THE OMBUDSMAN VICTORIA
www.ombudsman.vic.gov.au THE OMBUDSMAN VICTORIA ANNUAL REPORT ANNUAL REPORT 30 JUNE 2003 EDITION
30 JUNE 2003 EDITION 30 30 THE OMBUDSMAN VICTORIA ANNUAL REPORT
Ordered to be Printed
Victorian Government Printer
No. 42 Session 2003
30 JUNE 2003 EDITION30 ANNUAL REPORT OF THE OMBUDSMAN
For the year ending 30 June 2003
And incorporating reporting requirements of the Financial Management Act 1994
To
The Honourable the President of the Legislative Council and
The Honourable the Speaker of the Legislative Assembly
I have the honour to present the Annual Report on the exercise of the functions of the office of Ombudsman during the period from 1 July 2002 to 30 June 2003. The Report is made pursuant to Section 25 of the Ombudsman Act 1973, Section 102 of the Whistleblowers Protection Act 2001, Section 86I(1) of the Police Regulation Act 1958 and as required under the Financial Management Act 1994.
R G Seamer Acting Ombudsman
THE OMBUDSMAN VICTORIA ii TABLE OF CONTENTS
FOREWORD ...... 1 WHY THE OMBUDSMAN REMAINS ESSENTIAL TO PUBLIC ADMINISTRATION – BY THE PREMIER OF VICTORIA ...... 2
30 YEARS OF THE OMBUDSMAN VICTORIA ...... 3 CREATION OF THE OMBUDSMAN ...... 3 THE OFFICE ...... 3 PARLIAMENTARY AND INDUSTRY OMBUDSMAN ...... 4 INTERNAL COMPLAINT HANDLING SCHEMES ...... 4 THE OMBUDSMAN ...... 5 John Vincent Dillon ...... 5 Charles Norman Geschke ...... 6 Dr Barry Perry...... 7 KEY DATES ...... 8 Jurisdiction and appointments ...... 8 Significant reports over the past 10 years ...... 9 MEASURING SUCCESS – BY NORM GESCHKE, OMBUDSMAN 1980-1994 ...... 10
THE YEAR IN REVIEW...... 13 WHISTLEBLOWERS PROTECTION ACT ...... 13 POLICE COMPLAINTS ...... 13 GENERAL JURISDICTION COMPLAINTS...... 14 PUBLIC TRANSPORT COMPLAINTS ...... 14 ABORIGINAL INVESTIGATION OFFICER ...... 14
COMMUNITY ACCESS AND YOUTH LIAISON...... 15 Victorian Ombudsman Youth Outreach Program at Frontyard Youth Services...... 16 Regular visits to Juvenile Justice Centres...... 16 Outreach work with the Aboriginal community of Shepparton...... 16 Legal Youth Forum – Rights and Responsibilities ...... 16 Participation in working groups and committees...... 16 Workshop presentations and networking ...... 17
WHISTLEBLOWERS COMPLAINTS ...... 18 THE CONTINUING IMPLEMENTATION PROCESS ...... 18 NEW PROTOCOLS...... 18 State Co-ordination and Management Council ...... 18 Office of Local Government...... 18
2003 ANNUAL REPORT iii EXPERIENCES TO DATE ...... 18 RECOMMENDATIONS AS TO PUBLIC BODIES’ INTERNAL PROCEDURES...... 19 RECEIPT AND INVESTIGATION OF DISCLOSURES...... 19 AIMS FOR THE NEXT 12 MONTHS...... 20 CASE STUDIES ...... 20 STATISTICS ...... 21 TOTAL DISCLOSURES ...... 21
GENERAL JURISDICTION COMPLAINTS...... 22 OVERVIEW ...... 22 COMMUNITY SERVICES AND HEALTH ...... 23 Protective Services Complaints...... 24 The Ombudsman’s priorities ...... 25 JUVENILE JUSTICE...... 27 Allegations of undue force...... 28 Drugs in Juvenile Justice Centres ...... 28 HOUSING ...... 29 EDUCATION ...... 30 TRANSPORT ...... 33 Public Transport ...... 33 VicRoads...... 33 CORRECTIONS ...... 34 Co-Ordination ...... 36 Level of fines imposed in disciplinary hearings ...... 36 Arunta Telephone System ...... 37 Clothing and footwear...... 37 Significance of small issues...... 37 Drug testing ...... 38 Emergency Management Days ...... 38 Prisoner’s Property...... 39 Police Cells ...... 40 TRANSPORT ACCIDENT COMMISSION ...... 40 LOCAL GOVERNMENT ...... 44 Complaints and enquiries...... 45 Parking infringements...... 45 Local Government Planning ...... 49 Planning Breaches ...... 50 Caretaker Councils...... 52 Building Commission and Associated Bodies ...... 52 Level of Service...... 53 OTHER MATTERS ...... 53 State Trustees...... 53 Government Superannuation Office ...... 54
iv THE OMBUDSMAN VICTORIA TABLE OF CONTENTS
Employment...... 55 Metropolitan Ambulance Service...... 55 Civic Compliance ...... 56
POLICE COMPLAINTS ...... 57 ANOTHER MILESTONE...... 57 POLICE ACCOUNTABILITY – BY BRIAN HARDIMAN, SENIOR ASSISTANT OMBUDSMAN (POLICE COMPLAINTS)...... 58 A brief history...... 58 BUILDING ON SOLID FOUNDATIONS...... 73 Prosecution of a Victoria Police member...... 73 Investigation into alleged misconduct by members of ESD ...... 73 Joint Task Force...... 74 CEJA Task Force...... 75 Ongoing management and accountability ...... 75 STATISTICS ...... 76
CONFLICT OF INTEREST...... 77
FREEDOM OF INFORMATION ...... 81 Voluminous requests – Section 25A(8)...... 81 Lost documents – Section 27(1)(e) ...... 81 Charges certificates – Section 50(2)(c) ...... 81 Delay certificate – Section 53(2) ...... 82 Intervention – Section 57 ...... 84 FOI COMPLAINTS ...... 85 REQUESTS FOR DOCUMENTS HELD BY THE OMBUDSMAN’S OFFICE ...... 86
TELECOMMUNICATIONS INTERCEPTION ...... 87
MELBOURNE CITY LINK ACT ...... 88
OFFICE OPERATIONS ...... 89 SUMMARY OF ACTIVITIES...... 89
ADMINISTRATION, ORGANISATION AND STAFF...... 95 Mission ...... 95 Objectives ...... 95 Strategies...... 95 Legislation...... 97 OMBUDSMAN’S OFFICE: STATUTORY/FUNCTIONAL ORGANISATION ...... 98 STAFFING...... 99 Organisation of Office Personnel as at 30 June 2003 ...... 99 Staff Profile/Gender Details as at 30 June 2003...... 100 INTERNAL MANAGEMENT ISSUES ...... 100
2003 ANNUAL REPORT v OUTREACH...... 100 Country Services Program ...... 100 Information Stand – Country Shows and Field Days ...... 101 Community Activities...... 101 DECLARATION OF INTERESTS...... 101 PUBLICATIONS ...... 101
FINANCIAL STATEMENTS...... 103
WHISTLEBLOWERS PROTECTION ACT 2001 OMBUDSMAN’S GUIDELINES ...... 117 PART A – COMPLIANCE REQUIREMENTS FOR PUBLIC BODIES...... 117 1. Objects of the Act ...... 117 2. The role of the Ombudsman ...... 117 3. Key terms and concepts ...... 117 4. How do public bodies comply with the Act? ...... 118 5. Ensuring confidentiality...... 120 6. Collating and publishing statistics...... 121 PART B – HANDLING A PROTECTED DISCLOSURE...... 121 7. Receiving and assessing disclosures...... 121 8. Investigations ...... 125 9. Action taken after an investigation...... 127 10. Managing the welfare of a whistleblower...... 128 11. Management of the person against whom a disclosure is made ...... 130 12. Criminal offenses...... 131 13. Contact details ...... 131 PART C – LEGAL INTERPRETATION OF THE WHISTLEBLOWERS PROTECTION ACT...... 131 14. Common questions...... 131
COMPLIANCE INDEX ...... 135
INDEX ...... 136
VI THE OMBUDSMAN VICTORIA FOREWORD
This 30th Annual Report of the Victorian Ombudsman represents a significant milestone in the history of the office. This year is also the 15th anniversary of the creation of the position of Deputy Ombudsman (Police Complaints) with responsibility for investigating, monitoring and reviewing complaints against police.
In recognition of these milestones the Premier of Victoria and the Ombudsman from 1980 to 1994 Norm Geschke have provided some views on the institution and a brief history of the office and its achievements has been included in this section of the report.
The current Ombudsman, Dr Barry Perry, suffered a serious stroke on 25 April 2003 and I have been appointed Acting Ombudsman. This report, which covers the period from 1 July 2002 to 30 June 2003, reports on the work of Dr Perry up until his unfortunate illness and my work for the last few months of the reporting year. As the office of Ombudsman is a personal office I have, for ease of reference, written the report in the first person for the full year.
The 2002/2003 Annual Report provides an account of the office’s activities over the reporting period and demonstrates the Ombudsman’s contribution to improving administration in the Victorian public sector.
Despite the limited resources of the office, the staff have performed exceptionally well in dealing with the continually high volume of work and in the context of the Ombudsman’s expanded role and jurisdiction. I thank the staff for their efforts during the past year, particularly for their support in sharing the load created by Dr Perry’s absence.
R. G. Seamer ACTING OMBUDSMAN
2003 ANNUAL REPORT 1 WHY THE OMBUDSMAN REMAINS ESSENTIAL TO PUBLIC ADMINISTRATION – BY THE PREMIER OF VICTORIA
Almost 30 years ago to date the Ombudsman’s office opened its doors for the first time in Victoria. In 1973 it was only the third such office in Australia, but was shortly followed by the establishment of other Ombudsmen. There are currently Ombudsman offices in all states and territories of Australia and a Commonwealth Ombudsman fulfilling a similar role in the Commonwealth jurisdiction.
Recent years have seen a proliferation of Ombudsman-like bodies in both the public and private sectors, as both sectors gain a better appreciation of the commercial and ethical value of resolving customer grievances and disputes. In addition to being able to seek recourse from a variety of specialised authorities and commissions, Victorians can use the services of agencies such as Telecommunications Industry Ombudsman, Health Services Commissioner, Energy and Water Ombudsman, Banking Ombudsman or the Private Health Insurance Ombudsman. Furthermore, Victorian government departments and agencies now offer their clients access to an internal complaint handling process and an informal mechanism for reviewing decisions made by these agencies.
So why do we still need a public sector Ombudsman?
The answer lies in the Ombudsman’s fundamental guiding principles of independence, impartiality and integrity.
The Victorian Ombudsman investigates complaints about actions and decisions taken by a broad range of Victorian government departments, authorities and local councils as well as by Victoria Police. Over the years, the Ombudsman has drawn the Government’s attention to significant issues of concern and, while resolving individual grievances, helped to improve broader public administration.
The Ombudsman’s powers to conduct investigations are purposely broad. Unlike specialist review tribunals or commissions, the Ombudsman’s role is not only to review the lawfulness of agencies’ actions or decisions, but also the reasonableness and fairness of these actions in all the circumstances. Victorians should be reassured that the Ombudsman’s oversight of departments and statutory authorities provides this safety net.
The importance of the Ombudsman to good public administration and open and accountable government has recently been formally recognised by Parliament through the amendments to the Victorian Constitution introduced by the Constitution (Parliamentary Reform) Act 2003. This Act, which gained Royal Assent on 8 April 2003, established the Ombudsman as an independent officer of Parliament. The intention of the new sections inserted into the Victorian Constitution is to reinforce the independence of the Ombudsman. The Ombudsman is responsible to Parliament, rather than the government of the day, and may only be dismissed by Parliament.
On the Victorian Ombudsman’s 30th anniversary, I can state with confidence that the institution has clearly stood the test of time.
Steve Bracks PREMIER OF VICTORIA
2 THE OMBUDSMAN VICTORIA 30 YEARS OF THE OMBUDSMAN VICTORIA
CREATION OF THE OMBUDSMAN THE OFFICE The office of The Ombudsman Victoria was The public announcement, on 9 October 1973, of established on 30 October 1973. The Ombudsman’s the Ombudsman’s appointment was quickly followed appointment came after some years’ consideration by by his receipt of a number of complaints. By the end government. It is likely that the success of the office of that year, the Ombudsman was assisted in his in New Zealand, where in 1962 Sir Guy Powles was role by a First Assistant Ombudsman, an Executive appointed as one of the first two Ombudsmen and Special Duties Officer, an Administrative Officer, outside of the Scandinavian countries, influenced a Private Secretary, two Stenographers and a Driver. the government’s decision. Sir George Reid, the In the following year, three investigation officers and then Attorney-General, introduced the Ombudsman two further stenographers were appointed. One of legislation to the Victorian Parliament. these investigation officers would later become the The Victorian office was the third such initiated in Ombudsman. Australia, following the appointment of Ombudsmen Over the years, growth in the number of complaints for Western Australia (1971) and South Australia received by the office and the broadening of (1972). jurisdiction meant that greater resources were required Since its inception, the Ombudsman’s office has to fulfil the Ombudsman’s statutory responsibilities. witnessed major changes in the delivery of From its very modest beginnings, the office has slowly government services in Victoria and in the public expanded to its current size of 22 investigative staff sector itself. While the office has also undergone and 7 administrative support officers. some changes over the period, none of them have The profile of the investigative staff has also changed affected the core role and responsibilities of the over time. All investigation officers appointed by the Ombudsman. first Ombudsman were lawyers and, perhaps not In his first Annual Report to Parliament, John Dillon, surprisingly for that time, all were male. Four the first Victorian Ombudsman, described the investigation officers were supported by seven institution of ombudsman in the following terms: administrative staff. Today, investigative staff The basic functions of Ombudsmen, by whatever employed by the office bring with them a wide range name they are known, are to receive complaints from of qualifications, skills and experience and are more citizens concerning administrative actions taken in representative of the broader community. In my Government Departments or Public Statutory Bodies, view, this diversity is invaluable in ensuring that the and to investigate complaints, and as a result of their Ombudsman’s statutory role is fulfilled in a manner investigations, to find the facts of the complaints, which meets both community and government and on those facts, to express opinions whether the expectations. actions complained of were contrary to law, unjust, To further increase the Ombudsman’s accessibility, unreasonable, etc. … (The Ombudsman) has no I have recently created and filled two new positions power to direct rectification of a wrong nor can he in the office: that of a Community and Youth Liaison order that a particular decision or administrative Officer and an Aboriginal Investigation Officer. The action be modified or varied. functions of both officers are described in more The effectiveness of his office has been proved to detail further in the Report. be found in the publication of his reports, opinions While the office has grown over the past 30 years, and recommendations. … it remains a very modest one when measured The very essence of his office demands that he be against the much larger Ombudsman offices in the non-partisan, independent and judicial in his treatment two most comparable states, New South Wales and investigation of complaints. and Queensland. Indeed, if not for the assistance of contract and seconded staff with project work As mentioned by the Premier in his preceding letter, the Ombudsman’s core values of independence, and major investigations, at times I would find it impartiality and integrity remain unchanged and have difficult to meet the demands on this office. ensured the Ombudsman’s continued relevance.
2003 ANNUAL REPORT 3 PARLIAMENTARY INTERNAL COMPLAINT AND INDUSTRY OMBUDSMAN HANDLING SCHEMES As noted by the Commonwealth Ombudsman in In recent years, the development of internal complaint his 1999/2000 Annual Report, the institution of handling mechanisms by government departments ombudsman has proved remarkably adaptable and authorities has been a significant factor in worldwide and has generated the growth of a improving public administration and accountability. multitude of specialist review bodies. In Australia, The Ombudsman is generally an avenue of complaint like overseas, the ombudsman model has also been of last resort. If the aggrieved person has not raised adapted by the private sector with the creation of his or her concerns with the responsible government “industry ombudsmen” such as the Australian department, I usually ask that they do so in the first Banking Industry Ombudsman, the Energy and instance. There are good reasons for this policy. Water Industry Ombudsman or the Private Health Firstly, from a practical perspective, the Ombudsman’s Insurance Ombudsman. limited resources do not allow for a detailed review of Despite the common name, there are very important each and every grievance against every department. differences between these organisations and the Legislative and policy frameworks which guide public sector, or parliamentary, ombudsmen. It is departmental actions and decisions are reviewed essential to recognise these distinctions as, in some and changed or amended on a regular basis. For cases, the title “ombudsman” may be somewhat the Ombudsman to be an expert in all areas of government activity, my office would have to become misleading. a super-department, duplicating functions already Industry ombudsman organisations are, fundamentally, performed by existing agencies and specialist review consumer dispute resolution bodies geared to bodies such as the Victorian Civil and Administrative protecting the rights of customers. They are a means Tribunal. This would be neither effective nor efficient. of industry self-regulation and often rely on voluntary Instead, the Ombudsman’s primary focus is on participation of their members in the dispute resolution administrative processes. The Ombudsman’s scheme. Features which most strongly distinguish “specialty” is reviewing agencies’ administrative parliamentary ombudsmen from industry based processes to ensure that these are fair, reasonable, dispute resolution bodies are their statutory powers transparent and accountable. to obtain information from a third party and to Secondly, encouraging complainants to initially direct summons a witness on oath. In addition, while their grievances to the department responsible, gives industry ombudsmen are often limited to resolving the department the first opportunity to identify and the individual dispute about a specific transaction, resolve any problems in the delivery of its programs parliamentary ombudsmen are empowered to act or services. Addressing problems at their source is on their own motion and to examine the underlying often the quickest and most effective solution. A good policies or procedures employed by a government internal complaint handling system will be accessible, agency. responsive to individual concerns and able to identify systemic issues or deficiencies. My office regularly provides advice to government agencies on implementing or improving complaint handling processes. Where my office directs a complainant to raise his or her grievance with the responsible agency in the first instance, I also invite the person to contact me again if the matter is not satisfactorily resolved. For the most part, internal complaint processes set up by state and local government bodies go a long way towards addressing grievances and concerns.
4 THE OMBUDSMAN VICTORIA THE OMBUDSMEN
John Vincent Dillon Ombudsman, 1973 – 1980
John Vincent Dillon (later Sir John Dillon) was appointed as the first Victorian Ombudsman and opened the office on 30 October 1973. Sir John Dillon retired in August 1980 on reaching the age of 72 years, stipulated under the Act as the retirement age. Prior to his appointment, Sir John served with great distinction in the Victorian Public Service for over 47 years. Amongst other things, Sir John had been a member of the Public Service Board (1941-54), a stipendiary magistrate (1947-61), Chairman of the Medical Salaries Committee (1959-62), Permanent Head of the Chief Secretary’s Department (1961-73), and Chairman of the Racecourses Licensing Board (1961-73).
The combination of Sir John’s extensive judicial and administrative experience and the extensive legal experience of his deputy, Mr Thomas Neesham, (later to become His Honour Judge Neesham of the County Court), was ideal for setting up the structure of the office, establishing its jurisdiction and formulating policies, practices and procedures. Sir John’s objective was to have the office accepted by both the public and the administration. He placed great stress on the independence and impartiality of the office. In shaping the role of the office Sir John was confronted with a number of jurisdictional challenges. The decisions in those cases were extremely significant in defining the jurisdiction of Ombudsmen in Australia. In his final report Sir John concluded: “These past years have been exciting and rewarding. It is my belief that the office has been established on firm foundations and that it is widely accepted as a fearless, impartial and independent office.” There is no doubt that Sir John established a very firm base that has enabled the office to develop in the years that followed.
2003 ANNUAL REPORT 5 Charles Norman Geschke Ombudsman, 1980 – 1994
Charles Norman Geschke succeeded Sir John Dillon in October 1980 and served as Ombudsman until he retired on 28 February 1994. Norm Geschke, like Sir John, had a long and distinguished career. Retiring in 1971 with the rank of Group Captain in the RAAF after 28 years of service, Mr Geschke was appointed to the position of Business Manager of the Howard Florey Medical Institute and continued in that position until 1974. In June 1974, he was appointed Victoria’s first Director of Consumer Affairs and continued in that position until in 1980 he was appointed Ombudsman.
Not surprisingly, Norm Geschke placed considerable emphasis on complainants, those consumers who were dissatisfied with the service provided by state and local government administrators. He had little time for legal technicalities which in any way hindered or restricted either the achievement of justice for a complainant or the accountability of administrators. Norm Geschke placed great stress on the Ombudsman’s role to determine whether administrative actions were fair and reasonable to all. He instituted a country visits program to make the services of the Ombudsman more accessible to country residents. Norm Geschke played a prominent role in the development of the Ombudsman internationally and was rewarded with life membership of the International Ombudsman Institute. In his final report Norm Geschke commented: "I have never ceased to be amazed at the semantic aerobatics used by solicitors or counsel to meet the request of the agency head seeking justification of some indefensible situation. Balances of probability, fantasies, oddball dictionary meanings and reference to legal judgements handed down by courts where the nexus is as obvious as the emperor’s new clothes have all been quoted. My view that a barrister’s opinion does not have the scientific basis or reliability of a Melbourne weather report stemmed from the assessment of some of these opinions put to me especially when on one matter three legal opinions were that the Ombudsman had jurisdiction and two that he did not." Special Report of Norman Geschke Ombudsman for Victoria on Relinquishing Office on 28 February 1994.
6 THE OMBUDSMAN VICTORIA Dr Barry Perry Ombudsman, 1995 –
Dr Barry Perry, who on 17 May 1988 had been appointed Deputy Ombudsman (Police Complaints), also took up the position of Acting Ombudsman in February 1994 until he was eventually appointed Ombudsman on 4 July 1995. He also retains the position of Deputy Ombudsman (Police Complaints).
Barry Perry is proud of his Collingwood roots and has the distinction of having played senior football for Collingwood. He commenced his public service in the Crown Law Department and later joined the Parliamentary counsel’s office. He obtained a LLB(Hons) from Monash University and a doctorate in Jurisprudence from Stanford University. He joined the Ombudsman’s office in June 1974 and worked his way from Investigation Officer and Senior Investigation Officer to become Ombudsman. From 1988 Barry had the task of establishing the credibility of the Deputy Ombudsman (Police Complaints) concept, following the demise of the Police Complaints Authority. Having succeeded in that task, on appointment as Ombudsman, he focused on protecting and enhancing the Ombudsman’s role which had been created and nurtured by his predecessors. Throughout his time as Ombudsman, Barry has consistently emphasised the need for integrity of public administration procedures and ethical standards amongst administrators at all levels. The stroke he suffered on 25 April 2003 has interrupted this work. In his 25th Annual Report Barry concluded: "…not only does the daily use of the Office by complainants reflect a continuing public confidence in the Ombudsman, but it indicates a wider recognition on the part of the community that the system of government administration, both at State and local level, is one which will be responsive to complainants and one in which they have a chance of achieving a fair result. If the community thought otherwise, I imagine they would not keep coming to the Ombudsman in such numbers." Twenty-fifth Report of the Ombudsman 30 June 1998.
2003 ANNUAL REPORT 7 KEY DATES
JURISDICTION AND APPOINTMENTS
October 1973 The office of the Ombudsman established under the Ombudsman Act 1973, John Vincent Dillon appointed.
January 1977 Ombudsman (Municipalities) Act 1976 extends the jurisdiction of the Ombudsman to Local Government.
October 1980 Charles Norman Geschke appointed Ombudsman.
January 1983 Freedom of Information Act 1982 commences – the Ombudsman provided with a role in relation to specific matters under the Act – see Chapter on Freedom of Information.
May 1988 Deputy Ombudsman (Police Complaints) Act 1988 commences, creating the position of Deputy Ombudsman (Police Complaints) and effectively replacing the role of the Police Complaints Authority.
July 1995 Dr Barry Perry appointed Ombudsman.
January 2002 Whistleblowers Protection Act 2001 commences extending the role of the Ombudsman to investigate and oversee investigations of whistleblower complaints.
May 2003 Robert Seamer appointed Acting Ombudsman.
8 THE OMBUDSMAN VICTORIA SIGNIFICANT REPORTS OVER THE PAST 10 YEARS
The Ombudsman Act 1973 provides that, in addition to the Annual Report, the Ombudsman may, at any time, bring before each House of Parliament a report on any matter arising in connection with the exercise of the Ombudsman’s functions. Over the thirty years many special reports have been presented to Parliament. Some of the more significant reports tabled in the past 10 years include:
April 1993 Three volume report of investigation into the alleged suppression of police investigations, police intelligence and related matters concerning the Victorian Economic Development Corporation (VEDC).
May 1993 Report of investigation into the alleged failure of state and local authorities to ensure adequate provision of public transport and environmental health standards at the “GUNS N ROSES” concert at Calder Park Raceway.
November 1994 Report of investigation of a police raid at the Commerce Club (Tasty Night Club).
November 1994 Report of investigation into alleged use of excessive force by Victoria Police against demonstrators at the Richmond Secondary College on 13 December 1993.
November 1994 Report of investigation into crowd control methods used by Victoria Police against demonstrators outside the Department of Conservation and Natural Resources headquarters, Victoria Parade, East Melbourne on 10 February 1994.
May 1998 Final report (preceded by an interim report) of investigation of allegations against Victoria Police in relation to the shutter allocation system.
May 1999 Final report (preceded by two interim reports) of investigation into allegations concerning the activities of the Operations Intelligence Unit of Victoria Police and related issues.
June 2001 Report of investigation of police action at the World Economic Forum demonstrations.
April 2002 Report on matters arising from the Office of Gambling Regulation investigation of International Gaming Technology.
May 2002 Report of investigation into allegations about preferential treatment of a student by the University of Melbourne.
April 2003 Report of investigation of complaints against State Trustees Ltd.
2003 ANNUAL REPORT 9 MEASURING SUCCESS – BY NORM GESCHKE, OMBUDSMAN 1980-1994
It is now 30 years since the Victorian Ombudsman opened his doors to accept complaints from aggrieved persons. Looking forward at that time one did not know what to expect, what areas had to be navigated, how the bureaucracy would react and would it be successful?
What did success mean in the eyes of government, in the eyes of complainants and in the eyes of the Ombudsman?
The establishment of the Ombudsman’s office was not without pain. A Premier whose view was, in effect, “over my dead body”. A minister, who also opposed the establishment of the office, justified his stance by claiming that the New Zealand Ombudsman’s experience was that 80% of complaints were unjustified. The fact that one in five persons had suffered a justifiable grievance at the hands of the bureaucracy was apparently of little moment. On the other hand, there were many advocates for the office, but it took another 10 years before the act was proclaimed, naturally (in order to save a life) after a change of Premiers.
On 30 October 1973 the office of the Ombudsman was opened.
Even the appointment of the first Ombudsman was controversial. There was opposition from some who argued that the appointment of John Dillon as Ombudsman was not at arms length from the Public Service, the major body he would be investigating, and that consequently justice would not be done. It was suggested that, after all, his long association as a member of the Public Service and the many appointments held, must give him a leaning that way. Fortunately these critics were proved wrong and a lot of credit must be given to John Dillon (later Sir John) for the way the office developed and operated. He certainly had his battles on the question of jurisdiction and was taken to court on three occasions in his first few years of office. He was held to be the most litigious Ombudsman but, as he pointed out, it was others who were challenging his jurisdiction.
One of these cases showed the stupidity of having to involve a court. A judge, without administrative training or experience, held that the Ombudsman could not investigate policy matters. This, in effect, meant that a department could claim it was a matter of policy that the Ombudsman wanted to investigate and so it would then be out of jurisdiction. During the introduction of the Ombudsman legislation it was clearly stated by the Government that “policy” meant government policy not departmental policy. In fact, experience demonstrated that it was very often badly thought up departmental practices (claimed as departmental policy) that led to justifiable grievances.
It has always been my view that, if a question of jurisdiction arises, it should be determined by Parliament as to what Parliament wanted and not by a court playing around with an Oxford dictionary or looking at some unrelated precedent. However, that judge’s decision caused problems for a number of years.
The police also opposed the Ombudsman’s jurisdiction and eventually there were five separate legal opinions as to whether the Ombudsman had jurisdiction to investigate police matters. There were two opinions saying he did and two saying he did not. The fifth opinion was in my time as Ombudsman saying he did. The matter was temporarily resolved with the creation of the short lived Police Complaints Authority, to handle complaints against police. With the sudden, but not unexpected, demise of the Authority, the responsibility for such investigations was transferred back to the Ombudsman’s office and the position of Deputy Ombudsman (Police Complaints) was created.
10 THE OMBUDSMAN VICTORIA Over the years jurisdiction was widened to cover various areas such as municipalities, freedom of information, telecommunications interception and whistleblowers.
There have been many challenging times in that any investigation which was found justified was in effect a criticism of a department, council or statutory authority; all directly or indirectly under a Minister’s Portfolio. So, all investigations commenced had the potential of setting the Ombudsman’s office against a Minister or an authority. I used to muse, wondering what would happen if justified complaints led to more than half the ministers in Cabinet becoming against me at the same time.
As to success, I really can’t speak for government, but I was not aware of any significant dissatisfaction, and I was able to sincerely and conscientiously state in my final report to Parliament on relinquishing office that, in my time as Ombudsman, I had never received any unreasonable pressure from a member of government to change or colour one of my findings. I expect that my predecessor had a similar experience.
There was certainly one report where my recommendation for compensation to some farmers over the injustice suffered by them in the building of the Blue Rock dam was rejected along party lines by the Legislative Assembly but caused the opposition in control of the Legislative Council to approve a vote of no confidence in the government’s decision and the matter was referred back to the Legislative Assembly where no further action was taken. When there was a change of government I suggested that there was now an opportunity for the incoming government to rectify the injustice but it seems that once a new government becomes in power things are not quite the same??
It is essential for the successful operation of legislation that it is monitored by Parliament, but as I mentioned in my final report to Parliament it has not played its part and met the complementary obligations it has under the Ombudsman’s Act.
On the whole, from comments I have received, it seems that the establishment of the Ombudsman’s office in Victoria has been considered a success by governments on both sides of the political spectrum.
As to complainants, my findings were that about 75 to 80 percent of complaints had some justification. Some were redressed when the Ombudsman’s recommendations were complied with. Some, because of circumstances, could not be properly redressed without causing a further injustice to another but reasonable actions were taken to ameliorate the wrong. Other recommendations were not honoured by a department or government and those complainants, to the further discredit of the department or authority involved, continued to suffer.
On a number of occasions a complainant would disagree with the Ombudsman’s findings and my policy was to ask another investigator to re-examine the case, with the task of proving the Ombudsman’s decision was wrong. On a number of occasions the decision was altered. I was never worried that I had to now say I was wrong. I was worried, however, that despite internal reviews before the report was initially issued, that somehow we had not got it right the first time.
One of the greatest criticisms I had was that, in the main, bureaucracies on receiving a complaint would often try to justify their actions rather than impartially review the circumstances. I did not want the Ombudsman’s office to suffer from the same criticism and so instituted the above mentioned review procedure when my decision had been questioned.
2003 ANNUAL REPORT 11 I would suggest that all but a few complainants were satisfied with the investigation of their complaint by the Ombudsman. I fully acknowledge that there were some persons who were not satisfied. Some could well have suffered an injustice because the evidence was not available or because there were equally convincing opposing views. Occasionally, I believe evidence had been deliberately withheld or destroyed.
What is success in the eyes of the Ombudsman? I can only speak for myself but would think my views would be supported by others. Success is not to be measured by the percentages of complaints that are found to be justified. That is a reflection on the integrity and performance of the authorities involved. To find a complaint justified is not a win for the Ombudsman. I considered a “win” was to reach a conclusion that all the facts have been received and taken into account and that the decision reached was reliably in accordance with the evidence and a reasonable interpretation of that evidence. And of course, if an injustice has been found that it is remedied; it is equally important that if the complaint is not substantiated, that the person or department complained about is promptly and properly informed of this.
The Ombudsman is not inflexibly bound by the law but is given great discretion in determining whether an injustice has occurred. A significant section of the Act, amongst other things, indicates that the Ombudsman may find the complaint justified when the action complained of:
a. was unreasonable unjust oppressive or improperly discriminatory;
b. was in accordance with a rule of law or a provision of practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory.
These demand a test of comprehension and judgement of what is “reasonableness” and a degree of “The wisdom of Solomon” … not necessarily required or practiced by a court.
One can never say that injustices have always been detected and remedied. Such a Utopian situation is unlikely to ever be achieved. But I am prepared to state that the Victorian Ombudsman’s office has gone a long way to reaching this goal and on this basis the establishment of the office in the eyes of its Ombudsmen has been successful.
I do, however, have a concern over the watchdog role of a number of agencies and am concerned that the Heads of these offices are too far removed from the decision reaching process. The delegations in those offices often lead to decisions on cases being the decisions of inexperienced investigators and not the Head of the agency. This is a fraud on the public who expect a complaint to be decided by the Head of the agency and not by junior staff.
It will, of course, be interesting to see how the next 30 years will affect the operation of the Ombudsman’s office.
G. N. Geschke
12 THE OMBUDSMAN VICTORIA THE YEAR IN REVIEW
WHISTLEBLOWERS POLICE COMPLAINTS PROTECTION ACT Last year I reported that 2001/2002 had been In the early part of the year the work of my office a difficult period for my office. Despite extreme demands on staff due to a number of high profile was dominated by a focus on the new cases, much was achieved. This situation Whistleblowers Protection Act (WPA) jurisdiction. extended into 2002/2003. I am actively The WPA commenced operation on 1 January oversighting the work of the CEJA Task Force, 2002 and, as mentioned in my previous Annual created to investigate allegations of drug related Report, I undertook considerable work in corruption in the police force, and I presented an preparation, including the issue of detailed interim report to Parliament in May 2003. The guidelines. Throughout the reporting period my report detailed criminal charges that had been officers were busy dealing with whistleblower laid against police members and the continuing complaints and providing advice to officers and investigation into other members. agencies on the practical operation of the WPA. Following the receipt of new claims and evidence Many WPA matters have proven to be highly I undertook an investigation into allegations of complex and this jurisdiction has constituted a police misconduct relating to police enquiries into significant workload for my office, particularly due the deaths of Jennifer Tanner and Adele Bailey to the strict confidentiality and procedural and associated matters. Victoria Police has been requirements. I identified several welfare issues in conducting separate but parallel enquiries into relation to whistleblowers and I am currently alleged criminal offences and related incidents. developing procedures to address these. In Due to the overlap between these enquiries, the particular, I have established a protocol to facilitate Chief Commissioner for Police and I have decided the temporary placement of whistleblowers with to establish a joint Ombudsman and Police an alternative public body in cases where Taskforce. Victoria Police members of the Taskforce remaining at their usual workplace becomes will continue to focus primarily on investigating unsustainable. any new information relating to the death of Adele Bailey, the death of Jennifer Tanner and As a result of my WPA investigation, a police the fire at the Springfield property. Police will also officer was charged with assaulting a prisoner. review and further investigate as necessary, the In April 2003 I tabled a report on a major assault on Mr Laurie Tanner on 27 May 1998. investigation into an alleged conspiracy between officers of the former Department of Natural My officers will continue, in accordance with the Resources and Environment and the Department provisions of section 86N(4)(b)(i) of the Police Regulation Act 1958, to focus on allegations of of Justice. A summary of the case is included in police misconduct in previous investigations of the WPA section of this report. these matters and related events. In the course of dealing with whistleblower issues I have already found evidence of shortcomings in I formed the view that there are some aspects of police investigations and I am seeking funding to WPA that require improvement. I will be discussing cover the cost of this investigation as it is these matters with the Department of Justice. consuming significant resources to the detriment of other work of my office.
2003 ANNUAL REPORT 13 GENERAL JURISDICTION deal with complaints concerning the actions of COMPLAINTS ‘authorised officers’ in the course of performing their duties as ticket inspectors. I will be liaising Overall, the number and complexity of general with DOI in relation to these matters as the complaints received by my office during the outcome of my investigations may necessitate reporting period were similar to previous years. the review of officers’ authorised status. I have An additional workload was created by the written to the Chief Executive Officers of the Whistleblowers legislation and a major investigation private transport companies advising them of into allegations against State Trustees Ltd (STL). the procedures I propose to follow, including the My report on this investigation, described further need for the companies to establish adequate in the document, was tabled in Parliament in internal complaint handling systems. I will be April 2003. meeting with representatives of the companies to ensure that measures are in place to facilitate I received a smaller number of local government complaint handling. complaints, as a result of a decrease in the number of parking complaints. However, parking remained the most complained about subject matter in the local government area. I am ABORIGINAL INVESTIGATION continuing a major investigation into allegations OFFICER concerning administration of the Shire of Melton. In the course of the year I appointed an I expect to conclude that investigation in 2003/2004. Aboriginal Investigation Officer (AIO) to liaise with Despite a fall in the number of planning complaints, the Aboriginal community to promote awareness my workload in relation to planning has increased of the role of my office and my commitment to as a result of increased complexity of issues and improving access to my office. It was apparent allegations brought to my notice. to me that knowledge of the Ombudsman among the Aboriginal community was limited and that there was some reluctance to utilise the PUBLIC TRANSPORT COMPLAINTS resources of my office.
The Ombudsman has dealt with complaints The AIO is working to establish and expand concerning the public transport system for networks with Aboriginal community groups and many years. However, the recent privatisation organisations and has provided assistance for of the transport system created doubt about individuals who wish to lodge complaints. The my jurisdiction to deal with complaints against officer also visits prisons and juvenile centres on employees of these transport companies. a regular basis. I continued to deal with complaints about infringement notices, as decisions to issue such The AIO’s focus on complaints from the notices are made by officers of the Department Aboriginal community complements the work of Infrastructure (DOI). Complaints concerning undertaken by my Community Access and Youth conduct of the enforcement officers were dealt Liaison Officer (CAYLO) in relation to young people with by DOI as that Department is responsible and those from varied cultural and linguistic for issuing authorisation which empowers ticket backgrounds. Both officers have a key role in the inspectors to undertake their work. On 28 May Ombudsman’s country access program as they 2003 a provision of the Transport (Miscellaneous travel extensively throughout the State. Amendments) Act 2003 gave me jurisdiction to
14 THE OMBUDSMAN VICTORIA COMMUNITY ACCESS AND YOUTH LIAISON
Last year I reported that my office would develop The CAYLO worked collaboratively with a number culturally specific resource material for the ethnic of ethnic communities to develop Ombudsman communities and the Aboriginal community of promotional resources translated into Amharic, Victoria. I am pleased to announce that over the Arabic, Bosnian, Chinese, Dari, Farsi, Serbian, past 12 months my Community Access and Youth Somali, Tigrigna and Vietnamese languages. The Liaison Officer (CAYLO) has worked effectively with bi-lingual information was favourably received by key stakeholders to produce resource material the ethnic communities and is regularly requested that is youth specific and culturally appropriate for distribution. for the Aboriginal community of Victoria and the The youth web site initiative, mentioned in my refugee and newly arrived communities whose last annual report is in progress and will be first language is not English. completed soon. Building relationships with the Aboriginal community Since the establishment of the CAYLO position, is a high priority for my office. The past year my office has significantly expanded its networks presented many challenges and opportunities for and working partnerships with key service providers my CAYLO who established good links and from the non-government sector. I welcome this partnerships with the community. In consultation development and I hope to build on it further in with members of the Aboriginal community, the the coming year. The steady increase in complaints CAYLO developed culturally appropriate material received through the CAYLO demonstrates the to promote the role of my office and to engage effectiveness of such partnerships in improving the Aboriginal community in a culturally sensitive the level of access to my office by young people. manner to improve access to my office. Donna Brown, an Aboriginal artist, was engaged to design the artwork for the final product. My CAYLO and my Aboriginal Investigation Officer will use the resource material to conduct more outreach work with the Aboriginal community in the coming year.
