Investigation reports

A selection of investigation reports which you may find useful in undhttp://www.ombudsman.sa.gov.au/wp-admin/post-new.php?post_type=pageerstanding the scope of the Ombudsman’s work and responsibilities. You will need to have the Acrobat Reader http://get.adobe.com/reader/ to view the documents. These reports are also available from Austlii.

2016

May 2016:  City of Victor Harbor – Breach of council member code of conduct
The Ombudsman received an ICAC referral to investigate whether a council member committed misconduct in public administration by revealing information the council ordered to keep confidential to a local newspaper journalist, who printed the information.  The Ombudsman found that the council member breached clause 3.3 of the Code of Conduct for Council Members and therefore committed misconduct in public administration with the meaning of section 5(3) of the Independent Commissioner Against Corruption Act 2012.  The Ombudsman recommended that the council member be reprimanded and attend confidentiality training.

May 2016:  Kangaroo Island Council – Investigation of complaint
The Ombudsman investigated a complaint as to whether a complaint made to the council was investigated in accordance with the Code of Conduct for Council Employees and whether it was lawful for the council to make confidentiality orders under section 90(2) of the Local Government Act in relation to the complaint.  The Ombudsman found that the council acted in a manner that was wrong in relation to its making of an order pursuant to section 90(3)(a) of the Local Government Act.  The Ombudsman made a recommendation that the council report to it in relation to its system in respect of confidential meetings.

April 2016:  Department for Correctional Services – Shackling of a prisoner in hospital
The Ombudsman received a report from the Principal Community Visitor that Prisoner A had been held in the Emergency Department of the Royal Adelaide Hospital for a period of four days in shackles.  The prisoner was awaiting assessment under the provisions of the Mental Health Act 2009.  Questions arose about whether the prisoner was shackled in accordance with the law and departmental policy during the hospital stay.  The investigation found that the department acted contrary to law in failing to exercise the necessary discretion in relation to shackling Prisoner A.  Other questions related to the detention of the prisoner in shackles found that the regime was unreasonable.  The Ombudsman made a total of eight recommendations covering the streamlining of Hospital Watch procedures; review of departmental policies; compliance checklist amendment to ensure reporting of injuries and the development of soft restraints.

March 2016:  Department for Communities and Social Inclusion – Child related employment screening applications
The Ombudsman received numerous complaints in relation to delays in processing child related employment screening checks by the Department for Communities and Social Inclusion and commenced an investigation using his ‘own initiative’ power.  A number of issues were identified during the investigation.  A series of recommendations were made to the department on completion of the investigation.

March 2016: District Council of Mount Remarkable – Unauthorised removal of water from private property
The Ombudsman investigated whether the council had authority to remove water from a dam on a farm property to complete scheduled road works.  The Ombudsman found that the council obtained permission from the lessee and not the property owner and it was wrong for council not to obtain the permission of the owner prior to entry and removal.  The Ombudsman made recommendations to the council to improve its administrative process for water removal and for handling complaints.

March 2016: Corporation of the Town of Walkerville – Breach of council member code of conduct
The Ombudsman investigated a complaint alleging a breach of the Local Government Act and the Code of Conduct for Council Members by a council member.  It was found that the council member did not breach the Local Government Act and/or the Code of Conduct as she was not carrying out her functions as an elected member; she was acting in a personal capacity as a resident/business owner.

2015

December 2015:  City of Charles Sturt – Declaration of interests
The Ombudsman investigated whether council members declared and appropriately managed relevant interests when seeking approval of discretionary ward allowances for the financial years 2013-14 and 2014-15. The Ombudsman found that one council member failed to appropriately declare an interest at a council meeting in 2015 and on his ordinary returns for 2014 and 2015.

