is not investigating authority and prejudice the integrity of any investigation: affected by the person’s disclosure of that conduct under the Act. However, in some circumstances, an admission may be a mitigating factor when considering disciplinary or other action. 1 Fail to observe the confidentiality of a disclosure by having information pass through a series of hands with few checks as to who has, or who should view the material. Disciplinary or other action against a whistleblower invariably creates the perception that it is being taken in retaliation for the disclosure. In all cases where disciplinary or other action is 2 Tell anyone who asks about the details and investigations of the disclosure. being contemplated, the chief executive officer or other responsible public officer must be able to clearly demonstrate that: 3 Report to the workgroup who the whistleblower is, what the allegations are, and whom they are about. – His or her intention to proceed with disciplinary action is not causally connected to the making of the disclosure 4 Interpret natural justice to mean a person has an immediate right to know when a disclosure has been made about them and who made it. – There are good and sufficient grounds that would fully justify action against any non- whistleblower in the same circumstances 5 Always as a first step, ask the person who is the subject of the disclosure about the allegation.
– There are good and sufficient grounds that justify exercising any discretion to institute 6 Forward the disclosure and action on it through the chain of command so as many people disciplinary or other action. know about the matter as possible. If a public body cannot demonstrate that the above preconditions have been met, it leaves 7 Forewarn the person who is the subject of an allegation in plenty of time about the itself open to allegations of taking detrimental action against a whistleblower in reprisal for allegations and provide them with investigation details. making the disclosure. A public body may wish to obtain legal advice prior to taking any action against the whistleblower. 8 Allow personal biases about the personality of the whistleblower to influence the assessment of a disclosure. Great care should be taken to thoroughly document the process including recording the reasons why the disciplinary or other action is being taken, and the reasons why the action is 9 Do not take seriously the concerns expressed by a whistleblower about the possibility of reprisal. not in retribution for making the disclosure. The whistleblower should be clearly advised of the proposed action to be taken and of any mitigating factors that have been taken into account. 10 Ignore potential conflicts of interest when deciding who should assess or investigate the disclosure.
11 Allow political considerations to influence the assessment of a disclosure or the findings of an investigation.
12 Delay the investigation for as long as possible so any evidence of wrongdoing can be altered or destroyed. 169
Investigations Investigation by a public body
The Act requires the Ombudsman to determine the appropriate way to investigate a public Where the Ombudsman has referred an investigation to a public body, the public body must interest disclosure. The Ombudsman will notify public bodies and whistleblowers of the carry out the investigation in compliance with Part 6 of the Act, these guidelines and the determination made and whether an investigation will take place. Once a public body has established procedures of that public body. referred a disclosure to the Ombudsman to determine if it is a public interest disclosure, the The objectives of an investigation should be to: public body must not commence an investigation until instructed by the Ombudsman. – Collate information relating to the allegation as quickly as possible. This may involve Where the Ombudsman has determined a matter not to be a public interest disclosure, he will taking steps to protect or preserve documents, materials and equipment advise the person who made the disclosure of the option of having the matter dealt with as a complaint under the Ombudsman Act 1973 or the Police Regulation Act 1958. A person must – Consider the information collected and draw conclusions objectively and impartially request that the matter be dealt with as a complaint under either Act within 28 days of being given notice. Allegations or complaints that are determined not to be a public interest – Maintain procedural fairness in the treatment of witnesses and the person who is the disclosure may still warrant investigation and a response by a public body under its normal subject of the disclosure complaints handling mechanisms. – Make recommendations arising from the conclusions drawn concerning remedial or other Who can carry out the investigation? appropriate action.
The Ombudsman will either investigate a public interest disclosure or refer the investigation to It is prudent to maintain regular contact with the whistleblower so he or she is kept informed the following officers or bodies, where it is appropriate to do so: of the progress of the investigation. Regular communication is an important way to reassure whistleblowers that their disclosures are being taken seriously. – The Chief Commissioner of Police Terms of reference and authorisation – The Auditor-General Before commencing an investigation, a public body should draw up terms of reference and – The Director, Police Integrity obtain authorisation for those terms by the chief executive officer or protected disclosure coordinator. The setting of terms of reference is crucial to the successful conduct of inquiries as – Other bodies prescribed in Regulation 9 in the regulations they establish a focus and set limits for an investigation. Terms of reference oblige a public – A public body, where the matter relates to an employee, officer or member of that body. body to clarify the key issues to which the disclosure gives rise.