2003 ANNUAL REPORT 15 Victorian Ombudsman Youth the working relationship between police, Victorian Outreach Program at Frontyard Aboriginal Legal Service and the Community Justice Panel members and also clarifies how Youth Services complaints against police should be dealt with. Since I established my outreach service at Frontyard, a constant stream of young people Legal Youth Forum – Rights and have accessed the service for information about Responsibilities my office and to make enquiries or complaints. In March 2003, the CAYLO participated in the The outreach program offers the following services: ‘Legal Youth Forum – Rights and Responsibilities’ • Support and assistance to young people to hosted by the Legal Centre of Warrnambool. The make complaints; forum covered matters relating to: tenancy issues, • Education and a wide range of culturally consumer rights, employment and general legal appropriate, youth specific and bi-lingual issues, budgeting, complaint bodies as well as information resources; and depression and youth suicide. The CAYLO • Linkages and referrals to other relevant conducted nine workshops with 800 students complaint authorities. from Hawkesdale College, Brauer College, Emmanuel College, Warrnambool College and The CAYLO is based at Frontyard Youth Services Kings College. in King Street every Tuesday from 1pm to 3pm to assist young people with their enquiries or Following the very positive feedback from complaints. The outreach has enabled my office students and service providers, my office has to provide a high quality service to young people been invited to participate in the 2004 forum. who would not normally access our Collins Street address. Participation in working groups and committees Regular visits to Juvenile My CAYLO is an active member of the ‘Police Justice Centres and Vietnamese Young People Working Group’ During the year the CAYLO visited Melbourne which aims to enhance the relationship between Juvenile Justice Centre; Malmsbury Juvenile police and Vietnamese-Australians aged 12 to 25 Justice Centre and the Parkville Youth Residential years, in the Western Metropolitan region. The Centre, to provide information and assist young working group also comprises representatives of people with any enquiries. The visits provide an young people, local police, regional youth and opportunity for young people in custody to gain drug services, Vietnamese community and other direct access to my office. stakeholders. As a priority, the working group has focused on Outreach work with the Aboriginal young Vietnamese-Australians with drug issues in community of Shepparton the Footscray CBD area, because of their frequent contact with police. Through consultations with My officers worked closely with the Aboriginal stakeholders, the group developed the following Legal Service of Victoria, members of the local strategies: Rumbalara Aboriginal Cooperative and the police to implement the ‘Local Agreement’ developed • Introduction of bail cards to support and between the police in Shepparton and Koori encourage young people, who have been justice workers. This agreement seeks to clarify restricted by the court from going into Footscray, to access relevant service agencies.
16 THE OMBUDSMAN VICTORIA COMMUNITY ACCESS AND YOUTH LIAISON
• Cross-cultural training and information provision • Health Services Commissioner to police officers regarding emerging issues for • St Mary’s House of Welcome young Vietnamese-Australians in the Western • Equal Opportunity Commission region. • Department of Justice • Development of a resource directory specifically • Department of Human Services, Northern for the police on relevant support services Metropolitan Region in the Western region for young Vietnamese- • Victorian Legal Aid, Melbourne Australians. • Victorian Aboriginal Community Services • Conducting a public relations exercise on Association Limited ethnic radio and the print media regarding • Aboriginal Affairs Victoria the work and activities of the working group • Gunditjamara Aboriginal Cooperative to the Vietnamese Community and the rest • Rumbalara Aboriginal Cooperative of the ethnic communities of Victoria. • Living Room Primary Health Service • Centrelink The CAYLO was also invited by the Victorian • Maribyrnong Youth Services Multicultural Commission to participate on the • Department of Immigration and Multicultural Police and Multicultural Advisory Committee. The and Indigenous Affairs committee was formed to act as a link between • Centre for Multicultural Youth Issues Victoria Police and the ethnic communities of • Western Young Peoples Independent Network Victoria. The CAYLO has the opportunity to • Youth Affairs Council of Victoria identify issues of concern to ethnic young people • Commonwealth Ombudsman and to advise the committee on possible strategies. • Warrnambool Legal Centre The work undertaken by my office with the • Young People’s Legal Rights Centre Vietnamese-Australian young people in the • Melbourne Youth Support Western region of Metropolitan Melbourne is a • Magistrates’ Court of Victoria good example of proactive work that is engaging • Department of Infrastructure the police and the Vietnamese community to • Frontyard Youth Services enhance community-police relations. • Melbourne City Mission • Villamanta Legal Service Workshop presentations and • Fitzroy Legal Service networking • Lighthouse Foundation • Western Region Accommodation Program During the year my CAYLO met, or otherwise • Flemington and North Melbourne Community participated in events, with many agencies and Centre youth specific networks including: • Youth Substances Abuse Service • Victorian Arabic Council • Caulfield Park Community School • Islamic Women’s Welfare Council of Victoria • Kensington Community Centre • Indigenous Women’s Justice Forum, Victorian • City of Yarra Youth Worker Forum Aboriginal Legal Service • Melbourne City Council Youth Services Forum • Indigenous Unit, Consumer Affairs Victoria • Darebin Youth Services Network • Northern Region School Focus Youth Services • City of Stonington Youth Services Network • Mental Health SKY Youth Programs • Footscray Youth Housing Group • Sudanese Community of Melbourne • City of Moonee Valley Workers with Young • Indonesia Australia Specialist Training Project, People Network Victoria University • Support and Accommodation Rights Service
2003 ANNUAL REPORT 17 WHISTLEBLOWERS COMPLAINTS
The Whistleblowers Protection Act 2001 (WPA) responsibility for paying the complainant’s salary came into operation on 1 January 2002. This is and superannuation whilst the complainant is only the second of my annual reports to include working at the alternate public body. It should a section on the WPA and the first to detail the be noted that, at this stage, the protocol only operation of the WPA for a whole financial year. benefits employees from those organisations whose CEOs are members of SCAM.
THE CONTINUING Office of Local Government IMPLEMENTATION PROCESS Where I intend to conduct an investigation of I continued my program of public education, a public interest disclosure relating to a local during which my officers conducted a further 17 council, I am required by section 50 of the seminars for public bodies and publicly funded WPA to inform either the Minister for Local bodies and answered in excess of 367 enquiries Government or the mayor and a senior officer from public bodies and members of the public. within the local council. It was my previous My officers also took part in the meetings of the practice to give such notice to the Minister for Whistleblowers Interdepartmental Committee. Local Government only where the allegations related to the CEO or the mayor of the council.
Under the new protocol, which I established NEW PROTOCOLS with the Office of Local Government, I shall give notice in writing to the Minister for Local State Co-ordination and Government on each occasion where I intend to Management Council investigate a public interest disclosure that relates to a local council. The protocol was formulated In conjunction with the Commissioner for Public to ensure that the Minister for Local Government Employment, Mr Peter Salway, I established is made aware of those councils in which I a protocol whereby government departments discover potential problems. This is important can organise the temporary placement of a because the Minister has the power to appoint whistleblower at an alternate public body. I took either a commissioner or an inspector of this step, because I believe it is important to have municipal administration pursuant to sections such an option available, where the environment 209 and 223A Local Government Act 1989. at the complainant’s usual workplace is having a negative effect on their mental or physical well being. EXPERIENCES TO DATE This new protocol received the unanimous The past year has further consolidated the role support of the State Coordination and of whistleblowers protection legislation in the Management Committee (SCAM), which Victorian jurisdiction. I believe that both members comprises the CEOs of the core funded state of the public and public bodies have received the government bodies. Under the protocol, the WPA positively. complainant’s current employer retains
18 THE OMBUDSMAN VICTORIA WHISTLEBLOWERS COMPLAINTS
The numerous queries I received reflect, not only I believe that the WPA has precipitated a an awareness amongst Victorians of the existence momentum for positive administrative change. of the WPA, but also the commitment of public In my view, public bodies are recognising the bodies to comply with their obligations under the value of thorough investigations and the WPA and to seek my assistance with difficult outcomes that can be derived. matters. I am pleased to report the willingness of public bodies to work co-operatively with my office, as such co-operation often allows public RECOMMENDATIONS AS TO bodies to address emerging issues proactively. PUBLIC BODIES’ INTERNAL To date, I have found that the procedure of PROCEDURES assessing disclosures to determine whether they Section 68 of the WPA requires that all public come within the ambit of the WPA has been bodies establish procedures for dealing with successful. It appears that Protected Disclosure disclosures. During the year, I advised a number Coordinators (PDCs) are becoming more familiar of public bodies, that were in the process of with the requirements of the WPA and are further consolidating their procedures, that the increasingly confident in determining whether or following aspects must be addressed in a public not allegations should be referred to me. The body’s procedures: assessment process ensures that PDCs only refer allegations to me where they conclude that 1. Receipt of disclosures (must include the the information and the supporting documentation contact details of the PDC); amounts to a public interest disclosure. 2. Assessment of disclosures (must explain circumstances, in which a protected It appears that PDCs are also aware of their disclosure will be referred to me); obligation to inform complainants of their right to 3. Welfare management of people, who have request that a protected disclosure be referred made protected disclosures; to me, notwithstanding that the PDC has 4. Investigation of public interest disclosures; concluded that the allegations and supporting and materials do not amount to a Public Interest 5. Reporting the findings of investigations and Disclosure (PID). During the year, a number of the actions taken in light of the findings. protected disclosures were referred to me following the complainant’s request.
I am pleased that in some instances RECEIPT AND INVESTIGATION OF complainants have been provided with ongoing DISCLOSURES welfare support by appointed officers familiar During the reporting period I received 95 with the WPA. This support has often been disclosures, 17 of which I am still considering. provided by public bodies on an ongoing basis, Of the 78 disclosures which I have determined, even in cases where I determined the protected 19 were protected disclosures. Of the 19, disclosure not to be a public interest disclosure. I determined that 10 amounted to public interest In this respect, the WPA recognises that those disclosures (PIDs) within the meaning of the who come forward with an allegation of improper WPA. I investigated 4 of the PIDs. With regard conduct, and who can demonstrate a to one of those investigations, an allegation was reasonable basis for forming that belief, are often referred to the Auditor-General for investigation. in need of support. It is important to maintain I referred 5 PIDs back to the relevant public such support during the investigation process, bodies for investigation under Part 6 of the WPA. as such a process may render the complainant Finally, I referred one PID to the Chief Commissioner vulnerable to reprisals or other adverse treatment. of Police, Ms Christine Nixon, for investigation under the Crimes Act 1958.
2003 ANNUAL REPORT 19 Of those disclosures, which I determined as not CASE STUDIES falling within the WPA, I referred 16 to my general jurisdiction under the Ombudsman Act 1973 and 4 to my jurisdiction under the Police Regulation Investigation of a Public Officer Act 1958. In addition to these referrals, information This financial year saw the launching of the first gained during an investigation of allegations made prosecution of a public officer as the result of a originally in the form of a disclosure under the disclosure under the WPA. The disclosure related WPA, but which I referred to my general jurisdiction, to alleged assaults on a prisoner by a police was passed on to the Chief Commissioner for the officer on two separate occasions. One of the information of the CEJA Task Force (Investigation assaults was alleged to have taken place at a of Allegations of Drug Related Corruption). suburban police station. I determined that the disclosure amounted to both a protected disclosure and a PID within the meaning of the AIMS FOR THE NEXT 12 MONTHS WPA. I intend to encourage greater information sharing In July 2002, I formally notified the Chief amongst those who commonly manage Commissioner of Police, Ms Christine Nixon, whistleblower complaints. This could be achieved of my intention to conduct an investigation. through conducting periodic forums for Pursuant to section 48 of the WPA, I requested Protected Disclosure Officers and Coordinators the secondment of a senior police investigator so that common issues and solutions may be to assist me. raised in a way that does not identify specific In August 2002, following an extensive investigation, whistleblowers or complaints. I believe that the I recommended to the Chief Commissioner that establishment of such a network would ensure a brief of evidence be prepared for two counts of greater uniformity and consistency in dealing with causing injury intentionally and forwarded to the complaints under the WPA. It would also allow Director of Public Prosecutions, Mr Paul Coghlan those public officers who are directly involved to Q.C., for consideration. Following consultation with remain informed of emerging issues and “best Mr Coghlan, the Chief Commissioner charged practice” approaches to managing disclosures. the subject of the allegations with one count of causing injury intentionally and one count of Also, I intend to publish advice for potential common law assault. whistleblowers on my website. This advice may take the form of short questions and answers or, alternatively, a checklist of important questions The Estate Agents Guarantee Fund that potential whistleblowers may wish to consider Investigation prior to making a complaint. During the year I received information from two In addition, I expect to conduct further educational individuals who alleged that senior officers of the seminars with the aim of enhancing knowledge (then) Department of Natural Resources and of the WPA in those public bodies covered by its Environment (DNRE) and the Department of jurisdiction, as well as fostering an awareness of Justice (DoJ) conspired to defraud the Estate the WPA amongst the general public. Agents Guarantee Fund (EAGF). I determined that the disclosures amounted to PIDs.
The EAGF is a fund set up under the Estate Agents Act 1980 to compensate people who lose money as a result of the activities of estate agents. The Estate Agents Act 1980 provides that the Minister for Consumer Affairs may approve grants from the EAGF for specific purposes.
20 THE OMBUDSMAN VICTORIA WHISTLEBLOWERS COMPLAINTS
Consumer and Business Affairs Victoria (CBAV) the effectiveness of the Fund and to expand the administers the EAGF on behalf of the Secretary delivery of CBAV services with benefits to the of the DoJ. community.
My investigation established that, in February However, as the administrator of the Fund, CBAV 2000, a senior CBAV officer contacted the DNRE has influence over the outcome of an application to discuss a possible joint approach to the for funding from the EAGF. My investigation Department of Treasury and Finance (DTF). CBAV established that CBAV encouraged and assisted proposed that Land Victoria, a part of the DNRE, Land Victoria to apply for funding from the EAGF apply for a grant from the EAGF to replace its on the expectation that CBAV would also receive annual appropriation for some activities. CBAV a benefit from a successful application. This anticipated that the appropriation money freed situation created a conflict of interest for CBAV. up by this process would be re-directed to CBAV I formed the opinion that the officers involved to fund some consumer affairs projects for which failed to perceive this conflict and failed to ensure funding was not then available. that the process was transparent and accountable. Following a thorough investigation, I formed the My report on this investigation was tabled in opinion that there was no conspiracy to defraud Parliament in April 2003 and is available on my the EAGF nor any attempt to do so. Officers of web site: www.ombudsman.vic.gov.au CBAV were motivated by a desire to maximise
STATISTICS
Whistleblowers Protection Act 2001 – Disclosures and Investigations
Total Disclosures 95
Protected Disclosures 19
Public Interest Disclosures (PID) 10
Files still under consideration 17
Investigation of PID By Ombudsman 4 (1 shared with Auditor-Gen’l)
By Chief Commissioner 1
By Public Body 5
By Auditor-General 1 (shared with Ombudsman)
Alternative Procedures Under Ombudsman Act 16
Police Regulation Act 4
Public Education
Enquiries 367
Seminars 17
2003 ANNUAL REPORT 21 GENERAL JURISDICTION COMPLAINTS
OVERVIEW During the 2002/2003 reporting year my office finalised 3,527 complaint allegations, compared with 3,495 in 2001/2002. Of those allegations 3,192 were within jurisdiction and 335 outside jurisdiction (compared to 3,195 and 314 respectively in 2001/2002).
DISTRIBUTION OF COMPLAINT ALLEGATIONS
Corrections
Local Government
Community Services & Health
Administration
Trustee & Advocacy
Housing 2002/03 (2576)
Education 2001/02 (2722)
Worker’s Compensation
Planning & Sub-divisions
0 100 200 300 400 500 600 700 800
Overall, the figures for finalised complaint allegations are very similar to the preceding year. There was a substantial rise in complaints concerning Trustees and Advocacy as a result of an intense media campaign in relation to the activities of State Trustees Ltd (STL). In April 2003 I presented to Parliament a report on the investigation of 18 complaints and 41 enquiries about STL.
Local Government complaints fell from an unusual high in 2001/2002, caused by publicity concerning parking infringement complaints.
Corrections complaints fell slightly and the number of Community Services and Health complaints remained steady.
22 THE OMBUDSMAN VICTORIA GENERAL JURISDICTION COMPLAINTS
COMMUNITY SERVICES AND HEALTH Complaints regarding child protection services remain the most substantial element of complaints about the Department of Human Services (DHS). During the period in review, I received a total of 449 complaints compared with 454 for the previous period. Of the complaints received, 80.6% related to child protection.
Type of Complaint
Adoption
Ambulance 2002/03 (449) Aged Care 2001/02 (454) Child care (pre-schools) 2000/01 (409)
Disability Services
Facilities/resources
Hospitals
Protective Services
Psychiatric Services
Public Health
Records
Supervision
Other matters
8 50 100 150 200 250 300 350 400
2003 ANNUAL REPORT 23 Protective Services Complaints DHS advised me that the child protection worker had sought the mother’s agreement to allow During the year I received 362 complaints about compensatory contact, but she refused. DHS child protection, 17 more than in the previous conceded that, in hindsight, it would have been year. The rate of increase in complaints appears preferable for contact issues to have been to have tapered when compared with the managed via legal avenues. However, DHS significant rises experienced in recent years. maintained that the father of the child had In my last annual report I gave considerable voluntarily forgone his contact with the children attention to the DHS’ complaint handling processes during the investigation. in the child protection program. I am pleased to My investigation officer inspected DHS files and report that DHS has generally maintained the noted that the initial contact with the father was a improved investigation of complaints referred by message left on his answering machine stating my office. that his contact that evening was cancelled. The Child protection is an area of public administration father immediately contacted DHS and debated where issues will always arise due to the complex the matter with the child protection worker before and demanding nature of the work undertaken asking for a review of the decision. A senior by DHS and its contracted agencies. In my last officer subsequently upheld DHS’ position that annual report I referred to the critical importance the contact should not go ahead. of complaint handling in child protection in the File notes of a subsequent conversation between following terms: a child protection worker and the children’s mother “I believe that a determination to identify, indicated that she asked the child protection acknowledge and resolve instances where worker if she might have any legal difficulties over performance is unsatisfactory, ultimately the contact issue. The child protection worker enhances the Department’s capacity to protect advised the mother that she would not, as DHS had and support those vulnerable children and “instructed” that the contact was not to proceed. families who depend upon it.” I wrote to DHS pointing out that the evidence did The improved quality of responses to my office is not suggest that the complainant had willingly an indicator that this determination is being forgone his contact with his children. fostered among DHS staff. Whilst I continue to DHS accepted that the children’s father was test DHS’ responses to complaints, I now more improperly advised of the cancellation of contact often conclude that those responses substantially without due care being given to ensuring he was address and resolve any deficiencies in DHS aware of DHS’ processes and legal options. DHS practices. I continue to pursue any exceptions issued instructions to child protection workers vigorously, as in the following example. concerning the correct procedures to follow in such circumstances. Cancellation of contact DHS must also ensure that it applies equal rigour A non-custodial father and his partner complained when dealing with complaints received directly that DHS had intervened to suspend contact with from the public. I am aware that DHS is currently his children, pending an investigation of a revising the information it gives to families about notification. The complainants alleged that a child how to raise concerns regarding DHS decisions protection worker agreed to organise compensatory and actions. The new material will help families to contact once the investigation was concluded, understand how to seek review of DHS’ decisions but failed to do so. from the point of first contact with a child protection worker. My office assisted with the development of this material and I look forward to its introduction.
24 THE OMBUDSMAN VICTORIA GENERAL JURISDICTION COMPLAINTS
The Ombudsman’s priorities Bypassing lawyers My role in child protection matters is particularly A legal representative complained that DHS had significant when the aggrieved person has limited dealt directly with her client, a mother of four, to or no ability to seek redress through the courts obtain the mother’s consent to the extension of or through the Victorian Civil and Administrative a Protection Order. The legal representative had Tribunal (VCAT). previously informed DHS that the mother was legally represented and intending to contest DHS’ Decisions regarding separation of children from extension application. families are matters in which, in one way or another, DHS is accountable to the courts or VCAT A child protection worker visited the mother a few and I do not generally investigate such complaints. days after DHS received the legal representative’s My priorities are to investigate allegations that: letter. The mother signed forms consenting to DHS’ extension application and, a few days later, • DHS has avoided its accountability to those the application was granted by the Children’s forums; Court. DHS’ first response to the legal • concern care provided to children who are the representative’s letter was only provided after the responsibility of the Secretary of DHS; or order had been extended. • are made by people who are not entitled to seek reviews of decisions by a court or VCAT. In response to my enquiries, DHS conceded that its staff had erred in discussing the extension In my last annual report I discussed complaints application with the mother and accepting signed received from people who are not entitled to seek consent without allowing her the opportunity to review of a DHS decision, for example, obtain to legal advice. However, DHS reported grandparents. The following comments illustrate that the child protection worker had done so at the work of my office in relation to the first two the mother’s insistence. The mother reportedly of these priorities. alleged to the child protection worker that her legal representative had been pressuring her to The importance of legal representation contest the application, whereas she wanted to If a child protection worker believes that immediate consent to the extension. action is required to remove a child from parental I advised the legal representative of the response care, a protection application must be brought provided by DHS and explained that the matter before a court. Protection Orders made by the could not proceed further unless her client made court are finite in duration and, if DHS considers a statement. that further involvement with the family is necessary, it must apply for an extension of the order. The mother later contacted my office and alleged that she had signed the consent under duress I cannot intervene in matters where a decision from the child protection worker. She alleged regarding the care of a child is taken by the courts. that the child protection worker had agreed that However, I take seriously any matter where it the children would be returned to her care within appears that a family has not been afforded due six months, if she consented to the extension process by DHS. The following are examples of application. two such complaints received during the year. My investigation officer travelled to the mother’s remote rural community to interview her personally. He also reviewed the DHS file and interviewed the child protection worker and responsible manager.
Ultimately, I was not able to conclude whether the child protection worker had improperly
2003 ANNUAL REPORT 25 influenced the mother to sign the consent form. A motel is not a home I have, however, advised DHS of my concern that The mother of an 11 year old boy in the care of it had not documented any contemporaneous DHS complained to me that he had not been assessment of the mother’s capacity to provide provided with appropriate accommodation. informed consent to the extension application. DHS advised me that the child was the subject Returned to father’s care of a Protection Order. He had resided with his mother until he absconded from her care and A mother complained that child protection alleged that she had physically abused him. His workers had removed her children without any mother advised DHS that she was unable to legal authority. manage her son’s behaviour and DHS assessed My investigation revealed that DHS was contacted that it would be unsafe for him to return home. following a domestic incident involving the A voluntary placement was arranged in a local complainant and her former partner, who was the motel with one to one support. father of one of the two children. The incident A few days later DHS reviewed the placement and resulted in the complainant’s arrest and her former concluded that the child’s mother was not ready partner consequently assumed care of his child for the boy to be returned to her care. DHS’ and made arrangements for the other father to attempts to find a suitable placement within the collect his child. rural region were unsuccessful and the child Child protection workers investigated the matter remained in motel accommodation. and concluded that it was not appropriate for the Some weeks later DHS applied to the Children’s children to return to their mother in the short term. Court for the Protection Order to be breached. No legal action was required by DHS as there DHS submitted a report to the Court stating: were no protective concerns, nor Family Court “Due to the number of unsuccessful placements, Orders, that would prevent the two fathers from the Department of Human Services has been assuming their parental responsibilities. unable to secure an appropriate placement that I advised the complainant that I considered that is both safe and secure. As such the Department DHS had acted reasonably. has placed [the child] into “contingency placement”. This placement is made each evening, in a motel Children in the care of the Secretary where an individual that [the child] does not know looks after him. This placement does not address Complaints concerning the care of children who any of his extreme behaviours or offer any of the are the responsibility of the Secretary of DHS longer-term help [the child] would require in order receive a high priority in my office. When dealing to help him with his abusive history.” with such complaints, my office has two primary responsibilities. DHS advised that the region concerned relies largely on the availability and capacity of voluntary Firstly, I ensure that any allegations about the carers to accommodate children requiring circumstances of a child are referred to DHS as alternate care. The region has now commenced soon as possible. This allows DHS to undertake redeveloping its residential capacity to enhance any enquiries necessary to ensure that the child’s its entire placement system. immediate care and protection needs are satisfied. Secondly, I examine DHS’ practices and procedures In response to my enquiries, DHS later advised to ensure that any significant deficiencies are that the boy had been reunited with his family. identified and remedied. The following cases are examples of such complaints.
26 THE OMBUDSMAN VICTORIA GENERAL JURISDICTION COMPLAINTS
Exposure to chicken pox residential worker had refused her request to be transported to a known drug supplier. However, A solicitor acting on behalf of a pregnant 14 year the house was locked after the young woman had old young woman placed in a Secure Welfare left as she had damaged contents of the home Service (SWS) complained to me about a possible prior to leaving and staff became fearful for their risk to her welfare. Another resident at the SWS own safety. was infected with chicken pox and the solicitor was concerned that any contact between her DHS advised that it would have been more client and the infected resident could place the appropriate for the Approved Community Service, unborn child at risk. which operated the placement, to have consulted DHS’ After Hours Service before making the I immediately contacted DHS to ascertain whether decision to lock the premises, as it appeared that the child was, or had been, exposed to the little thought had been given to what the young infected resident. DHS promptly advised that the woman would do if she returned to the facility. infected client was no longer residing at the SWS. I was also advised that the Approved Community I was later informed that the pregnant young Service did not have a policy in place concerning woman was already in residence when the infected how staff should respond when young people client was placed at the SWS, by order of the leave their placement without permission and that Court. Staff at the SWS were aware of the potential this issue would be addressed with the Approved risks and had sought medical advice regarding Community Service concerned. how to manage the situation. Guidelines had been developed to ensure the appropriate separation of DHS advised that the agency and the Department the infected resident from other residents. Staff should have ensured the child’s mother was had also established that the risk of infection contacted and that this aspect would be addressed would have ceased after four days and only staff with the Approved Community Service and the known to have immunity to the virus worked with After Hours Service. the resident during that time. A few days later blood tests confirmed that the JUVENILE JUSTICE pregnant client was immune to the virus and there was no cause for concern. I formed the view that My officers visited each of the three Juvenile DHS had managed the situation with due care Justice Centres operated by DHS at least twice and skill. during the year. I also responded to requests to visit individual detainees wishing to discuss Locked out particular grievances. Most complaints received from detainees related A mother complained that her 15 year old daughter, to everyday matters and were generally quickly subject to Custody to Secretary Order, was evicted resolved. from a residential facility due to her violent behaviour. She alleged that her daughter was not provided with any alternative accommodation and Access to phones that no one had notified her of the eviction. The A detainee complained that his telephone privileges complainant became aware of the situation when had been reduced. The Chief Executive Officer her daughter arrived at her home the following (CEO) of the Centre advised that an anomaly had evening asking if she could use the telephone to arisen with the introduction of a new behaviour contact DHS. management program in the Centre. Whilst each DHS advised that the young woman was not detainee was entitled to a minimum number of evicted but chose to leave the placement after a calls, the new program permitted detainees to
2003 ANNUAL REPORT 27 earn additional calls if they met the required Because of my concerns regarding the behavioural standards. In this particular unit the management of internal investigations by DHS, previous basic entitlement exceeded the maximum I have resolved to monitor for the foreseeable number of calls that detainees could make under future all matters involving serious allegations. the new program. The CEO was already aware of the situation in this unit and was in the process Drugs in Juvenile Justice Centres of developing suitable transitional arrangements. I invited the detainee to contact my office if the Early in the year my staff visited a Juvenile Justice matter was not resolved. Centre for what they anticipated would be a routine visit. Allegations of undue force Grass up in smoke In my last report I criticised DHS’ response to complaints alleging assault by DHS staff. The My officers visited each section of the Centre in turn. On entering the last unit, my officers and the following case demonstrates a considerably accompanying DHS officer noted an unusual improved response by DHS during the reporting aroma emanating from a bedroom. My officers period. were immediately, and appropriately, asked to withdraw from the unit to permit DHS staff to Forceful restraints search and secure the area. Subsequently, my officers learnt that bongs, mixing bowls and an I received a call from a medical practitioner who uncapped syringe were located in the bedroom had examined a 16 year old youth admitted to concerned. hospital after losing consciousness whilst being restrained by staff at a Juvenile Justice Centre. Upon learning of the incident I wrote to DHS A subsequent report from the doctor advised that asking whether it had ascertained the source of there was evidence of blunt trauma to the young the drugs and why this activity had not attracted man’s neck. The doctor believed that the loss of the attention of staff. consciousness had been most likely caused by DHS advised that two detainees had admitted compression of the young man’s cateroid artery. smoking the marijuana. One disclosed that he had He commented that compression to the neck, been aware that a search of the unit was being in the manner suspected, must be considered conducted by staff and he anticipated that the a potentially life threatening event. marijuana would be found and seized if not I immediately contacted senior DHS staff and consumed beforehand. I was advised that staff facilitated their contact with the medical practitioner. were occupied with the search, which they had Subsequently, I also obtained a statement from commenced at the other end of the unit, therefore the young man involved and liaised with DHS the activity had not been detected earlier. DHS concerning its response to the incident. DHS was unable to ascertain the source of the drugs. undertook a review of the incident by a panel DHS advised me of the sanctions applied to the consisting of a senior officer, a medical practitioner detainees involved and the management response and a representative of a non government agency. to the incident, reinforcing to staff the nature of The review identified a number of training and their supervisory responsibilities. management issues for further action. No In my last report I indicated that I was monitoring disciplinary or criminal aspects were identified and DHS’ investigation of allegations that a staff member I was satisfied that DHS’ response to the incident was trafficking drugs to detainees. I have now had been appropriate. decided to formally investigate the matter pursuant to section 17 of the Ombudsman Act 1973 and that investigation is currently underway.
28 THE OMBUDSMAN VICTORIA GENERAL JURISDICTION COMPLAINTS
HOUSING changing needs of housing service delivery. The ISIP limitations have meant that significant changes During the year I received a number of complaints to system-generated letters have not been possible from public housing tenants about the calculation for some time. The OOH also acknowledged that of rent by the Office of Housing (OOH), a division a number of ISIP generated letters no longer meet of DHS. Tenants complained that they could not the needs of tenants. understand from the information provided by the OOH how their rent was calculated. The OOH acknowledged that, while the computer- generated letters set out the weekly market rent, Public housing tenants enter into residential total rebate allowed, service charges and actual tenancy agreements under which they are liable rebated rent for a household, they do not detail to pay market value rent for the property, as key information such as: assessed by a valuer. The OOH then limits the amount of rent actually payable to a percentage • the rental charged for each basic income type of the household’s total income, known as the (e.g. wages, youth allowance) and the “rebated rent”. This rent is generally calculated at percentage used to calculate the amount 25% of the household’s assessable income, and charged for that income; at 11% of Centrelink family related payments. The • the rental charged for maintenance payment calculation can be complex, particularly where income and the percentage used to assess household income includes maintenance payments. the amount charged, ensuring tenants have sufficient information about the portion of The OOH reviews a household’s rebated rent maintenance payments income charged at annually in order to ensure that rent payments 25% and 11%; and continue to match the household’s income and • the rental charged for family payment income composition. The OOH also regularly reviews the and the percentage used to assess the amount rebated rent when income support payments, charged. pensions and allowances are revised by Centrelink or the Department of Veterans Affairs. Following discussions with DHS, the OOH has undertaken to provide on request written The OOH usually advises tenants of their new information detailing the above matters, in addition rebated rent by letters generated by its computer to the computer-generated letter. Such information system, Information System for Integrated should clearly indicate how the tenant’s rebated Processing (ISIP). In investigating complaints rent was calculated. The OOH has advised that, received from public housing tenants, I noted in the short term, a minor amendment will be that the information provided by the OOH in its made to the computer-generated letter as part letters did not provide details of how the household of a review process scheduled for October 2003. rent was calculated. I understand that the OOH The change will add an additional column to the provides policy information to tenants on how household income details section of the letter to different types of income are assessed for rent explain the rent share per household member. purposes. However, I believe that the OOH should also provide details of the calculations applied to The OOH has also advised me that further changes each income type and for each householder, to to the rebate assessment letter will be made when enhance the transparency of the process and the Rebate Module of the replacement computer enable tenants to be more confident in the accuracy system is introduced in May 2005. I will continue of the rebate assessment. to liaise with the OOH to ensure that the Rebate Module enables the production of letters which The OOH has advised me that the ISIP system will provide tenants with clear details of how their was developed in the late 1980’s. The OOH has rebated rents are calculated. undertaken to invest in new technology to replace ISIP with a system that will support the
2003 ANNUAL REPORT 29 During the investigation of complaints about the schooling. In complaints regarding tertiary calculation of rent, I also noted that each source of education, the respondent is invariably the a household’s income was separately calculated university or TAFE concerned, as each of those and that each result was “rounded up” to the institutions is a relevant authority for the purposes next ten cents. For example, if the weekly income of my Act. The following case studies are of a member of the household was $264.04, the representative of the complaints received by my rebated rent assessed at 25% would be calculated office during the year. as $66.01 and then “rounded up” by OOH to $66.10. The “rounding up” practice was applied Denied a place on a special setting to the rent calculation for each household school bus member’s income. I received a complaint from a woman whose son I asked the OOH whether it had given consideration had learning difficulties and was a “school refuser”, to applying the more common practice of rounding that is, he suffered acute anxiety about attending to the nearest five cents and why rounding was school. I was informed that DET had refused to applied to each calculation rather than to only the give the student a place on the school bus because final rental rebate amount. The OOH conceded he did not attend the school nearest to his home. that this practice was inappropriate and advised The nearest school had asked the student to that, from 17 August 2003, rents would be leave and he was forced to attend another school. rounded down to the nearest five cents at the DET’s refusal to allow the student to travel on the final calculation stage, rather than up to the school bus meant that he had to leave home at nearest ten cents at every calculation. The OOH 7 am to catch two buses to arrive at school by 9 noted that this change would benefit many tenants am. The boy’s mother believed that this situation immediately and would bring the OOH’s approach would exacerbate the student’s anxiety and into line with accepted industry practice. “school refusal” behaviour.
The student’s mother had attempted to resolve EDUCATION her concerns directly with the school and the regional office of DET. The regional office had During the year I received 112 complaints about applied to the Office of School Education for primary, secondary and tertiary education matters. special consideration for the student, however, the The complaints covered a wide range of issues application had been refused because the student’s including: circumstances fell outside DET’s guidelines. • schools’ handling of bullying incidents; In response to my enquiries DET confirmed that • VCE and tertiary level assessment scores; the student was ineligible for a place on the • complaint handling and appeals procedures; school bus because he chose to attend a school • PhD supervisory arrangements; other than his nearest school. DET advised that • disciplinary action against students; the regional office’s application for special • access to library and other facilities, consideration did not indicate that the student had • administration of the Education Maintenance been expelled, however, if the student had been Allowance; asked to leave the school, he may be deemed to • school zoning; and have been expelled and may be eligible for bus • access to school transport. travel under DET’s guidelines. Where the complaint relates to primary or I asked DET to re-examine the student’s application secondary education, I generally make enquiries for special consideration because it appeared to of the Department of Education and Training me that the student had no choice but to attend (DET), the agency responsible for those levels of another school.
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DET later advised me that the student has now no jurisdiction to investigate the reasonableness been deemed eligible for a place on the school bus. of these timelines, as the eligibility requirements and funds release dates are matters of government Concerns about the education maintenance policy. allowance (EMA) I found that eligibility for EMA funds could not be guaranteed prior to the Centrelink determination A parent complained about the way in which her date. Schools are not required to provide EMA children’s secondary college administered the funds to parents before they have been deemed Education Maintenance Allowance (EMA). The eligible or the funds have been released. I found, EMA is available to eligible students to assist with however, that in certain circumstances, schools the payment of necessary educational items. The used discretion to provide funds to parents in school and parents receive the EMA entitlement advance of receiving the student entitlement. in equal portions. I established that on one occasion the secondary The complainant was concerned that the college had used this discretion to release its own secondary college did not allow parents to use funds to the complainant in advance of receiving the portion of the EMA received by the school to the EMA funds. I advised the complainant that, purchase textbooks at the beginning of the school in the circumstances, I could not find that the year. The complainant was also concerned that secondary college was acting unreasonably. in an alleged contravention of ministerial policy, the school used its portion of the EMA for voluntary Ministerial policy on EMA states that schools contribution items, did not use its portion of the must spend their portion of the EMA on essential EMA exclusively on the children for whom it was educational items that all parents might be asked meant, did not inform parents of their right to to pay for. The policy provides specific examples choose how the school spent its portion of the of such items as well as examples of voluntary EMA and did not report to parents about how the contribution items. school’s portion of the EMA had been spent. The The policy states: complainant believed that she was due a refund for unused EMA funds over a three-year period. “Schools should advise parents that, where She had attempted to resolve her concerns with relevant they have the option of providing these the principal and regional office of DET but was items themselves or authorising the school to dissatisfied with the result. direct part of the EMA towards particular items. Schools will need to be able to advise parents, I asked DET to provide me with a report on the on request, of the cost of the items on which matters raised as well as detailed EMA expenditure they propose to spend the EMA. If any portion reports for the complainant’s children over the of the EMA is not expended at the end of the relevant period. The complainant subsequently year, it may be carried over to the next year or challenged the reports claiming that she had made other appropriate arrangements made to suit cash payments for some items listed but could the needs of the student”. not prove this as the school did not issue receipts. The secondary college informed me that it had I discussed the complainant’s concerns with the spent over and above its portion of EMA funds on secondary college and asked that it examine its essential educational items for the complainant’s receipts to establish whether it had records of children, explaining that it had used its “book any cash payments made by the complainant. bank” and welfare funds to assist the students. I found that for this school year, Centrelink After examining the matter I formed the opinion determined eligibility for the first component of that the school had spent the EMA funds in the EMA on 28 January, with funds released to accordance with ministerial policy. schools and parents in mid to late March. I have
2003 ANNUAL REPORT 31 In relation to the complainant’s contention that received promotional material from the university she had paid for items for which the secondary and obtained information from its website. college had purported to have paid, the school The complainant argued that the university’s denied it did not issue receipts and was able to promotion of the course was misleading in many verify that the complainant had paid for one of respects. She provided substantial background the items as claimed. I found, however, that the documentation and listed a range of concerns, total funds spent by the secondary college on including: the student meant that the student concerned was not due a refund. • inadequate travel and medical insurance as well as on-arrival orientation; My enquiries also suggested that the students • inappropriate student accommodation; had received or participated in all the educational • partly irrelevant course syllabus; items listed in the expense reports, with the • inadequate course and learning materials; possible exception of a lunchtime activity which • questionable overall academic standard; and the student concerned disputed attending and • lack of access to Western style medical for which the school did not maintain an practitioners. attendance sheet. Again, the total funds spent by the secondary college on the student meant that The student had raised her concerns with the the student was not due a refund. university but was not satisfied with the outcome.
I found that in its annual letter to parents My enquiries established that other students had regarding school fees and levies, the school had also brought their concerns about the course to recently included the statement, “EMA recipients the attention of the university, which undertook its may wish to contact the school if they choose to own investigation into the matter. My involvement, use the allowance in another way”. I believe that therefore, focused on how the university had dealt this statement adequately informs parents who with complaints lodged by dissatisfied students. receive the EMA of their right to choose how the After substantive enquiries, I formed the opinion EMA is spent. I recommended to DET that the that all issues raised by the students had been secondary college ensure that the statement examined in detail by the university. The university appears on all future letters to parents and had recognised the seriousness of the allegations guardians regarding the EMA. My and the need for a prompt investigation. recommendation was accepted by DET. Documents provided to my office confirmed that I also found that the school was able to the Students Complaints Committee, which adequately report to parents on the cost of items considered the students’ grievances, accepted on which it proposed to spend EMA funds. that the concerns were justified and that remedial action was needed. The Committee’s assessment resulted in changes to procedures and course Overseas study not what it was held administration. The university offered a range of out to be remedies to affected students, including I received a complaint from a former student who reimbursement of course fees where appropriate. had enrolled at an overseas campus of RMIT As the complainant remained concerned that the university in 2000. The student alleged that the university had misrepresented aspects of the university had engaged in false and misleading course, I suggested that she raise her concerns advertising in its promotion of the International with Consumer Affairs Victoria (CAV). I have since Trade Diploma course. The complainant was been advised that CAV is reviewing the University’s drawn to the course after reading an conduct. advertisement in a newspaper. Although she had not attended the course information night, she
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A disappointing certificate The prosecution of offences under Section 221 of the Transport Act 1983 was supported by the A former student who had graduated from a decision of the Victorian Supreme Court in the university with a degree in computing and digital case of Mounsey vs Lafayette. In essence, the technology complained that he received a court accepted that where tickets are available graduation certificate identifying his studies as for purchase from coin only machines, lack of “Bachelor of Applied Science” only. The coinage is not a valid legal excuse for failing to complainant said that when he had shown his purchase the ticket. degree certificate to his friends and employer, they questioned what course he had actually studied In light of the court’s decision I advised the for his degree. The complainant had written to the complainants that I was not able to criticise university in an attempt to resolve the situation, DOI for issuing infringement notices in such but had made no progress. circumstances. In response to my enquiries the university advised me that it would re-issue the degree certificate VicRoads under the official course name, however, the complainant first needed to return his original I received a complaint from a disgruntled motorist, certificate. I wrote to the complainant providing who believed that VicRoads had incorrectly him with contact details for the return of his advised him on the term of his Drivers Licence original certificate. suspension.