November 2015:  Mid Murray Council – Breach of council employee code of conduct
This matter was referred to the Ombudsman by the Independent Commissioner Against Corruption.  The substance of the referral was an allegation that Mr Russell Peate, Chief Executive Officer of the Mid Murray Council, failed to properly administer a number of council decisions in relation to various development applications, and on one occasion improperly sought to influence a development application process.  The investigation found maladministration in public administration within the meaning of section 5(4)(b) of the ICAC Act only in relation to Mr Peate’s handling of the Mannum Football Club development application in that he failed to disclose his interest in the matter to council and attempted to delegate to another staff member his authority to determine a waiver of a fee without first obtaining council approval.

November 2015:  City of Mitcham – Emergency order
The Ombudsman investigated a complaint about the council’s failure to take action in relation to non-compliance with an emergency order issued by the the council under the Development Act 1993. The Ombudsman did not find that the council acted in a manner that was unlawful, unreasonable or wrong.

October 2015:  City of Salisbury – Breach of council member code of conduct
The Ombudsman investigated a complaint alleging a breach of the conflict of interest provisions of the Local Government Act 1999 and the Code of Conduct for Council Members by a council member. It was found that the council member breached the Local Government Act and the Code of Conduct, and therefore acted in a manner that was contrary to law.

October 2015:  Department for Education and Child Development – Removal of a foster child
The Ombudsman was asked to investigate the department’s handling of a serioius care concern involving the removal of a foster child. The Ombudsman found that the department acted in a manner that was unreasonable within the meaning of section 25(1) of the Ombudsman Act.

September 2015: District Council of Mallala – Breach of council member code of conduct
The Ombudsman investigated a complaint alleging a conflict of interest issue at the District Council of Mallala. It was found that a council member breached the Local Government Act and the Code of Conduct, and therefore acted in a manner that was contrary to law.

July 2015:  Federation of Polish Organisations in SA Inc – Alleged misuse of funds received under a contractual agreement
The Ombudsman received an ICAC referral to investigate whether the Federation of Polish Organisations in SA Inc misused funds received under a contractual agreement with the Department for Communities and Social Inclusion. The Ombudsman found that the organisation committed maladministration in public administration within the meaning of section 5(4)(a)(i) of the Independent Commissioner Against Corruption Act 2012.

July 2015:  Department of Environment, Water and Natural Resources – Failure to advise
The Ombudsman was asked to investigate allegations that the department did not properly advise the complainant of the grounds for seeking a waiver of a penalty for overusing its water allocation, and that the department provided the wrong information to the Minister.  The Ombudsman found that the department acted in a manner that was wrong within the meaning of section 25(1)(g) of the Ombudsman Act in relation to both the allegations.

June 2015:  Department of the Premier and Cabinet – Tender Process
The Ombudsman received an ICAC referral to investigate whether employees of the department committed misconduct or maladministration in organising a trip to New Zealand with an incumbent supplier during a tender process. The Ombudsman found that the employees did not commit misconduct or maladministration within the meaning of the Independent Commissioner Against Corruption Act 2012.

June 2015:  Department of the Premier and Cabinet – Employment with incumbent supplier
The Ombudsman received an ICAC referral to investigate whether employees of the department committed misconduct or maladministration in granting leave without pay and allowing a departmental executive to work with an incumbent supplier during a tender process. The Ombudsman found that the employees did not commit misconduct or maladministration within the meaning of the Independent Commissioner Against Corruption Act 2012.

June 2015:  Department of Environment, Water and Natual Resources – Delay in payment of contractors
The Ombudsman received an ICAC referral to investigate whether an employee of the department committed maladministration by failing to organise payment of contractors on time.  The Ombudsman found that the employee did not commit maladministration within the meaning of the Independent Commissioner Against Corruption Act 2012.

May 2015:  Mid Murray Council – Breach of confidentiality
The Ombudsman was asked to investigate an allegation that the council’s Chief Executive Officer had published confidential minutes in a council meeting agenda paper, contrary to the confidentiality provisions of the Local Government Act 1999. The Ombudsman found that the council breached section 91(7) of the Local Government Act and that the Chief Executive Officer breached the Code of Conduct for Council Employees.

