In addition to the activities Ombudsman South Australia is obliged to report on, we have also included our operational policies, and selected public presentations and FOI determinations which you may find useful in understanding the scope of the Ombudsman’s work and responsibilities.
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August 2017: Department of State Development
The applicant sought access to documents received by the agency from Alinta Energy during a specified time period. The agency identified two documents within the scope of the applicant’s request. The agency refused access to documents on the basis that they were exempt under a number of clauses, including clause 13(1)(a). The agency submitted that the documents were subject to a confidentiality agreement. The Ombudsman determined that while the existence of the confidentiality agreement was a relevant consideration, it could not be determinative as clause 13(1)(a) required all of the elements of an equitable breach of confidence to be present. The Ombudsman determined that the elements for breach of confidence were present and the documents were therefore exempt under clause 13(1)(a). The Ombudsman confirmed the agency’s determination.
July 2017: City of Marion – Misconduct in public administration
The Ombudsman received an ICAC referral alleging misconduct by the CEO who improperly influenced council staff in relation to withdrawing an expiation notice issued to a council resident. The Ombudsman found that the CEO did not appropriately deal with the application by the resident (who was assisted in his application by an elected member) because he did not follow the council’s procedure as stated on its website. The Ombudsman found that the CEO influenced the staff member to withdraw the expiation notice by including commentary on the request forwarded to the staff member who withdrew the expiation notice in 42 minutes. The Ombudsman found that the CEO breached clauses 2.2, 2.4 and 2.7 of the Code of Conduct for Council Employees and therefore committed misconduct in public administration. The Ombudsman recommended that all staff be reminded of the council’s procedure in dealing with applications of withdrawal of expiation notices, and that council staff record the grounds of the Expiation of Offences Act 1996 (SA) by which the expiation notice was withdrawn on the council database.
July 2017: Mount Barker District Council – Breach of council member code of conduct
As envisaged under Part 3 of the Code of Conduct for Council Members, the CEO of the Mount Barker District Council referred a complaint about a council member that the council considered were alleged breaches of Part 3 of the Code of Conduct. The CEO advised that the council would address the allegation of possible breaches of Part 2 of the Code of Conduct. In the complaint, the Part 3 allegations related to a public meeting of the council during which the council member divulged information that was subject to confidentiality and therefore a breach of Part 3 of the Code of Conduct. Due to speculation by parties about the identity of the complainant and that attempts by Ombudsman SA to contact the complainant, the Ombudsman determined that, on the basis of the information before him, the issues raised were sufficient for him to conduct an own initiative investigation pursuant to section 13(2) of the Ombudsman Act as a potential breach of Part 3 of the Code of Conduct.
In assessing the complaint it was established that the basis of the complaint to the council rested primarily upon the article that appeared in the Courier Newspaper in which the reporter considered that, during discussions about the agenda item, the council member disclosed information about the location of a proposed car park that was subject to confidentiality. The council member refuted the allegations and denied that she breached confidentiality in anything that she had said about the car park. At the time of printing the article, the reporter was not aware that there was information on the council website about possible locations for the car park that was not subject to confidentiality.
The Ombudsman considered submissions from the council and council member and on the basis of the Briginshaw standard, was not satisfied that she had disclosed information that was not already in the public domain. Therefore, the Ombudsman did not consider that the council member breached Part 3 of the Code of Conduct and did not act in a manner that was unlawful within the meaning of section 25(1)(a) of the Ombudsman Act.
July 2017: Yorke Peninsula Council
The applicant sought access to legal advice received by the council in connection with its consideration of a development issue. The council identified nine documents within the scope of the applicant’s request. The council refused access to seven of these documents on the basis that they were exempt under clause 10(1) of Schedule 1 of the FOI Act. The council submitted that these documents were the subject of legal professional privilege. The Ombudsman determined that while each of the documents (but not their attachments) was originally the subject of legal professional privilege, the privilege attaching to five of the documents had been waived by the council’s decision to refer to the existence and effect of its legal advice in an earlier letter to the applicant. The Ombudsman determined that these five documents were not exempt under clause 10(1) and varied the agency’s determination accordingly.