I later received a thank you note from the The complainant explained that due to an complainant who advised that he had received a accumulation of demerit points, his licence was new degree certificate, which correctly identified suspended on 12 September 2002 for a period the course he had studied. of six months. He assumed, on the basis of information initially provided by VicRoads, that the licence would be reactivated on 12 March TRANSPORT 2003 and chose not to immediately pay the licence renewal fee, due after the suspension Public Transport took effect. The complainant intended to renew his licence after the period of suspension was During the reporting period I received a number served. However, during a later call to VicRoads, of complaints from disgruntled public transport he was told that a licence must remain current users who had been fined for not being able to throughout the suspension period, and that his produce a valid ticket. Some complainants blamed suspension would, therefore, continue once the lack of coinage for their inability to purchase a licence was renewed. ticket from ‘coin only’ ticket machines. They claimed to have had money (notes) available for The complainant was adamant that this condition the purpose of buying a ticket and believed it had not been originally disclosed by VicRoads and, was unreasonable for fines to be issued in those had he been informed of this requirement, he circumstances. would have promptly renewed his licence.
In the course of my enquiries with the Department My enquiries revealed that the complainant had of Infrastructure (DOI), I examined the Report of been given incorrect information by the Telephone Offence submitted in each case by the ticket Information Services Department at VicRoads. inspector to DOI. However, I was mindful of a Staff were re-appraised of the legislative concurrent appeal to the Supreme Court by DOI requirements relating to demerit point suspensions, involving a similar case. I decided that the outcome and the complainant’s licence was re-issued on of the appeal was relevant to my consideration of 20 March 2003. VicRoads apologised to the these complaints. complainant for the error.
2003 ANNUAL REPORT 33 CORRECTIONS I received a similar number of complaints from prisoners to the preceding year. As the following figures show, complaints from prisoners constitute a significant workload for my office.
Reporting Year Allegations received % of total allegations
2002/03 673 21%
2001/02 736 22%
2000/01 746 23%
1999/00 562 20%
The main subjects of complaint related to:
Subject of complaint allegation 2002/03 2001/02 2000/01 1999/00
Lost/damaged property 77 69 78 43
Visits 62 70 70 76
Medical issues 68 68 44 44
Classification 41 52 56 41
Assault by officers 29 43 24 14
Mail/phones 28 33 74 40
Harassment/victimisation 26 30 20 23
Buildings and facilities 24 17 22 6
Drug testing 24 26 42 43
Requests not met 22 27 25 14
Prisoners’ funds 21 21 34 24
Restricted regime 20 21 25 16
Employment 19 23 53 44
Reduction in sentence 19587
34 THE OMBUDSMAN VICTORIA GENERAL JURISDICTION COMPLAINTS
The following table details the main issues raised in complaints about each correctional facility.
CORE: Total 360
Main Issues: ❑ Visits 45 ❑ Medical 34 ❑ Property 43 ❑ Mail/telephone 18 ❑ Requests not met 16 ❑ Harassment/victimisation 15
Group 4 (Port Phillip): Total 106
Main Issues: ❑ Property 21 ❑ Medical 16
ACM (Fulham): Total 74
Main Issues: ❑ Medical 14
Correctional Services Commissioner Total 87
Main Issues: ❑ Classification 33 ❑ Reduction in sentence 15
Juvenile Justice Centres Total 51
Main Issues: ❑ Property 8 ❑ Assault by officers 7
2003 ANNUAL REPORT 35 The outcomes for complaint allegations concerning prisons were as follows:
OUTCOME 2002/03 2001/02
No jurisdiction 3 –
Noted for purposes of information but not action 23 31
Withdrawn/discontinued 22 16
Referred to authority in first instance 119 85
Clarified 154 206
Resolved fully or partially 95 134
Not sustained 192 177
Accepted by authority as sustained and resolved where possible 59 75
Not sustained but remedial action taken 4 9
Formally investigated and sustained 1 1
Matter of government policy – 1
Other –1
TOTAL 673 736
During the year my staff undertook a program of visits to prisoners. All prisons were visited at least once during the reporting period, with large prisons receiving several visits.
Co-Ordination in relation to property records and I anticipate that within the next 12 months all Victorian prisons will As in previous years, a number of matters be using the Safeguard property system, referred required consultation with the Correctional to in my 2001/2002 Annual Report. Hopefully, the Services Commissioner. use of this system will help to relieve not only the I found that differences in approach between the lack of property records but also the amount of public provider, CORE, and the private operators missing property. still create confusion and distress for prisoners. However, I am pleased to report that consistency Level of fines imposed in has been attained in some areas which have, disciplinary hearings in the past, caused concern. In previous reports I referred to problems caused by the disparate During the year a Prison Discipline Regime Review policies of different prisons regarding which brands was undertaken by a Ministerial Committee and I of sporting footwear the prisoners are allowed to anticipate that recommendations from that review purchase and own. There is now a greater will result in a more consistent approach to the uniformity between the prisons in this area and level of fines imposed on prisoners. I expect that I expect that complaints about confiscation of the Review findings will be published in the near runners on transfer to another prison will now be future. less likely. Great advances have also been made
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Arunta Telephone System Unusual requirements The Arunta Telephone System is used in Victorian In another case a prisoner complained about a and interstate prisons to allow prisoners to make delay in obtaining a pair of properly fitting shoes. The prisoner required size 12EEEE shoes and the monitored telephone calls to approved recipients. prison encountered problems in acquiring the shoes, Complaints about the telephone system related due to delays in the factory which was to supply to two aspects: them. I found that, in this case, the authorities did not in any way contribute to the delay. • the high cost of calls, given the prisoners’ limited earning capacity and the application of STD rates when phoning to and from country Clothes optional? locations; and A prisoner complained that when he was • the frequent need for maintenance and repairs. transferred from one prison to another, his clothing did not arrive. As he was a large The Correctional Services Commissioner advised prisoner, his clothes had been obtained on me that Telstra’s contract with the public prisons special order and the new prison was not able is nearing completion and the contract with the to immediately supply him with a new set. private prisons is continuing on a monthly basis. Following the involvement of my office, the The Commissioner has called for industry Requests prison arranged for a new set of clothing to be for Information and hopes that one provider will obtained. The paltry excuse offered by Barwon be selected for both public and private prisons in Prison was that, as the large sized clothing the future. had been purchased by that prison, the clothing remained its property and was retained in case another large sized prisoner was received into Clothing and footwear the establishment. The following are examples of prisoner complaints received by my office during the reporting period Significance of small issues about clothing and footwear. I have often commented that particular care needs to be taken in determining whether a complaint Tight fit made by a prisoner is trivial, because matters considered trivial in the general community An extremely tall prisoner (6’5") complained that sometimes assume greater significance in the the green security overalls which he was required confined and controlled environment of prisons, to wear during visits were too small and caused as the following example illustrates. him discomfort. As a result of the discomfort he cut short a number of visits. The prisoner also complained that he had been advised by prison Trivial pursuit? authorities that he would not be able to have A prisoner complained that the prison shop was contact visits unless he wore security overalls, and refusing to honour prizes offered by the if he did not do so, he would only be entitled to manufacturers of a chocolate bar in exchange box visits. for bar wrappers. Outside of prisons customers simply hand in the wrappers to a shop and are Following contact by my office, the authorities provided with a free product in exchange. agreed that where a prisoner is unable to fit My enquiries disclosed that prison staff were comfortably into security overalls due to his height, unaware that they could send the wrappers to approval will be given for a contact visit to occur, the supplier and receive the free product. provided that the prisoner is strip searched prior I was assured that the complainant would receive to and after the visit and that an officer directly his prizes and that the appropriate action would supervises the visit. be taken in the future.
2003 ANNUAL REPORT 37 Drug testing Recording of IDU Status When a prisoner returns a positive drug test there Once again this year I noted three cases of is an option to have the check sample re-tested delays in properly recording the IDU status of at the prisoner’s expense. The sample is tested prisoners, after matters were not proven at using a different method. If the second test returns Governor’s Hearings. The delays create an unfair a negative result that outcome is accepted and situation where both prisoners and visitors are the cost of the test is met by prison authorities. improperly denied the right to contact visits. In If the outcome is again positive, the prisoner is my view, the antiquated method whereby this charged with an offence and required to meet information can only be corrected through the the cost of the test. Commissioner’s office should be addressed.
Cost of analysis of prisoner’s drug sample Emergency Management Days
A prisoner complained that he had been charged I received numerous complaints from prisoners $87.50 for the test when the cost usually charged about the refusal to grant Emergency was $23.50. He pointed out the significance of Management Days (EMDs). The Commissioner the cost in relation to his weekly income of $28.00. for Correctional Services is empowered to grant The Correctional Services Commissioner advised EMDs to prisoners for days affected by an me that this particular test was undertaken as part industrial dispute or emergency or in other of his independent testing program to measure circumstances of an unforseen and special the veracity of testing undertaken by the prison nature. If the application is granted, a prisoner providers. The Commissioner explained that he is entitled to a reduction of his or her sentence, was unable to access the bulk payment rates in lieu of the time spent in the harsher conditions available to the providers from the drug testing caused by a prison lockdown. companies. The Commissioner agreed to The Commissioner has, on a number of occasions, reimburse the cost above the price charged by exercised his discretion to grant these days CORE and to ensure that in any future testing the following lockdowns caused by industrial disputes. rate will be the same as charged by the prison However, on legal advice, the Commissioner has providers. refused to grant applications in respect of days when it was necessary for prisons to be locked Double jeopardy down for the purpose of searching for contraband within the prison. I have reported previously on problems of double jeopardy when prisoners are punished both for an Prisoners have also complained that they are not offence involved in being found in possession of being granted their hourly exercise per day during drugs and later with returning a positive test for some of these periods. The Commissioner, once drugs. The result is that the prisoner’s Identified again acting on legal advice, indicated that he was not prepared to grant the applications on the basis Drug User status (IDU) goes from IDU N (neutral) to that the security and good order of the prison as IDU 2 with the accompanying restrictions. Such well as the safe custody and welfare of the a situation occurred during this year. I raised that prisoners override the right of prisoners under matter with the Correctional Services Commissioner Section 47(1)(a) of the Corrections Act 1986 which and I was assured that the situation would be confers on prisoners, "if not ordinarily engaged in rectified and the prisoner’s status amended to outdoor work, the right to be in the open air for IDU 1. I requested that action be taken to ensure at least an hour each day if the weather permits". that similar problems are avoided in future, however, a recent complaint indicates this may not I am of the opinion that the Commissioner has be the case and I am examining this issue again. acted properly in such cases.
38 THE OMBUDSMAN VICTORIA GENERAL JURISDICTION COMPLAINTS
Prisoner’s Property be made to the prisoner, further searches were undertaken and the missing items discovered Once again, the largest number of prisoner within the store of the prison. complaints received during the year related to property. The problems in this area continue to be attributable to inadequate record keeping Irregular property storage arrangements and poor management of property. Examples of such complaints received by my In the course of my enquiries I identified the office include magazines being left on a shelf in following factors which, in my view, contribute to a property store; money orders being placed in the ongoing inadequacies in this area: a safe or a drawer and not being accounted for; and property being retained in a unit office and not transferred to the property store. Lack of property details Port Phillip Prison, the prison with the largest Lack of reasonable assistance to prisoners prisoner movement in the State, does not forward any property details, other than the number of One area of grave concern to me in relation to boxes, when transferring a prisoner. This practice property is the lack of assistance provided to creates a breach in the transparency of the prisoners experiencing property disputes with a property chain, with the subsequent need for prison other than where the prisoner is situated. unnecessary enquiries. I have raised this matter Prisoners are often told to write to the prison with the Commissioner for Correctional Services concerned and sort out the problem themselves. and I anticipate that the introduction of the In my view, prison authorities should realise that Safeguard System and the Criminal Justice they are part of the complaint handling system Enhancement Programme (CJEP) will overcome and, as such, should make enquiries on behalf this problem. However, as these new systems of prisoners by checking out the complaints with may not be in place until 2004, I believe that the other prisons. Each of the prisons has a shared the use of property sheets at Port Phillip Prison responsibility to ensure that prisoners’ property should be re-introduced in the meantime. is properly accounted for.
Excessive amounts of property held Disposal of Property by prisoners A prisoner was transferred to Port Phillip Prison. Transport operators are only required to transfer In his property were three bottles of expensive three boxes of property per prisoner. Excessive French aftershave. On his arrival at the prison the property which is left at the prison is often bottles were confiscated and disposed of. The misplaced or disposed of because nobody is prisoner complained that he had not been given available to collect the excess property left behind. the opportunity to arrange for the aftershave to be collected by his wife who lived in near proximity to the prison. Cursory searches Initial enquiries with the prison met with the During the year I received a number of complaints response that the prison "does not hold or store in relation to missing property. Prisoners were flammable liquids in our property". advised by the prison that the property could not be located. In a number of cases I pursued the Following further contact by my office, the Prison matter further after various prisons had advised Director conceded that the prisoner should have that they were unable to locate the property. been given the opportunity to arrange for his In one case, obviously only cursory inspections wife to collect the bottles. The prison agreed to were made by the authorities at Barwon Prison compensate the prisoner for the value of the because, once I recommended that payment aftershave.
2003 ANNUAL REPORT 39 Police Cells responded, advising that a medical appointment had been arranged for the client for 27 March 2001. I am happy to report that the overcrowding in The client attended the appointment but, at the police cells, referred to in the last annual report time the complaint was lodged with my office in has greatly improved and, although there are July 2002, he was yet to hear of the TAC’s decision. peaks and troughs in the number of prisoners My enquiries established that, although the doctor held in police cells, I hope that improvement did examine the patient as arranged, he did not will continue. subsequently complete a report and was unable to do so now, more than a year after the examination. The TAC, in turn, failed in this case to adhere to TRANSPORT ACCIDENT its usual practice of following up the report with COMMISSION the doctor within 3 to 4 weeks of the examination.
Complaints about the Transport Accident The TAC apologised to the client for the delay Commission (TAC) may be numerically less and, although it did not have a current specialist noteworthy than those relating to some larger report, it immediately reinstated funding of agencies. However, the issues raised by physiotherapy at a level deemed appropriate by complaints received in this area are frequently the client’s treating physiotherapist. The TAC quite complex, on occasion involving questions assured me that it was taking steps to prevent of legal interpretation. Perhaps because of the such delays occurring again. nature of its work, the TAC also appears to receive a relatively significant level of media Another frequent cause of complaint to my office attention. is the claimant’s dissatisfaction with the TAC’s decision on a request for the funding of treatment During the year I dealt with 58 complaints or medication. It is also not uncommon for the about the TAC. A significant proportion of these TAC to cease to pay for the costs of previously involved allegations of unreasonable delay by the covered treatment or medication, following a TAC in assessing compensation claims lodged review of the client’s accident related needs by by accident victims for the costs of medical a TAC medical consultant. treatment, rehabilitation or loss of income. Delays in the processing of a claim can occur for a TAC clients have the right to seek review of TAC’s decisions by VCAT. In addition, the TAC offers an legitimate reason, for example, where conflicting informal, internal review process at no cost to its medical opinions necessitate further specialist clients. The VCAT review application must be lodged review but, sometimes, they are a result of a within 12 months of the original TAC decision. string of errors as the following case illustrates. Complainants are frequently reluctant to pursue Delayed medical report their right of review by VCAT, perceiving the process as adversarial and costly. While I rarely A lawyer complained on behalf of his client about investigate matters where the aggrieved person unreasonable delay by the TAC in assessing its is entitled to access review by a court or tribunal, ongoing liability for the client’s physiotherapy I often make preliminary enquiries with the TAC treatment. The lawyer stated that the TAC had to establish the facts of the matter and to ensure advised his client in October 2000 that it would that the reasons for its decision have been clearly organise a medical examination with a TAC communicated to the complainant. If I consider consultant and would shortly provide the details that, in all the circumstances of the case, it would of the appointment. After not hearing anything not be reasonable to expect the complainant further, the lawyer wrote to the TAC in January, to resort to court or tribunal review, I may make and again in February 2001 seeking details of further enquiries of the TAC or undertake an the appointment. On 21 March 2001 the TAC investigation.
40 THE OMBUDSMAN VICTORIA GENERAL JURISDICTION COMPLAINTS
Capital Services Agreement – TAC subsequent modifications, changes of ownership conditions on house modifications as well as the frequency of modifications and changes of ownership. However, it appeared to A couple, to whom I will refer as Mr and Mrs D, me that the agreement proposed by the TAC complained to me about the conditions imposed arguably went beyond the provisions of the Act on them as homeowners by the TAC, in return by also including circumstances where the for the TAC agreeing to fund the cost of house injured person ceases to use the modifications. modifications. Furthermore, Clause 8 had no time limit. That is, In 1994 Mr D was seriously injured as a result of it appeared that the TAC intended the provision a car accident. The TAC accepted liability for the to operate beyond the period of time during usual costs of medical and like services. In addition, which the injured person had already undertaken the TAC later accepted liability for the cost of certain to reside in the modified home. modifications to Mr and Mrs D’s home to improve I wrote to the TAC in February 2002 seeking its Mr D’s independence and mobility. In December comments on the above mentioned issues and 2001 the couple complained to me about some pointing out that there did not appear to be any aspects of a Capital Services Agreement which provisions in the Transport Accident Act 1986 the TAC had asked them to sign before any work which authorised the TAC to seek to recover an on the modifications could proceed. In particular, amount of money related to the increase in value Mr and Mrs D were concerned about the contents of the modified home. I also expressed a concern of Clause 8 of the proposed agreement which that an inflexible application of this policy could dealt with events that would follow if Mr D were to potentially result in unfair or unreasonable outcomes cease to occupy the family home for any reason. and asked the TAC to advise me what test it The couple argued that the agreement imposed applied to assess the financial circumstances of an undue burden on TAC clients and their families. home owners when determining the terms and In essence, Clause 8 contained provisions which conditions of repayment. required the property owners to pay to the TAC, In its response, which I received in March 2002, the upon a change of ownership or the TAC client TAC relied on Section 8 of the Act which charges ceasing to occupy the home, the amount by the TAC with the responsibility of reducing "the which the house modifications have resulted in cost to the Victorian community of compensation an increase to the value of the property. for transport accidents" and requires the TAC "to Mr and Mrs D claimed that it was unreasonable provide, in the most socially and economically for the TAC to impose this requirement on clients responsible manner, suitable and just compensation because it had the potential to result in the spouse in respect of persons injured or who die as a or dependants of the injured person being forced result of transport accidents". The TAC also to sell the family home to pay out the amount referred to Section 11 of the Act which requires owed to TAC. The couple had already agreed to the TAC "to manage the transport accident a clause confirming their intention to reside at the scheme as effectively, efficiently and economically modified premises for not less than eight years. as possible".
I established that sub-section 60(5) of the Transport The TAC advised that the "increased value" clause Accident Act 1986 prevents the TAC from making in the agreement is directed only at the increase a payment exceeding $5000 in respect of attributable to the capital works funded by the house modifications, unless the TAC enters into TAC and is only included in the agreement if the an agreement relating to the ownership and TAC considers that the nature of the modifications maintenance of modifications to the home. would, of itself, give rise to the likelihood of an Sub-section 60(6) of the Act provides that the increase in the value of the property. The TAC agreement must include provisions in respect of stated that, for example, widening door access
2003 ANNUAL REPORT 41 or installing a ramp are unlikely to give rise to an of money in the circumstances covered by increased value, whereas constructing an additional Clause 8 nor did it address the issue of how the bedroom, ensuite and family room would be likely homeowners’ financial circumstances would be to do so. assessed. I wrote to the TAC again seeking comments on these issues. The TAC indicated that there is no time limit on recovery of the increased value because the I pointed out that if, in fact, the TAC does not intention of the provision is to recover the amount intend to recover payments until the owner at the time when it is financially viable for the client chooses to sell the property, then it is not clear or the property owner to make the repayment, to me why these intentions are not explicitly rather than at the time when the client ceases covered in the Agreement. to reside in the house. The TAC advised that I also asked whether the TAC had sought a legal repayment would usually be made when the opinion to clarify the legislative authority to impose property is sold. The TAC advised that the upon claimants provisions relating to repayment reference in the agreement to the financial of any increase in property value as well as on the circumstances of the owners is intended to enforceability of the agreement in a court of law. ensure that the recovery of the increased value does not lead to unfair or unreasonable outcomes In its June 2002 reply, the TAC again confirmed such as the TAC forcing a client or home owner its position that section 60(5) of the Act does not to sell the property in order to meet the repayment. prevent the inclusion of additional provisions in the Agreement, which reflect the TAC’s statutory The TAC argued that the "increased value" responsibility for proper financial management of clause is intended to assist the TAC in providing the scheme. compensation for home modifications in an economically appropriate manner. The TAC advised The TAC confirmed that the modifications are that the clause enables the TAC to re-utilise funded as compensation payments pursuant to these funds in situations where the TAC is also section 60(1) of the Act. However, the TAC argued charged with responsibility for funding further that these payments are seen as distinct from modifications or alternative accommodation for the increased market value that might accrue to the client or for other injured clients of the TAC. the property as a result of the payment of that compensation. The TAC further stated that it The TAC advised that, in the year ending June believes it has the statutory authority to make 2001, the TAC spent over $3 million on house appropriate provisions to recover this increased modifications for TAC clients of the Major Injury value in accordance with its responsibilities for Division, an increase of over 42% over the sound financial management of the scheme as previous financial year. The TAC advised that if embodied in sections 8 and 11 of the Act and its the growth in liabilities continues at the same powers under section 13(1) and (2). The TAC rate, the cost of home modifications in the Major had not sought counsel’s advice with regard to Injury Division alone could potentially double the the inclusion of this clause in the agreement. previous year’s expenditure. The TAC argued that this growth illustrates the need for the TAC to be The TAC advised that, in its view, it is undesirable financially responsible in the manner in which it to dictate a "one size fits all" test for assessing a delivers this particular benefit to injured clients person’s capacity to repay the increased value. and that the recovery of the "increased value" is I was informed that, most commonly, the seen as an important aspect of the responsible repayment will be on the sale of the property, financial management of the scheme and is well however, the TAC’s intention is to maintain full within the statutory objectives of the TAC. flexibility for each client and property owner.
The TAC’s response did not address the lack of On 28 June 2002 I wrote to the TAC for the third specific legislative authority to demand a repayment time asking that, in light of the acknowledged lack
42 THE OMBUDSMAN VICTORIA GENERAL JURISDICTION COMPLAINTS
of explicit provisions in the Act, the TAC seeks an only be resolved by being tested before a tribunal authoritative legal opinion regarding: or a court of law. In the circumstances, I advised Mr and Mrs D that my office could not offer further 1. its mandate to impose upon claimants assistance in this matter and that they may wish provisions relating to repayment of any to consider appealing to VCAT, as they were increase in property value; and entitled to do. 2. the enforceability of the agreement (Clause 8) in a court of law. I was subsequently advised that the TAC decided to withdraw the "increased value" clause from the On 12 August 2002 the TAC agreed to seek a Capital Services Agreement offered to the couple. further legal opinion regarding the operation of the Agreement in respect of the "increased value" Quality of communication between an agency clause and advised that, if appropriate, it would and its clients is often at the heart of a complaint. review the wording of the agreement on receipt In addition to communication about individual of this advice. cases, the quality of information provided in On 17 October 2002 I received a final response policy documents can sometimes be the subject from the TAC. The TAC advised that it had sought of Ombudsman’s scrutiny. a legal opinion from TAC Law who confirmed that the issues raised by this matter have not, to their A policy more narrow than legislation ? knowledge, been the subject of previous litigation and there did not appear to be any case law A law firm specialising in injury claims complained precedents that would assist in clarifying the issues. to me about allegedly misleading contents of a TAC "Funeral and Dependency Benefits" brochure. The TAC advised that while the issues of The complainant argued that TAC advice that it statutory interpretation are clearly open to "will pay reasonable funeral costs up to a maximum differing interpretations and may ultimately require of $6177" was misleading because the Transport clarification through the courts, legal advice from Accident Act 1986 does not prescribe an upper TAC Law confirmed that there is, in their view, limit. The complainant pointed out that the statutory power to include the "increased value" applicable sub-section 60(2A)(b) referred only to clause in the Capital Services Agreement. "reasonable costs incurred in Australia of burial or In my view, there are sound policy and legislative cremation". Furthermore, the complainant stated reasons to support the expectation that any that there had been occasions when the TAC had modifications funded by the TAC will be put to paid the maximum amount according to its policy ongoing use by the injured person. In addition, but the decision was then successfully challenged it seems likely that not all modifications will by the claimant at VCAT as not meeting the TAC’s necessarily result in an increase to the value of obligations. the property. However, in so far that, pursuant to In response to my enquiries TAC advised that the section 60(1) of the Transport Accident Act 1986, policy maximum of $6177 was set in consultation any contribution by TAC to the reasonable cost with the funeral industry and that the amount is of house modifications is paid as compensation, included in the brochure to assist clients in planning I remained concerned about the TAC seeking to the funeral. TAC also advised that reimbursement recover some or all of that amount at a later date, rates are regularly reviewed. Nonetheless, the particularly after the expiry of the agreed minimum TAC agreed that it does not have the power to period of residence. set a pre-defined limit and agreed that the While, in my opinion, the legal advice obtained current wording contained in the brochure by the TAC was not necessarily persuasive, the required clarification. The TAC agreed to review Ombudsman cannot authoritatively determine the and amend the content of future brochures. law and it appeared that the matter could now
2003 ANNUAL REPORT 43 LOCAL GOVERNMENT While the number of parking complaints received during the reporting period was lower than in the previous year, parking infringement notices continued to be the single most complained about area of local government administration.
The second most complained about subject in 2002/2003, and one which frequently raises very complex issues, related to planning decisions made by local councils.
The following table indicates the number of local government complaints received by my office in the past two years.
2002/2003 2001/2002
Local Government administration 540 726
Planning administration 90 112
TOTAL 630 838
The main issues raised by complainants related to the following:
MAIN ISSUES 2002/2003 2001/2002
Parking 217 353
Planning permits and enforcement 74 93
Failure to enforce laws 57 66
Local Government Administration 40 60
Unreasonable enforcement of laws 34 40
Rates Collection 29 28
Insurance Claims/Liability Claims 26 34
The outcomes for complaint allegations finalised during the reporting period were the following:
OUTCOMES Local Government Planning
Noted for purposes of information but not action 95 8
Referred to authority in first instance 38 8
Withdrawn/Discontinued 12 4
Clarified 95 35
Resolved 66 3
Not sustained 192 17
Sustained 30 8
No jurisdiction 12 7
TOTAL 540 90
44 THE OMBUDSMAN VICTORIA GENERAL JURISDICTION COMPLAINTS
Complaints and enquiries the Area number of the zone was not shown on the sign. The complainant advised that other signs Overall, complaints about local government in the vicinity did show an Area number and he administration constituted nearly 20% of the total assumed that he was legally parked. The number of complaints received during the year. complainant considered that the Council’s issue In addition to dealing with actual complaints, of the infringement notice and subsequent a significant workload for my office involves rejection of an appeal were unreasonable. responding to telephone enquiries and providing My enquiries established that the sign referred to informal advice on the means of addressing a by the complainant was only advisory. The Council range of local government issues and disputes. also advised that it had informed all persons issued Many enquiries received during the year related to with Parking Permits about the restrictions that council policies and decisions of municipal councils applied to use of the permits and about the area acting as such or civil matters, for example, fencing within which any particular permit could be used. disputes between neighbours. These matters are beyond my jurisdiction and I generally provide I then raised the matter with VicRoads, because callers with advice and information on appropriate of that authority’s state wide responsibility for avenues for pursuing their concerns. My officers traffic management. VicRoads investigated and also frequently resolve issues before they become confirmed that, while signs at one end of the street complaints by providing informal advice on local included mention of the Area number to which the government processes and policies. In most parking restriction applied, the sign at the other cases, prospective complainants are advised end of the street where the complainant had to, in the first instance, attempt to resolve their parked, did not show the Area number. VicRoads concerns directly with the council involved and, concluded that the inconsistency in signage was if not satisfied with the outcome, to then make a inappropriate and should be avoided. written complaint to my office. I established that the inconsistency with the signs Much of this work is not reflected in the complaint was due to an administrative error made when the figures quoted above and is included within the street was on the boundary of two municipalities total of approximately 16,000 enquiries received that existed prior to the council amalgamation by my office during the year. which formed the present City of Yarra. The Council responsible for one end of the street Parking infringements included an Area number on its advisory signs, but the Council responsible for the other end of The following case studies are typical of the the street did not. complaints I received during the year about The City of Yarra accepted that the inconsistency councils’ enforcement of parking regulations. in the signs may have confused the complainant and withdrew the infringement notice. The Council Clarification of Parking Permit Areas also undertook to review its policy for signage in Parking Permit areas. I received a complaint from a disgruntled motorist booked by the City of Yarra for unlawfully parking in a designated Parking Permit Zone. The Urgent Need complainant held a City of Yarra Resident Parking I received a complaint from a motorist booked by Permit which entitled him to park in a designated the City of Glen Eira for illegally parking outside area (Area 7). the Caulfield railway station. The complainant The infringement notice was issued when the explained that she had been forced to stop due complainant parked his vehicle in an area to her son’s urgent need of a toilet. He was on designated by a Parking Permit Zone sign, but prescribed medication, which had a laxative
2003 ANNUAL REPORT 45 effect at short notice. Added to that, he was reliant the vehicle to issue the notice, the driver ran out on crutches and the station toilet was the nearest of the building and jumped into the driver’s seat. available. The complainant regarded the Council’s The officer continued to approach the vehicle and issue of the notice and subsequent rejection of the driver blasted his horn in an intimidating manner, her appeal as unreasonable. at which point the officer immediately returned to his vehicle and drove away. The officer decided The Council acknowledged that the complainant’s to post the infringement rather than put himself in vehicle had stopped near the railway station but a potentially dangerous position by confronting the also noted that the vehicle was stopped within driver. Posting of a notice is a legitimate method three metres of a pedestrian crossing that was of service. controlled by traffic lights. The Council acknowledged the medical condition of the The Council stressed that traffic safety was of complainant’s son. However, the Council paramount importance and in this instance, it maintained that the infringement notice had been would have been clearly prudent for the excavation properly issued because parking of a vehicle closer equipment to have been delivered to the property than the legal distance to a pedestrian crossing at a time other than when that part of the road compromises pedestrian safety. was a designated Clearway. The Council remained adamant that the issue of the infringement notice The Council advised that it had given the was appropriate and I accepted that the Council’s complainant the opportunity to submit a statutory actions under the circumstances reported were declaration to support the explanation of what reasonable. had occurred from her point of view. This was because notes made by the Council officer at the time of the offence gave a different version of what Interstate Differences occurred to that reported by the complainant. The I received a complaint about an infringement notice complainant did not supply a statutory declaration. issued by the City of Melbourne. The complainant Given the overriding public safety consideration, presumed that he could legally park his company I accepted that the actions of the Council officer vehicle in a Loading Zone, as was allowed in his were not unreasonable under the circumstances. home state of New South Wales. The complainant stated that he was visiting Melbourne and conducting business deliveries at the time the Dangerous unloading notice was issued. I received a complaint about the issue of a parking In response to my enquiries, the City of Melbourne infringement notice by the City of Glen Eira to a confirmed that the complainant’s car had been truck driver who had parked on a designated detected parked in a designated Loading Zone, Clearway. The driver explained that he had no without either a “G Registration” or the display of option but to briefly stop in front of a job site so a delivery vehicle sign, as required by the Road as to allow the unloading of an excavator from Rules Victoria. his truck. He stated that the truck motor was left running during the unloading and he regarded the The entitlement to park in designated Loading Council’s issue of the notice as unreasonable. Zones differs between States. Drivers are required to satisfy themselves that they are entitled to park In response to my enquiries, the Council described in the area selected. I formed the opinion that the this infringement as both serious and dangerous City of Melbourne acted reasonably in the in nature. The issuing officer had observed the circumstances. offending vehicle causing an obstruction to peak hour traffic which was banking up behind the truck and was forced to change lanes. The officer pulled up in front of the truck and, as he approached
46 THE OMBUDSMAN VICTORIA GENERAL JURISDICTION COMPLAINTS
Parking Signs In response to my enquiries, the City of Greater Geelong conceded that the loading zone had not Each year I receive complaints in which motorists been properly promulgated as a loading zone. issued with infringement notices assert that they The Council received legal advice that it had no were not aware that they had parked in obligation in law to refund fines paid in relation to contravention of the law because nearby parking that area. However, the advice also indicated that, signs were unclear. In some cases my officers if legal proceedings were commenced, "Council's inspect the relevant signs and in others council decision to treat the matter as closed should be officers provide me with photographs of the signs. reviewed". Where I form the opinion that the signs are capable of causing confusion or the meaning is I considered that, as the Council failed to follow not clear, councils usually agree to withdraw the necessary legal process, the parking restriction infringement notices. However, in a number of had no effect. By issuing an infringement notice cases examined during the year, I found that the to the motorist requiring him to either pay the fine signs were not difficult to see or to comprehend or take the matter to court, the Council and it was clear to me that, in those cases, drivers unintentionally misrepresented its powers in the had not made reasonable efforts to check whether circumstances. The Council, in effect, had no parking was permitted. I consider that drivers have power to do what it did. I recommended that it an obligation to look for parking signs, particularly should refund all the fines collected during the in busy areas, and to check whether they can period that the inoperative restriction was in force. park in the position they have chosen. If I conclude The City of Greater Geelong accepted my that a driver has failed to make reasonable checks, recommendation. The Council processed refunds I am not able to offer any assistance, other than in relation to 125 infringement notices, amounting to advise the driver that they may elect to have to almost $20,000. I was also advised that the the case heard in court. Council was undertaking an audit of all parking areas in the City to ensure that they had been Unenforceable Parking Zone approved in accordance with legal requirements.
A motorist complained that he had parked at night in a dark street in Geelong and had been issued Parking Traps with a parking infringement notice by the City of I continue to receive complaints about parking Greater Geelong for parking in a loading zone. infringement notices issued in circumstances The area was adjacent to a construction site but where the application of parking laws to a no night work was undertaken at the site. He particular area is not clear and where it could be asserted that it was unreasonable for the Council argued that the area is a trap for unwary to enforce a 24 hour loading zone. He also claimed motorists. In my view, if parking officers become that the Council had no record of approving the aware of such a situation, they have a clear duty loading zone. The complainant said that the not to exploit but to report it to their superiors for infringement notice was withdrawn, despite review. The following case is an example of such previous refusals to do so, after he threatened to a complaint received during the year. approach the Ombudsman about the lack of proper approval of the temporary loading zone. Lack of signage along an unsealed road He said that, a short time later, the loading zone signs were removed and the area reverted to I received a complaint about a parking infringement regular parking. The complainant maintained that, notice issued by the City of Frankston in an area if the area had not been properly promulgated as where vehicles were parked along an unsealed a loading zone, all fines collected by the Council road bordered by trees. Towards the end of the should be refunded. road, the line of trees ended and there was no
2003 ANNUAL REPORT 47 clear kerb line. The complainant parked her car in confusion. The Council also agreed to withdraw line with all other vehicles in the road and another the infringement notice issued to the complainant. driver parked next to her on a partly grassed area. I was informed that the City of Greater Bendigo The complainant was issued with an infringement commenced discussions with the university to notice for being “double-parked”. Photographs of ensure that students are informed of their legal the area clearly demonstrated that the complainant obligations in respect to parking and the need had parked correctly and that the other vehicle to avoid causing inconvenience to neighbouring was parked on the nature strip. However, in my residents. The Council assisted students by view, neither driver was at fault because the area advising where they could legally park in a was inadequately signed and it was difficult to nearby area. discern where to park legally. The complainant asserted that the parking officer agreed that the Conflicts in Evidence area was confusing but indicated that he had been given strict instructions to book vehicles parked In a number of parking complaints received by my in that location. office during the year, complainants claimed that they had been issued with parking infringement I sought comments from the Council and requested notices despite displaying valid parking permits that enforcement action on infringement notices or parking tickets on the dashboard of their issued in the area be deferred and parking vehicles. I am often faced with the situation where officers instructed not to issue further notices until the driver claims that the permit was in place but the situation was clarified. the council asserts that the parking officer recorded The City of Frankston responded that, following that there was no permit visible. Where such a an inspection of the area, the Council agreed that conflict in evidence exists, I am unable to reach a "it was incorrect to issue parking infringement conclusion as to the truth of the matter and I must notices in this area". The Council withdrew notices leave complainants to their legal remedy. I note and sent an apology to the complainant. It also that, increasingly, parking officers are taking digital implemented measures to prevent similar problems photographs of offending vehicles to provide clear occurring in future. proof of the situation. However, where a person challenges a council’s decision to issue an infringement notice and the decision is maintained Parking on a nature strip by the council, I am of the opinion that the council A student attending La Trobe University received has an obligation to advise the complainant of an infringement notice from the City of Greater the basis for its decision. Bendigo for parking on a nature strip. There are signs in a number of streets near the university Inadequate Response drawing attention to the fact that parking on nature A letter sent by the City of Moonee Valley in strips and reserves is not permitted. The street in response to the complainant stated the following: question had a very wide nature strip and there was access off the street, which could be mistaken "the representation made by you has been for parking access. There was no sign advising considered along with the report of the officer that parking was not permitted. Also, within sight concerned and I advise that the circumstances of the area concerned, a resident had been described do not justify leniency in this matter". allowed to utilise part of the nature strip next to A similar response was provided when the his driveway to provide parking spaces, which complainant wrote again. I pointed out to the could give the impression that parking on the Council that such responses were inadequate as nature strip was permitted. it was not apparent to the complainant that the In reply to my enquiries, the Council agreed that Council was asserting that no permit had been signage should be placed in the street to avoid any visible.
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The City of Moonee Valley acknowledged that the that the complainant approach its own consultant correspondence should have set out the basis who was assisting the Council in developing the upon which the Council had asserted that an landslip areas strategy. offence had occurred and undertook to ensure The complainant approached the consultant who, that this occurred in future. in conjunction with another consultant, quoted the cost of his services at $15,000. The complainant, Local Government Planning concerned about the cost, sought the opinion of another consultant who advised that the proposal Many complex planning disputes relating to was excessive and that a satisfactory report and decisions by councils are brought to my office. investigation could be carried out at a fraction of My role in such matters is generally limited as the cost. In view of the ongoing conflict, the planning decisions may be appealed at VCAT. complainant’s consultant recommended that the However, in some cases, my office can assist in matter be referred to one of the most experienced resolving a dispute. consultants in this field.
The complainant subsequently obtained a fifth Surfeit of Consultants report, which, again, was rejected by the Council A complainant claimed that the Colac Otway on the advice of its consultant. Both consultants Shire Council was treating him unfairly because then met and prepared a sixth report. it had refused to accept geotechnical advice The complainant’s consultant understood from obtained from a number of leading consultants, the meeting that it was agreed that any technical when it rejected his application for a permit to issues were solvable and the application would, construct a dwelling. therefore, be approved. However, the Council’s The proposed building site was located in an area response was to require further goetechnical covered by an Erosion Management Overlay and investigation. In his reply to the Council, the was subject to landslip problems. The Shire was complainant explained why his consultant stood developing a strategy in relation to permit by the judgements expressed in his earlier report applications in such areas, but the process was and advised that he would not be submitting any not yet finalised. further reports.