Where the Ombudsman refers an investigation, the Ombudsman must notify the person who The terms of reference should set a date by which the investigation report is to be concluded. made the disclosure of the referral. They should take into account the practicalities of the investigation and ensure sufficient resources are available to the investigator to complete the investigation within the time set. A mechanism should be established to enable the extension of time where reasonable circumstances exist. Such extensions of time should only be approved by the protected disclosure coordinator or the CEO. 171
The terms of reference should provide for the adequate monitoring of the investigation by the The investigator protected disclosure coordinator or the CEO of the public body. Monitoring should ensure the investigation maintains its relevance to the allegations and is being carried out effectively The investigator will be responsible for carrying out an investigation into a disclosure where the and efficiently. Ombudsman has referred a matter to the public body. An investigator may be a person from within an organisation, or a consultant engaged for that purpose. The public agency must Preparation of investigation plan ensure that any investigator is aware of the provisions of the Act, including the criminal penalties that apply for breaches of the Act. A public agency should ensure a contracted The investigator should prepare an investigation plan. The plan will require the elements of the investigator signs a form confirming their understanding of the Act prior to the allegation to be clarified. It should list the issues to be substantiated and describe the avenue commencement of an investigation. of inquiry. A plan should address the following issues: Monitoring by the Ombudsman – What is being alleged? Part 6 of the Act requires the Ombudsman to monitor investigations conducted by public – What are the possible findings or offences? bodies. The public body must provide information about the progress of its investigation to – What are the facts in issue? the Ombudsman or to the whistleblower at their request. The information must be provided within 28 days of the request. A public body is not obliged to provide information to the – How is the inquiry to be conducted? whistleblower where that information has already been given to the whistleblower, or where giving the information would endanger the safety of any person or prejudice the outcome of – What resources are required? the investigation. Investigating officers should obtain all documents relevant to the allegation prior to conducting If the Ombudsman is not satisfied with an investigation by a public body, the Ombudsman may interviews. This familiarises the investigator with the issues of the case and allows witnesses, take it over. If the whistleblower has reasonable grounds to be dissatisfied with the including the whistleblower, to identify and explain documents during the interview process. investigation they may request the Ombudsman to conduct the investigation. At the commencement of the investigation, the whistleblower should be: The public body should also provide the Ombudsman with a copy of its terms of reference and – Notified by the investigator that he or she has been appointed to conduct the investigation investigation plan at the commencement of the investigation. This information should be provided to the Ombudsman within one month of the referral of the investigation to the public – Asked to clarify any matters body. The public body should also keep the Ombudsman regularly informed of the progress of the investigation. The public body should advise the Ombudsman of any difficulties or – Provide any additional material he or she might have. problems encountered in its investigation. The investigator needs to be sensitive to the whistleblower’s possible fear of reprisals, and to be aware of the statutory protections provided to the whistleblower. Natural justice The principles of natural justice should be followed in any investigation of a public interest disclosure. The principles of natural justice concern procedural fairness and aim to ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals, and enhances public confidence in the process. 173
Public bodies should have regard to the following issues in ensuring procedural fairness: Confidentiality requirements
– The person who is the subject of the disclosure is entitled to know the allegations made Confidentiality requirements demand that strict security should surround the conduct of an against him or her and must be given the right to respond. (This does not mean the person investigation into a public interest disclosure. Disclosures should be assessed and investigated must be advised of the allegation as soon as the disclosure is received or the investigation discreetly, with a strong emphasis on maintaining confidentiality of both the whistleblower has commenced). and the person who is the subject of the disclosure.