June 2017: Office of the State Coordinator-General – Unreasonable decision regarding service station development
The Ombudsman investigated a complaint from the City of Burnside about the Office of the State Coordinator-General’s decision to ‘call in’ a proposed On The Run service station development. Under the Development Regulations, the State Coordinator-General is empowered to make such a determination in relation to a development with a total cost of more than $3 million, where satisfied that the development in question is ‘of economic significance to the State’. The Ombudsman found that it was reasonably open to the Office of the State Coordinator-General to determine that the total costs of the proposed development would exceed $3 million. The Ombudsman found that the determination of the Office of the State Coordinator-General that the proposed development was of economic significance to the State was based on an irrelevant consideration, namely the perceived benefit of a ‘single assessment authority’ to the developer. The Ombudsman also found that the Office of the State Coordinator-General’s failure to seek and assess economic estimates specific to the proposed development was wrong in the circumstances, and that the determination that the proposed development was of economic significance to the State was unreasonable in all the circumstances.
June 2017: ReturnToWorkSA – Failure to appropriately investigate complaint
The worker’s advocate complained that Return to Work SA breached the service standards by failing to appropriately investigate a number of complaints that he lodged with the Corporation’s Service Improvement Team. The Ombudsman found that Return to Work SA had breached the service standards as it failed to identify whether information provided to it by the claims agent was accurate and could be relied upon to form a response to the advocate’s complaint.
June 2017: City of West Torrens – Misconduct in public administration
The Ombudsman received an ICAC referral alleging misconduct by a councillor who did not appropriately declare a material conflict of interest in accordance with the Local Government Act. The Ombudsman found that the councillor appropriately declared a material conflict interest at item 4 of the council meeting in relation to item 17.3 when the council voted on who would attend a conference. The councillor was nominated to attend the conference and remained in the chamber when nominations were discussed, despite earlier declaring a material conflict of interest. The Ombudsman found that whilst he could not be satisfied that the councillor did not make the declaration due to an inaudible audio recording, the councillor should not have remained in the chamber and heard the debate because he had a material conflict of interest. The Ombudsman recommended that the councillor apologise to the council.
June 2017: City of Adelaide – Breach of council member code of conduct
Cr Sandy Wilkinson was alleged to have had an undeclared conflict of interest in relation to Item 5, Recommendation 5.10, at a council meeting that was held on 22 November 2016. During the council meeting, Cr Wilkinson participated in a vote to increase the City of Adelaide’s professional fees subsidy for heritage restoration, without declaring a potential conflict of interest in relation to his business, Alexander Wilkinson Design Pty Ltd, which provides heritage restoration services. In participating in the vote, it was alleged Cr Wilkinson failed to properly deal with a material, actual or perceived conflict of interest under the Local Government Act 1999, which is also a breach of Part 3.13 of the Code of Conduct for Council Members. The Ombudsman held that whilst Cr Wilkinson did not have a material conflict of interest, he did have an actual and perceived conflict of interest. The Ombudsman also held that Cr Wilkinson failed to deal with the conflict of interest in breach of section 75A of the Local Government Act 1999 and Clause 3.13 of the Code of Conduct.
May 2017: District Council of Coober Pedy – Misconduct and maladministration
The Ombudsman received an ICAC referral in relation to various issues of alleged misconduct and maladministration involving the former Finance and Administration Manager and Chief Executive Officer of the District Council of Coober Pedy. While most of the allegations involving the former Chief Executive Officer were not substantiated, the Ombudsman found that he failed to act with reasonable care and diligence in relation to proposed use of the council seal on a loan application. The Ombudsman found that the Former Finance and Administration Manager committed both misconduct and maladministration in relation to various matters, and that the council committed maladministration in relation to a failure to pay contractors which arose in the context of poor accounting practices. While the Ombudsman did not make any recommendations in relation to the former employees, he recommended that the council reviews its practice of receiving all funds into one account, devise a written policy in relation to handling of grant funding and devise a written policy in relation to approval of employee leave entitlements.
May 2017: Public Trustee – Unreasonable management of funds
The complainant alleged that the Public Trustee (the agency) failed to appropriately handle his financial affairs. From 30 June 2012 to 27 May 2016, the complainant accumulated a debt of $35,226.88 to the Australian Tax Office (ATO) as a result of the agency ceasing payments to the ATO, which was done by submitting a Code 21 as reason for non-payment of Pay As You Go (PAYG) instalments. The Ombudsman found that the agency’s decision to cease PAYG instalments was unreasonable, and that the decision to submit a Code 21, and the failure to lodge an Application for Release to the ATO, was wrong, within the meaning of the Ombudsman Act 1972. To address these errors, the Ombudsman recommended that the agency develop and implement a guideline for ceasing payments to the ATO.