January 2015:  City of Playford – Breach of council member code of conduct
The Ombudsman investigated a complaint alleging a breach of the Local Government Act 1999 and the Code of Conduct for Council Members by a council member from the City of Playford. It was found that the council member did not breach the Local Government Act and/or the Code of Conduct as he was not carrying out his function as a public officer at the time of the incident; he was acting in a personal capacity as a resident/property owner.

2014

October 2014:  City of Mitcham – Advising of Development Act 1993 (SA) rights
The council assigned the development of a local tennis court as a category 2, which the complainants’ disagreed with. By the time the complainants discovered they could challenge the category of development assigned by the council, the Environment, Resource and Development Court ruled they were out of time. The Acting Ombudsman found that the complainants’ had a right of review under section 86(1)(f) of the Development Act 1993 and that the council were wrong in not informing the complainants of this. The Acting Ombudsman recommended that the council determine the best way of informing members of the public of this right, either on a case by case basis or as part of the development material it provides to the public throughout the development process.

September 2014:  Department for Communities and Social Inclusion – Failure to provide duty of care
The Acting Ombudsman received a complaint from a former resident of a youth training centre (a juvenile) who had been assaulted by another resident whilst in the care of the department. The Acting Ombudsman found that the department erred in failing to protect the complainant from the other resident. The department was aware the complainant had been threatened and that the other resident posed a risk to him. It was also found that the department erred in relation to investigating the alleged failure to protect the complainant.

September 2014:  Commissioner for Consumer and Business Services – Unreasonable investigation of complaint
The Acting Ombudsman investigated a complaint alleging that the Commissioner for Consumer Affairs failed to properly investigate a complaint about a builder allegedly operating outside the scope of his licence. It was found that the agency’s investigation was inadequate. It was also found that the agency erred in its communication with the complainants and failed to act in accordance with good complaint handling practices.

July 2014:  City of Marion – Breach of council member code of conduct
The Acting Ombudsman investigated a complaint alleging repeated or sustained inappropriate behaviour of a council member such as to sustain misconduct under Part 3 of the Code of Conduct. It was found that the council member breached the Code of Conduct, and therefore acted in a manner that was contrary to law.

July 2014:  City of Marion – Breach of council member code of conduct
The Acting Ombudsman investigated two complaints alleging a conflict of interest issue at the City of Marion. It was found that a council member breached the Local Government Act and the Code of Conduct, and therefore acted in a manner that was contrary to law.

June 2014:  Department for Education and Child Development – Alleged inadequate management of child sexual abuse incidents
The Ombudsman conducted an own initiative investigation following allegations that the Department of Education and Child Development had failed to appropriately deal with incidents of child sexual abuse at a particular state government school. The Ombudsman found that the department acted in a manner contrary to law and acted in a manner that was unreasonable.

June 2014:  Department of Treasury and Finance – Electricity Industry Superannuation Scheme
Report in response to a referral from the Legislative Council regarding the changes to the Electricity Industry Superannuation Scheme in 2002.

May 2014:  Department for Correctional Services – Restraint of a prisoner
The Ombudsman found that a prisoner who was shackled during a hospital visit was unlawfully restrained as the use of force was not reasonably necessary in the circumstances. The Ombudsman also found the department did not follow its own policy in reviewing the level of restraint applied. The Ombudsman recommended the department review its policy regarding the restraint of prisoners in hospitals.

May 2014:  City of Playford – Procurement, Risk and Records Management
Following a whistleblower complaint, the Ombudsman investigated a number of allegations about the City of Playford.  The Ombudsman found that the council did not properly follow its procurement policy or conduct adequate risk assessment.  The Ombudsman also found that a number of council members have breached the council’s records management policy by not using their council email addresses.  It was likely that these council members also breached the State Records Act 1997.

February 2014:  Department for Education and Child Development – Complaint management
This investigation considered whether the department had failed to properly manage the alleged sexual harassment, intimidation and bullying of a student, and other related issues. It concluded that the department had not erred in its substantive actions, but that it had not properly managed the complainant’s complaint.