Prior to purchasing the property and following The Council then considered and rejected the discussions with Council officers, the complainant application. On legal advice, the applicant appealed applied “for a use in principle” to build on the site. the decision at VCAT. The application included a geotechnical report, The complaint brought to my office focused on as requested by the Council. After receiving the the following two issues: application, the Council asked the complainant 1. It was clear at an early stage that the Council’s to obtain a second geotechnical report. The and the complainant’s consultants disagreed complainant obtained a further report from a and the Council should have referred the matter different consultant and the approval was given. to another consultant. The complainant then purchased the property on 2. The Council should not have directed the the basis of the approval and lodged a planning complainant to the Council’s consultant. permit application to develop the site. In response to my enquiries, the Council advised Before considering the application the Council that the consultant it had recommended had advised to the applicant to obtain a third appropriate expertise in the field and that is why geotechnical report. The complainant again the Council had hired that consultant to develop complied with the Council’s request but the a strategy for the municipality. The Council was report was rejected and the Council recommended not aware that the complainant had approached
2003 ANNUAL REPORT 49 that consultant when they received the The problems facing a lay person in these matters complainant’s submissions. are compounded when more than one authority is involved, and where only one party is well versed The Council also advised that, if the applicant had in the legal aspects, regulations, and the operation hired the suggested consultant, the Council would and processes of government agencies. have accepted the proposal without further checking. I put to the Council that this approach One such case involved the development of amounted to a conflict of interest. I also advised approximately 300 Ha of a dry land grazing the Council that, in my view, where such a dispute property to intensive irrigated horticulture. exists, the matter should be referred to an independent consultant with the agreement of Impact of Development both parties. In December 2000 I received a complaint about The Council did not disagree with this view and the alleged failure of Wangaratta Rural City Council stated that, once the strategy was developed, to act on numerous breaches of a planning permit these potential conflicts would no longer exist. In issued to a property developer. this case, however, after considering arguments The developer, a horticultural company, purchased put by both sides, Council staff decided that the parcels of land in three separate stages. The further investigation should be carried out and soil on this land was heavy clay that became the whole matter should be resolved by a VCAT waterlogged after periods of heavy rain. The hearing. property had significant wet land areas and natural I put to the Council that taking such a complex depressions; and dams that acted as retarding technical matter to VCAT would be costly and basins, resulting in a low level of natural water may take considerable time to get a ruling. I noted flow from the property. The land featured remnant that, at least seven technical consultants had large Red Gums and Yellow Box Trees. already been involved and the VCAT process The Rural City of Wangaratta Planning Scheme would, almost certainly, involve the appointment requires a permit to carry out any earthworks of others. It was also possible that a satisfactory which change the rate of flow or the discharge solution would not be reached through VCAT. point of water across a property boundary. The The Council agreed to my recommendation that developer, over time, applied for three planning the matter be resolved by mediation. Both parties permits for the removal of trees. No permits were agreed to accept the decision of a consultant required for the establishment of horticultural approved by both sides who would review this development. The Council did not notify other dispute. nearby landowners and they were not aware of the first land clearing permit until work commenced. My office assisted in negotiations leading up to The permit application made it clear that the land the agreement on the choice of a consultant to was being cleared for intensive irrigated horticulture. review this matter. I understand that the planning permit will be issued shortly; approximately four The permit conditions restricted the number of years after “use in principle” permit was granted. trees which could be removed and required the developer to replace each removed tree with ten new trees. The Council did not have accurate Planning Breaches plans of the land showing contours, features, or Many complaints or enquiries about planning location of trees and was in no position to closely breaches received by my office relate to complex monitor the works. issues that take time to resolve or require close The permit issued by the Council for the first stage monitoring by the complainant and my office to of development allowed the removal of 35 trees. ensure that the authorities act on such breaches. The complainants lodged objections with the
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Council and produced evidence that the developer My examination of the complaint suggested that had, in fact, removed in excess of 50 trees from the complainants received little help or guidance the property. The company subsequently agreed from the various agencies they had approached to plant 540 replacement trees. However, the to resolve the problems. It was generally agreed complainants alleged that the work was not that the above problems existed and may become completed and other revegetation works for worse. The irrigation authority advised that new stages 1, 2 and 3 of the development had not guidelines had been introduced that would enable been carried out in accordance with the permit. it to act on the problems cause by the irrigation water, however, the guidelines would not apply to The complainants alleged that substantial earth- stages 1 and 2 of the development, which were works had been carried out by the developer already in operation. Stage 3 could also fall without a permit, including filling in of dams and outside the guidelines as the company could use natural depressions as well as realignment and a temporary supply of water. The complainants enlargement of natural drainage channels. The were not able to obtain clear advice on what action Council responded to these complaints stating could be taken to ensure that stage 3 irrigation that no permit was required for such works. did not occur without the resolution of existing The complainants also alleged that the removal problems. of vegetation, extensive earthworks and irrigation While the complainants received conflicting advice works resulted in the following problems: from various authorities, it was agreed that • Increased volume and the concentration of problems could be resolved by the construction run off to private and public properties; of a drainage collector dam on the property to • Nearby properties being subject to longer slow down drainage discharges. Unfortunately, periods of waterlogging and flooding; attempted mediation failed to resolve the issue. • Increased erosion; Following discussions with my office, the Council • Silting up of dams, natural waterways and agreed that extensive earthworks as described wetlands; above had been carried out and that a permit was • Increased nutrient levels resulting in outbreaks required. The Council informed the developer that of blue green algae; a permit was required for the works or enforcement • Pastures covered in mud and silt; and action would be taken. • Increased salinity levels, due to tree removal and additional water discharge. The company denied that earthworks of any real impact had taken place and hired consultants to The complainants provided evidence of extensive support their view that the works had no adverse correspondence and contacts with various impact. government agencies and the Council in relation to these problems. They also provided extensive If not for the extensive records kept by the information in the form of plans, photograph complainants and additional information provided records of the development work and the impact by my office, the Council would not have been of the works, records of water testing, and able to require a retrospective permit with details of documents and papers produced by conditions requiring additional works, such as government agencies in relation to the above the drainage collector dam, to reduce the impact problem, for example, Guidelines for Irrigation on the other properties. Development in the Goulbourn-Murray Region. Negotiations continued until late June 2001 when The complainants had approached the following the complainants became aware that a agencies in relation to the problems, DNRE, receiver/manager of the company had been Goulburn Murray Water, EPA, North East appointed. During this time works continued; Catchment Management Authority, Department including additional earthworks, drainage works of Infrastructure and the Rural City of Wangaratta. and irrigation works.
2003 ANNUAL REPORT 51 The appointment of a receiver manager Caretaker Councils complicated the issue and raised concerns that the properties would be broken up and sold to Conventions are well established at state and new owners, and all the problems created by the Commonwealth level in relation to the proprieties development would not be resolved. of government activity during the pre-election or caretaker period. However, no such guidelines Following protracted negotiations between various exist as to what local government activities parties and their solicitors, the receiver/manager involving sitting councillors are acceptable in the applied for a retrospective permit and the Council period prior to local government elections. During issued the permit in October 2002. the year I received a complaint concerning the The land was subsequently sold in three parcels in holding of council neighbourhood forums during March 2003. The Council made all permits relating the caretaker period. The complainant asserted to the land available to the solicitors handling the that these events allowed sitting councillors to sale. press their claims for re-election with voters.
The Council has advised me that it received legal My role in the issue is difficult as I have no advice in regard to ensuring that all enforceable jurisdiction concerning councillors and my permit conditions are complied with by the new jurisdiction extends only to actions of council owners. Between June 2001 and the sale of the officers. I raised the issue with the Municipal land in March 2003 the complainants monitored Association of Victoria (MAV) with a view to ongoing problems on the property to ensure that having the matter put to councils and considering works recommended by the Council were put in whether a local government caretaker code should place to protect other properties. Considerable be established. The MAV has now developed time and effort was also spent by my office, the guidelines which have been distributed to all local Council and, to a lesser, extent the other government CEOs who were encouraged to government agencies involved. develop suitable guidelines for their councils. The MAV guidelines address seven main areas: During the period the property continued to operate and the ongoing problems continued. • the pre-election period; The complainants reported ongoing breaches or • significant decisions; problems concerning additional earthworks, • council resources; operation of a quarry without a permit, failure to • information; complete revegetation, destruction of replacement • media and publicity; trees, additional drainage and irrigation works, • assistance to candidates; and drainage works on road reserves etc. • monitoring the guidelines or policy.
The various agencies found it difficult to get I expect that these guidelines will reduce any responses from the receiver/manager. Without uncertainty over the role of councils during the considerable efforts of the complainants in caretaker periods. pursuing this matter over a six-year period, and, the efforts of my office in providing ongoing advice Building Commission and to the Council and the complainants over an Associated Bodies extended period of time, this matter would not have reached the present stage of resolution. Many of the enquiries received by my office in relation to building matters are the result of a misunderstanding about the roles of councils, private building practitioners, and the Building Commission and associated bodies.
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A significant number of complaints received State Trustees during the year related to the failure of councils to act on breaches of building permits when, in fact, During the year I conducted a major investigation the council involved has correctly advised the into the operations of State Trustees Ltd (STL) complainant to refer the concerns to the private in dealing with the administration of the affairs building surveyor who issued the relevant building of represented persons. The investigation also permit. Many complainants were also unaware of involved actions of the Office of the Public the role of the Building Commission and Advocate (OPA). associated bodies in relation to actions of private My investigation commenced amidst considerable building practitioners. media interest in the removal, against her wishes, A number of complaints received from both of an old woman from her home. This action was professionals and laypersons related to the level largely attributed by the media to STL although, of resources available to the Building Commission subsequently, I established that some decisions to investigate and take action on breaches by taken were the responsibility of the OPA. builders. The Building Commission receives many Following a report on the Neil Mitchell program on complaints and it is not possible to investigate 3AW, which described the woman’s removal as an each complaint unless the matter is of a serious “official kidnapping”, a number of people contacted nature. Comparatively minor complaints may still the radio station with further allegations against warrant investigation if they indicate a problem STL. The station later forwarded to me, through with a particular practitioner. its solicitor, 60 items of correspondence relating to STL. Some correspondents expressed Level of Service opinions or views on the subject but did not have an identifiable complaint. Some correspondence I continued to receive complaints about the was anonymous and other matters raised were reduced level of maintenance on council assets. complaints that had previously been investigated Typical concerns related to road maintenance by me and resolved. Nonetheless, in light of the and cleaning, upkeep in parks and gardens and number of complaints received, the nature of the council buildings. I also received complaints about the alleged reduction of services in other areas. allegations and the surrounding publicity, I decided The level of these services are set by the elected to undertake an formal investigation into the issues council and, as such, these complaints are outside raised in the complaints under section 17 of the of the jurisdiction of my office. In every case I Ombudsman Act 1973. was satisfied that council staff had provided the In the course of the investigation my officers complainant with a full explanation for any change conducted more than 80 interviews and examined in the level of service on maintenance of assets, 127 allegations, 54 of which were fully or partly and in doing so met any duty of care or regulatory substantiated. Many of these substantiated requirements. allegations related to delay or poor communication. Only one allegation of improper conduct, which could be seen as abuse of authority, was OTHER MATTERS substantiated. Nevertheless, in a situation where The following case studies are illustrative of the the Administrator has considerable power over the broader work undertaken by my office in the lives of vulnerable individuals, poor administration general jurisdiction during the reporting period. can lead to injustice. Aspects covered by my investigation included: sale of represented persons’ residences and chattels, security and presentation of property, financial issues and complaint handling. The outcomes of the
2003 ANNUAL REPORT 53 investigation included particular remedies for as to responsibility for some of the decisions and individuals and significant changes to the actions that had been taken, where the Victorian operating system of STL. Civil and Administrative Tribunal or the Public Advocate, rather than STL, was the responsible My investigation highlighted gaps between policy body. The full report of the investigation is available and practice and gained remedies for a number of on my website: www.ombudsman.vic.gov.au individuals, including reimbursement or ex-gratia payments. Government Superannuation As part of the investigation I also examined three complaints against the OPA. Each of these Office complaints raised a number of allegations, none of which were substantiated. Double pension payment
In the case of the elderly woman removed from her A complainant wrote to me understandably home, I formed the opinion that the allegations concerned after receiving advice from the against OPA, that she had been unreasonably Government Superannuation Office (GSO) that removed and unreasonably retained, were not she owed $59,133.43 in overpayments. established. Four allegations against STL relating The complainant left her employment in 1992, to care and security of property and payment of with 9 years’ contribution to superannuation. In a personal allowance were substantiated, but approximately 1997, GSO advised the complainant my investigation did not support a number of that she had a deferred superannuation benefit the other allegations made publicly. In particular, which she had not collected. The complainant I found no evidence to support allegations that initially took no notice of the advice, as she STL and OPA unreasonably failed to find and believed that she had received her full entitlement. inform family members of what had occurred or However, she later discussed the situation with failed to care for the woman’s pets. her financial advisor, who suggested that she During the course of my investigation I kept STL contact GSO to confirm her entitlement. GSO informed of my findings and possible subsequently assured the complainant that she recommendations in relation to the individual was entitled to the money. complaints. I also met with the Board of Directors Subsequently, the complainant applied to receive of STL and its senior management to enable the benefit as a part lump sum/part pension STL to provide responses and remedies. As a payment and used the lump sum component of consequence, STL implemented remedies for the benefit to purchase a new unit which provided individuals and introduced administrative and better access for her elderly mother, for whom policy changes which resulted in real system she provided care. improvement. STL advised me of updates and improvements to policy and guidelines and The complainant advised me that, on receipt of demonstrated, particularly in its allocation of extra the debt notice, she had attempted to resolve resources for personal contact with Represented the matter directly with GSO, however, while she Persons, family and carers and for dealing with was willing to repay the debt, she was anxious property issues, that it was addressing the ‘human about the financial implications of the situation face’ of administration. she now faced.
My investigation culminated in a formal report, In response to my enquiries GSO advised that the tabled in Parliament in April 2003. Acceptance situation was the result of its error and confirmed of the report’s recommendations contributed to that the complainant had taken all reasonable significant changes in the operation of STL. The measures to ensure her entitlement prior to complaints also highlighted misunderstandings collecting the funds. GSO stated that, to facilitate
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batch payments, a clerical error had been re-credited leave entitlements. The complainant deliberately recorded on the complainant’s had previously attempted to resolve the situation membership record and had remained uncorrected directly with the department as well as through and undetected until a recent audit. GSO advised the WorkCover Advisory Service to no avail. that the complainant’s “second” pension had I contacted both the WorkCover Advisory Service subsequently been cancelled. and the former employer to clarify the complainant’s GSO accepted that the complainant might have situation. I was advised that the department had incurred legitimate expenses in the expectation yet to re-credit the complainant’s leave entitlements, of a higher entitlement and was prepared to despite having agreed to do so in December 2001. deduct any reasonably incurred expenses from I asked the department to remedy the situation the $59,133.43 owing. as soon as possible.
I established that the offer to deduct reasonable The department later advised me that, as a result expenses included the complainant’s purchase of fulfilling the terms of the out-of-court settlement, of a home unit. I then advised the complainant of the complainant’s leave record had been adjusted GSO’s offer and suggested that the complainant and a cheque would be issued to her for the gross provide GSO with the information needed to salary payment of $13,865.06 (the net value of establish that she legitimately incurred any the salary payment was not known at the time). expenses she identified. The complainant later informed me that she had GSO later informed me that the Board of the received payment and thanked me for my superannuation fund met to consider the assistance. complainant’s circumstances and agreed to waive recovery of the $59,133.43 which had been paid to the complainant in error. Metropolitan Ambulance Service
I sought further information from GSO regarding I received a complaint about an account issued its batch payment processes as I was concerned by the Metropolitan Ambulance Service (MAS) for that the practice of deliberately including incorrect the attendance of an ambulance. The ambulance information on members’ records created a risk had been called by a bystander who believed that for other fund members. GSO informed me that the complainant required medical attention. The batch processing was only used for a short time complainant claimed that he had repeatedly refused and there were no plans to re-introduce the the assistance of the attending crew and he knew procedure. GSO also assured me that no other that this had been documented in the crew’s person had been adversely affected by the report. The complainant asserted that he finally procedure previously used to process batch consented to a minor check only on the basis of payments. an attendant’s assurance that he would not be charged for it. However, he was subsequently charged an attendance fee of $210, which he Employment regarded as unacceptable.
My enquiries revealed that, when the ambulance Fulfilling the terms of a WorkCover arrived, its crew noted that the complainant agreement appeared to be mildly intoxicated and that he In October 2002, I received a letter from a refused ambulance transport to hospital. While complainant who was concerned that her former I was satisfied that some examination did take employer (a state government department) and place, as evidenced by the report, I decided to its WorkCover insurer had not honoured an seek further information from the MAS regarding out-of-court settlement in which it was agreed the basis for charging a person who did not call that she would receive approximately $12,000 in an ambulance and who had declined assistance.
2003 ANNUAL REPORT 55 I also asked what, if any, examination of a Wrong owner person by an attending ambulance crew could A resident of NSW complained that Civic be undertaken without attracting a charge. Compliance Victoria had notified him of an unpaid In its response, the MAS advised that, pursuant to infringement in respect of a traffic offence the Ambulance Services Act 1986, an ambulance committed in Melbourne, despite the fact that service may charge reasonable fees for services he had sold the car in NSW some 3 weeks prior. rendered. In late 1996, MAS undertook a study The complainant stated that he had notified the to develop a fee structure and pricing model for NSW Road Traffic Authority (RTA) of the transfer. Emergency Ambulance Services that would satisfy He believed that inaccurate information had been the full cost recovery requirement. used by Civic Compliance Victoria and he was In 1998 the Minister for Health announced a new being wrongly blamed for the detected offence. fee structure for ambulance services. Emergency My enquiries established that, at the time of the transport charges were increased to reflect full detected offence, the complainant had been cost recovery and an “Attend no Transport” fee recorded as the owner operator of the car on the was introduced for ambulance attendance where National Exchange of Vehicle Information database. transport is not provided. The MAS advised me That database is a central access point for vehicle that, while the complainant had refused to be details throughout Australia. taken to hospital, the ambulance crew had undertaken a medical assessment. I also established that, while the complainant had correctly notified the RTA of the sale and disposal Notwithstanding the information provided by MAS, of his vehicle, the RTA had failed to update the I remained concerned that the complainant had national database. been charged in the particular circumstances of this case. MAS accepted my concerns and Civic Compliance Victoria accepted that the withdrew the account. complainant was not responsible for the offence and redirected the unpaid notice to the new owner. Civic Compliance Just plain wrong
Wrong number A complainant alleged that Civic Compliance A motorist complained that, although he had paid Victoria failed to acknowledge receipt of payment an outstanding speeding fine to Civic Compliance of a speeding fine. The complainant had paid the Victoria, he received a courtesy letter indicating fine by cheque and the complainant’s bank that the fine remained unpaid, and that $17.00 confirmed that the cheque had been presented costs had been added. The complainant advised and cashed. that he had paid the fine by credit card at a post My enquiries established that the cheque had office and provided me with the receipt. been misplaced during the banking process. My enquiries established that, while payment Unfortunately, a deposit discrepancy had been had been made as claimed, the complainant perceived as a notification that the cheque could had incorrectly entered the necessary reference not be processed. number during the payment process. The fine Civic Compliance Victoria corrected the error and was deemed to be unpaid and Civic Compliance confirmed receipt of payment. It also apologised Victoria automatically implemented recovery action. to the complainant for the inconvenience caused Following my involvement, Civic Compliance and took steps to prevent any recurrence of the Victoria accepted that payment had been made problem. within the stipulated time period and removed the added costs.
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ANOTHER MILESTONE investigations of “serious misconduct”. Unlike the Ombudsman’s general jurisdiction, the The year 2003 represents not only the 30th Ombudsman has no “own motion” powers in anniversary of the Victorian Ombudsman but also relation to police but may investigate directly the 15th anniversary since the office assumed some complaints of police misconduct. responsibility for the handling of police complaints under the provisions of Part IV A of the Police The Ombudsman’s role in the police jurisdiction Regulation Act 1958. is firmly established. Dr Perry has been a staunch advocate for retention of the police complaints Following the abolition of the Police Complaints jurisdiction within the Ombudsman’s office and, Authority and the creation of the office of the in his last three annual reports, expressed some Deputy Ombudsman (Police Complaints), Dr Barry anxiety that the solid foundations, systematically Perry was appointed to the new position on 17 laid down over the past 15 years by police and May 1988. Previously a Senior Investigation this office with very limited resources, may not Officer at the Ombudsman’s office, since 1988 be fully recognised. Dr Perry has been responsible for the handling of police complaints in Victoria, firstly, in his role as I would like to reinforce Dr Perry’s views on the Deputy Ombudsman (Police Complaints) and later importance of protecting the current system’s as Ombudsman. In July 1996, the Ombudsman hard won achievements in the context of the also became responsible for performing the role Government’s ongoing review of the Police of the Deputy Ombudsman (Police Complaints) Regulation Act 1958. I would also like to take in the absence of a separate appointment of a this opportunity to reiterate Dr Perry’s concerns Deputy Ombudsman (Police Complaints). about the inadequate level of resources in the police complaints jurisdiction; the consideration of There are significant differences between the which has been deferred now for successive years responsibilities bestowed on the Ombudsman pending, firstly the Government’s examination of in regard to police and general jurisdiction the recommendations contained in the “Johnson complaints. The role of the Ombudsman under Report” of the police force and secondly, the the Ombudsman Act 1973 is to enquire into and total review of the Police Regulation Act 1958. investigate matters of state and local government administration. In performing this role, the On the occasion of the Ombudsman’s 30th Ombudsman is the primary investigatory body anniversary and the 15th anniversary of the and can initiate investigations into matters of Ombudsman’s role in police complaints, I have administration in the absence of a complaint asked Brian Hardiman, Senior Assistant (“own motion” powers). Ombudsman (Police Complaints) to provide a brief history of police accountability in Victoria. The Ombudsman’s role under the Police Regulation Act 1958, however, is primarily to monitor and review police handling of complaints against police and internally generated police
2003 ANNUAL REPORT 57 POLICE ACCOUNTABILITY – BY one of resistance to change, neglect and political BRIAN HARDIMAN, SENIOR interference, punctuated by Royal Commissions into various inefficiencies, neglect of duty, abuse of ASSISTANT OMBUDSMAN power and corruption, the extent to which police (POLICE COMPLAINTS) are now prepared to “heed the messenger” is a remarkable achievement. I was somewhat alarmed that, in seeking to verify aspects of my recollection of events during my thirty years plus career in and around policing, 1829 – London Metropolitan Police Act I could find no single authoritative history of the Sir Robert Peel, who is generally regarded as the police complaints system in Victoria in all the architect of modern policing, set out the following literature on police accountability. There is no objectives of policing: reference to the police complaints system in the chronology published earlier this year for the 1. The prevention and detection of crime, Victoria Police Force’s 150th Anniversary. 2. The protection of life and property; and 3. Preservation of the peace. On the 15th anniversary of the Ombudsman’s role in police complaints, it seemed important These self-limiting functions were no doubt adopted to provide at least a basic outline which might in part because of the strength of opposition to encourage research of a more detailed history the notion of appointment of police. However, as of police accountability in Victoria. Much of the noted by many observers, the historical influences material below has been sourced from a book on Australian policing are complex and in many by former Superintendent Robert Haldane, “The respects owe more to the more coercive, People’s Force – A History of the Victoria Police.” 1 militarised, less democratic and accountable model of the Royal Irish Constabulary, than to Finally, I thought I should record some personal Peel’s consensual model.2 recollections, which on account of fallibility of memory should be treated on a sliding scale of In many respects, the history of policing in Victoria accuracy depending on the seriousness of the is the struggle for the basic principles of civil event purportedly depicted! policing and accountability. Certainly, some of the most vehemently debated incidents in Victoria A brief history have, and continue to, involve police involvement in para-military style operations such as Eureka in There are many strands of police accountability. 1854, the Clunes Riot of 1873, the Kelly siege at The legal system, public opinion, the media, Glenrowan in 1880 and the Richmond Secondary Royal Commissions, good internal management College protest in 1993. All have all drawn criticism and supervision, all contribute to police of police tactics which have seen members of accountability. The system of handling complaints the community treated by police as “the enemy”. against police is simply one of those strands, As stated by former British Assistant Commissioner, albeit an important one, and it would be wrong John Alderson: to assume that prior to the establishment of a “The difference between the quasi-military formal complaints system, there was no police and the civil policeman is that the civil accountability or that individuals had no right of policeman should have no enemies. People redress against misconduct by police. may be criminals, they may be violent, but It is only in recent years that police have generally they are not enemies to be destroyed. Once accepted formal external scrutiny through the that kind of language gets into the police police complaints system. Improving police vocabulary, it begins to change attitudes.” 3 accountability remains a challenge but, given that so much of the history of Victoria Police has been
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As many police complaints still arise from the fact 1852 to provide, “a ready, armed and inexpensive that some police continue to adopt an “us and alternative to civil police” was “reviled throughout them” approach to policing, I believe it is useful to the gold districts as ‘lobsters’ and ‘redcoats’ … reflect on these first principles and the historical and were generally regarded as being less influences on the development of policing in efficient and more repressive than the regular Victoria. constabulary.” 4 The need for an efficient pro-active police force 1836-1852 – Rag tag policing was reinforced in April 1852, when a gang of more than twenty armed men robbed the moored Captain William Lonsdale was appointed Police barque Nelson of some 232 kilograms of gold. Magistrate for Port Phillip on 14 September 1836. Some of the gold was recovered and twelve of The first three police to be appointed, Robert Day, the offenders caught by police in the subsequent James Dwyer and Joseph Hooson, arrived at the weeks but the episode proved, once and for all, the Port Phillip Settlement on 29 September 1836. need for an effective police force. Arrangements Despite the conflict of interest and infringement were made in May 1852 to recruit police from of principles of British justice, Lonsdale was the United Kingdom whilst a Parliamentary Select responsible for commanding civil police and the Committee (the Snodgrass Committee) was military as well as the magistracy. Dwyer and appointed to examine policing in Victoria. Day were soon dismissed for being drunk, whilst Hooson was dismissed in November 1837 on 1853 – Police Regulation Act conviction for taking a bribe from a prisoner. The recommendations of the Snodgrass From 1836 to 1852, policing in Victoria was Committee in September 1852, the first of many performed by a motley assortment of independent such enquiries into policing over the years, and largely uncoordinated police corps or units, resulted in the passing and introduction on including the Melbourne, Geelong, Native, 8 January 1853 of the Police Regulation Act. Mounted and Border police. Police were paid Interestingly, the Act did not (and has not since) less than road labourers and there were virtually specifically establish Victoria Police as a defined no standards of entry, special training or code of entity. Rather, the Act provided the basis for the ethics to govern police conduct. appointment of police, defined their ranks and In 1850, Superintendent Sturt was appointed to duties, established offences covering police the Melbourne and County Bourke police. On misconduct and provided for the appointment 1 July 1851, Victoria separated from New South of a Chief Commissioner to have “… the Wales. However, the subsequent commencement superintendence and control of the force.” of the Victorian gold rush delayed any The first Chief Commissioner was William Mitchell, improvements in policing. In order to retain and who successfully argued for the separation of the attract police, a fine-sharing scheme was position from the magistracy. After supervising the introduced. This led to considerable police abuses, introduction of arrangements for establishment of including the prosecution of “victimless crimes” policing under the new Act, Mitchell resigned due and “revenue offences”. Police pursued offences to ill-health later in 1853. The Argus newspaper, resulting in fines, such as obscene language and which was generally critical of police, paid tribute sly grogging, in preference to pursuing serious to Mitchell’s achievements. crime which resulted in unremunerative gaol terms. “Nothing could be worse than its condition Poor though the reputation of police was, the when he took the reins… corruption, perjury, enforcement of the law by the military was ruffianism of every description were rife considered infinitely worse. As noted by Haldane, throughout the force, till it had become a the large military force sent to Victoria in February public nuisance, not a safe-guard. In a few
2003 ANNUAL REPORT 59 short months, with the aid of a strong will, a 1858-1880 – The Standish Years sense of duty, and a competent intelligence, Captain Frederick Charles Standish was appointed all this has been so far reformed, that to calm observers like ourselves, it appears little short Victoria’s third Chief Commissioner in 1858, having of miraculous.” 5 fled England in 1852 to escape gambling debts. He had earlier unsuccessfully sought appointment to the Force as a Constable in 1853 under an 1854 – Eureka assumed name.
Charles McMahon was first appointed Acting His personal exploits, such as womanising, Chief Commissioner in 1854 and later appointed gambling and drinking, affected police morale and permanently until 1858. standards. At the same time, reductions in police The events at Eureka in December 1854 prompted pay and other industrial issues caused considerable the appointment of a Commission of Enquiry. The disquiet in the Police Force. Standish together Commission’s most important recommendation with O’Shanassy, the Chief Secretary,7 arranged for was to issue a comprehensive code of instructions preferential appointment of Irish Catholics to the for the guidance of police. Force, many of them from the Irish Constabulary. A Select Committee (the third between 1860 and 1856 – Policing by Consensus 1863 in relation to problems with Standish’s administration) recommended abolition of the The publication of the first “Manual of Police Chief Secretary’s special list of appointments and Regulations for the Guidance of the Constabulary that Standish be replaced by a Board of three in Victoria” in 1856, and the nominal departure commissioners. However, Standish, with the from the military model of law enforcement assistance of O’Shanassy, survived. following Eureka, represented the first steps toward the establishment of an accountable police force Whilst Standish implemented certain reforms, founded on community trust, personal ethics and including use of the telegraph and the railways responsibility. As noted by Haldane6 “ the manual for communication and transport, his insistence itself encouraged this step towards occupational that formal training of police was a waste of status by advising police thus: time, bode ill for the future.
The position in which members of the Force are placed is totally different from that which 1870s – Militarisation they occupied as private individuals. They The preamble to the 1856 Police Regulations become peace officers, and are in an entirely introduced following the Eureka Stockade new situation: they are by law entrusted with emphasised to members of the Police Force, certain powers, which they must exercise that they belonged to a civil and not a military with great caution and prudence, and it is Force.8 most essential that they keep under complete control their private feelings. However, in 1870 the British Government withdrew the Imperial troops from Victoria. The Government Every member of the Force should bear attempted to fill the void by utilizing police, firstly, constantly in mind, how essential it is to by making recruitment to the police force cultivate a proper regard for its honour and conditional on service in the newly established respectability, and should be governed by artillery corps and, secondly, by preparing police the principle, that the more they can raise as a standing army for use in case of war. those either above or below them in public estimation, the more they elevate their own Police standards and efficiency were undoubtedly official position, and with it, the general affected by these arrangements and contributed character of the Force.” to the later so-called “Kelly Outbreak”. However,
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a more immediate outcome of the undesirable In 1881 a Royal Commission was formed to duality of role imposed on police was a distrust determine the circumstances of the Ned Kelly of the police and their potential to abuse military outbreak as well as to enquire into the action, power. efficiency and the state and organisation of the Police Force. The findings of the Royal Commission 1873 – Clunes Riot resulted in police being censured or dismissed for errors of judgment, indolence and To some extent, fears of police abuse of their incompetence as well as cowardice. Although powers were justified by Standish’s personal early interim reports of the Commission severely decision in December 1873 to use sixteen armed criticised individual police, overall, the Longmore police to escort five coaches of Chinese miners Commission made (as had earlier commissions from Ballarat to Clunes to break a fourteen-week and enquiries) many valuable recommendations. old miners’ strike. The police and Chinese miners However, the Commission reinforced the desirability were met outside Clunes by two thousand of retaining the military model by noting, barricaded brickbat-throwing protesters. The police tried to breach the blockade with arms “The police are no doubt intended as a civil drawn but were assaulted along with many of force… but experience has demonstrated the Chinese, and retreated back to Ballarat the danger of so demilitarising the police as without any shots having been fired. to render them comparatively useless for other than patrol or beat duty.” 9 The Age damned police both for its role as a “standing army” and for taking sides for the first The Commission also recommended the scrapping time in an industrial dispute. The debacle fuelled of the Detective Branch which it described as a debate about the police role and police powers but “standing menace to the community”, primarily the argument was less about police accountability because of its institutionalised corruption on than fears of the high proportion of Irish born account of the uncontrolled use and abuse of police (82% compared to approximately 12% of informers, colloquially called “fiz-gigs”. all Victorian males) and their loyalty. A new Police As noted in the Ombudsman’s Interim Report on Regulation Act was enacted in 1874, which the CEJA Task Force in May 2003, inadequate required re-swearing of the oath. All 1,060 police informer management has created some of the were re-sworn during January 1874 when they most serious allegations this office and police were also required to state their place of birth, have dealt with over the years. A comprehensive previous occupation, religion and membership of review of informer management procedures as a any secret society. result of the CEJA allegations and investigation, resulted in the introduction of a totally revised 1881-1883 – The Longmore Royal Informer Management Policy in September 2003.10 Commission into the Kelly Outbreak One of the key changes of the revised policy is the introduction of an Informer Management Unit, The “Kelly outbreak” as it was known, culminated which is the central informer registry for Victoria in the siege at Glenrowan on 26 June 1880. Chief Police. Commissioner Standish was forced to resign as a result of police mishandling of the Kelly outbreak, which again brought into question the issue of 1882-1902– The Chomley Years policing methods, including the military model, Hussey Malone Chomley was the first Chief which saw the despatch of an artillery cannon to Commissioner appointed from within Victoria Glenrowan, police recruitment and training and Police but was, by all accounts, a mediocre police use of informers. performer. Despite a recommendation by the Commission, the Police Regulations were not
2003 ANNUAL REPORT 61 updated during his twenty year term because “it The simple wisdom of much of Barry’s advice, for was a big undertaking”. Similarly, he refused to example, in warning of the dangers of using prepare annual reports on the basis that they police as debt collectors, is a reminder that many involved expense and trouble. rank and file police were often far more attuned to the needs of the community they served than The Longmore Commission also recommended their superior officers and political masters. The the introduction of an examination system for serious depression and Maritime Strike in the promotion where members would be tested in 1890s were testing times for police. However, reading, dictation, report writing, mathematics police handling of a massive rally of forty thousand and the provisions of the Police Regulation and people in Flinders Park in the face of a proclamation Offences Acts. banning unlawful assemblies in public places, Typically, examinations for promotion were was complimented with statements such as “all introduced before any instructional classes were the working men who assembled at the great introduced, or any study materials issued. The meeting on Sunday regarded the police not as Police Regulations were not updated or codified. enemies but as brothers”.13 The first examination for promotion to the rank of sergeant was held on 10 January 1884. Not Another example of police taking steps to form surprisingly, the Board of Examiners observed that closer links to the community was the formation in most cases the answers to questions appeared of the Police Brass Band in 1891. to have been derived, not so much from study, but from experience acquired in the performance 1905 – The Cameron Royal Commission of general police duty. Teaching, as well as testing, Commissioner Chomley was replaced in 1902 was not a feature of the police education system by Thomas O’Callaghan. The Longmore Royal for many decades to come. Commission had not only severely censured It was this gap, which Senior Constable John Barry O’Callaghan’s exploits as a detective but he had of Sandhurst attempted to fill. In 1888 Barry, an also been reprimanded and suspended from duty Irish Catholic and former farmer with 24 years for his “disrespectful demeanour towards the experience in the Force, produced at his own Royal Commission.” expense, the Victorian Police Guide. Although the The catalyst for the Cameron Royal Commission idea of a police guide had been recommended was police agitation over the abolition of police by the Commission, the fact that Barry produced, at his own initiative, a comprehensive book of 226 pensions and raising of the retiring age to 65 which threatened a police strike and the establishment pages to give "a little advice on matters" 11, that experience had taught him "frequently perplexed of the beginnings of the Victoria Police Association. members of the force" 12 was not only inspirational The Commission paid particular attention to but a positive indictment of Chomley and allegations by police of illegal gambling by John successive Chief Commissioners who failed to Wren which resulted in the passing in 1906 of provide appropriate instructional material. the Lotteries Gaming and Betting Act which gave Following discussion of Barry's Guide in Parliament, police some control over illegal gambling. The the Force was eventually shamed into ordering Commission’s work was cut short by the denial four hundred copies and one was kept at each of additional funding by the Premier but it made police station. However, Barry never received any a number of practical recommendations for formal recognition for his efforts, retiring from the reform of police methods, such as the general Force in 1893, still a Senior Constable at Sandhurst. introduction of photographs for identification purposes and improved police training. O’Callaghan also encouraged fingerprint analysis and wrote a Police Code himself.
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1913-1919 – The Sainsbury Years Chief Commissioner Nicholson’s autocratic –Recognition of Policing as a Profession management style.
Alfred George Sainsbury was a career Victorian Nicholson’s successor, Thomas Blamey, a highly policeman, who responded to dramatic change regarded military figure, was appointed in 1925. in technology and social developments rather Almost immediately he was embroiled in than introduced policing reforms. Nevertheless, controversy over the production of his police as noted by Haldane14, it was during his term in badge by an unidentified male to police raiding 1917, that the Police Association was formed a brothel. He was also accused of creating a and the first two policewomen were appointed. potential conflict of interest in accepting monies from the Commonwealth Bank and an individual Overseas, police reformers of this era highlighted to establish a Police Provident Fund to assist the need to move once and for all from a members, particularly junior Constables, whose reactive military model of policing to a professional wages had fallen below the basic wage since pro-active managerial style of management. The the police strike. Detroit Police Force for example, was in the vanguard of managerial police reforms which we Blamey accomplished much in the early years of would today regard as essential elements of police his tenure but there were also serious allegations accountability, for example, the ability to measure of corruption. It was Blamey too, who in 1930, results. was responsible for having the Police Association declared illegal.
1920s-1950s – Police Accountability Many of Blamey’s decisions, particularly his – An Occasional Issue personal dismissal of allegations of corruption against police (thirty in 1933) raise clear concerns The hallmark of accountability is professionalism, about the lack of accountability of the era. These yet for much of the twentieth century, whilst the concerns are reinforced by the observation made community expected a modern professional police by Haldane, and to which I can personally attest service and government rhetoric emphasised the from working in the Chief Secretary’s Office in the importance of policing in a democratic society, early 1970s, that the destruction of so many police pay, conditions and training were woefully sensitive files is virtually unique to the Blamey era.15 inadequate. Blamey was forced to resign in 1936 following It is, therefore, hardly surprising that the issue the Macindoe Royal Commission which found of “police accountability” was generally only that Blamey had attempted to cover-up the true considered an issue when policing was seen to circumstances in which Superintendent John have gone bad. There was little questioning of the Brophy had been shot and wounded in Royal Park root causes of problems, let alone longer-term in the company of two women in a chauffeur- solutions. driven car. Interestingly, the comment is made of The Police Strike of 1923 resulted essentially from Blamey’s resignation in the 1980 official police poor police pay conditions and pensions, but was history Police in Victoria 1836-1980, “his only precipitated by Chief Commissioner Nicholson’s crime being a desire to preserve the reputation 16 appointment of “special supervisors” (termed of his Force.” “spooks” by police) to monitor the activities of beat Concurrently with the hearings of the Royal police in the city and inner suburbs. Commission, Sir Frederick Mann, Chief Justice General Sir John Monash was appointed in 1924 of the Victorian Supreme Court also denounced as a Royal Commission to enquire into conditions the police practice of “the third degree” to extract in the Force and the causes of the strike. The confessions. Royal Commission, amongst other things, criticized
2003 ANNUAL REPORT 63 Chief Commissioner Alexander Duncan, formerly The introduction of this purely internal complaints head of Scotland Yard’s famous Flying Squad, was handling mechanism was in large part a response recruited to examine and report on the criminal to the increasingly violent, bloody and large scale investigation practices and procedures of the confrontations between police and protesters Victoria Police Force which led to such abuses following the introduction of the National Service and (interestingly in terms of current debate) the Bill and Australia’s official commitment to the war number of cases of police being successfully sued in 1964 and the further commitment of Australian for damages. troops (including conscripted national servicemen) to Vietnam. However, it was also a response to Duncan was subsequently offered and accepted increasing calls for a Royal Commission to inquire the position of Chief Commissioner. The Second into serious allegations of police corruption and World War restricted Duncan’s ability to implement malpractice, which had begun to emerge in the many reforms. However, he did encourage (with mid 1960s. the full support of the government and the Police Association), police to become involved in youth leadership activities. 1969-1971 – Increasing Disquiet
Following the war, the Labor Government of John The years 1969-1971 were particularly troubled Cain Senior set about remedying many of the pre- times for Victoria Police. In addition to the anti- and post-war problems which beset the Force. Vietnam demonstrations and industrial disputes involving poor pay and resources, there were a The introduction in 1946 of an independent Police number of incidents and scandals, which were Discipline Board “to provide for inquiries into investigated internally by police. police misconduct” was a small pointer to the future importance of the issue of police These cases led many to question the adequacy accountability. The introduction in 1945-46 of an of a system based solely on “police investigating official police Badge incorporating the service police” notwithstanding that the internal number of the wearer was another small step investigations had resulted in the laying of serious towards accountability which again has been an charges, for example: issue in recent times with the removal of identifying • In 1969 the driver of a police divisional van was name tags by police during the World Economic charged with culpable driving as a result of the Forum demonstrations in September 2000. death of Mrs Inez Corry. The divisional van had collided with the vehicle in which Mrs Corry was 1965 – Police Internal Investigation of a passenger at the intersection of Warrigal and Complaints Dandenong Roads, Oakleigh. • In 1969 Dr Bertram Wainer made serious In 1965, a Chief Superintendent reporting directly allegations of police corruption in relation to to the Deputy Commissioner of Police was illegal abortions. A number of persons who had appointed to supervise the investigation of made affidavits refused to co-operate with the complaints against police. The investigations internal police investigation. This forced the themselves were conducted by commissioned government to appoint an independent criminal officers from within the policing district in which enquiry in January 1970. Mr William Kaye QC’s the complaint arose. The local district commander subsequent board of enquiry established the had responsibility for supervising the investigations allegations against four serving and retired conducted by his officers. police, three of whom were convicted in 1971. The only viable mechanism of review for • In September 1970 an internal police complainants dissatisfied with the outcome of investigation was fiercely critical of police the internal police investigation in those days handling of a protest march from the Northland was to approach the Chief Secretary. Shopping Centre to the LaTrobe University
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which subsequently became known as the result of any investigation of any complaint Waterdale Road Riot. against members of the police force which he • After an internal police investigation, two police has made; and to submit a report to the Chief were suspended and charged with manslaughter Secretary stating whether he was satisfied following the death of Neil Collingburn, who or not that the complaints had been properly sustained injuries after being taken into police dealt with and whether proper action has, in custody for questioning about a set of golf clubs his view been taken.”17 which were later established to be his own I commenced my public service career in the property. Chief Secretary’s Office on 16 August 1971 and During 1970, two separate but complementary one of my first tasks was to arrange for the inquiries were conducted in relation to the condition, delivery and return by rail, of boxes of police morale and image of the Victoria Police Force complaint files to Mr O’Connell. Later, I was and its members. The first was conducted by responsible for following up with police any Paul Wilson and John Weston, senior members concerns Mr O’Connell may have had and for of the Department of Government of the obtaining detailed statements from dissatisfied University of Queensland, at the behest of the complainants. This was the start of my very Police Association. Its findings of the policeman’s long career with complaints against police. lot in 1970 were published in a book entitled Again, in order to preserve something of the “The Policeman’s Position Today and Tomorrow”. otherwise scant detail of police accountability The second enquiry was conducted by Colonel arrangements in those early days, I provide the Sir Eric St Johnston, formerly Chief Inspector of following extracts from a letter I drafted for the Constabulary for England and Wales who made Under Secretary’s signature in May 1973 which some 180 recommendations for restructuring sets out some aspects of Mr O’Connell’s role for Victoria Police in his report to the government the system for handling complaints in general. on 22 February 1971. “Under Police Standing Orders a “Register of Complaints Against Members of the Force” is 1971 – External Scrutiny kept and an annual return of complaints giving a summary of complaints received in advising Sir John Dillon, then Under Secretary of the the numbers substantiated, withdrawn or not Chief Secretary’s Office (and later Victoria’s first substantiated must be submitted by the Ombudsman) instituted a system of selected Officer in Charge of each District to the Chief audits and review of complaint files as a result Commissioner of Police. As well as assuring of public concerns about police arising from the himself of these complaints have been handled Wainer and other serious allegations listed above properly Mr O’Connell has also conducted between 1969-1971. many other investigations of complaints.