April 2017: District Council of Peterborough – Investigation of complaint
The Ombudsman received a complaint by Yongala resident Mr Kim Miller about the Council and the CEO Mr Peter McGuinness’s dealing of a complaint that his property was flooded. The Ombudsman found that whilst the Council reasonably dealt with the flooding complaint, it unreasonably refused to undertake an internal review pursuant to section 270 of the Local Government Act 1999 (SA) and that the CEO acted unreasonably in banning Mr Miller from conversing with Council staff. The Ombudsman recommended that the Council review its Internal Review Policy to ensure that it adequately reflects its current process; that the Council forward a copy of the report to the Local Government Association’s Mutual Liability Scheme; and that the CEO retract his letter to Mr Miller dated 17 June 2015 and the retraction letter be tabled at a Council meeting.
April 2017: Department of Planning, Transport and Infrastructure
The applicant sought access to any ‘plans or other documents’ tending to indicate the potential route(s) through Mile End of the proposed North-South Corridor. The agency refused to process the applicant’s request on the basis the work involved in dealing with it within any reasonable period of time would, if carried out, substantially and unreasonably divert the agency’s resources from their use by the agency in the exercise of its functions. At external review the Ombudsman considered the agency’s document management practices together with the nature of the records in question and ultimately determined to confirm the agency’s determination. The Ombudsman expressed the view that a document located by the agency with the greatest potential to satisfy the applicant’s request (the project Planning Study) was in any case exempt under clause 1(1) of Schedule 1 of the FOI Act.
April 2017: HomeStart – Maladministration in public administration
The Ombudsman received an ICAC referral alleging that HomeStart Finance committed an act of maladministration in public administration through excessive expenditure on alcohol. The Ombudsman found that agency had committed an act of maladministration, and that its practices and policies in relation to expenditure on alcohol have resulted in irregular and unauthorised use of public money, and a substantial mismanagement of public resources within the meaning of section 5(4)(a)(i) of the Independent Commissioner Against Corruption Act 2012. Over a period of approximately two years, the agency purchased $7,826.31 worth of alcohol.
April 2017: TAFE SA
The applicant sought access to minutes and agendas of TAFE SA Board meetings, and access to those documents was refused by the agency in full. The Ombudsman considered whether the following exemption clauses under the Freedom of Information Act 1991 (the FOI Act) applied to those documents: Clause 1(1)(e), Clause 2(1)(e), Clause 4(2)(a)(vi), Clause 5(1), Clause 6(1), Clause 6(2), Clause 7(1)(c), Clause 10(1) and Clause 16(1)(iv)-(v). Clause 1(1)(e) was considered in significant detail, and the Ombudsman highlighted that this clause has a specific purpose under the FOI Act, in that it is intended to protect the so called ‘Cabinet oyster’. It is not intended to apply to all documents submitted to Cabinet. The agency’s determination was varied by the Ombudsman, and it was proposed that the documents be released, with the exception of information within certain documents that was considered exempt under Clause 1(1)(e), Clause 6(1) and Clause 10(1).
March 2017: South Australian Civil and Administrative Tribunal – Conduct of a bailiff
The complaint related to a failure by the South Australian Civil and Administrative Tribunal to properly conduct an investigation into a complaint regarding inappropriate behaviour by a bailiff when executing a court order. There was a failure by the SACAT officer to speak to witnesses when conducting an investigation. The Ombudsman found that one of the witnesses in particular, had information that should have been considered as part of the investigation. The Ombudsman made recommendations that SACAT conduct a fresh investigation of the complaint and further that the SACAT complaints policy and Bailiffs’ Manual be amended.
March 2017: Roxby Council – Maladministration in public administration
The Ombudsman received an ICAC referral alleging that maladministration occurred within the council over a period of approximately fifteen years. The allegations included failure to follow proper procurement processes in relation to numerous direct engagements, inappropriate expenditure and lack of transparency and a failure to properly address allegations of bullying and harassment. The Ombudsman found that the council and the former Administrator committed maladministration in that various direct engagements resulted in substantial mismanagement of public resources. The Ombudsman also found that while no formal complaints were received in relation to the alleged bullying and harassment, the council acted in a way that was wrong for the purposes of the Ombudsman Act by not having appropriate procedures in place. The Ombudsman also found that the council acted in a way that was contrary to law by disposing of records other than in accordance with the State Records Act 1997.