February 2014:  District Council of Yorke Peninsula – Council members conflict of interest and code of conduct
This investigation was the result of a complaint by the CEO of the council members that they were shareholders in a company the subject to certain council decisions.  The Ombudsman found that the council members did not breach the Local Government Act 1999.

January 2014:  Small Business Commissioner – Exceeding powers
This investigation was the result of a complaint made by the CEO of the council about the Small Business Commissioner exceeding his powers under the Small Business Commissioner Act 2011 (SA) by intervening in a land division application process under the Development Act 1993 (SA).

2013

December 2013:  City of Marion – Councillor conflict of interest
Following a whistleblower disclosure the Ombudsman investigated conflict of interest issues at the City of Marion. The Ombudsman found that the councillor did not breach the Local Government Act.

November 2013:  City of Burnside – Council member conduct
This complaint concerned the council’s response to a Local Government Governance Panel report of an investigation into the conduct of some council members. The Ombudsman concluded that the actions of the Panel itself were not within his jurisdiction, because there was no contract for services between the council and the Panel.

The investigation considered whether Cr Leni Palk had breached the conflict of interest provisions of the Local Government Act in dealing with a related matter. The Ombudsman concluded that whilst no breach of the law occurred, Cr Palk’s actions were ‘in accordance with’ … a provision of an enactment … that is or may be unreasonable; and recommended that the Local Government Act should be amended to address perceived conflicts of interest on the part of elected members.

The investigation also considered whether Cr Palk demonstrated apprehended bias in participating on a selection panel for board members of Burnside Retirement Services Incorporated; and whether the council failed to make appropriate arrangements to protect the integrity of the interview and selection process. In these respects the Ombudsman concluded that there was no unlawful, unreasonable or wrong act.

October 2013:  The Barossa Council – Confidentiality orders
The council moved into confidence in order to consider a complaint made by a resident about the mayor claiming the matter involved ‘legal information’.  The Ombudsman found that the council had no basis to make the confidentiality orders as the legal advice had been paraphrased by the CEO in the report to council.  Accordingly, the Ombudsman found that the council had acted in a manner contrary to law.  A second confidentiality order was found to have been appropriately made.

October 2013:  District Council of Mallala – Conflict of interest
Following two complaints the Ombudsman investigated conflict of interest issues at the District Council of Mallala. He found that a council member acted in a manner contrary to law.  The Ombudsman also investigated whether the council member breached item 5.3 of the council’s code of conduct by speaking to the media without making it clear that his views were personal and that he was not representing the views of the council. The Ombudsman found that there was no evidence that the council member did not make it clear to the journalist that he was expressing a private view.

September 2013:  City of Onkaparinga – Alleged inadequate management of waste water management scheme
Following several whistleblower disclosures the Ombudsman investigated the council’s management of an incident at the Sellicks Beach community waste water management scheme. The Ombudsman found that the council failed to notify the Environment Protection Authority about the incident at the Sellicks Beach community waste water management scheme in accordance with section 83 of the Environment Protection Act 1993, and therefore acted in a manner contrary to law.

September 2013:  Department for Education and Childrens’ Services – Handling of a child sex offence
Ombudsman SA Media Release
The Ombudsman found that the department provided wrong advice to a school’s governing council that there was a suppression order in place, when there was not; and wrongly suggested to the governing council that the parents of children attending the school should not be informed about the sexual assault.

August 2013:  Courts Administration Authority – Enforcement action
The Ombudsman conducted an own initiative investigation following a complaint that the Courts Administration Authority took enforcement action against a person who had not expiated an offence.  It transpired the person was not aware of the offence.  There was a failure by the issuing authority and the CAA to undertake sufficient checks to ascertain the whereabouts of the debtor before taking enforcement action which included suspension of her driver’s licence.

August 2013:  City of Holdfast Bay – Councillor conflict of interest
Following a whistleblower disclosure the Ombudsman investigated conflict of interest issues at the City of Holdfast Bay.  The Ombudsman found that the councillor acted in a manner contrary to law, and in accordance with a provision of an enactment that is or may be unreasonable.