However, St Johnston recognised the desirability Mr O’Connell is empowered to require answers of a formal system of external scrutiny of internal to his questions from members of the police police complaint investigations. Consequently, force and has access to relevant police files and Mr A E O’Connell, former Stipendiary Magistrate, records. As an investigator and not a law was appointed as “Investigator of Complaints” enforcement officer Mr O’Connell does not have against members of the Victoria Police Force by similar powers over other individuals but he the Chief Secretary on 16 September 1971 to: can and does seek interviews with witnesses.
“a. Examine files relating to complaints by Mr O’Connell’s main task is to make reports members of the Police Force; and and recommendations to the Chief Secretary. b. Investigate any complaints by a member of These reports are not made public but are the public who might be dissatisfied with the used by the Minister to reply to allegations
2003 ANNUAL REPORT 65 against police. Acting upon advice from Mr Mr O’Connell resigned on 6 June 1974 and O’Connell, the Minister indicates what action Dr Perry was appointed on 11 June 1974 as if any, is to be taken against the members an investigation officer. concerned. Because police internal A review function of sorts continued to be investigations and Mr O’Connell’s reviews are maintained by another retired Stipendiary usually of a very personal nature, the people Magistrate. However, the efficacy of these involved often wish to remain anonymous and reviews can perhaps best be judged by the it is felt that if these reports were to be made following story, which I relate with some public there would be some reluctance by many personal embarrassment. sections of the community to make complaints against police. You will also appreciate that in As earlier indicated, one of my roles in the Chief the interests of justice, publicity before the Secretary’s office was to liaise between police proper hearing of the case must be kept to a and the retired reviewing Magistrate. In the mid minimum where legal action is necessary or 1970s, I realised that we had not received any recommended. completed review files for some time. On telephoning the ex-Stipendiary Magistrate’s home, Members of the public normally make I was told by his widow that he had died some complaints against police in the first instance to time previously and that she would be glad if we the Chief Secretary or the Chief Commissioner would stop sending any more and come and get of Police. If the individual concerned is rid of those she had stacked in her lounge room! dissatisfied with the result of the investigation Regular review of police complaint files was and expresses his concern to the Minister or discontinued until the Ombudsman agreed to Chief Commissioner his complaint may be undertake the role in 1980. referred to Mr O’Connell for an independent enquiry. Through Mr O’Connell’s investigations the Minister can take action to ensure that March 1975 – The Beach Enquiry police integrity is maintained at the highest On 18 March 1975, Mr Barry Beach QC was possible level.” appointed to sit as a one man board of enquiry into fresh allegations of corruption made by Dr 1973 – Appointment of the first Ombudsman Bertram Wainer which had been assessed and found to have merit by former South Australian The Ombudsman Act 1973 came into operation lawyer Cairns Villenueve-Smith QC. on 30 October 1973. The Act applied to police in the same way that it applied to other government At the end of his enquiry lasting some 15 months, agencies within the Ombudsman’s jurisdiction. Beach made adverse findings against 55 members The Ombudsman did not have a review function of the Police Force (32 of whom were charged over police complaint investigation files as he but none convicted). However, he also made a does now under the Police Regulation Act 1958. number of other extensive recommendations to The role of the Ombudsman in relation to police reform police practice procedures including the complaints was effectively re-active and the office investigation of complaints. was, as it still is in its general jurisdiction, an “office of last resort”. August 1975 – Police Bureau of Internal Mr A E O’Connell was “loaned” to the Ombudsman Investigations (B11) “for the specific purpose of investigating complaints The Police Bureau of Internal Investigations was made by members of the public who asserted formed on 1 August 1975 in response to public that complaints made by them to the police, concerns about the serious allegations aired concerning the police, had not been sufficiently during the course of the Beach Enquiry. I recall investigated.”18 being told that the first such police internal
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investigations unit based in Scotland Yard, was which in 1979 became the Ministry for Police referred to as A10 after its room number. Naturally, and Emergency Services. the Victorian Bureau, being the second such unit, The Committee received a number of written had to be dubbed, B11! submissions as to how police complaints should All complaints received regarding police were be handled. Some of these are worth noting: reported to and recorded at the Bureau. Its • Victoria Police favoured retention of internal function was to control and supervise the investigation via the Bureau of Internal investigation of all complaints made against Investigations but with expanded resources police. A Chief Superintendent headed the and appointment of a Commander as Officer Bureau made up entirely of police personnel. in Charge. Victoria Police also recommended All investigations required a recommendation to the improved recording of complaint statistics be made to a Deputy Commissioner of Police to identify patterns of complaint and the who would then decide on the appropriate action inclusion of a summary of complaints in the to be taken. Victoria Police Annual Report.19 • The Police Association generally supported the 1975 – Australian Law Reform Commission Victoria Police view that the Bureau of Internal – Internal Investigation/External Oversight Investigation should investigate most police In 1975 the then newly appointed Australian Law complaints. However, the Association also Reform Commission (ALRC) was given as its first suggested the appointment of a specialist 20 reference, “Complaints against Police”. The former Police Ombudsman. Victorian Premier, John Cain, was a member of • The Law Institute of Victoria advocated the the ALRC which recommended, in relation to the appointment of non-police investigators Australian Federal Police, the establishment of independent under the control of an a system very similar to that which we have in Ombudsman to investigate police. It submitted Victoria today. That system is based on the that police investigating police "will always be principle of combining the practical advantages tainted in the public eye by prejudice or favour, of having most primary investigations conducted and justice will only be seen to be done if the by experienced police investigators with investigators are outside Victoria Police control."21 accountability provided by an external oversight • The Victorian Council for Civil Liberties took body such as the Ombudsman. This model is another view. It advocated a system where sometimes referred to as the Manitoba (where there was a combination of police and citizens' it was first used) or the IACOLE (International involvement where neither the police nor the Association for Civilian Oversight of Law citizens group were solely responsible for Enforcement Agencies) model. police complaints. The Council recommended that B11 should continue to investigate complaints, but that the Ombudsman 1980 – The Norris Committee’s Report on independent of the police would decide what the Handling of Police Complaints action to take regarding the complaint. It also Chapter 8 of Volume 1 of the 1976 Beach Inquiry suggested that the Ombudsman have the Report contained a number of recommendations power to order re-investigation of matters or concerning police complaints. In turn, a committee to investigate matters on his own account. chaired by a former Judge of the Supreme Court, The Council very perceptively observed that the J G Norris, QC, was subsequently appointed to proper working of any system depended examine and report on these recommendations. The committee included the then Chief "on the competence, integrity and bona fides Commissioner Reg Jackson and Bob King, then of the people involved - pointing out that a Under Secretary of the Chief Secretary’s office, system defective in an analytical sense may
2003 ANNUAL REPORT 67 enjoy public confidence because of its 1980-1984 – The Accountability Mixed Bag completely fair administration, while an ideal During the early 1980s, there was little impetus system may be improperly administered." 22 for change to the system of police accountability The Norris Committee also reviewed overseas in Victoria as policing was seen to be relatively procedures for handling police complaints and corruption free and under the firm control of the appears, in the end, to have taken particular highly regarded Chief Commissioner Mick Miller. notice of recommendations such as that of a Royal Commission on the Police in the United In other states, corruption scandals were, in the Kingdom of 1962, which thought that a body early 1980s, simply gathering clouds on the independent of the police should not investigate horizon. The following jocular responses to the police for two reasons: firstly, because the police need for police accountability mechanisms understood best how to determine a false from a discussed at early Australian Police Ministers credible complaint; and secondly, because removal Council (APMC) meetings were perhaps more of responsibility for investigating members of the indicative of the attitude of certain officials to police police force would erode the Chief Constable’s accountability than was appreciated at the time: leadership and weaken the force. “We’ve got a wonderful system for determining The Norris Committee also noted that a United complaints in New South Wales – if you don’t States Report from the National Advisory have a broken arm or leg to prove it, it didn’t Commission on Criminal Justice Standards and happen. If you have, you must have fallen Codes in 1973 had recommended in favour of down the stairs.” the Police Chief Executive carrying out complaint “We don’t have any complaints against police investigations rather than any civilian review boards in Queensland do we Terry?” “No Sir! It’s and that such finding had been endorsed by a always beautiful one day, perfect the next – Commission of Enquiry into the Royal Canadian everybody’s happy with the police in Mounted Police in 1976.23 Queensland”. The Norris Committee’s report essentially proposed With the election in Victoria of the Cain Labor that B11 with some additional resources should Government in 1982, there were moves to continue to investigate complaints but that the implement long-standing Labor Party policy to review function which had been undertaken by remove from police the investigation of all police a retired Magistrate until around 1976, should be undertaken by the Ombudsman in addition to complaints. However, implementation of this policy his statutory function of investigating complaints fell foul of the real logistical difficulties of establishing made by persons dissatisfied with the handling a large, totally independent investigation body. of their complaints. There was also a view that in the absence of any significant allegations of corruption or serious complaints, the existing system of investigation 1980 – Ombudsman File Reviews by B11, file review by and ultimate recourse to In 1980 it was agreed that the Ombudsman would the Ombudsman, was sufficient. review all B11 files including those, which had not been reviewed since the passing of the retired 1984 – Police Internal Investigations Magistrate in about 1976. The latter was soon Department (IID) seen as an exercise in futility and the Ombudsman commenced reviewing those files created from In 1984, the Internal Investigations Bureau (B11) 1 January 1980. The Ombudsman’s hybrid reviews was enlarged and reformed as the Internal by agreement combined with his statutory Investigations Department (IID) under the direct investigation role remained in place until the control of an Assistant Commissioner. formation of the Police Complaints Authority in Superintendent Kelvin Glare, one of the Police June 1986. Force’s first trained lawyers and subsequently
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Chief Commissioner, was appointed to the newly Ontario and varies from other systems elsewhere created position. in Australia and overseas.
It is clear from my own knowledge and from the My concern is that the proliferation of Ombudsman’s annual reports of the time that Ombudsman like authorities could allow there were significant problems with the operation inconsistencies to develop in the handling of of the system. For example, in his Annual Report complaints and different standards to develop for 1984/1985, the then Ombudsman, Norman in relation to the evaluation of administrative Geschke, bemoaned the fact that instead of practices, especially in employment or purely amending the Ombudsman Act to remedy a administrative actions.” number of apparent problems and anomalies, Parliament had legislated to establish the Police 1986-1988 – The PCA Experience Complaints Authority to take over the Ombudsman’s role in relation to police complaints24: In June 1986, by which time I was Executive Officer (Administration) and Registrar of Private “On a number of occasions the investigation of Agents in the Ministry for Police and Emergency complaints against police has not been easy Services, I was called in by Bob King, Permanent as my jurisdiction has been challenged by the Head of the Ministry and told I was to be seconded Chief Commissioner of Police, and at times I for six months to assist in the establishment of have been effectively prevented from pursuing the Police Complaints Authority (PCA). “It’ll be my enquiries in the way I would have wished: good for your career” he told me, and it was – it has often been claimed that the member of the start of a new one! police I wish to question was exercising common law powers and not operating under direction of The single person Authority was established the Chief Commissioner plus the action being under the Police Regulation Act from July 1986. investigated by me was not an administrative The Authority was Hugh Selby, former Sydney action, or, alternatively, that my investigation barrister, trade union official, social worker and related to matters which were the proper police complaints (Australian Federal Police) exercise of discretion by the police constable in investigator with the Commonwealth Ombudsman’s an operational, as opposed to an administrative office in Canberra. Ian Freckelton, a senior lawyer matter. … Because of the unsatisfactory from the Australian Law Reform Commission in situation as to the Ombudsman’s jurisdiction Sydney was the Authority’s principal investigator, in the investigation of police complaints, the supported for most of its short life by two Solicitor-General’s opinion was sought. There complaints officers, including myself, and two have been, since the Ombudsman Act was administrative assistants. proclaimed in 1973, five legal opinions as to The statutory framework, as it was then and is whether the Ombudsman has jurisdiction to still now, combines the practical advantages of investigate complaints against the police force, using police experience and resources to three believing so, two not. For this reason investigate most complaints with the accountability an amendment of the Ombudsman Act was advantage in having an independent civilian sought in August 1983 to clarify this as well authority oversighting those investigations whilst as to correct a number of other anomalies. at the same time having the power to take over those investigations or to conduct its own primary Instead of amending the Ombudsman Act, investigations in prescribed circumstances. Parliament legislated to establish a Police Complaints Authority which will take over the The PCA’s primary role was to monitor and Ombudsman’s involvement with Police independently review the handling of complaints, complaints. The new procedure is similar to most of which were required to be handled that operating in South Australia, England and initially by police.
2003 ANNUAL REPORT 69 The PCA was required to investigate all complaints certainly more influence upon both administration against senior police members of the rank of and Government.” Assistant Police Commissioner, Deputy Police The pressures on, and expectations of, Commissioner or Chief Commissioner. The PCA Ombudsmen from both complainants and was also given the discretion to investigate respondent departments are enormous and the complaints which dealt with police practices and demise of the Police Complaints Authority after procedures. In addition, the PCA was given a only 22 months demonstrates that specialist discretion to investigate other complaints in which Ombudsman are inevitably at greater risk of Hugh Selby believed it was in the public interest creating an ‘us and them’ or, alternatively, an that he, rather than police, conduct the investigation. overly familiar and comfortable relationship with the Much has been written about the Authority’s agency which they are tasked with investigating. brief but turbulent two years. Even fifteen years However, the Authority experienced difficulties on, I find it difficult to offer a totally objective or from the beginning. Many of these arose from the satisfactory explanation for the Authority’s demise. Authority’s perception of its functions and role but, There are those, particularly police, who believe again, not entirely. On occasions, police dealings that Hugh Selby was solely the author of the with the Authority were outrageous, such as Authority’s downfall. Taunts to the Minister of “sack accepting substantial funds from the PCA’s me”, and media photographs of Selby posing in budget to set up a database, which could be used front of decorative flying pigs in the Authority’s by the PCA to monitor progress of investigations final days have undoubtedly contributed to that and then denying access to the system. belief. Hugh Selby wrote in his 1987 Annual Report In presenting his Final Report which had to be (Part 2) “At the PCA we see our primary function printed privately because the Government Printer as justifying and then improving the level of public refused to print it, Hugh Selby stated: “it has been confidence in our police force. We believe that decided by others that your servant is to be we can contribute to that public confidence by removed from office on the nonsense allegations assisting the police to improve the quality of police that my opinions are bizarre and that I have a practices and procedures. Such improvements will personality problem.” reduce the likelihood of complaints being made.”
Others blame the extreme reaction of certain Over time, police have accepted the pro-active elements of the Police Force to the notion of use of the complaints system by the Ombudsman. external oversight for the Authority’s demise. PCA writings also provide many other valuable Again, the actions of certain police, including insights into the purpose and aims of accountability many at senior level, to undermine the Authority, mechanisms. provide some basis for that explanation. However, the clear expectation of police, the It is clear that dissatisfied complainants also played Ombudsman, the Government and others at a role in the scrapping of the Authority and the the time was that the Authority (certainly in its transfer of the Authority’s functions to the Deputy formative phase) would be a reactive, case-based Ombudsman (Police Complaints). complaints review mechanism. Former Of course, Hugh Selby always argued that the Commonwealth Ombudsman, Professor function should never have been removed from Richardson in his October 1987 Review of the the Ombudsman observing in his 1986/1987 Investigation of Complaints by the Internal Annual Report: “One Ombudsman unit, rather than Investigation Department of the Victoria Police that plus a motley collection of lesser specialists, criticises the PCA’s case work as “peripheral offers cost savings, rotation of staff (which is rather than mainstream” and suggests “that in essential), a single focus for the community, and some respects the PCA has assumed a Ralph
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Nadar mantle for which there is no clear statutory Had it not been for the goodwill and co-operation base.” of the personalities involved, this arrangement could have proved a recipe for much disagreement. Many would argue that, had the Authority been The Police Regulation Act has since been more patient and used its review function to amended to give the Ombudsman responsibility establish its reputation, it would have survived. for both the Ombudsman and Police Regulation I doubt it. The fact that an Ombudsman of the Acts. existing standing and reputation as Sir John Dillon was faced with difficulties in establishing the The functions of the Deputy Ombudsman were position of Ombudsman is testimony to the skills, the same as those of the disbanded Police determination and time it takes to establish the Complaints Authority. However, unlike the Police credibility of accountability mechanisms for public Complaints Authority, which had conducted administration in general. Little wonder then that a audits of particular types of complaints, Dr Perry small specialist police Ombudsman like the PCA made arrangements to review each and every found it impossible to establish its credibility and police internal investigation. Those reviews a working relationship with police. It is a fact that occurred prior to any final decision being made the specialist Ombudsmen face an enormous on the conclusions drawn by the investigation task. and before the complainant and police members complained of were advised of any decision. The years following 1988 saw multiple police This, of course, did not prevent a complainant shootings, a number of significant investigations subsequently approaching the Deputy of alleged police misconduct and considerable Ombudsman if dissatisfied with the outcome of controversy over police powers and resources, the internal investigation. which the Ombudsman’s office was hard pressed to deal with. It was many years before police As had been identified by the PCA, the gave up attempting to shoot the new messenger legislation had certain deficiencies in respect on a regular basis. to the independence of the office. Two critical amendments were soon made to the legislation. The Authority was criticised for being long on The first one removed the requirement for the rhetoric and short on substance. Right or wrong, Deputy Ombudsman to obtain the permission of the Authority raised the level of debate about the Minister for Police and Emergency Services policing issues and provided a conceptual before he (the Deputy Ombudsman) was able to framework for police complaints handling which use his coercive powers under the Evidence Act, has stood the test of time. including the power to issue summons to persons to produce documents and give evidence. 1988 – Deputy Ombudsman (Police Complaints) The second critical change made was to provide protection to the Deputy Ombudsman and In May 1988, the position of Deputy Ombudsman Ombudsman staff from being compelled to give (Police Complaints) was created to replace the evidence or to produce documents by a court, disbanded Police Complaints Authority. Under the Police Discipline Tribunal or any other such body. new legislation, the Deputy Ombudsman (Police With this protection, the Deputy Ombudsman Complaints) was to be part of the Ombudsman's was able to give unequivocal assurances of office, but was a separate statutory entity. As confidentiality to persons who, without such an earlier noted, Dr Barry Perry was appointed as assurance, would not voluntarily provide crucial the Deputy Ombudsman. He had neither separate information. Another important amendment to staff nor budget and was subject, legislatively, to the legislation was the inclusion of an offence of the directions of the Ombudsman, Norman failure to obey the lawful instructions of the Deputy Geschke. Ombudsman.
2003 ANNUAL REPORT 71 1995 – Operation BART 1996-1997 – Strengthening the complaints system In March 1995, Constable Karl Konrad told Dr Perry that he had become aware in September1994 On 2 July 1996, Dr Perry, as Ombudsman, that police were receiving payments from shutter became responsible for performing the role of the services operators. After reporting a specific Deputy Ombudsman (Police Complaints) thereby incident to his Senior Sergeant at Moorabbin, consolidating and strengthening the handling of Constable Konrad suffered harassment, including complaints against police and government damage to his car, verbal abuse and release of his administration generally by providing a single and private telephone number to a mentally disturbed consistent complaints handling focus. person who had been involved in dealings with In September 1996 the then Chief Commissioner Moorabbin police. of Police, Neil Comrie, established the Ethical Operation BART, which was established to Standards Department (ESD) to replace the investigate these allegations, was one of the Internal Investigations Department (IID) and largest internal investigations ever conducted by provided it with a very broad charter. The functions the Victoria Police Force and took nearly three given to the new department were broadly: years to complete. The police Task Force consisted developing ethical standards for the Force and of approximately 40 members and was actively reinforcing those ethical standards by both oversighted and assisted by the Ombudsman’s proactive and reactive means. These means office, which employed a large number of casual included: investigation officers for that purpose. The • the investigation of allegations of serious investigation involved interviewing approximately unethical conduct; 800 members from over 50 police stations and, • the identification through various proactive in the course of the investigation, 3 tonnes of measures of potential unethical conduct; documents were seized. In addition, approximately • implementing appropriate educational strategies; 1,800 civilian witnesses were interviewed. • developing programs to encourage the As a result of the BART investigation, reporting of unethical conduct and the approximately 550 members were charged with protection of the interests of internal sources; disciplinary offences and one member was • administering the discipline system; and charged and convicted of criminal offences (on • oversighting the management of public incident the advice of the Office of Public Prosecutions, resolution. disciplinary offences were pursued rather than ESD was established with some 200 personnel, criminal ones). The investigation highlighted very compared to 70 in the old IID. poor management and supervision, in particular, by middle managers in the police districts. A In May 1997 Parliament amended the Police number of recommendations were made by the Regulation Act. The Act enabled Police members Ombudsman in two separate reports to Parliament for the first time to complain to the Ombudsman to address these failings. about serious misconduct of other members of the Force. Another significant change was to Unlike the response to many earlier require police to notify the Ombudsman not only recommendations by Boards of Enquiry and the of public complaints of serious misconduct, but like, Police Command responded immediately also internally generated investigations by police of and wholeheartedly to address the causes rather serious misconduct. This provision gave statutory than the symptoms identified by the BART investigation. Project Guardian was established in formality to a previous informal arrangement. February 1996 to examine issues of accountability and ethics in the Force, which led to the creation of Ethical Standards Department in September 1996.
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Reference Material BUILDING ON SOLID 1. Haldane, The People’s Force – A History of the FOUNDATIONS Victoria Police, Melbourne University Press, 1986. In his last three annual reports, Dr Perry identified 2. See, for example, Blackler, John in Violence and Police Culture, Melbourne University Press 2000, areas for improvement in the police complaints pages14-31. system and called for strengthening of the 3. Jefferson, The Case Against Paramilitary Policing, legislative framework underpinning the present Open University Press, Philadelphia, 1990. system. He has also written of the need for 4. Haldane page 24. additional resources to enable this office to conduct 5. ibid, page 39. more of its own investigations independently of 6. Haldane, page 51. police. 7. Until 1979, the minister responsible for police was titled the Chief Secretary. At the end of the reporting year, the Government’s 8. Police Regulations, 1856, page 25. examination of the recommendations contained in 9. Report of Royal Commission on the Victoria Police, the “Johnson Report” and the review of the Police Volume 2, 1883, page vii. Regulation Act 1958 had not been completed. 10. Ombudsman’s Interim Report on the CEJA Task The continuing deferral of a decision regarding Force Investigation of Allegations of Drug Related additional resources for my office, in conjunction Corruption, May 2001, page 10. 11. Haldane. with a number of high profile investigations (some 12. Haldane. arising from the new Whistleblowers Protection 13. Haldane, ibid page 118. Act 2001), has placed great demands on staff. 14. ibid page 146. As a result, some initiatives aimed at improving 15. Haldane, ibid, pages 209-210. the police complaints system have been delayed. 16. Victorian Police Management Services Bureau, Nonetheless, I am pleased to report that the Police in Victoria 1836-1980, Victoria Police Force, complaints system and police attitudes towards Melbourne, 1980, page 19. 17. Letter dated 2 May 1973 from Acting Under it have come a long way. This is demonstrated by Secretary to Mr K Cho, School of Business the fact that many of these initiatives to improve Studies, RMIT. police accountability have come from, or have 18. First Report of the Ombudsman, 30 June 1974. been endorsed by, police. For example, the 19. Report of the Committee appointed to examine outreach work of my Community Access and and advise in relation to the recommendations Youth Liaison Officer, which in the past would made in chapter 8 of volume 1 of the Report of the have been perceived by police as “touting for Board of Enquiry appointed for the purpose of complaints”, is now seen as a valuable means inquiring into and reporting upon certain allegations of capturing complaints and evidence which against members of the Victoria Police Force. may lead to improvements in policing and police Melbourne, Government Printer, 1979-80. (Norris) relationships with the communities served by page 10. police. 19. Norris Report, page 22. 20. Norris Report, page 23. The appointment of the Aboriginal Investigation 21. Norris Report, page 27. Officer to promote liaison and ensure that 22. Norris Report, page 27. Aboriginal communities have confidence in the 23. Norris Report pages 30-38. investigative process has also been positively 24. See, for example, pages 16-19 of 1985 received by police. Ombudsman Annual Report. The pro-active and multifaceted remedial approach to the handling of complaints articulated by the Police Complaints Authority, but rejected by many police in 1988, is effectively the basis on which the current system operates today.
2003 ANNUAL REPORT 73 The success of this approach is particularly well investigators (including a Detective Inspector) demonstrated in the reduced figures for assault from the Professional Practices Division. The ESD complaints over the last 10 years which had been officers demanded that the driver submit to a rising in the previous decade and rose again from preliminary breath test (PBT). The driver had been approximately 1,100 in 1993 to 1,800 in 1995. under observation by the ESD Surveillance Unit for several days, and for 17 hours immediately In 1996 the then newly created ESD in consultation preceding the interception. with the Ombudsman and the Victorian Institute of Forensic Medicine (VIFM), adopted a range of The driver was charged with refusing a PBT, assault complaint reduction strategies and however, after a three day hearing at the improvements in the gathering and assessment Melbourne Magistrates’ Court, the charge was of forensic medical evidence. dismissed. The magistrate commented that ESD members had sanitised their evidence and that There has been a steady and sustained decline he was left in some doubt as to whether the ESD in assault complaints ever since. In 2002/2003, surveillance tape had been tampered with. there were 324 complaints of assault by police – down from 488 in 2001/2002. This reduction has The two senior constables complained that: been a remarkable achievement in itself but • the driver was assaulted by an ESD investigator; improvements in evidence gathering and the • the driver was falsely charged with refusing a quality of investigations have also enabled more PBT; conclusive outcomes in many cases. • ESD members had committed perjury at the The last few years have also seen a large increase court hearing; and in the number of police charged with serious • an ESD investigator threatened the passenger criminal offences – a fact that will undoubtedly in court as the magistrate was handing down influence the history of police accountability in his decision. Victoria. During the extensive investigation I identified many anomalies, including:
Prosecution of a Victoria • numerous discrepancies between hand written Police member and typed copy of ESD’s Surveillance Report; • exclusion of one ESD surveillance member The first criminal prosecution of a member of from the Police Brief, and failure to provide his Victoria Police as a result of a complaint lodged name to the prosecutor, defence and my office under the Whistleblowers Protection Act 2001 during the initial investigation; was launched this year, following investigation by • critical and relevant observations omitted from my office. The police officer has been charged on the Surveillance Report and from the statements summons with one count of intentionally causing of some surveillance members who were not injury and one count of common law assault and called to give evidence at the court hearing; is currently suspended from duty pending the • conflicting evidence by the investigators and outcome of the court case. surveillance members during the court case; • lack of credible audio and video recording at Investigation into alleged and during the planned intercept; misconduct by members of ESD • lack of clear labelling of the videotapes; and • conflicting evidence given by the Detective During the year I completed a lengthy and complex Inspector and his line manager. investigation into an allegation of serious misconduct by members of the Ethical Standards As required under the provisions of the Police Department (ESD). Regulation Act 1958, the question of whether or not criminal proceedings should be taken against Two off-duty senior constables travelling in a any member of Victoria Police was referred to the private car were intercepted by three ESD Director of Public Prosecutions (DPP). The DPP
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advised: “I am not satisfied that there are sufficient in July 2001. The Interim Report also described prospects of conviction for charges to be laid. the subsequent establishment of the CEJA Task The question of disciplinary proceedings is a Force which has been responsible for significant matter for Victoria Police.” further arrests of police earlier this year. I expect to table the final CEJA report later next year, when Prior to the completion of my investigation, the current and future prosecutions are completed. ESD abolished the Professional Practices Division and the three investigators, who were subject of As further instances of corruption and the details the enquiry, were transferred from ESD. Three of the Task Force’s work are revealed in the courts out of the eight surveillance members were no and the media it is likely that the operation and longer at ESD. integrity of the current system may be questioned.
Although I concluded that the allegations could not be determined on the available evidence, a Ongoing management and number of matters of training, procedures and accountability unprofessional conduct were identified in the course of my investigation and I am pleased that History and commonsense suggest that a level of these have since been addressed by police. corruption among police must always be assumed to exist and that it is likely to be commensurate with the level of available opportunity. The price of Joint Task Force a relatively clean police force is eternal vigilance, As mentioned earlier in the Report, the Chief it is not simply a matter of discarding the “rotten Commissioner for Police and I have set up a joint apples”. While, in the short term, external bodies Ombudsman and Police Task Force to examine such as Royal Commissions, Boards of Enquiry matters relating to the police investigation into the or the like assist in eradication of specific areas circumstances surrounding the deaths of Jennifer of corruption, in the immediate to long term, the Tanner and Adele Bailey and related incidents. community must rely upon good management of the Force. Without good management, discerning This investigation is a very large and significant recruitment, effective training and constant undertaking. I have sought and obtained supervision, the problems dealt with by external provisional approval for additional funds for this bodies inevitably reappear in one form or another. investigation in the 2003/2004 financial year. Operation BART was a catalyst for a major shift The investigations referred to above, in my opinion, in police attitudes about ethics and demonstrate that the present legislative framework accountability. Task Force CEJA lays down fresh in Victoria is sufficiently flexible to allow adjustment challenges for police but also for the community. of the mix of investigatory and monitoring input The drug problem is a community problem, but by the Ombudsman in relation to individual often responsibility for the problem is perceived complaints as well as in respect to particular to belong to the police alone. Whilst corrupt classes of complaints. conduct is to be utterly deplored, any realistic anti-corruption measures must take account of CEJA Task Force the fact that police can become cynical about the value of enforcing drug laws and develop a Another major ongoing undertaking for police certain empathy with those in the drug trade with and my office is the CEJA Task Force’s whom they are constantly mixing. On the other investigation of allegations of drug related hand, “war on drugs” rhetoric can lead to corruption. The Interim Report, which I tabled incentives to “noble cause corruption” – getting in Parliament in May 2003, referred to Operation arrests and convictions at all costs or using HEMI, an ESD Corruption Investigation Division high-risk “strategies”. investigation which resulted in the arrest of a serving member and a former member of the Police who work in this high-risk environment now disbanded Drug Squad for drug trafficking need support in the form of good management,
2003 ANNUAL REPORT 75 equipment, workable laws and procedures and Dr Perry has argued that the most effective role, community co-operation, understanding and which external bodies can play in the longer term, assistance. At the same time, police need to is to keep pressure on the police command to recognise the risks (including that of ethical manage its Force in a way in which ethical and compromise of themselves and colleagues) of professional standards are maintained and that environment. Acceptance of higher levels improved. of accountability will reduce those risks.
STATISTICS
2002/03 2001/02 2000/01 1999/00 1998/99 1. Cases put 2,296 2,201 2,065 2,004 1,943 (a) directly to police 39.7% 42.5% 44.6% 42.9% 48.7% (b) to the Ombudsman 60.3% 57.5% 55.3% 57.1% 51.3% 2. Investigations completed (a) cases 1,176 1,335 1,209 958 1,118 (b) specific complaints 1,524 1,742 1,575 1,866 2,437 3. Of completed investigations, where, at the instigation of the Ombudsman (a) there was further investigation by the Ombudsman 1.5% 2.2% 3.7% 3% 1.7% (b) there was further police investigation 0.3% 2.7% 4% 2.6% 3.8% (c) the police took other further action 1.3% 4.4% 8.1% 8.3% 3.8% (d) other queries were raised with police 1.1% 3.9% 7.4% 11.9% 8.9% 4. Of the completed cases put to the Ombudsman, those where there had been a prior police complaint investigation 7.1% 7.0% 5.7% 6.6% 5.9% 5. Following treatment of specific complaints (a) withdrawn, clarified or conciliated 31.2% 29.1% 25.9% 23.7% 45.5% (b) not established - on the facts 35.8% 42.5% 46.6% 41.5% 25.9% - the facts could not be determined 11.3% 14% 11.8% 18.2% 18.1% (c) established 21.7% 14.4% 15.5% 16.6% 10.5% (d) net substantiation rate 31.5% 20.3% 21% 21.7% 19.2% 6. Complaints put to the Ombudsman resolved quickly/ less formally than by investigation or not requiring action 1,140 973 893 950 930 7. Cases on hand as at the end of the accounting year 276 287 324 362 290
76 THE OMBUDSMAN VICTORIA XX CONFLICT OF INTEREST XX xx
This ethical dilemma goes to the essence of the In public office the term “conflict of interest” refers expectation that public officials should perform to circumstances where a public official could be their duties in a fair and unbiased way, however, influenced, or could be reasonably perceived to it is often misinterpreted and mishandled. It refers be influenced, by a private interest. This could to any situation in which someone might reasonably involve pecuniary interests (financial interests or be perceived to be unable to act impartially or to other material benefits or costs) or non-pecuniary be able to gain a benefit, through holding over- interests. It could involve the interests of the public lapping positions of responsibility. The key issue official, a member of the public official’s immediate in the notion of conflict of interest is the matter of family, or, where these interests are known, perception. In other words, for a conflict of interest relatives, business partners, associates or friends. to arise it is not necessary that a person should There is increasing recognition that such conflict, have done anything improper: it is sufficient that if inadequately managed, can result in corruption. third parties might reasonably question the ability It is, therefore, imperative that public officials give of that person to act impartially or reasonably ask careful consideration to the notion of conflict of whether that person could have gained a interest in the context of their duties. If public personal benefit. officials believe that they have a conflict of interest, In my experience, there is a tendency to they should advise their supervisors and withdraw, inappropriately describe a conflict of interest as unless both parties agree after consideration that “potential” or “actual”. It is a common no conflict exists. To avoid criticism, it is not misconception that, as long as the conflict is only sufficient for public officials to simply believe or “potential”, it can be tolerated and only when a assert that they will not allow themselves to be person is shown to have gained a benefit, an influenced in any way by their private interest. “actual” conflict arises. The use of these terms in It is also essential, in my view, for all public bodies any definition of conflict of interest is, in my view, to have effective processes for identifying risk and misleading and should be avoided. dealing with conflicts of interest as they are In a July 2003 Law Institute Journal article, Adrian declared or become apparent. Each public body Evans, associate professor in law at Monash should have a clearly stated policy on the subject. University, quoted Justice P D Cummins as saying: The proper objective of such policy is not the prohibition of all private-capacity interests on the “What bedevils the prohibition of a conflict of part of public officials, rather the objective is to interest is a confusion of purposes. The purpose maintain the integrity of public administration, of prohibition of conflict of interest is not to recognising that an unresolved conflict of interest remedy an offence or a failure. The purpose of may result in an abuse of public office. In addition, prohibition of conflict of interest is to prevent public bodies should maintain a Conflict of Interest an offence or a failure. Prohibition of conflict Register in which such matters could be operates upstream of offence or failure. It is appropriately identified and the response of preventative. It is prophylactic. Thus it is no management recorded. answer to breach of conflict to say that in fact no harm occurred…” The following case illustrates how my office looks at internal complaint handling within agencies
2003 ANNUAL REPORT 77 and how internal procedures can be strengthened From my examination of the file it was unclear by this process. It also raises the issue of conflict whether the issue of conflict of interest had been of interest. addressed by the VPB, although I noted that in correspondence to the VPB the veterinarian had Veterinary Practitioners Board stated that his voluntary position on the board of the RSPCA had no relevance or bearing on his In the course of my enquiries into a complaint conduct as a veterinarian and that his professional concerning the actions of the Veterinary judgment was not influenced in any way. Practitioners Board (VPB), I noted that the I queried whether the issue of conflict of interest complainant had alleged to the VPB that the had been considered by the VPB and whether it veterinarian who was the subject of the complaint, had issued any guidelines on this subject. The by virtue of his position on the board of VPB advised that it would bring the matter of management of the Royal Society for the conflict of interest to the attention of the veterinarian. Prevention of Cruelty to Animals (“RSPCA”), had The VPB also proposed issuing a guideline on a conflict of interest when he attended at the conflict of interest. It is my view that this guideline complainant’s home, at the request of an RSPCA should explain what is a conflict of interest and inspector bearing prosecutorial authority, to that the key issue in the notion of conflict of interest examine the complainant’s dog. is the matter of perception. In other words, for a The complainant advised the VPB that the conflict of interest to arise, it is not necessary that veterinarian had provided a report to the RSPCA a person should have done anything improper: it after inspecting the dog, and that the RSPCA is sufficient that third parties might reasonably had subsequently brought a successful question the ability of that person to act impartially. prosecution against him, the veterinarian giving The VPB also stated that the RSPCA had an evidence for the RSPCA at court. The complainant obligation to consider the potential for conflict of stated that he was not made aware of the interest when seeking to engage a veterinarian to veterinarian’s role at the RSPCA and would not carry out inspection reports on its behalf. Neither have consented to the examination if he had the VPB nor my office has any jurisdiction over been aware of this fact. the RSPCA. It seemed to me there was a conflict of interest and the veterinarian’s ability to provide an The Receipt of Gifts or Benefits independent opinion on the condition of the dog was open to question when he was an office During an enquiry into a whistleblower’s allegations, bearer of the body seeking the independent report. it became apparent to me that some persons I considered that the veterinarian would have been employed in government service received and wise to not involve himself in the examination. At accepted invitations to attend lunches, dinners, the very least, I considered that the complainant sporting events, golf days, concerts and other like should have been advised of the relevant facts, functions. The invitations were extended on behalf so that he could have objected, if he wished to of organisations within the private sector that had do so, to the veterinarian’s examination of his dog. direct dealings with the government body and by A further matter impacting on the issue of conflict organisations that were potential suppliers of goods of interest was the fact that another veterinarian or services to the body at some time in the from the same practice had previously examined future. In some instances the invitations included the dog and recommended euthanasia, although the spouse/partner of the invitee. the veterinarian complained against asserted that Section 8 (1) of the Public Sector Management he was unaware of this at the time he examined and Employment Act 1998 provides that: the dog.