– If the investigator is contemplating making a report adverse to the interests of any person, All interviews should be conducted in private, and care should be taken to avoid any that person should be given the opportunity to respond to the criticisms and to put forward unauthorised divulging of information about the disclosed matter during the investigation further material that may influence the outcome of the report and that person’s defence process. All information obtained should be placed on a confidential file that is stored securely should be fairly set out in the report. in a location only accessible by authorised officers. Any tapes or other relevant materials should also be kept in this secure location. – All relevant parties to a matter should be heard and all submissions should be considered. Witnesses should be advised that information about the matter is confidential, and that they – A decision should not be made until all reasonable inquiries have been made. may be in breach of the Act if they divulge the information to a third party. – The investigator or any decision-maker should not have a personal or direct interest in the Whistleblowers will often be anxious about the prospect of information about their disclosures matter being investigated. being revealed. The investigator should assure the whistleblower that his or her identity will be – All proceedings must be carried out fairly and without bias. Care should be taken to exclude protected as much as possible at all times. The whistleblower should be advised of the perceived bias from the process. protection afforded by the Act and of the procedures that are in place to ensure confidentiality will be maintained. Any interviews with the whistleblower should be arranged discreetly and, – The investigator must be impartial in assessing the credibility of the whistleblowers and any possibly, away from the workplace to avoid the whistleblower being identified. It may assist the witnesses. Where appropriate, conclusions as to credibility should be included in the investigation if witnesses are informed in general terms of the reason for the investigation. investigation report. However, there will be cases where it will be impossible to protect the identity of the Recording information whistleblower. For example, a case may arise where it is well known within an organisation that only the whistleblower could have access to the information in the disclosure. In these It is important that contemporaneous notes are made of all discussions, phone calls and circumstances, the whistleblower must be made aware that to investigate a matter, his or her interviews. It is recommended that all interviews with witnesses be tape-recorded to enable an identity will probably be revealed. While confidentiality may not be able to be maintained, the accurate record of the interview to be kept. The investigator should ask the witness to identify whistleblower is still afforded the protections in the Act and should have a welfare manager him/herself at the commencement of the interview for the purposes of the taped record. appointed. The Principal Officer of a public body remains responsible for ensuring that no Public bodies may also accept written statements from a witness. The statement should detrimental action is taken against the whistleblower. include the witness’s name, address and occupation, and each page should be signed. The last page should be signed below the final paragraph. 175
Management of the person against whom a disclosure is made Immunity from disciplinary action
A public body must also manage the person who is the subject of a protected disclosure. This A situation may arise where a witness or the whistleblower seeks immunity from disciplinary person will always be an employee, member or officer of the public body. Procedures should be action for providing information about improper conduct in which they are implicated. In some established to avoid unnecessary harm to that person, particularly as an investigation might circumstances, it may be appropriate for the public body to exercise discretion in relation to exonerate the officer from any wrongdoing. Public bodies may appoint an internal contact or disciplinary action where an employee comes forward with a disclosure. This will depend on the make use of an Employee Assistance Program to ensure persons who are the subject of nature and seriousness of the witness’s misconduct. Any decision concerning immunity from disclosures are given the appropriate support. disciplinary action must always be made by those officers with the power to take disciplinary action. This should be either the chief executive officer or the protected disclosure coordinator, All staff, and in particular the person who is the subject of the disclosure, should be given and not the investigator. adequate information as to their rights and obligations under the Act, the public body’s internal reporting system and any other relevant law or code of conduct. Criminal conduct