February 2017: TAFE SA – Maladministration in public administration by former director
The Ombudsman received an ICAC referral to investigate an unnamed TAFE SA director in relation to a payment of $63,631 to the Berri Barmera Council for a voluntary separation package. The Ombudsman found that the former director made the irregular payment at the conclusion of a Joint Use Library Agreement but that there was no legal obligation to pay any amount to the Council, and that he had sought advice from the Acting Chief Executive as to whether to make the payment but did not wait for a response. The Ombudsman found that by making the payment the former Director committed maladministration in public administration because of the substantial mismanagement of public resources. This was because the payment was irregular, substantial, unnecessary, that he did not wait for advice from the Acting Chief Executive and that he was incorrect in his belief that the payment was saving TAFE SA money. The Ombudsman did not make any recommendations because the former director did not have his contract renewed by TAFE SA.
February 2017: Department for Correctional Services – Unlawful shackling of a mental health patient in hospital
The Ombudsman investigated a complaint about the department’s treatment of a mental health patient who was subject to a warrant of remand under section 269X(1)(b) of the Criminal Law Consolidation Act 1935 (SA). The patient was held in shackles in the Flinders Medical Centre for four days in October 2015. It was found the department acted contrary to law and on the basis of mistake of fact by assuming supervision of the patient; that the department had acted in a manner that was wrong because it failed to adhere to departmental policy in the shackling of the patient, and that the department had acted in a manner that was contrary to law because it used excessive force on its restraint of the patient.
February 2017: City of Burnside – Breach of council member code of conduct
The Mayor referred to the Ombudsman for investigation an allegation that comments made by the Councillor to a reporter about a council employee breached clauses 2.2-2.5, 2.7 and 2.11 of the Code of Conduct, The council resolved to accept the recommendations including recommendation 4 which required that the Councillor make a public apology to the council employee at a council meeting by 30 September 2016. As the Councillor did not comply with the recommendation by this date, the Mayor referred this matter to the Ombudsman as complaint under Part 3 of the Code of Conduct. The investigation found that the council did resolve to accept the recommendations in the investigation report however, the Councillor failed to comply with a finding of an investigation under Part 2.22 of the Code of Conduct. The Ombudsman found that, in failing to comply, the Councillor breached the provisions of section 63 of the Local Government Act and clause 3.2 of the Code of Conduct. In doing so, the Councillor acted in a manner that was contrary to law within the meaning of section 25(1)(a) of the Ombudsman Act. The Ombudsman recommended that his report be tabled at a public meeting of the council and that the member be reprimanded by the council and be required to make a public apology to the council employee at the this meeting.
February 2017: City of Onkaparinga – Reimbursement of golf club membership
The Ombudsman received an ICAC referral to investigate a number of issues including whether the council committed maladministration by approving reimbursement of the Chief Executive Officer’s golf club membership, whether the membership should have been included on the Register of remuneration, salaries and benefits and whether confidentiality orders should have been made in relation to the reimbursement of golf club membership. The Ombudsman found that by approving the reimbursement of the golf club membership the council did not commit an act of maladministration within the meaning of section 5(4) of the Independent Commissioner Against Corruption Act 2012 but acted in a manner that was wrong for the purposes of section 25(1)(g) of the Ombudsman Act 1972. The Ombudsman found that by failing to include golf club membership on the Register, the Chief Executive Officer did not commit maladministration. The Ombudsman also found that by making the confidentiality orders, the council did not commit maladministration but acted in a manner that was wrong for the purposes of section 25(1)(g) of the Ombudsman Act. The Ombudsman recommended that the council lift the confidentiality orders within three months of the date of his final report.
January 2017: Southern Adelaide Local Health Network
The applicant sought access to medical records relating to a deceased relative. The agency refused the request on the basis that provision of access to the applicant would constitute commission of an offence under section 93(2) of the Health Care Act 2008. The Ombudsman considered clause 12 of the FOI Act, which provides that a document is exempt if it contains matter the disclosure of which would constitute an offence against an Act. On external review, the Ombudsman confirmed the agency’s determination that the medical records were exempt from disclosure under clause 12. The Ombudsman’s determination was subsequently upheld by the South Australian Civil and Administrative Tribunal.