78 THE OMBUDSMAN VICTORIA CONFLICT OF INTEREST
“Public sector employees must in the course of your family. The general principle to be their employment: followed is that you should not seek or accept favours or gifts from anyone who (a) act impartially; and could benefit by influencing you. (b) act with integrity including avoiding any real or apparent conflicts of interest; and 39. Immediately report to your chief executive (c) accept accountability for results; and officer any circumstances where an offer of a (d) provide responsive service.” benefit or gift is made, regardless of whether it is accepted or not, if you feel that such The same Act creates the position of circumstances involve an attempt to induce Commissioner for Public Employment, one of favoured treatment. whose functions is to prepare and publish a code of conduct for the public sector. The Code 41. Organisations vary in their policies on of Conduct for the Victorian public sector accepting gifts and benefits depending on outlines the standard of behaviour expected of the nature of their business. It is expected, public sector employees. It is designed to help however, that token gifts in the nature of employees understand their responsibilities and souvenirs, mementos or symbolic items of obligations, and to provide guidance if they are low material value may be accepted in faced with an ethical dilemma or conflict of circumstances approved by your chief interest in their work. The Foreword to the Code executive officer. of Conduct states that: In my view, invitations to lunches, dinners and “Public sector organisations may expand on various entertainment events carry more than a this Code by developing standards of conduct mere ‘token value’. Furthermore, there may well relevant to their own special circumstances.” be taxation implications for both the person attending the event in response to an invitation The Code of Conduct makes it clear that it and the person’s employer, if the employee cannot cover every situation. It encourages claimed that he or she attended as part of their employees who may be unsure of the appropriate normal duties. action to take in a particular situation to discuss the matter with their colleagues, supervisor or In my opinion, public sector departments and another senior officer. The Code of Conduct also agencies need to establish clear policies and advises employees to ask for a copy of any related procedures to ensure absolute transparency guidelines their department may have issued on whenever an employee is offered or accepts a the matter. gift or benefit. The New South Wales Independent Commission Against Corruption (ICAC) publication I am aware that, during the period covered by this titled ‘Gifts, Benefits or Just Plain Bribes? – report, the Commissioner for Public Employment Guidelines for Public Sector Agencies and was reviewing the Code of Conduct and an Officials’ (published in 1999 and available at updated document has since been published. www.icac.nsw.gov.au) highlights the ethical issues At the time of my enquiry into the whistleblower’s public officials should take into account in deciding allegations, the relevant part of the Code of whether to accept a gift or benefit, and provides Conduct provided the following guidance in advice to assist agencies in developing and relation to gifts and favours: implementing relevant policies. The following 38. You should not seek or accept favours or paragraphs, extracted from this publication, are gifts for services performed in connection worthy of repetition: with your official duties. Included in this In a business context, gifts are rarely offered to category are gifts in kind, such as free an individual for purely charitable or hospitable accommodation or travel or entertainment reasons. It may be the case if the gift or benefit vouchers whether for you or members of
2003 ANNUAL REPORT 79 is of little or no commercial value, such as a that may compromise the government corporate memento or marketing trinket. employee’s honesty and impartiality. In However, in cases where the gift or benefit has recognition of this, many government more than a nominal value, it is possible that it organisations have introduced policies and was offered to create a sense of obligation and procedures to assist their employees know even an expectation that something will be how to act appropriately if they are offered a given in return. “There’s no such thing as a gift or benefit. free lunch”, as the saying goes. Organisations need to have policies and Feelings of obligation can arise with the procedures in place to deal with gifts and acceptance of a free meal, tickets to a sporting benefits and also need to promote their policies event or discounts on commercial purchases. and procedures to their staff and clients. A Once such a gift is accepted, a public official further step in ensuring that organisations are can be compromised. If the giver later requests seen to deal effectively with offers or receipt of favourable treatment, it can be difficult to gifts and benefits is to establish a gift register refuse. The giver may even threaten to allege and ensure that all staff (and where necessary you solicited the gift in the first place. the community and clients as well) are fully aware of it. Another ICAC document titled ‘Profiling the NSW Public Sector: Functions, Risks and Corruption The following comments are also relevant: Resistance Strategies’, published in February A gift register is a relatively straightforward tool 2002, contains a section specifically dealing with that can reveal offers of gifts and benefits and this very issue: can remove any associated suspicion arising It is not uncommon for public officials to be from these offers. A gift register also provides given or offered gifts or benefits in the course a way of tracking who is offering gifts or benefits of conducting their duties. Gifts or benefits can to what type of positions and under what be given innocently simply to express gratitude. circumstances. They can also be given in an attempt to influence I have written to the Commissioner for Public the actions of public officials and receive a Employment, encouraging him to include more benefit in return (such as preferential treatment comprehensive provisions in regard to the receipt or access to confidential information, etc.). of gifts and benefits in the revised Code of The acceptance of a gift or benefit can, in some Conduct for the Victorian public sector, including circumstances, create a sense of obligation a provision for a Gifts and Benefits Register.
80 THE OMBUDSMAN VICTORIA FREEDOM OF INFORMATION XX xx
The Ombudsman has responsibility for five specific Lost documents – Section 27(1)(e) areas under the provisions of the Freedom of Information Act 1982 (FOI Act). My role in regard Where an agency claims that a document does to each of these is described below. not exist or cannot be located, the FOI Act requires the agency to notify the applicant of the right of complaint directly to the Ombudsman. Voluminous requests My function under this provision is to establish – Section 25A (8) that a thorough and diligent search has been undertaken by the agency for the requested The Ombudsman may investigate complaints documents. In such cases I need to be satisfied where an agency refuses to process a request on that agency staff have consulted all relevant the grounds that, to do so, "… would substantially staff; identified appropriate areas within the and unreasonably divert the resources of the agency; adopted a methodical search procedure agency from its other operations". Applicants also and explored all avenues of enquiry in an effort have a right of review by the Victorian Civil and to locate any requested documents. Administrative Tribunal (VCAT) and, if an applicant exercises that right and the Ombudsman has investigated the matter, then the Ombudsman is Charges certificates required to provide a report to VCAT on the – Section 50(2)(c) outcome of the investigation. Where a dispute occurs between an applicant and My office receives many calls from complainants an agency about the imposition of charges, the who have been told by an agency’s FOI officer that applicant may apply to VCAT for a review of that to process their request "...would unreasonably decision. However, prior to VCAT considering the divert the resources of the agency from its other matter, the FOI Act requires the applicant to obtain operations." The advice that I always provide is from the Ombudsman a certificate that states that the parties involved need to approach the that the matter is one of sufficient importance for consultation process required by Section 25A(6) consideration by VCAT. of the FOI Act with an open mind and a desire to give some ground in an effort to ensure a There are two types of charges that can be reasonable resolution to the problem. Unfortunately, imposed under the FOI Act. consultation does not always resolve the impasse, leading to a formal decision by the agency not to 1. Application lodgement fee process the request as provided by section 25A(1) of the Act. Complaints may be made to my office A fee of $20 must accompany every FOI regarding the reasonableness of the decision. application. This application fee can only be waived or reduced on the basis that the payment of that fee would result in hardship to the applicant. Any claim for a waiver must be made to the agency at the time the request is lodged, together with sufficient detail and documentary evidence to support any claim of hardship.
2003 ANNUAL REPORT 81 The FOI Act is silent on an applicant’s right of involving the use of computers. The applicant’s review for any dispute that may arise about the request that the charge of $1250.00 be waived in requirement to pay the application fee or decisions full on the grounds of impecuniosity was refused. made regarding the refusal to waive the fee on Section 22(1)(i) of the FOI Act states: hardship grounds. Applicants often approach my office seeking assistance and I deal with such "A charge under paragraph (d) shall be waived if complaints under the Ombudsman Act. the applicant is impecunious and the request is for access to a document containing information 2. Access charges relating to the personal affairs of the applicant." As the information sought by the applicant was Charges can be imposed by an agency for the clearly of a non-personal nature, the provision of processing of the request and the costs associated waiving of charges on the basis of impecunious with the provision of access to documents it may circumstances did not apply. Accordingly, I was hold. An applicant dissatisfied with any charge unable to accede to the request for a charges imposed by an agency has a right of review by certificate. VCAT. However, prior to seeking a review by VCAT, applicants must first obtain the Ombudsman’s certification that the matter is one of sufficient Delay certificate – Section 53(2) importance for the Tribunal to consider. Prior to, or after, the expiration of the 45-day During the year I received two requests asking me processing period, an applicant can complain to to issue certificates relating to charges stipulated the Ombudsman that there has been an in Section 50(2)(c) of the FOI Act. unreasonable delay by an agency in dealing with a request. If, after investigation, the Ombudsman Public interest ? forms the view that there has been an unreasonable delay, the Ombudsman can issue The applicant asserted that the intended use of a certificate to the applicant, which enables that the documents was one of general public interest applicant to appeal directly to VCAT on what is or benefit and that the charges should be waived termed a deemed refusal of the request. in full in accordance with the provisions of section 22(1)(h) of the Act. I made no finding in relation to As I indicated in my previous Annual Report, there the assertion that the intended use was in the are often extenuating circumstances involved with public interest, as I believe that is a matter for delay, for example, relating to the complexity and VCAT to decide. My function is simply to decide nature of the request, the heavy workload within whether or not matters relating to charges are of the particular FOI unit or, at times, staff shortages. sufficient importance for VCAT to decide. I decided The FOI Act stipulates that requests must be that, in this case, the matter was of sufficient finalised as soon as possible but not later than importance and issued the requested certificate. 45 days. This time period is compulsory under the FOI Act and there are no discretions available. Lack of funds not always sufficient reason The only alternative available to an agency is to seek an extension of time if there are difficulties The applicant sought access to statistical data in completing a request within 45 days. I believe that was not held in discrete form by the agency. that applicants will generally agree to a reasonable To satisfy the request, the agency was required to extension of time if they are informed of the compile discrete documents from computerised difficulties faced by the agency in dealing with records. Section 22(1)(d) of the FOI Act enables the request. an agency to charge for reasonable costs incurred in providing a written document in accordance Where an applicant refuses to agree to an with Section 19 of the Act, that is, requests extension, he or she should be advised of the
82 THE OMBUDSMAN VICTORIA FREEDOM OF INFORMATION
right to lodge an appeal with VCAT at the expiration • Upgrade of the FOI Manager position to a VPS of the 45-day time period, on what is termed a 5 level and recruitment of an experienced deemed refusal of the request. The lodgement fee manager; stipulated in section 68 of the Victorian Civil and • Recruitment of 12 additional staff on fixed term Administrative Tribunal Act 1998 is not applicable contracts, now extended to 31 December 2003; to an appeal made under this provision of the • Establishment of an FOI contact network in FOI Act. DHS Divisions and Regions; • Development of an FOI database designed to Department of Human Services improve workflow management; and • Revision and distribution of the FOI Procedures I received numerous complaints concerning the Manual. inability of staff at the Department of Human In addition, DHS has implemented the following Services (DHS) to finalise FOI requests within the projects: statutory time period. Many applicants had been waiting for periods up to 6 to 12 months to receive • A Practice Issues Project commenced in the requested documents. I established that the January 2003. Central and regional staff DHS FOI Unit had accumulated a significant meet fortnightly to discuss FOI trends and backlog of requests, some pre-dating June 2001. interpretation issues. These forums will be extended to include other areas such as the I found that the following factors contributed to Legal Unit and Adoption Information Service. the problems faced by the FOI Unit: The Project is consolidating the FOI Unit's • The FOI Unit processes approximately 1,200 practice data for ready reference and requests per year of which approximately 1,100 contribution to training programs. are requests for personal information. • A Documentation Project commenced in • Approximately 80% of assessment time on January 2003 and concluded in June 2003. personal requests is focused on community This project streamlined correspondence by care files post 1980 (including child protection providing pro-forma templates and "fact sheets" files). Careful assessment is critical given the of commonly requested, standard information. sensitive nature of documents. • Demand management measures have been • Non-availability of experienced FOI staff to fill progressively implemented since the first quarter vacant positions and time required training newly of 2003 with a view to appropriately redirecting appointed staff. requests for personal information. Since June 2003, this initiative has seen the Adoption and DHS recognised the problem in late 2001 and Family Records service provide specialized established a steering committee comprising counselling and related support services to DHS’ Regional Directors and experienced FOI staff to former Wards of State, with a consequential review its FOI practices. DHS took immediate reduction in demand on the FOI Unit. remedial action which included the appointment • A Regional Liaison Project commenced in of additional staff and the establishment of an FOI January 2003. This program provides regular Officer network within each Region and Division, training designed to improve the skills of regional as well as the launch of a revised FOI Manual. A FOI staff, and ensure consistency of practice team was established, dedicated to reducing the with the central unit. backlog, and their first task was to inform applicants of the reasons for the delay and advise them of DHS intends to develop Administrative Release the right to have the matter reviewed by VCAT. Guidelines to assist program areas in releasing routine information to the public outside of the DHS has advised me of the medium and long- FOI Act. DHS has identified several categories of term strategies it has implemented to maximise documents and anticipates that routine release of the efficiency of the FOI Unit. These include:
2003 ANNUAL REPORT 83 this documentation will improve the quality of However, there are exceptions to this. In some service to the applicants and reduce the FOI Unit's instances, applicants who have been refused workload. access to documents under the FOI Act, complain to me that the refusal is unreasonable and ask DHS has committed considerable resources to that I investigate the agency’s decision. address the problem, and the remedial action taken appears to be having a positive effect. Pursuant to Section 50(2) of the FOI Act, applicants The short-term goal of clearing the pre-July 2002 who are refused access to documents have a backlog by 31 June 2003 has been achieved and right of review of the agency’s decision by VCAT. DHS is on track for completely eliminating its The Ombudsman has no jurisdiction to investigate backlog by the end of 2003. a complaint where the complainant has a right of appeal to a tribunal unless the Ombudsman Applicants experiencing delay should note that considers that, in the particular circumstances, it DHS has agreed to prioritise requests from would not be reasonable to expect the complainant applicants urgently seeking access to information to resort to that right or remedy or that, in any for health or legal reasons. DHS has honoured that event, the matter merits investigation in order to commitment, resolving a number of complaints avoid injustice. to my office where the complainant has satisfactorily demonstrated the urgency of their situation. Parliament has set up a specific, detailed and comprehensive statutory scheme, including a Intervention – Section 57 right of redress for persons dissatisfied with events that occur within that statutory scheme. Where an agency refuses access to documents Clearly, Parliament intends those persons to requested by an applicant, the Ombudsman has avail themselves of the specific remedy set up the power to intervene before VCAT, either on the for that particular statutory scheme and not rely request of a party before VCAT or of his own on a more general, non-specific remedy in other motion. legislation such as the Ombudsman Act.
Although I have the specific responsibilities In those circumstances, I do not see my office as outlined above, it has always been my view that an alternative avenue of appeal to VCAT in any action taken or decision made by staff of an respect of a decision under the FOI Act to refuse agency under the FOI Act can be regarded as an an applicant access to documents. administrative action within the terms of the Ombudsman Act 1973. Therefore, I can review all such actions or decisions under the FOI Act under the provisions of the Ombudsman Act.
84 THE OMBUDSMAN VICTORIA FREEDOM OF INFORMATION
FOI COMPLAINTS
Complaints received and finalised Section of Freedom of Information Act Complaints received Complaints finalised 2002/03 2001/02 2002/03 2001/02
27(1)(e) Lost documents 93 73 96 71 50(2)(a) Charges Certification 2 – 2 – 53(2)(a) Delay Certification – 1 – 1 57 Intervention – 1 – 1 25A Voluminous 5685
Enquiry or investigation under the Ombudsman Act
Delay 138 48 98 48 Grounds Refusal of access 22 14 26 12 for Other 38 27 36 27 Complaint Reasons statement - 2 1 2 Charges 4336 TOTAL 302 175 270 173
The 270 complaints finalised in 2002/2003 were completed by my office following an enquiry or an investigation with outcomes shown in the tables below.
Minor enquiry 2002/03 2001/02
Lack of jurisdiction 7 2 Referred to agency 15 10 Discontinued / withdrawn / treated as withdrawn 3 7 TOTAL 25 19
Substantial enquiry 2002/03 2001/02
Lack of jurisdiction – 7 Discontinued / withdrawn 9 1 Clarified / rectified or partially rectified 39 43 Not sustained on facts or facts indeterminable 95 63 Issued – charges certificate 2 – Rejected - charges certificate – – Rejected – intervention – 1 Rejected – delay certificate – 1 Intervention –– Sustained but not remedial 16 3 Sustained – other 82 31 TOTAL 243 150
2003 ANNUAL REPORT 85 Investigated 2002/03 2001/02
Sustained –4 Rectified in full 1 – Not sustained on facts or facts indeterminable – – Withdrawn 1– TOTAL 24
REQUESTS FOR DOCUMENTS HELD BY THE OMBUDSMAN’S OFFICE
Requests for documents dealt with by Ombudsman's Office 2002/03 2001/02
Requests 815 Appeals to Victorian Civil & Administrative Tribunal – –
Section 29A of the Ombudsman Act 1973 exempts all the investigative material of my office from the FOI Act.
Notwithstanding such exemption, when applications for access to documents are received from a complainant, I may provide a restricted form of access to documents outside the provisions of the FOI Act.
I dealt with 8 requests during the reporting period. I denied total access to requested documents on six applications, with partial access granted on two cases.
86 THE OMBUDSMAN VICTORIA TELECOMMUNICATIONS INTERCEPTION
The Telecommunications (Interception)(State Under my delegated authority, a special unit within Provisions) Act 1988 enables Victoria Police my office was established to conduct these audits to lawfully intercept telephone conversations of Victoria Police. The audit of police interception in accordance with the Commonwealth records has been undertaken on a continuous Telecommunications (Interception) Act 1979. basis as required by the Telecommunications My functions under this legislation are to inspect (Interception)(State Provisions) Act 1988 and, the records of Victoria Police to ensure that police in accordance with that Act, the findings of my are complying with the requirements concerning: officers have been reported to the Minister for Police and Emergency Services, with copies to the • the administrative aspects involved in police Attorney-General and the Chief Commissioner of obtaining and executing telephone interception Police. warrants; • the tracking of all restricted records created by My audit established that, during 2002/2003, police as a result of telephone interceptions; Victoria Police sought 406 telephone interception • the tracing of restricted records obtained as warrants, all of which were granted. I found that a result of telephone interceptions transferred 194 warrants were revoked, 96 warrants ceased to Victoria Police from other interstate and on expiration and 60 warrants remained current at Federal agencies; the end of the reporting period. Restricted records • the examination of the security aspects for 139 warrants were destroyed in accordance concerned with the retention of restricted with the requirements of the Telecommunications records by Victoria Police; and, (Interception)(State Provisions) Act 1988 during • the eventual destruction of all restricted the year. records held by the police on the completion of all due processes.
2003 ANNUAL REPORT 87 MELBOURNE CITY LINK ACT
Section 90B of the Melbourne City Link Act 1995 As a result of consultation between my office and enables Victoria Police to receive restricted tolling police, agreement was reached on the nature of information for the purposes of enforcement of the records that I believe should be kept to enable criminal law. Police members may only seek me to perform my functions under this legislation. information for the purpose of investigating I undertook an audit of police City Link records indictable offences and may not disclose or use as required by the legislation. During the reporting the information, unless it is in compliance with the period I reviewed 282 requests for information requirements of the legislation. made by Victoria Police. I established that 188 My role is to ensure that police members comply responses with restricted tolling information were with the requirements of Division 3 of the Act provided to police. In 3 instances the response relating to maintaining of records. included video footage and in 2 cases City Link advised that the information had been previously Section 90C of this Act requires police to create provided to police. I found that City Link was not records relating to: able to provide information in response to 89 • certificates issued by authorised police officers requests as no relevant records were identified. (Inspector or above) to obtain restricted tolling In accordance with the requirements of Section information; 25 A of the Ombudsman Act 1973, the findings • any disclosure of restricted tolling information of my audits have been reported to the Minister by those members of the police force who for Police and Emergency Services, the Attorney receive it; and General and the Chief Commissioner of Police. • the use by police of any restricted tolling information.
88 THE OMBUDSMAN VICTORIA OFFICE OPERATIONS
SUMMARY OF ACTIVITIES
ACTIVITY 2002/03 2001/02 2000/01 1999/00
Telephone enquiries 15,629 14,441 14,367 16,000
General Jurisdiction Complaints Complaint files raised 2,187 2,414 2,130 2,035 Complaints finalised 2,144 2,288 2,142 2,831
Freedom of Information Complaints Requests for Ombudsman files 8 9 23 21 Complaints about other agencies 199 156 136 153
Police Complaints Cases put directly to police(1) 910 935 933 860 Cases put directly to the Ombudsman 1,386 1,266 1,135 1,144
Whistleblower Complaints Complaint files raised 125 – – – Complaints finalised 121 – – –
Staff (at 30 June)(2) 29.8 25.08 22.5 20.7
Budget(3) 3,519,500 3,060,000 2,760,038 2,258,113
(1) Includes internally generated police conduct investigations (2) EFT number includes contracted casual part-time employees (3) Excludes appropriation for Ombudsman's salary
2003 ANNUAL REPORT 89 GENERAL COMPLAINTS – FUNCTIONAL CLASSIFICATION
TYPE 2002/03 2001/02 2000/01 1999/00
Acquisition of land 6 13 9 8 Administration 276 260 386 355 Apprenticeships 1120 Attitude of staff 26 20 28 46 Cemetery/Crematorium Trusts 4467 Compensation for loss of/damage to property by authority 17 5 7 10 Compensation for injury to person 0300 Complaint Bodies 39 31 – – Contract with authority 26 20 19 12 Corrections 673 736 746 562 Drainage 6 13 33 23 Education 112 109 104 87 Employment 85 79 65 71 Environment protection 15 13 14 9 Facilities owned/controlled by authority 27 35 29 12 Fencing by authority 3413 Finance 0210 Fire hazards/noxious weed eradication 7 11 11 7 Community Services and Health 449 454 409 368 Housing 154 148 158 163 Justice – administration 44 62 80 60 Legislation/Regulations 1444 Licence/registration – refusal to grant, cancellation – profession, trade, business, company 62 62 56 66 Local government 540 726 477 357 Mining Leases 1 – – – Payment of duties/fees 14 14 19 15 Planning & Sub-divisions 90 112 86 74 Public transport 88 61 43 57 State Trustee – – 80 98
90 THE OMBUDSMAN VICTORIA OFFICE OPERATIONS
GENERAL COMPLAINTS – FUNCTIONAL CLASSIFICATION (Continued)
TYPE 2002/03 2001/02 2000/01 1999/00
Professional and Trade Registration 38 29 – – Public Advocate 0048 Public utilities 5 6 20 24 Rates – sewerage, drainage 0 1 3 12 Registration of Titles 9939 Roads, freeways 0000 Superannuation 13 19 16 43 Titles Office 0 2 10 2 Transport Accident Commission 58 102 97 103 Trustees and Advocacy 187 54 – – Vehicle registration – drivers' licences 14 18 15 16 Water supply, sewerage & drainage schemes 0000 Workers compensation 95 127 123 116 Other 7 11 4 24 TOTALS 3,192 3,199 3,168 2,831
2003 ANNUAL REPORT 91 GENERAL COMPLAINTS – OUTCOMES (Within Jurisdiction)
2002/03 2001/02 2000/01 1999/00 After preliminary enquiry - discontinued For information only 531 459 270 30 Trivial, stale, etc. 99 100 72 52 Referred to appropriate authority 382 345 298 319 Treated as withdrawn 57 54 45 45 Sub-total 1,069 958 685 446 After preliminary enquiry finalised as Discontinued 27 35 45 74 Clarified 557 749 738 734 Rectified/Resolved fully 253 251 215 184 Rectified/Resolved partially 130 161 129 101 Withdrawn 6 6 19 15 Treated as withdrawn 13 11 24 5 Not sustained on facts 591 655 631 607 Not sustained – facts indeterminable 36 52 61 67 Accepted by authority as sustained but not remediable 9 13 27 10 Accepted by authority as sustained – action will be taken 123 144 151 139 Matter of Government policy – being reviewed –200 Action taken which should resolve matter 23 24 30 9 Other 0000 Sub-total 1,768 2,103 2,070 1,945 After substantial enquiry finalised as Discontinued 2646 Clarified 23 57 84 86 Rectified/Resolved fully 13 31 23 13 Rectified/Resolved partially 22 19 11 9 Withdrawn 0100 Treated as withdrawn 1120 Not sustained on facts 87 94 153 205
92 THE OMBUDSMAN VICTORIA OFFICE OPERATIONS
GENERAL COMPLAINTS – OUTCOMES (Continued)
2002/03 2001/02 2000/01 1999/00 Not sustained – facts indeterminable 15 17 39 49 Accepted by authority as sustained but not remediable 6 10 14 9 Accepted by authority as sustained – action will be taken 35 40 46 42 Matter of Government policy – being reviewed 0010 Action taken which should resolve matter 12 15 25 7 Other 1 3 1 Sub-total 217 294 403 426 After investigation finalised as Discontinued after full rectification 0100 Discontinued after partial rectification 0100 Complaint clarified 0002 Discontinued for other reasons 1003 Action taken which should resolve matter –300 Complaint not sustained on facts 70444 Complaint not sustained – but recommendation made 18100 Complaint sustained 5232 Complaint sustained and sufficiently rectified – no recommendation necessary 11310 Complaint sustained – recommendation made and complied with 22612 Complaint sustained – recommendation made and not yet complied with 11011 Complaint sustained – recommendation made and not complied with 0000 Sub-Total 138 21 10 14 TOTAL 3,192 3,199 3,168 2,831
2003 ANNUAL REPORT 93 BEYOND JURISDICTION
Reason 2002/03 2001/02 2000/01 1999/00 Not an administrative action 0001 Respondent not a government department or a public statutory body 84 194 95 143 Within jurisdiction of Office of Fair Trading 100 0 30 – Within jurisdiction of Legal Ombudsman 13 0 0 – Within jurisdiction of Insurance ADR 3 0 2 – Within jurisdiction of Industry Ombudsman 6 4 36 – Governor's Office 0 0 0 – Action taken in consequence of government policy or by Minister 0018 Respondent not a Victorian authority 76 55 44 55 Decision made by court of law 21 33 19 16 Decision made by tribunal presided over by Judge, Magistrate or Barrister 18 21 17 14 Decision made by a legal adviser to the Crown 0 1 1 – Decision made by a person in his capacity as Trustee 0 0 0 – Ombudsman satisfied that aggrieved person has or had a remedy by way of proceedings in court of law 0005 Personnel matters – Ombudsman satisfied that matter does not merit investigation in order to avoid injustice 0 0 0 – Trivial, frivolous or vexatious or not made in good faith 0001 Not made by the aggrieved person 0 0 0 17 Referred to Health Services Commissioner 9 4 0 – Other 5248 TOTALS 335 314 249 268
94 THE OMBUDSMAN VICTORIA ADMINISTRATION, ORGANISATION AND STAFF
Mission • Enhance accountability of state and local government agencies to the public and to The mission of The Ombudsman Victoria is to Parliament through the functions of the independently investigate, review and resolve Ombudsman's office. complaints concerning state and local • Account to Parliament for the operations of the government agencies and/or officers and Victoria office. Police; to report the results to complainants and • Assist authorities in identifying systemic issues. agencies; to report to Parliament, the public and complainants; to improve accountability of state Access and local government agencies; and to promote fair and reasonable public administration. • Provide access for all members of the public to an independent means of complaint resolution. Objectives Effectiveness Complaint Handling • Develop the professionalism of the office by • Resolve complaints concerning administrative the exchange of ideas and knowledge with actions taken in Victorian Government Australian and International Ombudsmen and departments, public statutory authorities and similar complaint handling bodies. by officers of municipal councils. • Investigate certain serious complaints against Victoria Police and ensure that complaints Strategies concerning police conduct are properly investigated. Complaint Handling • Determine whether a disclosure of improper conduct under the Whistleblowers Protection • Receive, assess and enquire into or investigate Act 2001 warrants investigation. These complaints concerning administrative actions disclosures can be made against public bodies taken in Victorian Government departments, and public officers, including government public statutory authorities and by officers of departments, public statutory corporations, municipal councils. municipal councillors and Members of Parliament. • Independently review Victoria Police internal • Ensure compliance by designated agencies investigations of complaints made by members with the provisions of the Freedom of of the public against police or by members of Information Act 1982. the Police Force against other members of the Force and, where required by the legislation, investigate or conciliate these complaints. Accountability • Investigate on the Ombudsman's own initiative • Ensure compliance by Victoria Police with the matters of public administration and decisions requirements of the Telecommunications which appear unreasonably or unlawfully to (Interception) (State Provisions) Act 1988, and affect persons, associations or agencies. the Melbourne City Link Act 1995.
2003 ANNUAL REPORT 95 • Receive and determine whether disclosures of • Develop appropriate working relationships with improper conduct against public bodies and respondent authorities. officers, including municipal councillors and • Assist in educating public officers in methods Members of Parliament, under the of eliminating grounds for complaint. Whistleblowers Protection Act 2001 warrants • Provide appropriate reports to Parliament on investigation, then either conduct or monitor the work of the office. such investigation. • Promote improved communication between • Enquire into complaints received concerning authorities and the public. non-compliance by designated agencies with • Identify and advise agencies of deficiencies in the provisions of the Freedom of Information legislation, policies and practices. Act 1982 and perform other functions under the Freedom of Information Act 1982. Access • Audit Victoria Police performance of obligations • Promote public awareness of the roles and imposed by the Telecommunications functions of the Ombudsman. (Interceptions) (State Provisions) Act 1988, and • Endeavour to ensure that disadvantaged groups the Melbourne City Link Act 1995. are aware of the functions of the Ombudsman's • Decide appeals made pursuant to the Witness office and are assisted in contacting the office. Protection Act 1991 in respect to the decision of • Provide a 24-hour telephone referral service in the Chief Commissioner of Police to terminate respect of urgent, emergency complaints of protection and assistance for a witness. police actions. • Investigate complaints flexibly and, where • Use services of interpreters and translators as appropriate, informally. required. • Encourage conciliation of complaints in • Provide a service which is sensitive to the appropriate circumstances. cultural background of individuals who approach • Provide an advisory service to potential the Ombudsman. complainants in relation to procedures and alternative methods for resolving their grievances. Effectiveness • Use the services of external consultants when appropriate. • Employ appropriately skilled and experienced officers and ensure training and professional development for all staff. Accountability • Adopt and maintain modern technology and • Enhance the independence and credibility of the systems within the office. office by providing an impartial, professional, • Participate in local, national and international objective and high-quality service in a timely, meetings of relevance to the office. fair and sensitive manner.
96 THE OMBUDSMAN VICTORIA ADMINISTRATION, ORGANISATION AND STAFF
Legislation The Ombudsman and Deputy Ombudsman (Police Complaints) are empowered by the following legislation.
Act Responsible Purpose Minister
Ombudsman Premier Provides for the appointment in Victoria of an Act 1973 Ombudsman and Deputy Ombudsman (Police Complaints) and details the Ombudsman's role and functions in relation to the investigation of complaints. Police Regulation Minister for Details the investigative, review and conciliation functions Act 1958, Police and of the Deputy Ombudsman (Police Complaints) Part IVA – Deputy Emergency concerning police conduct. Ombudsman Services (Police Complaints) Act 1988 Corrections Minister for Empowers the Ombudsman to investigate complaints Act 1986 Corrections concerning actions of contractors managing prisons or police gaols. Freedom of Attorney-General Enables the community to access information in the Information possession of Government agencies and provides the Act 1982 Ombudsman with specific powers in relation to the investigation of FOI complaints and other functions. Telecommunications Attorney-General Enables the Victoria Police Force to obtain warrants (Interception) to intercept and record telephone conversations and (State Provisions) empowers the Ombudsman to audit police records Act 1988 to ensure compliance with the Act. Witness Protection Minister for Provides for a right of appeal to the Deputy Ombudsman Act 1991 Police and in relation to a decision by the Chief Commissioner of Emergency Police to terminate protection and assistance for a witness. Services The Deputy Ombudsman’s determination is final. Melbourne City Link Minister for Empowers the Ombudsman to audit access of police Act 1995 Transport to City Link records. Whistleblowers Attorney-General Empowers the Ombudsman to investigate disclosures Protection of improper conduct engaged in by public bodies and Act 2001 public officers, including Members of Parliament and municipal councillors. Transport Minister for Empowers the Ombudsman to investigate complaints [Miscellaneous Transport regarding the actions of officers employed by private Amendments] transport companies in exercising statutory duties in the Act 2003 detection of offences.
2003 ANNUAL REPORT 97 OMBUDSMAN’S OFFICE: STATUTORY/FUNCTIONAL ORGANISATION Details as at 30 June 2003
OMBUDSMAN
• Corrections Act Witness Police Ombudsman Protection Regulation • Freedom of Act Act Act Information Act • Melbourne City Link Act • Telecommunications (Interception) (State Provisions) Act • Transport [Miscellaneous Police General Amendments] Act Complaints Jurisdiction • Whistleblowers Jurisdiction Protection Act
• Private prisons/police Relates to State and gaols contractor • Determine an • Review Victoria Local Government actions appeal against a Police investigations Administration, e.g. • Freedom of decision of the of complaints relating • Community services Information compliance Chief Commissioner to police conduct and health of Police to • Police access to City • As required, • Education terminate protection investigate complaints Link records audits • Prisons or assistance against police • Police telephone • Statutory Authorities interception audits • Private transport companies officer actions • Whistleblowers Protection disclosure determination and investigation
98 THE OMBUDSMAN VICTORIA ADMINISTRATION, ORGANISATION AND STAFF
STAFFING The Ombudsman is the Chief Administrator of the Ombudsman's office. The Ombudsman reports directly to the Parliament.
Apart from the Ombudsman, all staff of the Ombudsman's office are employed subject to the Public Sector Management Act and the Regulations and Determinations made under that Act.
Organisation of Office Personnel as at 30 June 2003.
OMBUDSMAN (Acting)
Senior Assistant Senior Assistant Ombudsman Ombudsman (Police Complaints) (General Complaints)
Assistant Assistant Ombudsman Ombudsman
Investigation Investigation Officers Officers
Community Administrative Access/Youth & Support Services Liaison Officer
2003 ANNUAL REPORT 99 Staff Profile/Gender Details as at 30 June 2003
Male Variation Female Variation from from previous previous year year Investigation Officers Senior Assistant Ombudsman 2 – 0 – Assistant Ombudsman 1 -1 1 – Investigation Officer## ** 9 +2 6 +2 Community Access/Youth Liaison Community Access/Youth Liaison Officer – – 1 – Administration/Support 2–4–
Note ## – In addition, persons may be selected from a panel of skilled investigation officers to be employed on a casual “as required” basis to undertake particular tasks or investigations.
Note ** – Includes one secondee from VGSO and one part-time officer.
INTERNAL MANAGEMENT ISSUES OUTREACH All recruitment of the office of the Ombudsman is subject to the principles of merit and equity. Country Services Program The office seeks to recruit staff with appropriate This program has been specifically developed for professional and occupational backgrounds and residents of country Victoria. The purpose is to follows established Victorian Public Service provide similar accessibility to the Ombudsman’s guidelines for recruitment purposes. office to that which is available to members of the public in metropolitan areas. Both investigative and administrative support staff are encouraged to undertake appropriate training Advertisements are placed in local country and attend relevant seminars and conferences to newspapers for a selected region, advertising enhance their skills and professional knowledge. the availability of one of my officers to discuss any concerns that residents may have relating Actions were taken during the year to remind to government administration. The majority of staff of their responsibilities under the Victorian enquiries can be dealt with at the time of the call. Public Sector Code of Conduct. However, there are times when matters raised by a caller may require a visit to the designated area to interview witnesses or conduct inspections. When visits to a country region are necessary, my staff usually take the opportunity to visit country prisons in the region. During the year, my office completed 22 country services programs.
100 THE OMBUDSMAN VICTORIA ADMINISTRATION, ORGANISATION AND STAFF
Information Stand – Country DECLARATION OF INTERESTS Shows and Field Days Members of investigation staff have lodged with The aim of placing an information facility at me declarations of their pecuniary and other country shows and field days is to promote the interests. I have lodged a corresponding declaration existence of the Ombudsman’s office to residents with the Department of Premier and Cabinet. of country Victoria and attempt to publicise the The practice at the Ombudsman's office is to services that are available through my office. ensure that, where there is an actual conflict, or During 2002/2003, my staff participated in the a conflict which could be reasonably perceived, following country shows or field days: between the personal interest of an officer and the independence and impartiality essential to the • July 2002 Speed work of the office, the officer having that conflict • October 2002 Shepparton is disqualified from playing any role in relation to • February 2003 Korrumburra the complaint to which the conflict relates. • March 2003 Horsham • May 2003 East Gippsland
In addition, my officers took part in the Parliament PUBLICATIONS House Open Day in June 2003. All of the venues Information leaflets on the services of the proved to be very popular and achieved the aim Ombudsman are available on request in a of publicising the existence and services of my range of community languages. office, particularly to residents of country Victoria. Further information can be obtained from Community Activities the Ombudsman’s web site at http://www.ombudsman.vic.gov.au Once again, during 2002/2003 my staff addressed a number of meetings after hours. The organisations addressed included Service Clubs and specific interest groups, including ethnic community organisations. The topics covered by staff included the functions and work of the Ombudsman as well as issues associated with the implementation of the Whistleblowers Protection Act 2001.
2003 ANNUAL REPORT 101 AUDITOR-GENERAL’S REPORT
To the Members of the Parliament of Victoria, the responsible Ministers and the Ombudsman
Audit Scope
The accompanying financial report of Office of the Ombudsman for the financial year ended 30 June 2003, comprising a statement of financial performance, statement of financial position, statement of cash flows, and notes to the financial statements, has been audited. The Ombudsman is responsible for the preparation and presentation of the financial report and the information it contains. An independent audit of the financial report has been carried out in order to express an opinion on it to the Members of the Parliament of Victoria, responsible Ministers and the Ombudsman as required by the Audit Act 1994.
The audit has been conducted in accordance with Australian Auditing Standards to provide reasonable assurance as to whether the financial report is free of material misstatement. The audit procedures included an examination, on a test basis, of evidence supporting the amounts and other disclosures in the financial report, and the evaluation of accounting policies and significant accounting estimates. These procedures have been undertaken to form an opinion as to whether, in all material respects, the financial report is presented 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.
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 2003 and its financial performance and cash flows for the year then ended.
for J.W. CAMERON Auditor-General
MELBOURNE 10 September 2003
2003 ANNUAL REPORT 103 FINANCIAL STATEMENTS
Statement of Financial Performance For the year ended 30 June 2003
Notes 2003 ($) 2002 ($)
Revenue from Ordinary Activities Grants 1(b), 2 3,574,500 3,287,871 Resources Received Free of Charge 2 65,466 1,121 3,639,966 3,288,992
Expenses from Ordinary Activities Employee Benefits 3 2,727,771 2,203,937 Depreciation 3 44,197 92,005 Resources Provided Free of Charge 1,460 – Capital Asset Charge 1(i) 7,777 4,497 Supplies and Services 932,936 956,650 3,714,141 3,257,089
Net Result for the Reporting Period 3 (74,175) 31,903
Total Changes in Equity (other than those resulting from transactions with Victorian State Government in its capacity as owner on behalf of the Crown) (74,175) 31,903
The above Statement of Financial Position should be read in conjunction with the accompanying notes.
104 THE OMBUDSMAN VICTORIA FINANCIAL STATEMENTS
Statement of Financial Position As at 30 June 2003
Notes 2003 ($) 2002 ($)
Current Assets Cash on Hand 500 500 Receivables 4 192,884 303,761 Total Current Assets 193,384 304,261
Non-Current Assets Property, Plant and Equipment 5 128,137 63,430 Total Non-Current Assets 128,137 63,430 Total Assets 321,521 367,691
Current Liabilities Trade Creditors and Accruals 54,863 153,858 Provisions 6 271,956 211,184 Total Current Liabilities 326,819 365,042
Non-Current Liabilities Provisions 6 736,459 670,231 Total Non-Current Liabilities 736,459 670,231 Total Liabilities 1,063,278 1,035,273 Net Liabilities (741,757) (667,582)
Equity Accumulated Deficit (741,757) (667,582) Total Equity / (Deficit) 7 (741,757) (667,582)
The above Statement of Financial Position should be read in conjunction with the accompanying notes.
2003 ANNUAL REPORT 105 Statement of Cash Flows For the year ended 30 June 2003
Notes 2003 ($) 2002 ($)
Cash Flows from Operating Activities Receipts from Government 3,687,911 3,085,648 Payments to Suppliers and Employees (3,635,236) (3,031,470) Capital Asset Charge (7,777) (4,497) Net Cash Inflow from Operating Activities 14 44,898 49,681
Cash Flows from Investing Activities Payments for Property, Plant and Equipment (44,898) (49,681) Net Cash Outflow from Investing Activities (44,898) (49,681)
Net Increase In Cash Held – – Cash at the Beginning of the Financial Year 500 500 Cash at the End of the Financial Year 500 500
The above Statement of Financial Position should be read in conjunction with the accompanying notes.