Powers with respect to witnesses The Ombudsman will not refer disclosures alleging serious criminal offences to a public body for investigation. Such disclosures will usually be referred to the Chief Commissioner of Police. The Act does not provide public bodies with the power to compel witnesses to attend However, it is possible during an investigation by a public body that facts are uncovered that reveal interviews, to answer questions or to produce documents. However, the chief executive officer possible criminal offences. It is important in these circumstances for the public body to suspend of a public body and his or her delegates have the power to give a lawful instruction to an the investigation and to seek the advice of the Ombudsman as to the future of the matter. employee to attend a meeting at a particular time and to produce official documents. The chief executive officer and his or her delegates are entitled to ask an employee any relevant question Problems with an investigation conducted by a public body concerning his or her employment. An employee may decline to answer any question if the answer would tend to incriminate him or her in relation to a criminal or disciplinary offence. Section 73 of the Act requires that if a public body considers its own investigation is being obstructed it must refer the investigation to the Ombudsman. Obstruction may include a Investigators should carry out interviews with employees, officials or members in a professional refusal to attend an interview or provision of documents. manner. The Ombudsman has powers to summon a person to attend a hearing to answer questions or If an investigator wishes to interview a person employed by another public body or a member to produce documents. Non-compliance with such a summons is an offence. Section 60 also of the public, the investigator may only carry out the interview where this person has provided establishes an offence if a person obstructs an investigation being conducted by the Ombudsman. consent. Minors may only be interviewed with the permission of, and in the presence of, a parent or guardian whose particulars should be documented in the notes of the interview. Legal representation and other support to witnesses
It is in the discretion of the investigator to determine whether it is appropriate for a witness to have legal representation or any other person present during an interview. If a witness has a special need for another person to be with them, permission should be granted. Where legal representation or another support person is present, their role is to advise or support the witness, not to answer questions for the witness. 177
The Ombudsman may take over the investigation Action on completion of investigation
There are three circumstances in which the Ombudsman may take over an investigation by a Sections 81 to 83 of the Act set out the requirements on a public body at the conclusion public body: of an investigation. The public body must report its findings to the Ombudsman whether the allegations are substantiated or not. 1. A public body considers its own investigation is being obstructed. If the public body refers an investigation back to the Ombudsman, it must where possible notify the person who made If any of the allegations are substantiated, or the public body takes any action, it must report its the disclosure of the referral. findings to the relevant Minister, or the relevant council in the case of council employees.
2 The person who made the disclosure may request the Ombudsman to investigate the The Act also requires the public body to inform the whistleblower of the findings of the disclosed matter if: investigation, and any steps taken as a result. This does not mean that the public agency must provide the whistleblower with the complete investigation report as in many circumstances it – The public body fails to carry out the investigation is not appropriate to do so. If the public body is unaware of the identity of the whistleblower – The person is dissatisfied with the manner in which the public body is carrying and it is known by the Ombudsman, the Ombudsman will inform the whistleblower of the out the investigation findings and action taken.
– The person is dissatisfied with the steps taken by the public body after the investigation The Act requires the public body to take all reasonable steps to prevent the conduct from of the matter continuing or reoccurring, and may take action to remedy any harm or loss arising from the conduct. Action may include disciplinary proceedings. – The public body has failed to comply with the reporting and remedial action requirements set out in section 81 of the Act. Where the allegations in a disclosure have been investigated, and the person who is the subject of the disclosure is aware of the allegations or the fact of the investigation, he or she should be 3 The Ombudsman is not satisfied with the investigation by the public body. Where the formally advised of the outcome of the investigation. Ombudsman takes over an investigation, the Ombudsman must give notice to the person who made the disclosure, unless it was made anonymously. If the allegations are clearly wrong or unsubstantiated, the person who is the subject of the disclosure is entitled to the support of the public body and its senior management. If the Where the Ombudsman takes over an investigation, the public body must give to the matter has been publicly disclosed, it may be appropriate for the public body to issue a letter Ombudsman in writing any information that it has and any findings, preliminary or otherwise, of support setting out that the allegations were clearly wrong or unsubstantiated. that it has made in respect to the matter. The Ombudsman may:
– Commence a new investigation
– Complete the investigation
– Refer the investigation back to the public body with recommendations
– Refer the matter to another public body to investigate. 179
Collating and publishing statistics General information Section 104 of the Act requires that all public bodies that publish an annual report or report of The role of the Ombudsman operations must include in that report its current whistleblower procedures, and a range of details about protected disclosures in the reporting year. These details include: The role of the Ombudsman under the Act is to:
– The number and types of disclosures made to the public body during the year – determine whether disclosures are public interest disclosures