January 2017: Attorney-General’s Department and Department of the Premier and Cabinet
The agencies refused access to documents in relation to a review by the Internal Consultancy Services Group of the General Code of Practice and the Late Night Trading Code of Practice established under the Liquor Licensing Act 1997, handed down on 30 April 2015. The agencies and interested parties claimed that the documents were exempt under clauses 1(1)(e), 4(3), 6(1), 7(1)(c), 8(1), 9(1), 13(1)(a) and 13(1)(b) of Schedule 1 of the FOI Act. The Ombudsman determined that some documents and parts of documents were exempt under clauses 1(1)(e), 7(1)(c), 9(1) and 13(1)(b), but that the considerable additional documents and parts of documents could be released in accordance with section 20(4) of the FOI Act. He varied the agencies’ determinations accordingly. The Ombudsman also considered the sufficiency of searches for documents.
January 2017: Environment Protection Authority
The agency refused access to correspondence between the agency and various other parties, including the City of Onkaparinga, concerning the Sellicks Beach Wastewater Treatment Plant. At external review, the agency ultimately revised its position such that it no longer opposed the release of many of the documents to the applicant. However, the agency maintained that information within certain documents was exempt pursuant to exemption clauses 6(1) and 12(1). The City of Onkaparinga, an interested party, also objected to the release of any documents to the applicant on the basis that they were variously exempt under exemption clauses 4(2), 5(1), 6(1), 7(1)(c), 9(1), 13(1), 15 and 16(1). A separate interested party also submitted that certain documents were exempt under exemption clause 8(1). The Ombudsman varied the agency’s determination. The Ombudsman found that while some documents were exempt under clauses 6(1), 12(1) and 16(1)(iv), the majority could be released to the applicant in full.
December 2016: Department for Health and Ageing
The agency refused access to correspondence between the agency and various other parties, including the City of Onkaparinga, concerning the Sellicks Beach Wastewater Treatment Plant. At external review, the agency ultimately revised its position such that it no longer opposed the release of any documents to the applicant. However, the City of Onkaparinga and another party maintained objections to the release of various documents. The Ombudsman varied the agency’s determination. The Ombudsman found that the documents at issue were not exempt pursuant to exemption clauses 5(1), 7(1) or 9(1).
November 2016: Employers Mutual Limited – Breach of service standards
The worker complained that the agent breach a number of service standards by failing to ensure that the recovery and return to work processes focused on maintaining the relationship between the worker and the pre-injury employer, failing to ensure that the pre-injury employer understood their recovery and return to work obligations and failing to provide a copy of a medical report to the worker within the statutory timeframe. The Ombudsman found that the agent had breached the service standards by failing to establish a timely manner where the obligations existed for the pre-injury employer in relation to the provision of suitable duties for the worker and did not provide the work with a copy of a medical report within the required timeframe.
November 2016: 2015-2016 Annual Report
November 2016: An audit of the Department for Education and Child Development’s education related complaint handling practices
The audit found that the complaint handling procedures at the second (central) level was competent and efficient having regard to the increasing volume of complaints received and resolved. On the other hand, complaint handling at the first (school or education) site level was deficient in both practice and application and required improvement. Those improvements can be made by implementing training of senior staff and developing local practices and reporting, so as to alleviate the demand and pressure experienced by the second level of complaint handling by the Education Complaints Unit (ECU).
I made five recommendations for improvement, commensurate to my findings.
November 2016: Right of Review – An audit of Local Government Internal Review of Council Decisions Procedures
This audit report documents my findings and recommendations relevant to the operation of the internal review of decisions provisions in the Local Government Act 1999.
The section 270 internal review of decision process is an important mechanism for the resolution of disputes and complaints about decisions made by councils. As such, the review process is an essential complaint handling tool for local government and for the management of complaints made to my Office.
The audit examines some of the key issues for councils in delivering a fair internal review of decision process. It also explores how councils can use internal reviews to drive administrative improvement and service excellence.
The final report makes seven recommendations to all 68 councils in South Australia. I have asked them for a response to these recommendations by 31 March 2017.