106 THE OMBUDSMAN VICTORIA NOTES TO THE FINANCIAL STATEMENTS 30 JUNE 2003
Note 1. Summary of Significant transactions or balances for the financial Accounting Policies years ended 30 June 2002 or 30 June 2003.
This general purpose financial report has been (b) Objectives and Funding prepared on an accrual basis and in accordance with the Financial Management Act 1994, The Office of the Ombudsman handles Australian Accounting Standards, Statements complaints about administrative actions of Accounting Concepts and other authoritative made against State Government agencies pronouncements of the Australian Accounting or Local Government officers; investigates Standards Board, and Urgent Issues Group or reviews complaints made against Victoria Consensus Views. Police Force members; determines whether a disclosure of improper conduct under the It is prepared in accordance with the historical Whistleblowers Protection Act warrants cost convention, except for certain liabilities which, investigation; ensures compliance by as noted, are at valuation. The accounting policies designated agencies with the provisions of adopted, and the classification and presentation the Freedom of Information Act; investigates of items, are consistent with those of the complaints concerning actions of private previous year, except where a change is required contractors managing prisons or police to comply with an Australian Accounting Standard gaols and the actions of officers employed or Urgent Issues Group Consensus View, or an by private transport companies in exercising alternative accounting policy permitted by an statutory duties in the detection of offences; Australian Accounting Standard is adopted to and audits police records to ensure improve the relevance and reliability of the report. compliance with the Telecommunications Where practicable, comparative amounts are (Interception) (State Provisions) Act 1988 presented and classified on a basis consistent with the current year. and access of police to City Link records. It aims to improve the accountability of (a) Reporting Entity Government agencies to the public and the Parliament, promote fair and reasonable public The Financial Statements include all the administration and investigate complaints fairly. controlled activities of the Office of the Ombudsman. The Office is predominantly funded by accrual based Parliamentary appropriations for the Administered Resources provision of outputs. These appropriations The Office may administer, but not control, are received by the Department of Premier certain resources on behalf of the Victorian and Cabinet and on-forwarded to the Office Government. It would be accountable for the of the Ombudsman in the form of grants. transactions involving those administered resources, but would not have the discretion (c) Acquisition of Assets to deploy the resources for achievement of the Office’s objectives. For these resources, The cost method of accounting is used for the Office acts only on behalf of the Victorian all acquisitions of assets. Cost is measured Government. as the fair value of the assets given up or liabilities undertaken at the date of acquisition, Transactions and balances relating to such plus incidental costs directly attributable to administered resources are not recognised the acquisition. as revenues, expenses, assets or liabilities within the body of the Financial Statements, Assets acquired at no cost, or for nominal but, where applicable, would be disclosed in consideration, are initially recognised at their a separate note. There were no administered fair value at the date of acquisition.
2003 ANNUAL REPORT 107 (d) Revenue Recognition
All revenue received by the Office is generally required to be paid into the Consolidated Fund. (g) Trade and Other Creditors
Revenue becomes controlled by the Office These amounts represent liabilities for goods and when it is appropriated (to the Department of services provided to the Office prior to the end of Premier and Cabinet) from the Consolidated the financial year and which are unpaid. The Fund by the Victorian Parliament and applied amounts are unsecured and are usually paid to the purposes defined under the relevant within 30 days of recognition. appropriations Act.
Revenue from the outputs the Office provides (h) Employee Benefits to Government is recognised when those (i) Wages, Salaries and Annual Leave outputs have been delivered and the relevant Minister has certified delivery of those outputs Liabilities for wages and salaries and in accordance with specified performance annual leave are recognised in respect of criteria. employees’ services up to the reporting date and are measured as the amounts expected to be paid when the liabilities (e) Depreciation of Property, are settled. Plant and Equipment (ii) Long Service Leave Depreciation is calculated on a straight line basis to write off the net cost of each item The liability for long service leave expected of property, plant and equipment over its to be settled within 12 months of the expected useful life to the Office. Estimates reporting date is recognised as a provision of remaining useful lives for all such assets and is measured in accordance with (i) are reviewed at least annually. The expected above. The liability for long service leave useful lives applicable for the years ended expected to be settled more than 12 30 June 2003 and 30 June 2002 were as months from the reporting date is follows: recognised as a provision and measured as the present value of expected future payments to be made in respect of Building Fitouts 10 years services provided by employees up to Computer Equipment 3 years the reporting date. Consideration is given Office Equipment 4 years to expected future wage and salary levels, Furniture and Fittings 10 years experience of employee departures and periods of service. Expected future payments are discounted using interest (f) Leased Non-Current Assets rates on national Government guaranteed Operating lease payments are charged to securities with terms to maturity that the Statement of Financial Performance in match, as closely as possible, the the periods in which they are incurred, as estimated future cash outflows. this represents the pattern of benefits derived from the leased assets.
The Office had no assets under finance lease at 30 June 2003 or 30 June 2002.
108 THE OMBUDSMAN VICTORIA NOTES TO THE FINANCIAL STATEMENTS 30 JUNE 2003
The following assumptions were adopted in measuring present values:
2003 2002
Weighted average rates of increase in annual employee entitlements to settlement of the liabilities 4.8% 6.9%
Weighted average discount rates 4.6% 5.7%
Weighted average terms to settlement of the liabilities 19 years 19 years
(iii) Superannuation (j) Resources Provided and Received Free of Charge The amount charged to the Statement of Financial Performance in respect of Contributions of resources and resources superannuation represents the provided free of charge are recognised at contributions made by the Office to their fair value. Contributions in the form the superannuation fund (see note 13). of services are only recognised when a fair value can be reliably determined and (iv) Employee Benefit On-Costs the services would have been purchased Employee benefit on-costs, including if not donated. payroll tax, are recognised and included (k) Going Concern Basis in employee benefit liabilities and costs when the employee benefits to which The liabilities of the Office exceed its assets. they relate are recognised as liabilities. Despite this, the going concern basis continues to be appropriate for these (i) Capital Asset Charge Financial Statements because the Office is The capital asset charge is imposed by ultimately part of the State Government of the Department of Treasury and Finance Victoria which guarantees payment of the and represents the opportunity cost of Office’s debts as and when they fall due. capital invested in the non-current physical assets used in the provision of outputs. The charge is calculated on the carrying amount of non-current physical assets.
Note 2. Revenue
2003 ($) 2002 ($) Revenue from Government Grants from the Department of Premier and Cabinet (note 1(b)) 3,574,500 3,287,871 Resources Received Free of Charge 65,466 1,121 Total Revenue 3,639,966 3,288,992
2003 ANNUAL REPORT 109 Note 3. Result for the Reporting Period The net result for the reporting period includes the following specific net gains and expenses:
2003 ($) 2002 ($) Expenses Employee Benefits Salaries and Wages 2,120,802 1,741,451 Superannuation 168,741 145,080 Annual and Long Service Leave Expense 309,615 198,913 Other On-Costs 128,613 118,493 Total Employee Costs 2,727,771 2,203,937 Depreciation Building Fitouts 788 – Computer Equipment 39,870 92,005 Furniture and Fittings 3,539 – Total Depreciation 44,197 92,005 Rental Expense Relating to Operating Leases 361,384 355,355 Minimum Lease Payments 4,800 4,500
Note 4. Receivables
2003 ($) 2002 ($) Current Funds Receivable from Government Departments 190,352 303,761 Other 2,532 – 192,884 303,761
110 THE OMBUDSMAN VICTORIA NOTES TO THE FINANCIAL STATEMENTS 30 JUNE 2003
Note 5. Property, Plant and Equipment
2003 ($) 2002 ($) Expenses Building Fitouts – at Cost 18,755 – Less: Accumulated Depreciation (788) – 17,967 – Computer Equipment – at Cost 450,549 478,223 Less: Accumulated Depreciation (363,610) (432,488) 86,939 45,735 Furniture and Fittings – at Cost 41,983 32,908 Less: Accumulated Depreciation (18,752) (15,213) 23,231 17,695 128,137 63,430 Reconciliation of Movements Building Fitouts Carrying Amount at Start of Year – – Additions 18,755 – Depreciation Expense (note 3) (788) – Carrying Amount at End of Year 17,967 – Computer Equipment Carrying Amount at Start of Year 45,735 105,754 Additions 17,068 31,986 Net Transfers Free of Charge 64,006 – Depreciation Expense (note 3) (39,870) (92,005) Carrying Amount at End of Year 86,939 45,735 Furniture and Fittings Carrying Amount at Start of Year 17,695 – Additions 9,075 17,695 Depreciation Expense (note 3) (3,539) – Carrying Amount at End of Year 23,231 17,695
2003 ANNUAL REPORT 111 Note 6. Provisions
2003 ($) 2002 ($) Current Employee Benefits 183,177 131,102 Annual Leave 88,779 80,082 Long Service Leave 271,956 211,184 Non-Current Employee Benefits Long Service Leave 736,459 670,231 Aggregate Carrying Amount of Provisions Current 271,956 211,184 Non-Current 736,459 670,231 1,008,415 881,415
Note 7. Equity and Movements in Equity
2003 ($) 2002 ($) Accumulated Deficit Accumulated Deficit at the Beginning of the Financial Year (667,582) (699,485) Net Result for the Reporting Period (74,175) 31,903 Accumulated Deficit at the End of the Financial Year (741,757) (667,582)
Note 8. Financial Instruments (c) Interest Rate Risk Exposures The Office is not exposed to any interest rate (a) Off Balance Sheet Risk risk. There are no interest bearing assets or liabilities. The Office is not exposed to any off balance sheet risk. (d) Net Fair Value of Financial Assets and Liabilities (b) Credit Risk Exposures The net fair value of financial assets and The credit risk on financial assets of the Office financial liabilities of the Office approximates which have been recognised in the statement their carrying amounts. of financial position is generally the carrying amount, net of any provisions for doubtful The carrying amounts and net fair values of debts. financial assets and liabilities at the reporting date are:
112 THE OMBUDSMAN VICTORIA NOTES TO THE FINANCIAL STATEMENTS 30 JUNE 2003
On Balance Sheet Financial Instruments 2003 2003 2002 2002 Carrying Net Fair Carrying Net Fair Amount Value Net Fair Value $ $ $ $ Financial Assets Cash on Hand 500 500 500 500 Receivables 192,884 192,884 303,761 303,761 193,384 193,384 304,261 304,261 Financial Liabilities Trade Creditors and Accruals 54,863 54,863 153,858 153,858 54,863 54,863 153,858 153,858
None of the classes of financial assets and liabilities are readily traded on organised markets in standardised form.
Net fair value is exclusive of costs which would be incurred on realisation of an asset, and inclusive of costs which would be incurred on settlement of a liability.
Note 9. Ministers and Remuneration Accountable Officers Remuneration received or receivable by the Accountable Officer, in connection with the In accordance with the Ministerial Directions management of the Office during the reporting issued by the Minister for Finance under the period, was in the range: Financial Management Act 1994, the following disclosures are made regarding responsible $200,000 - $209,999 persons for the reporting period. ($170,000 - $179,999 in 2002)
Names Amounts relating to Ministers are reported in the Financial Statements of the Department of Premier The persons who held the positions of Minister and Cabinet. Amounts relating to the Acting and Accountable Officer in the Office during the Accountable Officer are reported in "Remuneration financial year were as follows: of Executives" (note 10). Responsible Minister Other Transactions The Hon Steve Bracks, MP, Premier Other related transactions and loans requiring Accountable Officer disclosure under the Directions of the Minister for Barry Perry, Ombudsman Finance have been considered and there are no Robert Seamer (Acting) matters to report.
2003 ANNUAL REPORT 113 Note 10. Remuneration of Executives The numbers of executive officers, other than the Accountable Officer, whose total remuneration exceeded $100,000 during the reporting period, are shown in their relevant income bands in the first two columns of the table below. The base remuneration of these executive officers is shown in the third and fourth columns. Base remuneration is exclusive of bonus payments, long service leave payments, redundancy payments and retirement benefits.
Income Band Total Remuneration Base Remuneration 2003 2002 2003 2002 No. No. No. No. $110,000 - $119,999 1 2 1 2 $140,000 - $149,999 1 – 1 – Total Numbers 2 2 2 2 Total Amount $263,477 $226,719 $256,603 $221,719
Note 11. Contingent Liabilities and Contingent Assets
There are no contingent liabilities or contingent assets for the Office of the Ombudsman at 30 June 2003.
Note 12. Commitments for Expenditure
2003 ($) 2002 ($) Operating Lease Commitments Commitments for minimum lease payments in relation to non-cancellable operating leases, not recognised as liabilities, are payable as follows: Within one year 405,956 376,656 Later than 1 year but not later than five years 1,364,090 1,644,476 Later than five years – 28,344 1,770,046 2,049,476
114 THE OMBUDSMAN VICTORIA NOTES TO THE FINANCIAL STATEMENTS 30 JUNE 2003
Note 13. Superannuation No liability is recognised in the statement of financial position for the Office’s share of the State’s unfunded superannuation liability. The State’s unfunded superannuation liability has been reflected in the financial statements of the Department of Treasury and Finance.
However, superannuation contributions for the reporting period are included as part of salaries and associated costs in the statement of financial performance of the Office.
The name and details of the major employee superannuation funds and contributions made by the Office are as follows:
Fund Contributions Contributions for the Year for the Year 2003 ($) 2002 ($) Defined Benefit Funds Government Superannuation Office (GSO) Revised Scheme 67,670 95,376 New Scheme 28,983 23,670 Accumulation Funds VicSuper 88,269 55,624 Various Private Schemes 6,029 5,379
The Office of the Ombudsman does not have any contributions outstanding to the above Funds and there have been no loans made from the Funds.
The bases for contributions are determined by the various schemes.
Note 14. Reconciliation of Net Result for the Reporting Period to Net Cash Inflow from Operating Activities
2003 ($) 2002 ($) Net Result for the Reporting Period (74,175) 31,903 Depreciation 44,197 92,005 Net Transfers Free of Charge (64,006) – Change in Operating Assets and Liabilities (Increase)/Decrease in Prepayments – 17,173 (Increase)/Decrease in Receivables 110,878 (202,222) Increase/(Decrease) in Trade Creditors and Accruals (98,996) 122,789 Increase/(Decrease) in Provisions 127,000 (11,967) Net Cash Inflow from Operating Activities 44,898 49,681
2003 ANNUAL REPORT 115 Accountable Officer’s and Chief Financial Officer’s Declaration
We certify that the attached Financial Statements for the Office of the Ombudsman have been prepared in accordance with Part 9 of the Directions of the Minister for Finance under the Financial Management Act 1994, applicable Australian Accounting Standards and other mandatory professional reporting requirements.
We further state that, in our opinion, the information set out in the Statement of Financial Performance, Statement of Financial Position, Statement of Cash Flows and Notes to the Financial Statements, presents fairly the financial transactions during the year ended 30 June 2003 and financial position of the Office as at 30 June 2003.
We are not aware of any circumstance which would render any particulars included in the Financial Statements to be misleading or inaccurate.
Peter Goddard Robert Seamer Chief Financial Officer Acting Ombudsman Department of Premier and Cabinet Office of the Ombudsman
Melbourne Melbourne 5 September 2003 8 September 2003
116 THE OMBUDSMAN VICTORIA WHISTLEBLOWERS PROTECTION ACT 2001 OMBUDSMAN’SXX GUIDELINES
PART A – COMPLIANCE • Government-owned companies; • Universities; REQUIREMENTS FOR PUBLIC • TAFE colleges; BODIES • Public hospitals; • State-funded residential care services; • Health services contractors; and 1. Objects of the Act • Correctional services contractors. The main objective of the Whistleblowers Protection Act 2001 (the Act) is to encourage and facilitate the making of Public bodies excluded from the Act are courts, boards, disclosures of improper conduct or detrimental action by tribunals, commissions and other bodies presided over by a public officers and public bodies. The Act provides protection judge, magistrate or legal practitioner appointed by virtue to whistleblowers who make disclosures in accordance with of a statutory requirement. the Act, and establishes a system for the matters disclosed to be investigated and for rectifying action to be taken. Public officers include: • Members of Parliament; 2. The role of the Ombudsman • Councillors; The Ombudsman has a central role in handling disclosures • Council employees; of improper conduct made under the Act. The role of the • Public servants; Ombudsman involves: • University employees • Police officers; • Preparing and publishing guidelines to assist public bodies • Protective services officers; in interpreting and complying with the Act; • Administrative staff of the Chief Commissioner of Police; • Reviewing written procedures established by public • Teachers; and bodies and making recommendations in relation to those • Officer holders appointed by Governor in Council or a procedures; Minister. • Determining whether a disclosure warrants investigation; • Investigating disclosures; • Monitoring investigations where they have been referred The public officers excluded from the Act are members of to public bodies; the judiciary, the Director of Public Prosecutions, Auditor- • Monitoring the action taken by public bodies where the General, Ombudsman, Electoral Commissioner, and findings of an investigation reveal that improper conduct parliamentary and judicial staff. has occurred; The role of public bodies includes: • Reporting to Parliament where public bodies fail to • Promoting the policy of the Act to staff members; implement recommendations made by the Ombudsman • Establishing and publishing written procedures; at the conclusion of an investigation; • Receiving and assessing disclosures of improper conduct; • Collating and publishing statistics about disclosures • Referring disclosures to the Ombudsman; handled by the Ombudsman; • Carrying out investigations referred by the Ombudsman; • Educating and training public bodies. • Taking action in response to findings that improper conduct has occurred; 3. Key terms and concepts • Protecting whistleblowers from reprisals; and • Collating and publishing statistics about disclosures 3.1 Who is subject to the Act? public bodies received. and public officers 3.2 Improper conduct A whistleblower may make a disclosure about improper conduct by public bodies and public officers. The Act A disclosure may be made about improper conduct by a defines public bodies and public officers broadly. public body or public official. Improper conduct is defined in section 3 of the Act to mean conduct that is corrupt, a substantial mismanagement of public resources, or conduct Public bodies include: involving substantial risk to public health or safety or to the • All government departments and administrative offices; environment. The conduct must be serious enough to • Statutory authorities; constitute, if proved, a criminal offence or reasonable • Municipal councils: grounds for dismissal. • Government-appointed boards and committees;
THE OMBUDSMAN VICTORIA 117 Examples 4. How do public bodies comply with the Act? To avoid closure of a town’s only industry, an environmental health officer ignores or conceals evidence of illegal 4.1 Establishing written procedures dumping of waste. Each public body must establish written procedures for An agricultural officer delays or declines imposing handling disclosures made under the Act. A public body must quarantine to allow a financially distressed farmer to sell have these procedures in place as soon as it is practicable diseased stock. after the commencement of the Act on 1 January 2002. A building inspector tolerates poor practices and structural The procedures must facilitate the making of disclosures, defects in the work of a leading local builder. the investigation of disclosures, and the protection of whistleblowers from reprisals by the public body or any 3.2.1 Corrupt conduct officer, member or employee of the public body. The written procedures must be in accordance with the Act and Corrupt conduct is defined by section 3 of the Act to mean: these guidelines. • Conduct of any person (whether or not a public official) The Ombudsman may review the written procedures of a that adversely affects the honest performance of a public public body and their implementation to ensure they comply officer’s or public body’s functions; with the Act and these guidelines. The Ombudsman may • The performance of a public officer’s functions dishonestly also make recommendations to a public body as a result of or with inappropriate partiality; such a review. • Conduct of a public officer, former public officer or a public body that amounts to a breach of public trust; A public body must make a copy of its written procedures • Conduct by a public officer, former public officer or a available to each of its members, employees or officers, public body that amounts to the misuse of information or and must have a copy available for inspection by members material acquired in the course of the performance of of the public during normal office hours free of charge. their official functions; or The following list of matters should be included in the • A conspiracy or attempt to engage in the above\ conduct. written procedures of a public body to establish an effective internal reporting system for the Act. Further information Examples about each matter listed can be found in the following sections of these guidelines. A model internal reporting procedure is set out in annexure A. Public bodies may wish A public officer takes a bribe or receives a payment other to modify the model procedures to meet the specific needs than his or her wages or salary in exchange for the discharge of their organisation. of a public duty.
A public officer favours unmeritorious applications for jobs Contents of whistleblower protection procedures or permits by friends and relatives. 1. Statement of support for whistleblowers A public officer sells confidential information. 2. Purpose of the procedures 3. Objects of the Act 3.3 Detrimental action 4. Definitions of key terms The Act creates an offence for a person to take detrimental 5. The reporting system action against a person in reprisal for a protected disclosure. 6. Roles and responsibilities Section 3 of the Act defines detrimental action to include: 7. Confidentiality 8. Collating and publishing statistics • Action causing injury, loss or damage; 9. Receiving and assessing disclosures: • Intimidation or harassment; and 10. Investigations • Discrimination, disadvantage or adverse treatment in 11. Action taken after investigations relation to a person’s employment, career, profession, trade 12. Managing the welfare of the whistleblower or business, including the taking of disciplinary action. 13. Management of the person against whom the disclosure is made Examples 14. Criminal offences 15. Flow chart A public body refuses a deserved promotion of a person who makes a disclosure. 4.2 Establishing a reporting system A public body demotes, transfers, isolates in the workplace or changes the duties of a whistleblower due to the making 4.2.1 Introduction of a disclosure. All public bodies must establish a reporting system for the A person threatens, abuses or carries out other forms of reporting, assessment and investigation of whistleblower harassment directly or indirectly against the whistleblower, disclosures. It is recommended that this system be centralised. his or her family or friends. A centralised system of handling disclosures involves a small number of officers who report directly to the chief A public body discriminates against the whistleblower or executive officer of an organisation. There are a number his or her family and associates in subsequent applications of benefits of a centralised system including: for jobs, permits or tenders.
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• Fewer people handling disclosures enhances confidentiality • Keeping the roles of assessment and investigation of a and thereby reduces the likelihood of reprisals being taken disclosure distinct from welfare management of the against whistleblowers; whistleblower; • Direct involvement of senior management in the reporting • Identifying clear contact points for reporting whistleblower system appropriately reflects the seriousness of disclosures, including all relevant mail, phone calls and whistleblower matters; emails; • As the occurrence of improper conduct is often a result • Providing an alternative contact for the making of a of poor supervision within an organisation, senior disclosure where the nominated protected disclosure management should take overall responsibility for the officer is unavailable or implicated in the allegation; and investigation of these matters; • Ensuring a disclosure about the chief executive officer of • Whistleblower allegations sometimes concern the a public body is immediately referred to the Ombudsman. whistleblower’s supervisor. A devolved model of Public bodies may wish to appoint internal staff to carry reporting may therefore create a conflict of interest by out the requisite functions under the Act, or engage a involving that supervisor in the assessment and contractor to, for example, receive and assess disclosures, investigation of any disclosure; and carry out an investigation or provide welfare management • A centralised system requires the training of fewer staff. of a whistleblower. A clearly stated internal reporting system will benefit a The general criteria for appointment of officers include: public body by: • Direct access to CEO; • Encouraging staff to raise matters of concern internally • Sufficient seniority and status; rather than making disclosures directly to the Ombudsman; • Training on requirements of the Act and these guidelines; • Encouraging Providing a reporting channel for and disclosures that may otherwise never be reported; • Skills and experience • Ensuring disclosures by whistleblowers are properly and appropriately assessed and acted upon; and Investigators must: • Ensuring the protection of the Act is fully available to all • Be competent in terms of training and experience to internal and external whistleblowers. effectively undertake the investigation; • Be free from any suggestion of bias or conflict of interest 4.2.2 Roles and responsibilities of those involved involving any issue or witness; in the internal reporting system • Be sufficiently senior to the person who is the subject of the disclosure (where the investigator is an internal staff An internal reporting policy should identify the officers member); and who will be involved in the internal reporting system and • Have direct access to the Protected Disclosure Coordinator clearly describe their individual roles. and the Chief Executive Officer. There are a number of ways a public body can set up a reporting system. The number of officers and their respective 4.2.3 Model reporting system for a large organisation roles will depend on the size of the body, and its structure The reporting system for a large organisation may involve in terms of regions or organisational units. There are five a number of different officers. For example, the structure chief requirements of any reporting system: could be represented as follows: • Ensuring senior executive staff are involved and retain oversight;
CEO
Protected Investigator Welfare manager disclosure
Protected Protected Protected Protected disclosure disclosure disclosure disclosure
2003 ANNUAL REPORT 119 Protected disclosure officer Investigators In this internal reporting system, a number of protected The investigator will be responsible for carrying out an disclosure officers are appointed to receive and assess internal investigation into a disclosure where the Ombudsman disclosures by whistleblowers about improper conduct. has referred a matter to the public body. An investigator may These officers could be based in different geographical be a person from within an organisation, or a consultant regions of a public body or in different organisational engaged for that purpose. program areas. See section 8 for more information about investigations. Protected disclosure officers will: • Be a contact point for general advice about the operation Welfare manager of the Act for any person wishing to make a disclosure The welfare manager in responsible for looking after the about improper conduct; general welfare of the whistleblower as it pertains to the • Make arrangements for a disclosure to be made privately making of the disclosure. The welfare manager will: and discreetly and, if necessary, away from the workplace; • Examine the immediate welfare and protection needs of • Receive any disclosure made orally or in writing (from a whistleblower who has made a disclosure and seek to internal and external whistleblowers); foster a supportive work environment; • Commit to writing any disclosure made orally; • Advise the whistleblower of the legislative and • Impartially assess the allegation and determine whether it administrative protections available to him or her; is a disclosure made in accordance with Part 2 of the Act • Listen and respond to any concerns of harassment, ( that is, a protected disclosure); intimidation or victimisation in reprisal for making a • Take all necessary steps to ensure the identity of the disclosure; and whistleblower and the identity of the person who is the • Discuss with the whistleblower what would be a realistic subject of the disclosure are kept confidential; and expectation for the outcome of an investigation of the • Forward all disclosures and supporting evidence to the disclosure. protected disclosure coordinator. See section 10 for more information on managing the See section 7 for more information about the assessment welfare of the whistleblower. process. 4.2.4 Model reporting system for a small organisation Protected disclosure coordinator In a smaller organisation, a possible internal reporting The protected disclosure coordinator has a central structure is represented below. ‘clearinghouse’ role in the internal reporting system. He or she will: • Receive all disclosures forwarded from the protected disclosure officers; CEO • Receive all phone calls, emails and letters from members of the public seeking to make a disclosure; (& protected Investigator • Impartially assess each disclosure to determine whether disclosure) it is a public interest disclosure; • Refer all public interest disclosures to the Ombudsman; • Be responsible for carrying out, or appointing an investigator to carry out, an investigation referred to Protected the public body by the Ombudsman; • Be responsible for overseeing and coordinating an disclosure officer investigation where an investigator has been appointed; & welfare • Appoint a welfare manager to support the whistleblower and to protect him or her from any reprisals; • Advise the whistleblower of the progress of an investigation into the disclosed matter; Other examples in reporting structures can be found • Establish and manage a confidential filing system; in annexure B to these guidelines. • Collate and publish statistics on disclosures made; • Take all necessary steps to ensure the identity of the 5. Ensuring confidentiality whistleblower and the identity of the person who is the subject of the disclosure are kept confidential; and 5.1 Statutory requirements • Liaise with the chief executive officer of the public body. Section 22 of the Act requires any person who receives See section 7 for more information about the assessment information due to the handling or investigation of a process. protected disclosure, not to disclose that information except in certain limited circumstances. Disclosure of information in breach of section 22 constitutes an offence punishable by a maximum fine of 60 penalty units ($6000) or six months imprisonment or both.
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The circumstances in which a person may disclose • The number and types of disclosures made to public information obtained about a protected disclosure include: bodies during the year; • Where exercising the functions of the public body under • The number of disclosures referred to the Ombudsman the Act; for determination as to whether they are public interest • When making a report or recommendation under the Act; disclosures; • When publishing statistics in the annual report of a public • The number and types of disclosed matters referred to body; and the public body by the Ombudsman for investigation; • In criminal proceedings for certain offences in the Act. • The number and types of disclosed matters referred by the public body to the Ombudsman for investigation; However, the Act prohibits the inclusion of particulars in • The number and types of investigations taken over any report or recommendation that is likely to lead to the from the public body by the Ombudsman; identification of the whistleblower. The Act also prohibits • The number of requests made by a whistleblower to the the identification of the person who is the subject of the Ombudsman to take over an investigation by the public disclosure in any particulars included in an annual report. body; As a further assurance of confidentiality, a person cannot • The number and types of disclosed matters that the obtain information about a protected disclosure by public body has declined to investigate; application under the Freedom of Information Act 1982. • The number and types of disclosed matters that were substantiated upon investigation and the action taken 5.2 Maintaining confidentiality to on completion of the investigation; and avoid reprisals • Any recommendations made by the Ombudsman that relate to the public body. Public bodies are required to protect whistleblowers from reprisals for making a protected disclosure. Maintaining the Describing the type of disclosure requires a statement confidentiality of the identity of the whistleblower is the about the nature of the disclosure; for example, an best way of preventing reprisals being made. Whistleblowers allegation of bribery or fraudulent use of public funds. should be advised that it is in their own interests to keep disclosures confidential. 6.2 Establishing a register See section 10 for more information about protection of the It is recommended that public bodies establish a secure whistleblower. register to record the information required to be published in an annual report, and to generally keep account of the 5.3 Establishing a confidential electronic status of whistleblower disclosures. The register should be and paper filing system the responsibility of the protected disclosure coordinator or chief executive officer and must be kept confidential. Public bodies must ensure that all files, whether paper or A register should not record information that may identify electronic, are secure and can only be accessed by authorised the whistleblower. officers. All printed material should be kept in files that are clearly marked as a Whistleblower Protection Act matter and A model register can be found at annexure C. warn of the criminal penalties that apply to any unauthorised divulging of information concerning a protected disclosure. Public bodies should examine ways of securing electronic PART B – HANDLING A files, such as establishing a stand-alone computer for whistleblower matters and saving files with password PROTECTED DISCLOSURE protection onto a floppy disc. Any other material, such as tapes from interviews, should similarly be stored securely. 7. Receiving and assessing disclosures Public bodies should also consider the security of communications between nominated officers and/or Introduction contracted officers. It is recommended that sensitive This section deals with the responsibilities of public bodies information or documents are not emailed or faxed to a when they receive a disclosure about improper conduct. machine to which staff have general access. Personal delivery of documents is the best way to ensure Public bodies can receive a range of complaints and confidentiality. grievances from staff and members of the public. Only some of these matters will qualify for protection and investigation under the Act. The task for public body managers is to 6. Collating and publishing statistics ensure the appropriate policy and procedure are applied to the particular circumstances of the case. Each public body 6.1 Statutory requirements should establish a table that sets out the alternative All public bodies that publish an annual report or report of mechanisms available to a public body for dealing with operations must include in that report the written procedures possible complaints or allegations. The content of such a established for whistleblower matters, and a range of details table will vary depending on the type of complaints likely about protected disclosures that have been made to that body to be received by a public body. The table below sets out in the reporting year. These details include: one example.
2003 ANNUAL REPORT 121 Problem Initial contact Other options Workplace policy Workplace conflicts or grievances Supervisor or manager Grievance registrar Grievance policy or dispute handling policy Equal opportunity concerns Supervisor or manager EO Officer or Equal opportunity policy EO Commission Occupational health and safety Supervisor or manager OH&S representative OH&S policy Ethical or other misconduct Supervisor or manager Office of Public VPS Code of Conduct concerns Employment Improper conduct or detrimental action* Protected disclosure The Ombudsman Whistleblower Protection officer Act procedures Police misconduct Ethical Standards The Deputy Ombudsman Police Regulation Act Division 1958 procedures Complaints re administrative action The public body The Ombudsman Ombudsman Act 1973 by government bodies concerned
*Corrupt conduct, substantial mismanagement of public 7.2.1 How can a protected disclosure be made? resources, conduct involving substantial risk to public safety Part 2 of the Act provides that a person may make a or health or to the environment, or detrimental action taken disclosure: in reprisal for the making of a disclosure about the above matters. • Orally; • In writing; or Due to the confidentiality requirements for whistleblower • Anonymously. disclosures, public bodies must establish a reporting system that enables a possible whistleblower disclosure to be A disclosure may be made about conduct that has occurred identified as early as possible. Early identification of before the commencement of the Act on 1 January 2002, disclosures will enable them to be referred directly to a and where the person cannot identify the person or body protected disclosure officer or the protected disclosure to whom the disclosure relates. coordinator for assessment. The source of possible whistleblower disclosures include: 7.2.2 To whom must a protected disclosure be made? • Correspondence; Part 2 of the Act provides that a person must make a • Phone calls; disclosure to the appropriate person or body for it to be a • Emails; and protected disclosure under the Act. As a general rule, a • In person approaches by staff or members of the public. disclosure must be made to the public body that employs the person who is the subject of the disclosure, or to the Mail centres, front desk staff, online services units and all Ombudsman. employees must be made aware of the general nature of whistleblower disclosures and the established reporting Therefore, public bodies can only receive disclosures that channels. relate to the conduct of their own members, officers or employees. If a public body receives a disclosure about an 7.2 Has the disclosure been made in employee, officer or member of another public body, the disclosure has not been made in accordance with Part 2 of accordance with Part 2 of the Act? the Act. The public body should advise the person making When a public body receives a complaint or report or the disclosure of the correct person or body to whom the allegation of improper conduct or detrimental action, the disclosure must be made. Where the disclosure has been first step is to determine whether the matter falls under made anonymously, it should be referred to the Ombudsman. the Whistleblowers Protection Act. Disclosures that come under the Act must be made in accordance with Part 2 of the Act. Disclosures made under Part 2 of the Act are called protected disclosures. There will be situations where a public body receives an allegation of improper conduct or detrimental action, but the person making the allegation has not referred to the Whistleblowers Protection Act. Public bodies should advise that person that he or she may wish to make a disclosure under the Act due to the protections it provides to genuine whistleblowers. Guidance in how to make the disclosure in accordance with the Act should be provided.
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The table below sets out the requirements for directing a disclosure.
Person who is the subject of the disclosure Person/body to whom the disclosure must be made Employee of a public body That public body or the Ombudsman Member of Parliament (Legislative Assembly) Speaker of the Legislative Assembly Member of Parliament (Legislative Council) President of the Legislative Council Councillor The Ombudsman Chief Commissioner of Police The Ombudsman or Deputy Ombudsman Member of the police force The Ombudsman, Deputy Ombudsman or Chief Commissioner of Police
7.2.3 Main elements of a protected disclosure 7.3 Is the disclosure a public interest Where a public body receives information relating to the disclosure? conduct of an employee, member or officer of that public body, it must assess whether the disclosure meets the 7.3.1 Statutory requirements following criteria: Where a public body has received a disclosure that has • Did a natural person (that is, an individual person rather been made in accordance with Part 2 of the Act (a protected than a corporation) make the disclosure? disclosure), it must assess whether the disclosure amounts to • Does the disclosure relate to conduct of a public body or a public interest disclosure. This assessment must be made public officer acting in their official capacity? within 45 days of the receipt of the disclosure. • Is the alleged conduct either improper conduct or In reaching a conclusion as to whether a protected disclosure detrimental action taken against a person in reprisal for is a public interest disclosure, a public body must consider making a protected disclosure? whether the disclosure shows or tends to show that the public • Does the person making a disclosure have reasonable officer to whom the disclosure relates: grounds for believing the alleged conduct has occurred? • Has engaged, is engaging or proposes to engage in See 3.2–3.4 for a definition of improper conduct and improper conduct in his or her capacity as a public detrimental action. officer; or If one or more of the above elements are not satisfied, the • Has taken, is taking or proposes to take detrimental action person has failed to make a disclosure under the Part 2 of in reprisal for the making of the protected disclosure. the Act; for example: • Where there was an allegation of corrupt conduct by the 7.3.2 To show or tend to show improper conduct public officer, but not in his or her official capacity as a or detrimental action public officer; Uncertainty about whether an allegation amounts to a public • Where the person cannot provide evidence to demonstrate interest disclosure may arise in relation to demonstrating that he or she had reasonable grounds for believing the that improper conduct or detrimental action has taken place. conduct has occurred; or To assess whether a disclosure shows or tends to show that • Where the alleged conduct does not constitute improper a public officer has engaged in improper conduct, a public conduct or detrimental action taken against a person in body must be satisfied that there is sufficient supporting reprisal for making a protected disclosure. material to demonstrate that the conduct has actually Where a person has failed to make a disclosure under Part occurred. A mere allegation with no supporting evidence 2 of the Act, no further action need be taken under the Act. is not sufficient. The alleged conduct may, however, still warrant examination It may be necessary to question the whistleblower more by the public body. Alternatively, it may be appropriate to closely about his or her information and the evidence he or advise the complainant of alternative avenues of redress. she has or can point to as supporting his or her allegations. Please refer to the table in 7.1. It is important to be discreet about arranging further Where a public body determines that a person has made a questioning, bearing in mind the requirement to avoid disclosure in accordance with Part 2 of the Act, this identifying the whistleblower. It is also important to be disclosure is now referred to as a protected disclosure and careful about the time and venue of interviews and, in this must be dealt with in accordance with the Act. The next step regard, consideration should be given to who might observe requires the public body to assess whether the protected comings and goings. In asking for further information, it disclosure is a public interest disclosure. should also be remembered that the whistleblower is likely to feel under considerable strain. The whistleblower may react badly to a line of questioning that gives the impression of serious scepticism about the initial disclosure.
2003 ANNUAL REPORT 123 7.3.3 The disclosure should be in writing Where the public body concludes that the disclosure is not It is essential to get the disclosure in written form, even if it a public interest disclosure, the public body must: is necessary to transcribe it and get the whistleblower to sign 1. Notify the person who made the disclosure of that it. This reduces the chance of subsequent dispute about the conclusion; and precise nature of the disclosure, and whether it should have 2. Advise that person that he or she may request the public been treated as a public interest disclosure. It is also essential body to refer the disclosure to the Ombudsman for a to immediately commit an oral disclosure to writing so it formal determination as to whether the disclosure is a can be dated. A public body has 45 days from the date of public interest disclosure, and that this request must be receipt of the disclosure to conclude whether it is a public made within 28 days of the notification. interest disclosure. In either case, a public body must make the notification 7.4 Action following assessment of public and the referral within 14 days of reaching its conclusion. Notification to the whistleblower is not necessary where interest disclosure the disclosure has been made anonymously. Where the public body concludes that the disclosure amounts to a public interest disclosure, the public body must: 7.5 Flowchart 1. Notify the person who made the disclosure of that The flowchart below represents the assessment and referral conclusion; and process. WB stands for the whistleblower (or person who 2. Refer the disclosure to the Ombudsman for formal makes the disclosure). determination as to whether it is indeed a public interest disclosure.
DISCLOSURE Ombudsman Public body MADE
Has the disclosure The Act does not Has the disclosure been made under No apply. Respond as No been made under Part 2 of the Act? normal complaint Part 2 of the Act?
Yes
Is the disclosure a public Is the disclosure a public interest disclosure? interest disclosure? (Make determination (Make decision in 45 in reasonable time) days from receipt)
No Yes Yes No
Notify WB & public Notify WB and advise body where a referred Notify WB & public Notify WB & refer to of option to request disclosure. Give option body where a Ombudsman within referral to Ombudsman. of making complaint referred disclosure 14 days of decision (Within 14 days of under Ombudsman decision) Act or PRA.