– The number of disclosures referred to the Ombudsman for determination as to whether – to investigate matters disclosed in public interest disclosures they are public interest disclosures – prepare and publish guidelines for the procedures to be followed by public bodies in relation – The number and types of disclosed matters referred to the public body by the Ombudsman the Act for investigation – monitor investigations by public bodies – The number and types of disclosed matters referred by the public body to the Ombudsman – monitor investigations by the Chief Commissioner of Police for investigation – review the procedures and implementation of public bodies in relation to the Act – The number and types of investigations taken over from the public body by the Ombudsman – report findings of an investigation to Parliament as required under the Act. – The number of requests made by a whistleblower to the Ombudsman to take over an investigation by the public body Freedom of Information
– The number and types of disclosed matters that the public body has declined to investigate It is highlighted that section 109 of the Act excludes the application of the Freedom of – The number and types of disclosed matters that were substantiated upon investigation and Information Act 1982 to any document that relates to a disclosure made under the Act. Public the action taken on completion of the investigation agencies should ensure that any of its officers handling freedom of information requests are aware of this section. A public agency should contact the Ombudsman prior to providing any – Any recommendation made by the Ombudsman under the Act that relates to the public body. document originating from the Ombudsman under the Freedom of Information Act. Describing the type of disclosure requires a statement about the nature of the disclosure; for Contact details example, an allegation of bribery or fraudulent use of public funds. Ombudsman Victoria It is the responsibility of the protected disclosure coordinator to ensure that confidential Level 9, North Tower, 459 Collins Street records are kept to enable accurate reporting as required by the Act. Melbourne Vic 3000 DX 210174 Melbourne . Tel: (03) 9613 6222 Toll Free 1800 806 314 Internet: www.ombudsman.vic.gov.au
Ombudsman: Mr George Brouwer 181 investigate Freedom of information review resolve 183
Freedom of Information
This section contains information that is required to be published annually under Part II of the Freedom of Information Act 1982 (the Act).
Certain documents in my office’s possession are exempt from the Act pursuant to section 29A of the Ombudsman Act 1973. Documents that disclose the following information are exempt:
– A complaint
– An enquiry under Part IIIA to determine whether an investigation should be conducted
– An investigation under Part IV
– A report made under Part IV accountability – A recommendation made under Part IV. Therefore, the majority of documents in my office’s possession are exempt from the Act. accessfreedom of Categories of documents information The Ombudsman holds information related to: – Investigations, including complaints, correspondence and consultations with complainants, effectiveness agencies and other information sources – Background material, records of conversation, analysis and advice
– The development or implementation of policy and legislation.
The various reports dealing with issues of public interest are tabled in Parliament and posted at the Ombudsman’s website www.ombudsman.vic.gov.au.
Other types of documents that are maintained in my possession include:
– Internal administrative and operational documents
– Internal policy and procedure documents
– Personnel documents
– Accounting records.
It should be noted that certain documents are destroyed or transferred to the Public Records Office in accordance with the Public Records Act 1973. 185
Freedom of information arrangements Charges Access to records An application fee of $21.00 is required unless evidence of hardship is provided. Applicants are advised that other charges may be made in accordance with the Freedom of Information An authorised officer deals with all requests for access to records held by my office. Applicants (Access Charges) Regulations 2004. seeking access to documents should attempt to specify the topic of interest rather than the file series in which the applicant considers the document might exist. Assistance in specifying the Appeals topic is available from the authorised officer. Applicants may appeal against a decision made in response to requests for access to Forms of request for access documents and amendment of records, or against the cost levied for allowing access to documents. Information about the appropriate avenue of appeal will be conveyed to the Applicants are required by the Act to submit applications requesting access to documents applicant in the letter advising of the initial decision. Applicants are advised to consult in writing. A letter clearly describing the document(s) sought is sufficient. The letter should Part 4 of the Act for further information about appeal rights. specify that the application is a request made under the Act and should not form part of a letter on another subject. The applicant should provide the following information: name, Further information on the Act can be obtained from the Act, the various regulations made address, telephone number, details of document(s) requested, form of access required - under the Act, and www.foi.vic.gov.au. copy of documents, inspection of file, or other (specify).
A request for correction or amendment of personal information contained in a document held by my office must be made in writing. It should specify particulars of how and why the person making the request believes the information to be incorrect, incomplete, misleading or out of date and specify the amendments they wish to make.