July 2013:  District Council of Tumby Bay – Councillor conflict of interest
Councillor conflict of interest

June 2013:  City of Holdfast Bay – Meeting procedures
The Ombudsman found that in two instances the council did not breach the Local Government (Procedures at Meetings) Regulations 2000.  In two other instances the Ombudsman found that whilst the council may have breached the Local Government (Procedures at Meetings) Regulations 2000 further investigation was unecessary because the procedural defects did not have the effect of making the decision invalid.

June 2013:  Department of Planning, Transport and Infrastructure – Inner Metropolitan Growth Ministerial Development Plan Amendment
This investigation followed from a complaint made on behalf of the City of Burnside about the Inner Metropolitan Growth Ministerial Development Plan Amendment. The council alleged that the department failed to comply with its consultation obligations under an agreement made between the state government and the Local Government Association of SA.  The investigation concluded that the department did not act in a manner that was unlawful, unreasonable or wrong.

May 2013:  City of Port Adelaide Enfield
This investigation concerned the council’s decision to engage a sub-contractor to dispose of hundreds of tyres from the council’s depot. The sub-contractor dumped the tyres on property owned by the complainant, which it leased from him. The sub-contractor did not have development and EPA approval to operate a waste transfer facility on the complainant’s land.

The Ombudsman found that in engaging the sub-contractor, the council failed to make reasonable enquiries as to whether the sub-contractor held the necessary approvals, and breached its own procurement policy.

The Ombudsman’s decision was subsequently found in Supreme Court proceedings to be unreasonable.

May 2013:  Outback Communities Authority – Public consultation
The Ombudsman found that the Outback Communities Authority did not consult the public in strict accordance with its public consultation policy. As a result, it was found that, in imposing the Andamooka community contribution scheme, the Outback Communities Authority acted contrary to law. The Ombudsman found that this error turned on a technical interpretation of the legislation and a relatively minor failure to adhere with its public consultation policy. The Ombudsman did not consider that the Outback Communities Authority knowingly or intentionally acted contrary to law. The Ombudsman made two recommendations.

May 2013:  Department for Correctional Services – Treatment of a prisoner
The Ombudsman found that a prisoner with a mental health condition had been unlawfully or unreasonably restrained, and that other aspects of the prisoner’s management regime were unreasonable or wrong; but that the department had properly implemented recommendations from a medical specialist.  The Ombudsman made 2 recommendations for improvement to the department’s procedures.

April 2013:  Environment Protection Authority –  Investigation – FOI
Freedom of Information investigation regarding whether the EPA conducted a sufficient search.

March 2013:  Corporation of the Town of Walkerville – Chief Executive Officer
The Ombudsman found that the CEO and council complied with the law in respect to the CEO’s overseas visit and accounting for financial expenditure including spending on the strategic plan.

March 2013:  Corporation of the Town of Walkerville – Chief Executive Officer
The Ombudsman found that the CEO did not act in a way that was unlawful, unreasonable or wrong in overseeing the investigation of a complaint against her.  The report also found that there was no administrative error in the way the CEO dealt with an overseas visit including accounting for expenditure, not handling HR principles.

March 2013:  Investigation into the Growth Investigation Areas (GIA) Report procurement
The Ombudsman found a clear conflict of interest with Connor Holmes advising SA Planning Department on rezoning whilst representing developers who were advocating expansion in the Mount Barker area.
FOI Background to the GIA Report

February 2013:  District Council of Mount Barker – Aboriginal heritage and the development approval process 
The Ombudsman found that the District Council of Mount Barker had failed to adequately consider Aboriginal heritage issues as part of its development approval process.

February 2013: Department of Treasury and Finance – Freedom of Information review 
Mr Michael McKinnon requested documents produced in the last 2 years containing information about an expected growth in the number of pokie machines over the (a) next five and (b) 10 years and the anticipated revenue arising from any such increase. He was also interested in any cost benefit analysis about pokie machines. The Ombudsman made a number of recommendations.