WB requests Investigation may disclosure to be dealt If WB makes a be referred to Chief with as a complaint request within 28 days, Investigation Commissioner of Police, (within 28 days). refer to Ombudsman Auditor General, public Disclosure deemed to immediately body or prescribed body be a compliant
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8. Investigations crucial to the successful conduct of inquiries as they establish a focus and set limits for an investigation. The setting of 8.1 Introduction terms of reference obliges a public body to clarify the key issues to which the disclosure gives rise. Where the Ombudsman determines a protected disclosure to be a public interest disclosure, the matter will proceed to The terms of reference should set a date by which the investigation. The Ombudsman makes this determination investigation report is concluded. They should take into for disclosures that are referred by public bodies and account the practicalities of the investigation and ensure disclosures made directly to the Ombudsman. Therefore, sufficient resources are available to the investigator to it is the Ombudsman who always determines whether an complete the investigation within the time set. A mechanism investigation will take place. should be established to enable the extension of time where reasonable circumstances exist. Such extensions of time The Ombudsman will notify public bodies and whistleblowers should only be approved by the protected disclosure of the determination made and whether an investigation will coordinator or the CEO. take place. Where the Ombudsman has determined a matter not to be a public interest disclosure, he will advise the person The terms of reference should provide for the adequate who made the disclosure of the option of having the matter monitoring of the investigation by the protected disclosure dealt with as a complaint under the Ombudsman Act 1973 coordinator or the CEO of the public body. Monitoring or the Police Regulation Act 1958. A person must request should ensure the investigation maintains its relevance to that the matter be dealt with as a complaint under either Act the allegations and is being carried out effectively and within 28 days of being given notice. Allegations or efficiently. If the Ombudsman is not satisfied with an complaints that are determined not to be a public interest investigation by a public body, the Ombudsman may take disclosure may still warrant investigation and a response it over (see 8.10). by a public body under its normal complaints handling mechanisms. 8.5 Preparation of investigation plan The investigator should prepare an investigation plan. 8.2 Who can carry out the investigation? The plan will require the elements of the allegation to be The Ombudsman will either investigate a public interest clarified. It should list the issues to be substantiated and disclosure or refer the investigation to the following officers describe the avenue of inquiry. A plan should address the and bodies, where it is appropriate to do so: following issues: • The Chief Commissioner of Police; • What is being alleged? • The Auditor-General; • What are the possible findings or offences? • The Deputy Ombudsman; • What are the facts in issue? • Other bodies prescribed in the regulations; or • How is the inquiry to be conducted? • A public body, where the matter relates to an employee, • What resources are required? officer or member of that body. Investigating officers should obtain all documents relevant Where the Ombudsman refers an investigation, the to the allegation prior to conducting interviews. This Ombudsman must notify the person who made the familiarises the investigator with the issues of the case and disclosure of the referral. allows witnesses (including the whistleblower) to identify and explain documents during the interview process. 8.3 Investigation by a public body At the commencement of the investigation, the whistleblower Where the Ombudsman has referred an investigation to a should be: public body, the public body must carry out the investigation • Notified by the investigator that he or she has been in compliance with the Act, these guidelines and the appointed to conduct the investigation; established procedures of that public body. • Asked to clarify any matters; and The objectives of an investigation should be to: • Provide any additional material he or she might have. • Collate information relating to the allegation as quickly The investigator needs to be sensitive to the whistleblower’s as possible. This may involve taking steps to protect or possible fear of reprisals, and to be aware of the statutory preserve documents, materials and equipment; protections provided to the whistleblower. See section 10 for • Consider the information collected and draw conclusions more information about managing the welfare of the objectively and impartially; whistleblower. • Maintain procedural fairness in the treatment of witnesses and the person who is the subject of the disclosure; and 8.6 Natural justice • Make recommendations arising from the conclusions The principles of natural justice should be followed in any drawn concerning remedial or other appropriate action. investigation of a public interest disclosure. The principles of natural justice concern procedural fairness and aim to 8.4 Terms of reference and authorisation ensure a fair decision is reached by an objective decision Before commencing an investigation, a public body should maker. Maintaining procedural fairness protects the rights of draw up terms of reference and obtain authorisation for individuals, and enhances public confidence in the process. those terms by the chief executive officer or protected disclosure coordinator. The setting of terms of reference is
2003 ANNUAL REPORT 125 Public bodies should have regard to the following issues in The whistleblowers should be advised by the investigator ensuring procedural fairness: of the need to disclose the reason for the investigation to • The person who is the subject of the disclosure is entitled any witness. to know the allegations made against him or her and must However, there will be cases where it will be impossible to be given the right to respond. (This does not mean the protect the identity of the whistleblower. For example, a person must be advised of the allegation as soon as the case may arise where it is well known within an organisation disclosure is received or the investigation has commenced); that only the whistleblower could have access to the • If the investigator is contemplating making a report information in the disclosure. In these circumstances, the adverse to the interests of any person, that person should whistleblower must be made aware that to investigate a be given the opportunity to put forward further material matter, his or her identity will probably be revealed. While that may influence the outcome of the report and that confidentiality may not be able to be maintained, the person’s defence should be fairly set out in the report; whistleblower is still afforded the various protections in the • All relevant parties to a matter should be heard and all Act and should have a welfare manager appointed to his or submissions should be considered; her case. See section 10 for more information about • A decision should not be made until all reasonable inquiries whistleblower protections. have been made; • The investigator or any decision maker should not have a 8.9 Powers with respect to witnesses personal or direct interest in the matter being investigated; The Act does not specifically provide public bodies with the • All proceedings must be carried out fairly and without power to compel witnesses to attend interviews, to answer bias. Care should be taken to exclude perceived bias from questions or to produce documents. However, the chief the process; and executive officer of a public body and his or her delegates • The investigator must be impartial in assessing the have the power to give a lawful instruction to an employee credibility of the whistleblowers and any witnesses. to attend a meeting at a particular time and to produce Where appropriate, conclusions as to credibility should official documents. The chief executive officer and his or be included in the investigation report. her delegates are entitled to ask an employee any relevant question concerning his or her employment. An employee 8.7 Recording information may decline to answer any question if the answer would It is important that contemporaneous notes are made of all tend to incriminate him or her in relation to a criminal or discussions, phone calls and interviews. It is recommended disciplinary offence. that all interviews with witnesses be taped to enable an Investigators should carry out interviews with employees, accurate record of the interview to be kept. The investigator officials or members in a non-threatening, cooperative should ask the witness to identify himself or herself at the manner. commencement of the interview for the purposes of the taped record. If an investigator wishes to interview a person employed by another public body or a member of the public, the Public bodies may also accept written statements from a investigator may only carry out the interview where this witness. The statement should include the witness’s name, person has provided consent. Minors may only be address and occupation, and each page should be signed. interviewed with the permission of, and in the presence The last page should be signed below the final paragraph. of, a parent or guardian whose particulars should be documented in the notes of the interview. 8.8 Confidentiality requirements Where an investigation cannot proceed due to the lack of Confidentiality requirements demand that strict security cooperation by key witnesses, a public body should refer should surround the conduct of an investigation into a public the matter to the Ombudsman for investigation. The interest disclosure. All interviews should be conducted in Ombudsman has powers to summon a person to attend a private, and care should be taken to avoid any unauthorised hearing to answer questions or to produce documents. divulging of information about the disclosed matter during Non-compliance with such a summons is an offence. See the investigation process. All information obtained should 8.13 for further information about the Ombudsman taking be placed on a confidential file that is stored securely in a over investigations. location only accessible by authorised officers. Any tapes or other relevant materials should also be kept in this secure 8.10 Legal representation and other support to location. witnesses Whistleblowers will often be anxious about the prospect of It is in the discretion of the investigator to determine whether information about their disclosures being revealed. The it is appropriate for a witness to have legal representation or investigator should assure the whistleblower that his or her any other person present during an interview. If a witness has identity will be protected as much as possible at all times. The a special need for another person to be with them, permission whistleblower should be advised of the protection afforded should be granted. Where legal representation or another by the Act and of the procedures that are in place to ensure support person is present, their role is to advise or support confidentiality will be maintained. Any interviews with the the witness, not to answer questions for the witness. whistleblower should be arranged discreetly and, possibly, away from the workplace to avoid the whistleblower being identified. It may assist the investigation if witnesses are informed in general terms of the reason for the investigation.
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8.11 Immunity from disciplinary action 3. The Ombudsman is not satisfied with the investigation A situation may arise where a witness or the whistleblower by the public body. Where the Ombudsman takes over seeks immunity from disciplinary action for providing an investigation, the Ombudsman must give notice to the information about improper conduct in which they are person who made the disclosure, unless it was made implicated. In some circumstances, it may be appropriate anonymously. for the public body to exercise discretion in relation to Where the Ombudsman takes over an investigation, the disciplinary action where an employee comes forward with public body must give to the Ombudsman in writing any a disclosure. This will depend on the nature and seriousness information that is has and any findings, preliminary or of the witness’s misconduct. Any decision concerning otherwise, that it has made in respect to the matter. The immunity from disciplinary action must always be made Ombudsman may: by those officers with the power to take disciplinary action. • Commence a new investigation; This should be either the chief executive officer or the • Complete the investigation; protected disclosure coordinator, and not the investigator. • Refer the investigation back to the public body with See 10.7 for further information about compromised recommendations; or whistleblowers. • Refer the matter to another public body to investigate. If a person considering making a disclosure wishes to Where the Ombudsman takes over an investigation due to discuss possible immunity for any improper conduct he a request by the whistleblower, or where the Ombudsman or she may be implicated in, he or she should approach is dissatisfied with the investigation, the Ombudsman may a protected disclosure officer or the protected disclosure inquire into the conduct of the investigation by the public coordinator to discuss the issue. body.
8.12 Criminal conduct 8.14 Reporting requirements The Ombudsman will not refer disclosures alleging serious There is a statutory obligation for a public body conducting criminal offences to a public body for investigation. Such an investigation to provide information about the progress of disclosures will usually be referred to the Chief Commissioner the investigation to the Ombudsman or to the whistleblower of Police. However, it is possible during an investigation by at their request. The information must be provided within 28 a public body that facts are uncovered that reveal possible days of the request. A public body is not obliged to provide criminal offences. It is important in these circumstances for information to the whistleblower where that information has the public body to suspend the investigation and to seek the already been given to the whistleblower, or where giving advice of the Ombudsman as to the future of the matter. The the information would endanger the safety of any person or Ombudsman will take over the investigation of any serious prejudice the outcome of the investigation. criminal matter or refer the investigation to the Chief It is prudent to maintain regular contact with the Commissioner of Police. whistleblower so he or she is kept informed of the progress of the investigation. Regular reports are an important way 8.13 The Ombudsman may take over to reassure whistleblowers that their disclosures are being the investigation taken seriously. There are three circumstances in which the Ombudsman See section 10 for more information about managing the may take over an investigation by a public body: welfare of the whistleblower. 1. A public body considers its own investigation is being obstructed. Non-compliance by key witnesses is an example of such obstruction. The chief executive officer 9. Action taken after an investigation should make a decision about referral of the investigation on the advice of the protected disclosure 9.1 Investigator’s report of findings coordinator who is overseeing the investigation. If the After completing an investigation, a report must be prepared. public body refers an investigation back to the The investigation is complete when the investigator is Ombudsman, it must notify the person who made the satisfied that he or she has obtained all necessary information disclosure of the referral, unless the disclosure was made to reach a conclusion, or all relevant information that is anonymously. practical to obtain. The report should be forwarded to the 2. The person who made the disclosure may request the protected disclosure coordinator and will be for the public Ombudsman to investigate the disclosed matter if: body’s records. It should contain: • The public body fails to carry out the investigation; or • The allegation/s: • The person is dissatisfied with the manner in which • An account of all relevant information received and, if the public body is carrying out the investigation; or the investigator has rejected evidence as being unreliable, • The person is dissatisfied with the steps taken by the the reasons for this opinion being formed; public body after the investigation of the matter; or • The conclusions reached and the basis for them; and • The public body has failed to comply with the • Any recommendations arising from the conclusions. reporting and remedial action requirements set out in In formulating a conclusion on the evidence collected, an section 81 of the Act. investigator must be satisfied on the balance of probabilities that the alleged conduct has occurred. Where the investigator has found the conduct disclosed by the whistleblower has
2003 ANNUAL REPORT 127 occurred, recommendations made by the investigator It is a requirement of the Act that public bodies establish should include: procedures for the protection of whistleblowers from reprisals. • The steps that need to be taken by the public body to The procedures must comply with the Act and with these prevent the conduct from continuing or occurring in the guidelines. Recommended administrative procedures for future; the protection of whistleblowers are discussed in 10.4. • Any action that should be taken to remedy any harm or The Act also provides the whistleblower with a number of loss arising from the conduct. This action may include statutory protections. These are listed in 10.3. bringing disciplinary proceedings against the person responsible for the conduct, and referring the matter to an 10.2 Internal and external whistleblowers appropriate authority for further consideration. A person making a protected disclosure may be employed The report should be accompanied by: by a public body or may be a member of the public. Public • The transcript or other record of any oral evidence taken, bodies are obliged to protect both internal and external including tape recordings; and whistleblowers from detrimental action taken in reprisal for • All documents, statements or other exhibits received by the making of the disclosure. The management of both types the officer and accepted as evidence during the course of of whistleblower will, however, be different. the investigation. The main issue of difference is that internal whistleblowers In drafting the report, it is important to bear in mind the are at risk of suffering reprisals in the workplace. A welfare requirements of procedural fairness (see 8.6). If an adverse manager must foster a supportive work environment and comment is to be made against any person, that person must respond to any reports of intimidation or harassment (see be given the opportunity to respond and his or her defence 4.2.2 and 10.4). There may, however, be opportunities for must be fairly included in the report. reprisals to be taken against external whistleblowers. Public bodies should also appoint a welfare manager for an external The report must not disclose particulars likely to lead to the whistleblower. A welfare manager of an internal or external identification of the whistleblower (see section 5). whistleblower cannot be expected to go beyond what is reasonable for a public body in providing support to a 9.2 Action to be taken by the public body whistleblower. The welfare manager should discuss the after an investigation issue of reasonable expectations with the whistleblower. If the findings of an investigation conclude that the disclosed conduct has occurred, the public body: 10.3 Statutory protections • Must take all reasonable steps to prevent the conduct The Act creates an offence for a person to take detrimental from continuing or occurring in the future; action in reprisal for a protected disclosure. The maximum • May take action to remedy any harm or loss arising from penalty is a fine of 240 penalty units ($24,000) or two years the conduct. This action may include bringing disciplinary imprisonment or both. The taking of detrimental action in proceedings against the person responsible for the conduct, breach of this provision can also be grounds for making a and referring the matter to an appropriate authority for disclosure under the Act and can result in an investigation. further investigation; and Detrimental action includes: • Must report the findings of the investigation and any remedial steps taken to the Minister responsible for the • Causing injury, loss or damage; public body. Where the disclosure concerns an employee • Intimidation or harassment; and or officer of a council, the report must be made to that • Discrimination, disadvantage or adverse treatment in council. relation to a person’s employment, career, profession, trade or business (including the taking of disciplinary At the conclusion of every investigation, the public body action). must: Other statutory protections include: • Give written notification to the Ombudsman of the findings of the investigation and any remedial steps taken; and • Immunity from civil and criminal liability and disciplinary • Inform the whistleblower of the findings of the action for the making of the disclosure (section 14); investigation and any remedial steps taken within a • Immunity from liability for breaching a confidentiality reasonable time after the completion of the investigation. provision (section 15); • Protection from actions in defamation (section 16); • Provision of a statutory right to sue for damages for 10. Managing the welfare of reprisals made (section 19); the whistleblower • Provision of a statutory right to apply to the Supreme Court for an injunction or order requiring detrimental 10.1 Introduction action to be remedied (sections 20 & 21); • Creation of an offence to reveal information obtained as The protection of genuine whistleblowers against detrimental a result of a disclosure or investigation, except in limited action is essential for the effective implementation of the circumstances (section 22); and Act. Management of a public body must be responsible for • Prohibition on revealing the identity of the whistleblower ensuring whistleblowers are protected from direct and in any report or recommendation made under the Act indirect detrimental action, and that the culture of their (section 22). workplace is supportive of protected disclosures being made.
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The above protections attach to the making of the disclosure. 10.4.3 Ensuring confidentiality A person who makes a disclosure is not immune from A public body is obliged to protect the identity of the liability for his or her own conduct. See 10.7 for more whistleblower. Confidentiality in respect of all records kept, information about where whistleblowers are implicated in details of matters disclosed, and the identity of persons the improper conduct. involved in the disclosure must be maintained at all times. More detailed discussion of the above statutory protections The welfare manager must not divulge any details relating can be found in part C of these guidelines. to the disclosed matter to any person other than the protected disclosure coordinator, the investigator or the chief executive 10.4 Administrative protections officer. All meetings between the welfare manager and the whistleblower must be conducted discreetly to protect the 10.4.1 Appointing a welfare manager confidentiality of the whistleblower. The senior management of a public body must take The welfare manager should advise the whistleblower responsibility for the welfare of a whistleblower. The not to divulge any details of the disclosure other than to protected disclosure coordinator should appoint a welfare the appropriate officers within the public body or to the manager to monitor the needs of the whistleblower and to Ombudsman. provide advice and support. Public bodies may wish to make See section 5 for further information on ensuring use of an Employee Assistance Program for this purpose. In confidentiality. most circumstances, a welfare manager will only be required where a disclosed matter proceeds to investigation. However, 10.5 Managing expectations public bodies are obliged to protect all persons who make a protected disclosure, regardless of whether that disclosure is It is important to ensure the whistleblower’s expectations determined to be a public interest disclosure and to warrant are realistic. If a whistleblower develops unrealistically investigation. high expectations, dissatisfaction invariably results with either the way in which the public body has dealt with the As described in 4.2.2, the role of the welfare manager is to: disclosure, or the outcome of the investigation. • Examine the immediate welfare and protection needs of The whistleblower’s expectations in relation to the handling a whistleblower who has made a disclosure and seek to of the disclosure should be discussed at the outset of the foster a supportive work environment; making of the disclosure. This can be done by the protected • Advise the whistleblower of the legislative and disclosure officer, the welfare manager or both. The administrative protections available to him or her; whistleblower should be informed of the objective of any • Listen and respond to any concerns of harassment, investigation, what action the public body proposes to take intimidation or victimisation in reprisal for making in relation to the disclosure, and the reasons why this disclosure; decision has been made. All information provided to the • Keep a contemporaneous record of all aspects of the case whistleblower should be in plain English. management of the whistleblower including all contact and follow-up action; and • Ensure the expectations of the whistleblower are realistic. 10.6 Occurrence of detrimental action In providing support for whistleblowers, care should be If a whistleblower reports an incident of harassment, taken to act discreetly and to avoid any action that might discrimination or adverse treatment that would amount to exacerbate the situation by alerting others to the identity detrimental action taken in reprisal for the making of the of the whistleblower. disclosure, the welfare manager should: • Record details of the incident; 10.4.2 Reporting back • Advise the whistleblower of his or her rights under the Act; and Whistleblowers should be advised, in general terms, of the • Advise the protected disclosure coordinator or chief progress in investigating or otherwise dealing with their executive officer of the detrimental action. disclosures and the timeframes that apply. An individual should be nominated by the public body to be the point of The taking of detrimental action in reprisal for making a contact for the whistleblower for the purposes of keeping disclosure can be an offence against the Act as well as him or her informed of this information. This person may grounds for making a further disclosure. Where such be the Protected disclosure officer, the protected disclosure detrimental action is reported, the protected disclosure coordinator, the investigator or the welfare manager, coordinator or chief executive officer should assess it as depending on the nature of the internal reporting system a new disclosure under the Act. If the Ombudsman established by the public body. It should be a person who is subsequently determines the matter to be a public interest readily accessible to the whistleblower and informed of the disclosure, the Ombudsman may refer it to the Chief overall handling of the disclosed matter. Commissioner of Police for investigation. The whistleblower must be advised of the findings of any investigation and any steps taken by a pubic body to address improper conduct that has been found to have occurred. See 9.2.
2003 ANNUAL REPORT 129 10.7 Consequences for whistleblowers think and can have serious consequences. The actions have implicated in improper conduct the potential to effectively contaminate the relationship between the whistleblower and the investigating authority The management of the welfare of an internal or external and prejudice the integrity of any investigation: whistleblower becomes complicated when the whistleblower is implicated in misconduct, whether that misconduct be related to the disclosure made or not. This type of 1. Fail to observe the confidentiality of a disclosure by whistleblower is referred to as a compromised whistleblower. having information pass through a series of hands with The general obligations of a public body in relation to few checks as to who has, or who should view the handling and investigating a disclosure and protecting the material. whistleblower still apply. The act of whistleblowing should 2. Tell anyone who asks about the details and investigations not shield whistleblowers from the reasonable consequences of the disclosure. flowing from any involvement in improper conduct. 3. Report to the workgroup who the whistleblower is, Section 17 of the Act specifically provides that a person’s what the allegations are, and whom they are about. liability for his or her own conduct is not affected by the 4. Interpret natural justice to mean a person has an person’s disclosure of that conduct under the Act. However, immediate right to know when a disclosure has been in some circumstances, an admission may be a mitigating made about them and who made it. factor when considering disciplinary or other action. 5. Always as a first step, ask the person who is the subject of the disclosure about the allegation. Disciplinary or other action against a whistleblower 6. Forward the disclosure and action on it through the invariably creates the perception that it is being taken in chain of command so as many people know about the retaliation for the disclosure. In all cases where disciplinary matter as possible. or other action is being contemplated, the chief executive 7. Forewarn the person who is the subject of an allegation officer or other responsible public officer must be able to in plenty of time about the allegations and provide them clearly demonstrate that: with investigation details. • His or her intention to proceed with disciplinary action is 8. Allow personal biases about the personality of the not causally connected to the making of the disclosure (as whistleblower to influence the assessment of a opposed to the content of the disclosure or other available disclosure. information); 9. Do not take seriously the concerns expressed by a • There are good and sufficient grounds that would fully whistleblower about the possibility of reprisal. justify action against any non-whistleblower in the same 10. Ignore potential conflicts of interest when deciding who circumstances; and should assess or investigate the disclosure. • There are good and sufficient grounds that justify exercising 11. Allow political considerations to influence the any discretion to institute disciplinary or other action. assessment of a disclosure or the findings of an If a public body cannot demonstrate that the above investigation. preconditions have been met, it leaves itself open to 12. Delay the investigation for as long as possible so any allegations of taking detrimental action against a evidence of wrongdoing can be altered or destroyed. whistleblower in reprisal for making the disclosure. This is a criminal offence under the Act and also grounds for 11. Management of the person against making a further disclosure. whom a disclosure is made Where disciplinary or other action relates to conduct that is the subject of the whistleblower’s disclosure, it is desirable A public body must also manage the person who is the that it can be shown that disciplinary or other action was subject of a protected disclosure. This person will always only commenced after the disclosed matter had been be an employee, member or officer of the public body. appropriately dealt with and consideration given the issues Procedures should be established to avoid unnecessary listed above. damage to that person, particularly as an investigation might totally exonerate him or her from any wrongdoing. Public Great care should be taken to thoroughly document the bodies may appoint an internal contact or make use of an process including recording the reasons why the disciplinary Employee Assistance Program to ensure persons who are or other action is being taken, and the reasons why the the subjects of disclosures are given the appropriate support. action is not in retribution for making the disclosure. The whistleblower should be clearly advised of the proposed 11.1 Confidentiality action to be taken and of any mitigating factors that have been taken into account. Disclosures should be assessed and investigated discreetly, with a strong emphasis on maintaining confidentiality of both 10.8 Errors to be avoided the whistleblower and the person who is the subject of the disclosure. The Act creates an offence to disclose information The Queensland Criminal Justice Commission (CJC) obtained in the course of handling or investigating a protected compiled the list below of errors to be avoided in managing disclosure, except in certain limited circumstances. whistleblowers. It can be found on page 29 of the CJC’s publication Exposing Corruption – ACJC guide to Where investigations do not substantiate disclosures, the whistleblowing in Queensland, published in October 1996. fact that the investigation has been carried out, the results of the investigation, and the identity of the person who is The following organisational errors in the management of the subject of the disclosure should remain confidential. whistleblower disclosures occur more often than many may See section 5 for more information about confidentiality.
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11.2 Natural justice 13. Contact details The subject of any disclosure that is investigated by or on The Ombudsman Victoria behalf of a public body has the right to: Level 22, 459 Collins Street • Be informed as to the substance of the allegations; Melbourne 3000 (DX 210174) • Be given the opportunity to answer the allegations before Telephone: (03) 9613 6222 a final decision is made; Toll Free 1800 806 314 • Be informed as to the substance of any adverse comment Internet: www.ombudsman.vic.gov.au that may be included in any report arising from the investigation; and • Have his or her defence set out fairly in any report. PART C – LEGAL See 8.6 for more information on natural justice. INTERPRETATION OF 11.3 Information as to rights and obligations THE WHISTLEBLOWERS All staff, and in particular the person who is the subject of PROTECTION ACT the disclosure, should be given adequate information as to their rights and obligations under the Act, the public body’s 14. Common questions internal reporting system, and any other relevant law or code of conduct. 14.1 What is the purpose of the Whistleblowers Protection Act 2001? 11.4 Notification of findings of any investigation The main purpose of the Act is to ensure transparency and Where the allegations in a disclosure have been investigated, accountability in the workings of the public sector by: and the person who is the subject of the disclosure is aware of the allegations or the fact of the investigation, he or she • Encouraging and facilitating disclosures of improper should be formally advised of the outcome of the conduct by public officers and public bodies; investigation. • Providing protection for persons who make those disclosures and for persons who may suffer reprisals 11.5 Unsubstantiated allegations in relation to those disclosures; and • Providing for the matters disclosed to be properly Where the allegations contained in a disclosure are clearly investigated and dealt with. wrong or unsubstantiated, the person who is the subject of the disclosure is entitled to the support of the public body 14.2 When does the Act come into force? and its senior management. If the matter has been publicly disclosed, it may be appropriate for the public body to issue The Act became law in Victoria on 1 January 2002. a letter of support setting out that the allegations were clearly wrong or unsubstantiated, where the person who is the subject 14.3 Who is a whistleblower? of the disclosure has so requested. The term whistleblower is used to describe a person who makes a disclosure about improper conduct by a public 12. Criminal offences body or public official. Under the Act, a disclosure can only be made by a natural person and not by corporations Public bodies must ensure nominated officers and all staff or other artificial persons. are aware of the four offences created by the Act: 1. It is an offence for a person to take detrimental action 14.4 What is a disclosure? against a person in reprisal for a protected disclosure The term disclosure is used to describe the allegation or being made. The Act provides a maximum penalty of report of improper conduct made by the whistleblower. a fine of 240 penalty units ($24,000) or two years imprisonment or both. 14.5 What disclosures are protected under 2. It is an offence for a person to divulge information the Act? obtained as a result of the handling or investigation of a protected disclosure without legislative authority. A disclosure is a protected disclosure, and therefore protected The Act provides a maximum penalty of 60 penalty under the Act, when it is made in accordance with Part 2 of units ($6,000) or six months imprisonment or both. the Act. Part 2 requires a disclosure to satisfy the criteria set out in the following questions: 3. It is an offence for a person to obstruct the Ombudsman in performing his responsibilities under the Act. The • Did a natural person (that is, an individual person rather Act provides a maximum penalty of 240 penalty units than a corporation) make the disclosure? ($24,000) or two years imprisonment or both. • Does the disclosure relate to conduct of a public body or public officer acting in their official capacity? 4. It is an offence for a person to knowingly provide false • Is the alleged conduct either improper conduct or information under the Act with the intention that it be detrimental action taken against a person in reprisal for acted on as a disclosed matter. The Act provides a making a protected disclosure? maximum penalty of 240 penalty units ($24,000) or • Does the person making a disclosure have reasonable two years imprisonment or both. grounds for believing the alleged conduct has occurred?
2003 ANNUAL REPORT 131 Person who is the subject of the disclosure Person/body to whom the disclosure must be made Employee of a public body That public body or the Ombudsman Member of Parliament (Legislative Assembly) Speaker of the Legislative Assembly Member of Parliament (Legislative Council) President of the Legislative Council Councillor The Ombudsman Chief Commissioner of Police The Ombudsman or Deputy Ombudsman Member of the police force The Ombudsman, Deputy Ombudsman or Chief Commissioner of Police
The disclosure must also be made to the appropriate person. 14.11 Can the whistleblower appeal a decision This depends on who is the subject of the disclosure. not to investigate a disclosure? Part 2 of the Act otherwise provides that a person may If a whistleblower makes a disclosure to a public body at make a disclosure orally, in writing or anonymously. It may the first instance, a determination of whether the disclosure be made about conduct that has occurred before the is a public interest disclosure is initially made by that public commencement of the Act on 1 January 2002, and where body. If the disclosure is found to be a public interest the person cannot identify the person or body to whom the disclosure, it is then referred to the Ombudsman for a final disclosure relates. determination. If the disclosure is found not to be a public interest disclosure, the whistleblower is advised of this 14.6 What disclosures are investigated under decision and given the opportunity to have the matter referred the Act? to the Ombudsman for reconsideration. The whistleblower Disclosures determined by the Ombudsman to be a public must request that the matter be referred to the Ombudsman interest disclosure are investigated under the Act. In making within 28 days of the notification. a determination, the Ombudsman must be satisfied that the Where a disclosure is made directly to the Ombudsman or disclosure shows or tends to show that the public officer or referred to the Ombudsman by a public body, the public body to whom the disclosure relates: Ombudsman must determine whether it is a public interest • Has engaged, is engaging or proposes to engage in disclosure and therefore warrants investigation. There is no improper conduct in his or her capacity as a public appeal from this decision. However, a person may elect to officer; or have the complaint dealt with under the Ombudsman Act or • Has taken, is taking or proposes to take detrimental action the Police Regulation Act as appropriate. This must be done in reprisal for the making of the protected disclosure. within 28 days of receiving notice of the determination. Allegations or complaints that are determined not to be a 14.7 To whom can a disclosure be made? public interest disclosure may still warrant investigation and response by a public body under its normal complaints A person must make a disclosure to the appropriate person handling mechanisms. or body set out in the table in 14.5, depending on who is the subject of the disclosure. 14.12 How is a whistleblower protected from reprisals? 14.8 How can a disclosure be made? The Act provides a number of protections to whistleblowers A disclosure can be made orally, in writing or anonymously. who make a protected disclosure: 14.9 When can a disclosure be made? • Section 14 provides that a person who makes a protected disclosure is not subject to any civil or criminal liability A disclosure can only be made after the commencement of or any liability arising by way of administrative process the Act on 1 January 2002. It can, however, be made about a (including disciplinary action) for making the protected matter that occurred prior to the commencement of the Act. disclosure; • Section 15 provides that a person making a protected 14.10 Is it mandatory to make a disclosure? disclosure does not commit an offence under any Act or While it is ethical for a public servant to report any improper breach an obligation in any oath, rule of law, practice or conduct, the Act does not mandate the making of a under any agreement that imposes a duty to maintain disclosure by an employee, officer or member of a public confidentiality about a matter or restricts disclosure of body or a member of the public. information in respect of a matter; • Section 16 provides that a person has a defence of absolute It should be noted that the Police Regulation Act 1958 privilege in proceedings for defamation in respect of requires the mandatory reporting of serious misconduct by making a protected disclosure; members of the force. • Section 18 creates an offence for a person to take detrimental action against a person in reprisal for a protected disclosure;
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• Section 19 provides that a person who takes detrimental 14.16 Who will carry out the investigation? action against a person in reprisal for a protected disclosure The Ombudsman will carry out an investigation of a is liable in damages to that person; and disclosed matter or the Ombudsman will refer the • Section 20 creates a statutory right for a person who investigation to: believes that detrimental action has been taken against him or her in reprisal for making protected disclosure to apply • The Chief Commissioner of Police; to the Supreme Court for an order remedying that action • The Auditor-General; or for an injunction. Section 21 provides that the Supreme • The Deputy Ombudsman; Court may make such an order or injunction where it is • Other bodies prescribed in the regulations; or satisfied that a person has taken or intends to take • A public body, where the matter relates to an employee, detrimental action in reprisal for a protected disclosure. officer or member of that body. Where the Ombudsman carries out the investigation, the 14.13 Is a person entitled to protection before the Ombudsman may request the Chief Commissioner of Police Ombudsman makes a determination that a or a public body that is prescribed in the regulations to make disclosure is a public interest disclosure? available members of the police force or staff to assist in the investigation. Where a whistleblower makes a disclosure in accordance Where the Ombudsman refers an investigation to a public with Part 2 of the Act, he or she is entitled to the protection body to investigate, the Ombudsman will monitor that of the Act in relation to the making of that disclosure. The investigation and may take it over if dissatisfied with its Ombudsman’s determination of whether that disclosure is a progress. public interest disclosure does not alter the standing of the disclosure in relation to protection under the Act. See 14.14 in relation to the provision of further information. 14.17 Does information given by a witness during an investigation become a 14.14 For how long is a whistleblower protected? protected disclosure? The protections provided to a person who makes a protected If information provided by a witness satisfies the criteria set disclosure under the Act do not cease. However, where a out in Part 2 of the Act, it will become a protected disclosure. person makes a protected disclosure, and that disclosure is See 7.2 above. All information provided in an interview determined not to be a public interest disclosure, any further must be kept confidential. Unauthorised disclosure of such information provided by that person in relation to the subject information is an offence under section 22 of the Act. matter of the disclosure will not attract the protections listed in 14.12. The information that formed part of the original 14.18 Will vexatious or frivolous disclosures be protected disclosure will continue to be protected, unless the investigated? whistleblower has repeated the allegations to persons not If the Ombudsman determines a protected disclosure to be authorised by the Act to receive that disclosure; for example, a public interest disclosure, section 40 of the Act provides the media. that the Ombudsman may decline to investigate the matter if satisfied that the disclosure is trivial, frivolous or vexatious. 14.15 Is the identity of the person making the disclosure confidential? 14.19 What must public bodies do to comply The Act seeks to ensure the confidentiality of the with the Act? whistleblower by creating an offence for the unauthorised Section 68 of the Act requires public bodies to establish release of any information concerning the whistleblower. procedures to facilitate the making of disclosures, for Section 22 of the Act requires any person who receives investigations of disclosed matters, and for the protection information due to the handling or investigation of a protected of persons from reprisals for making the disclosure. The disclosure not to disclose that information except in certain procedures must comply with the Act and with these limited circumstances. Disclosure of information in breach guidelines. A public body must make a copy of the of section 22 constitutes an offence that is punishable by a procedures available to every employee, member or officer maximum fine of 60 penalty units ($6000) or six months of that public body, and members of the public must be able imprisonment or both. The circumstances in which a person to inspect a copy of the procedures during normal office may disclose information obtained about a protected hours free of charge. disclosure include: Public bodies must receive and assess disclosures about • Where exercising the functions of the public body under improper conduct in accordance with the Act, investigate the Act; disclosed matters when referred from the Ombudsman, and • When making a report or recommendation under the Act; take appropriate action when improper conduct has been • When publishing statistics in the annual report of a public found to have occurred. Public bodies must protect body; and whistleblowers from reprisals. The Act also imposes a • In criminal proceedings for certain offences in the Act. number of notification and reporting requirements, including The Act prohibits, however, the inclusion of particulars in the publication of statistics relating to disclosures dealt with any report or recommendation that is likely to lead to the in the public body’s annual report. identification of the whistleblower.
2003 ANNUAL REPORT 133 14.20 When must public bodies have procedures in place? Public bodies must have procedures in place as soon as practicable after the commencement of the Act on 1 January 2002. Where a public body is established after 1 January 2002, it must have procedures in place as soon as practicable after it has been established.
14.21 What notification do whistleblowers receive about action taken in relation to a disclosure made? The whistleblower must be notified of whether the information provided amounts to a public interest disclosure, the findings of any investigation, and of action taken where improper conduct has been found to have occurred.
14.22 Where further information is sought by a public body from a person who makes a disclosure, is that information protected? That information will be protected as forming part of the original disclosure, or where an entirely different allegation is being made, by constituting a new disclosure.
134 THE OMBUDSMAN VICTORIA COMPLIANCE INDEX
This index indicates where the annual reporting requirements can be found in this report.
Reference Requirement Page
s.25 of the Ombudsman Report on the exercise of the Ombudsman’s Act 1973 functions. 13-17, 22-56 s.102(a) of the Include current Whistleblowers Guidelines. Whistleblowers Protection Act 2001 117-134 ss.102(b) – (m) of the Include the number and types of disclosures, Whistleblowers Protection determinations, investigations, referrals, requests, Act 2001 recommendations and actions taken. 18-21 s.86I(1) of the Police Report on the operations of the Deputy Ombudsman Regulation Act 1958 (Police Complaints). 76 Financial Management Report of Operations, Management and Structure, Act 1994. Financial and other information, Financial statements. 89-116
2003 ANNUAL REPORT 135 INDEX
Aboriginal Investigation Officer 3, 14, 15, 73 ACM 35 Arunta Telephone System 37 Auditor-General 19, 21 Australian Banking Industry Ombudsman 4 Bailey, Adele 13, 75 Building Commission 52, 53 Capital Services Agreement 41-43 CEJA Task Force 13, 20, 61, 73, 75 Charges certificate 81, 82, 85 Chief Commissioner for Police 13, 19, 20, 75 Child protection 21, 23-27, 83 City of Frankston 47, 48 City of Glen Eira 45, 46 City of Greater Bendigo 48 City of Greater Geelong 47 City of Melbourne 46 City of Moonee Valley 48, 49 City of Yarra 45 Civic Compliance Victoria 56 Coghlan, Paul QC 20 Colac Otway Shire Council 49, 50 Commissioner for Public Employment 18, 79, 80 Community Access and Youth Liaison Officer 3, 14, 15-17, 73 Conflict of Interest 21, 50, 77-80 Constitution (Parliamentary Reform) Act 2 Consumer and Business Affairs Victoria, CBAV 21 CORE 18, 35, 36, 38 Correctional Services Commissioner 35, 36, 37, 38
136 THE OMBUDSMAN VICTORIA INDEX
Corrections 22, 34-39, 98 Delay certificate 82, 83, 85 Department of Education, DET 30, 31 Department of Human Services, DHS 17, 23-27, 83, 84 Department of Infrastructure 14, 17, 33, 51 Department of Justice 13, 17, 20 Department of Natural Resources and Environment 13, 20 Department of Treasury and Finance, DTF 21 Deputy Ombudsman (Police Complaints) 8, 57, 70, 71, 72, 97 Dillon, John Vincent 3, 5, 8, 10, 65, 71 Director of Public Prosecutions 20, 74 Education Maintenance Allowance, EMA 31, 32 Emergency Management Days 38 Employment 55, 90 Energy and Water Industry Ombudsman 4 Estate Agents Guarantee Fund, EAGF 20, 21 Ethical Standards Department, ESD 72, 74, 75 Financial statements 104-116 Freedom of Information Act, FOI 81-86, 97, 98 Geschke, Charles Norman 6, 8, 10-12, 69, 71 Government Superannuation Office 54, 55 Group 4 35, 39 Haldane, Robert 58, 59, 63, 73 Independent Commission Against Corruption, ICAC 79, 80 Industry Ombudsmen 4 Internal Investigations Department, IID 68, 69, 72 Juvenile Justice Centres 27, 28, 35 Konrad, Constable Karl 72 Land Victoria 21 Local Government 8, 14, 18, 22, 44-53, 90, 98 Lost documents 81, 85 Melbourne City Link Act 88 Melton, Shire of 14 Metropolitan Ambulance Service 55, 56
2003 ANNUAL REPORT 137 Minister for Consumer Affairs 20 Municipal Association of Victoria 52 Neesham, Thomas 5 Nixon, Christine 19, 20, 75 Office of Housing 29, 30 Office of the Public Advocate, OPA 53, 54 Office operations 89 Operation BART 72, 75 Outreach 15-17, 73, 100 Parking infringements 45-48 Perry, Dr Barry 1, 7, 8, 57, 66, 71, 72, 73, 76 Planning 14, 22, 44, 49-52, 90 Police 13, 16-17, 19-21, 40, 57-76, 87-89, 97, 98 Police Complaints Authority, PCA 57, 68, 69, 70, 71, 73 Police Regulation Act 13, 20, 21, 57, 59, 61, 66, 69, 71-74 Port Phillip Prison 39 Powles, Sir Guy 3 Prisoners 34-39 Private Health Insurance Ombudsman 2, 4 Protected Disclosure Coordinator 19, 20, 120 Protective Services 23-27 Public Interest Disclosure 19, 21, 117-134 Public Transport 14, 33, 90 Reid, Sir George 3 Richardson, Professor Dennis 70 RMIT University 32 RSPCA 78 SCAM 18 Selby, Hugh 69, 70 State Trustees, STL 14, 22, 53, 54 Tanner, Jennifer 13, 75 Tanner, Laurie 13 Telecommunications Interception 87 Transport Accident Commission, TAC 40-43, 91
138 THE OMBUDSMAN VICTORIA INDEX
Veterinary Practitioners Board, VPB 78 VicRoads 33, 45 Victoria Police 13, 17, 40, 57-76, 87, 88 Victorian Civil and Administrative Tribunal, VCAT 25, 54, 81, 83 Voluminous requests 81 Wangaratta Rural City Council 50-52 Whistleblowers Protection Act, WPA 13, 18-21, 73, 74, 98, 117-134
2003 ANNUAL REPORT 139 THE OMBUDSMAN VICTORIA
www.ombudsman.vic.gov.au THE OMBUDSMAN VICTORIA ANNUAL REPORT ANNUAL REPORT 30 JUNE 2003 EDITION
30 JUNE 2003 EDITION 30 30