The request should be addressed as follows:
Mr John Taylor Deputy Ombudsman Level 3, North Tower, 459 Collins St Melbourne VIC 3000
An authorised officer can also be contacted on (03) 9613 6222 for assistance with queries about making an application. 187 investigate Index review resolve 189
Accident Compensation Act Commonwealth Ombudsman, 82 Department of Primary Industries 1985, 13, 75 Communications Unit, 93, 94, 95 (DPI), 102, 103 Accident Compensation complaint-handling processes, Department of Sustainability and Conciliation Service (ACCS), 75, 76 13, 27 Environment (DSE), 15, 65, 102 Adult Parole Board, 41 complaints, increase in, 11 Department of Treasury and Finance, 102 Adult Training and Support conflict of interest study, 13 Service (ATSS), 24, 29 Department of Victorian Consumer Affairs Victoria, 55 Animal Legislation (Animal Communities, 102 Corrections Act 1986, 44, 45, 103 Welfare) Act 2003, 103 Dhurringile Prison, 40, 46 corrections complaints, 39–46 Ararat Prison, 40 Disability Services, 24 Corrections Victoria, 39–46 Attorney-General, 69, 71, 85, 86 Disclosure Index, 107–108 Crimes (Controlled Operations) accountability Auditor-General, 61, 62 Docklands Authority, 34–35 Act 2004, 86 Australian Industrial Relations Domestic (Feral and Nuisance) Crown Lands (Reserves) Act, 34 Commission, 62 Animals Act 1994, 13, 86, 103 Dame Phyllis Frost Centre, 40 Australian Lawyers Alliance, 76 drug testing in prisons, 42 access deaths in custody, 45 Australian National University, 82 Education Act 1958, 27 index Department of Education and Australian Research Council, 64 Environmental Sustainability Training (DET), 13, 15, 27–30, 50, Framework, 96 effectiveness Australian Standard 4269-1995, 57, 102 13, 27–28 Financial Statements, 113–134 Department of Human Services Barwon Prison, 40 (DHS), 15, 19–24, 50, 51, 57, 65, fire hazard infringement notices, Beechworth Prison, 40 69, 72, 102 35–36 Bendigo Prison, 39 Department of Infrastructure Freedom of Information Act 1982 (FOI), 12, 67–72, 81, 91, 97, 99, Births, Marriages and Deaths, (DOI), 15, 52, 53, 71, 102 100, 102, 103, 107, 183–185 Registry of, 55 Department of Innovations, Freedom of Information Building Act 1993, 107 Industry and Regional Development, 102 complaints, 14, 67–72 Centrelink, 57 Department of Justice (DOJ), 15, Fulham Correctional Centre, 39, Chief Commissioner of Police, 37, 40, 41, 44, 50, 51, 69, 70, 71, 40 85, 86 102 GEO Group Australia, 39 child protection, 13, 19–21 Department of Premier and Good Practice Guide to Complaint Child Safety Commissioner, 19 Cabinet, 95, 102 Handling, 13, 97, 101 Civic Compliance Victoria, 37 Griffith University, Queensland, 64 191
GSL Corrections Services, 39 Macquarie University, 13 Ombudsman Act 1973, 3, 13, 61, QUIT program, 95 telecommunications interception, Victorian Industry Participation Guardianship and Administration mail, opening of exempt, 44 85, 86, 103 RACV Royal Auto, 99 85–86 Policy Act 2003, 97 Act 1986, 24 Malmsbury Juvenile Justice Ombudsman Thailand, 82 rate notices, 35, 57 Telecommunications Victorian Industry Participation (Interception) Act 1979 Policy (VIPP), 97, 107 Health Records Act, 70 Centre, 23 Ombudsman Victoria, activities Registered Training Organisations (Commonwealth), 85 Health Services Commissioner, Marngoneet Correctional Centre, and functions, 12, 14, 36, 64, (RTO), 28–29 Victorian Institute of Forensic 91–103 Telecommunications Medicine, 51 41, 45 39 rental dispute, 58 Outreach Coordinator, 80, 98 (Interception) (State Provisions) Victorian Qualifications Authority hire care industry, 53–54 Media Monitors, 100 reports to Parliament, 3, 5, 12, 33, Act 1988, 85, 103 (VQA), 