2012

October 2012:  City of Charles Sturt – Conflict of interest
A whistle-blower alleged that an elected member of the City of Charles Sturt had failed to declare a conflict of interest. The Ombudsman found the councillor in breach of the Local Government Act.

October 2012:  Kangaroo Island Council – Confidentiality and informal gatherings
The Ombudsman was asked to investigate allegations that the council was holding unlawful informal gatherings, and breaches of confidentiality by councillors.

October 2012:  District Council of Yorke Peninsula – Investigation in to waste and recycling service charge
The Ombudsman was asked to investigate if the council had wrongly imposed a waste collection service charge for services which it was unable to deliver, and if the council’s imposition of the service charge had an unfair or unreasonable impact.

August 2012:  South Australian Heritage Council – Heritage listing of the Cheltenham grandstand
A complaint was received concerning the demolition of the Wyndham Hill Smith Grandstand at the Cheltenham Racecourse. The Ombudsman found that the SAHC did not act in a manner that was unlawful, unreasonable or wrong.

July 2012:  Department for Correctional Services – Restraining and shackling of prisoners in hospitals
The Ombudsman received complaints from medical professionals concerned about the excessive restraining of prisoners in South Australian hospitals. His investigation found that current departmental arrangements were not consistent with internationally and nationally accepted standards. The Ombudsman made a number of recommendations.

July 2012:  Courts Administration Authority and the Department of Planning, Transport and Infrastructure – Delayed disqualification notices
The Ombudsman initiated an investigation after receiving multiple complaints about the unfairness caused by the issuing of disqualification notices by the Registrar of Motor Vehicles.

June 2012:  Department for Correctional Services – Continuing separation of a prisoner
A prisoner at Yatala Labour Prison alleged there was an agreement that he would be transferred to Port Augusta Prison, and no longer separated from other prisoners, if he fulfilled certain criteria. He alleges he fulfilled the criteria and the transfer was refused. The Ombudsman made a number of recommendations.

April 2012:  City of Onkaparinga – Procurement and caretaker issues
A complaint was received that alleged the City of Onkaparinga failed to follow appropriate procurement procedures, failed to keep proper project records, breached caretaker conventions, failed to properly review procurement processes, and a breach of duty by the CEO. The Ombudsman found that in some instances the council had acted in a matter that was wrong.

April 2012:  Department of Planning Transport and Infrastructure – Concession reimbursements
Mr Steven Griffiths MP lodged a complaint that the department wrongfully paid concession reimbursements to a coach operator, for school bus services not provided by that operator. He also complained that the department wrongfully relied on falsely completed claim forms to pay concession reimbursements to a coach operator. The Ombudsman’s findings were varied.

March 2012:  Wakefield Regional Council – Conflict of interest
Following a whistleblower disclosure the Ombudsman investigated conflict of interest issues at Wakefield Regional Council. He found that the councillor acted in a manner contrary to the law.

February 2012:  District Council of Barunga West – Conflict of interest
A whistle-blower alleged that elected members of the District Council of Barunga West had failed to declare conflicts of interest. The Ombudsman found breaches of the Local Government Act.

2011

November 2011: City of Charles Sturt – The St Clair land swap
The Ombudsman investigated concerns of conflicts of interest and the council’s lack of community consultation.

Addendum: Designation of council members in Ombudsman’s Final Report of the investigation into the City of Charles Sturt

June 2011:  City of Adelaide – Expiation notices
The Ombudsman received a complaint that the council issued a defective expiation notice, and that they wrongly failed to withdraw an expiation notice. The investigation found the council had acted contrary to law.

June 2011:  Department for Correctional Services – Prisoner Amenities Levy
The Ombudsman investigated concerns about the prisoner amenities levy and found the department had acted wrongly.

2010

August 2010: Department for Correctional Services – Port Augusta Prison disturbance
The Ombudsman investigated the destruction of personal property, and denial of reimbursement for loss of personal property as a consequent of riots at the prison. He found the department acted in a matter that was unjust and made recommendations.

Further information