28 housing, 22–23 Medical Panel, 75, 76 outreach programs, 81–82, 92 34, 49, 50–51, 67, 95, 99, 100, 102 Telephone Complaints Team, Victorian Taxi Directorate (VTD), own motion investigations, 11, Review of the Freedom of Housing Appeals Office, 22 Melbourne Assessment Prison, 57–59 12, 42–45, 48, 50, 52, 67–72, 92 52–54 Improving Responses to 39, 40 Information Act, 12, 97, 100, 102 Terrorism (Community Protection) Victorian WorkCover Authority parking infringement notices, 12, Rod Laver Arena, 33 Allegations Involving Sexual Melbourne City Council, 12, (Amendment) Act 2005, 13 33_35, 37, 97, 100, 102 (VWA), 75, 76, 77 Assault, 12, 50, 97, 100, 102 33–35, 64, 97, 100, 102 Royal District Nursing Service, 81 Tobacco (Amendment) Act 2005, Parliament, 3, 5, 12, 33, 34, 49, VicUrban Development Authority, Information Privacy Act 2000, 70 Melbourne City Link, 85 Royal Society for the Prevention of 45 50–51, 67, 91, 92, 95, 100, 102, 103 34–35, 102 infringement notices, 36 Melbourne City Link Act 1995, 85 Cruelty to Animals (Victoria) Training and Further Education Vocational Education and Training Performance table, 98_101 Incorporated (RSPCA), 86, 103 inspection functions, 85–86 Melbourne Custody Centre, 40 Institutions (TAFE), 29 (VET), 28–29 PERIN Court, 34 schools, 28–29 Intellectual Disability Services, 22 Metropolitan Remand Centre, 39 Transport Accident Act 1986, Where the Heart Is (Community police cells, 42–43 Self Insured Association of international delegation visits, 82 Minister for Police and Emergency 13, 75, 77 Festival), 81 Police Ombudsman, 50 Victoria, 76, 78 Investigation into Parking Services, 85, 86 Transport Accident and Whistleblower complaints, 14, sexual assault, 12, 50–51, 97, 100, Infringement Notices Issued by Monash University, 82 Police Regulation Act 1958, 61 WorkCover Unit, 75–78, 93, 101 61–65 102 Melbourne City Council, National Health and Medical Port Phillip Prison, 39, 40, 46 Transport Accident Commission whistleblowers, 61–65 12, 97, 100, 102 Sexual Assault Advisory (TAC), 75, 76, 82, 91 Research Council of Australia, 96 Prevention of Cruelty to Animals Whistleblowers Protection Act Committee, 51 Investigation into the Handling, Noticeboard (Association for Act 1986, 86, 103 Transport (Miscellaneous 2001, 3, 12_13, 30, 35, 61–65, 81, Sheriff’s office, 55 Storage and Transfer of Prisoner Children with a Disability), 99 prisons and prisoners, 39–46 Amendments) Act 2003, 103 91, 99, 103, 107, 141–159 Property in Victorian Prisons, Special Investigations Monitor, 86 nurses, forensic, 51 property within prisons, 12, Union Assist, 76 WorkCover, 59, 76, 77, 82, 91 12, 97, 100, 102 State Revenue Office, 55 Office of Attorney-General, 102 43–44, 97, 100, 102 universities, 30 WorkCover agents, 13, 75, 76, 77 juvenile justice centres, 23 State Trustees Limited (STL), Office of Housing (OoH), Protected Disclosure Coordinator, vehicle registration, 49 WorkCover Assist, 76 Langi Kal Kal Prison, 40, 46 63 51–52, 58, 59 22–23, 58 VicRoads, 49, 57 Workers Compensation Report, 99 Limitations of Actions Act 1958, 77 protected disclosures, 61, 63 strip searches, 44 Office of Police Integrity (OPI), Victoria Police, 43, 50, 51, 53, 54, WorkSafe, 75 Local Government, 5, 15, 33–37, 11, 42, 93 public interest disclosures (PIDs), Surveillance Devices 67, 68, 69, 72, 85, 102, 103 Yarra Park, 33–35 57, 86, 92 12–13, 61, 64, 65 (Amendment) Act 2004, 86 Office of Public Prosecutions, 51 Victorian Aboriginal Child Care Local Government Act 1989, 35 Office of Training and Tertiary Public Sector Management and Tarrengower Prison, 40 Agency, 21 Loddon Prison, 40 Education, 29 Employment Act 1988, 93 taxi-cabs, 52–54