Publications

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.

You will need to have the Acrobat Reader http://get.adobe.com/reader/ to view the documents.

Latest publications

April 2019: District Council of Robe – Alleged maladministration re non-compliance with procurement policies and failure to maintain records in accordance with the State Records Act

The Ombudsman considered whether the council committed maladministration in public administration in relation to procurement of 21 vehicles upon referral by the Independent Commissioner Against Corruption. While the Ombudsman considered that there were some failures to comply with the council’s procurement policies, he was not satisfied that those failures amounted to substantial mismanagement of public resources. The Ombudsman noted that his view would have been different, however, if the council had regularly failed to properly test the market.

The Ombudsman investigated on his own initiative whether the council acted in a manner that was wrong or contrary to law by failing to have appropriate procurement policies and comply with those policies. The Ombudsman’s view was that the council’s failure to have a policy which complied with the requirements of section 49(2)(c) of the Local Government Act was contrary to law and the council’s failures to comply with the policy were wrong. The Ombudsman recommended that the council:
1. amend its procurement policy to clearly require that reasons must be recorded for entering into any contracts other than those resulting from a tender process
2. develop a template for recording reasons as required by section 49(2)(c) of the Local Government Act
3. amend the policy to clarify whether the relevant threshold is determined by gross or net purchase price
4. remind all council officers of their obligations under the policy, including the need to have regard to the procurement principles in the policy.

The Ombudsman investigated on his own initiative whether the council failed to maintain records as required by the State Records Act. The Ombudsman’s view was that the council’s failure to maintain certain official records was contrary to the State Records Act. That said, the Ombudsman commended the council on the steps it has taken to improve its record-keeping processes which appears to have involved extensive consultation with State Records. In light of that, the Ombudsman did not consider it necessary to make any recommendations in relation to this issue, but reported the matter to State Records.

May 2019: Department for Child Protection – Statement on investigation – Alleged wrongful case closure

February 2019:  District Council of Coober Pedy – Incorrect classification of property
The Ombudsman received a referral from the Independent Commissioner Against Corruption concerning potential maladministration in public administration by the council in relation to: incorrectly applying differing ratings and/or sewerage rate to properties, failing to comply with the provisions of the Development Act 1993, approving a grant of $80,000 to the Coober Pedy Miners Association, and approving expenditure of $20,000 for an opal symposium.

The Ombudsman considered whether the council’s application of its differential rate constituted a practice that resulted in substantial mismanagement of public resources but found that the council did not appear to have erred by incorrectly applying differential rating to businesses in the council area. There were two individual errors which the council has now corrected.

The Ombudsman considered whether the council appears to have erred by incorrectly or inappropriately applied its sewerage rate. The council provided reasonable responses to the alleged inconsistencies identified by the complainant and no systemic issues of incorrect application was found.

The complainant alleged that the council’s resolution of 16 May 2017, that that buildings used for short term accommodation for travellers are not deemed to be development therefore an application for Development Approval is not required, is wrong at law. The Ombudsman considered the Development Act 1993(SA) and the definition of a motel discussed in the case of Pohl & Ors v Adelaide Hills Council & Anor (No 1) [2009] SAERDC 44. The Ombudsman concluded that a bed and breakfast which accommodates six or more travellers meets the definition of a ‘motel’ under the Development Regulations 2008 (SA). The Ombudsman found that the council did not commit maladministration in public administration but that because it had been incorrectly applying the Development Act  it acted in a manner that was contrary to law within the meaning of section 25(1)(a) of the Ombudsman Act.

The Ombudsman considered whether the council spent funds on attending an opal symposium but the Ombudsman concluded there was no evidence that the council had and therefore further investigation of this issue was considered unnecessary and unjustifiable within the meaning of section 17(2)(d) of the Ombudsman Act.

Recommendations were made under section 25(2) of the Ombudsman Act to remedy the errors, firstly, that the council reclassify four properties as Commercial and secondly, that it resolve to require Change of Use applications and issue Development Plan consents to bed and breakfast facilities that accommodate six or more travellers.

January 2019:  Port Pirie Regional Council – Misconduct in public administration
The Ombudsman received a referral from the Independent Commissioner Against Corruption concerning the conduct of former councillor, Mr Darryl Johnson.

The referral concerned an allegation that Mr Johnson had failed to declare a conflict of interest in relation to two matters that were deliberated by the council at its Ordinary Meeting on 25 October 2017.

The alleged conflict of interest in both matters arose from Mr Johnson’s connection with Johnson Home Improvements Pty Ltd (JHI Pty Ltd). Mr Johnson is related to the owner of JHI Pty Ltd and he was also an employee of the business at that time.

Tender for Crystal Brook Library Renovations
The first matter concerned the tender for renovations of Crystal Brook library. It was alleged that the preferred tenderer for the renovations of Crystal Brook Library had listed JHI Pty Ltd as a proposed subcontractor. Mr Johnson did not declare a conflict of interest in relation to this matter. He participated in the discussions concerning a motion to hear the matter in confidence, and subsequent deliberations of the matter.

The Ombudsman concluded that Mr Johnson did not hold a material, actual, or perceived conflict of interest in relation to the council’s motion to discuss the matter in confidence, or the council’s subsequent deliberations of the matter. The Ombudsman considered that the evidence collected from the investigation did not suggest that Mr Johnson was aware that JHI Pty Ltd was listed as a proposed subcontractor for the preferred tenderer. In relation to the first matter, the Ombudsman concluded that Mr Johnson did not commit misconduct in public administration.

Waste Disposal Fees and Charges
The second matter concerned the council’s consideration of a previous decision of the council to amend the waste disposal fees and charges at the Port Pirie Waste Transfer Station. The previous decision of the council that was considered at the meeting created a new minimum charge for commercial users of the Waster Transfer Station. JHI Pty Ltd was one of the businesses that would be financially impacted by the council’s decision. Mr Johnson did not declare a conflict of interest in relation to this matter. He participated in debate when the issue was discussed at the meeting and subsequently moved a motion to reverse the change in waste disposal fees and charges.

The Ombudsman concluded that Mr Johnson had a material conflict of interest in relation to the second matter. Mr Johnson did not declare the material conflict of interest, nor did he leave the chamber while the council discussed the matter. The Ombudsman concluded that Mr Johnson had committed misconduct in public administration. The Ombudsman also concluded that Mr Johnson had acted in a manner that was contrary to law.

As Mr Johnson did not seek re-election at the local government elections in November 2018, the Ombudsman made no recommendations.

 

2017-2018 Annual Report

December 2018: Public Trustee – Misconduct and maladministration
The Ombudsman received a referral from the Independent Commissioner Against Corruption concerning potential misconduct and maladministration in public administration by a Personal Estates Officer of Public Trustee (the agency) in managing the estate of a vulnerable client. The referral also concerned the practices of the agency when overseeing the management of the estate and addressing issues that were subsequently identified with the client’s file.

It was alleged that the Personal Estates Officer failed to obtain Age Pension benefits on behalf of the client when the client became eligible to receive them and that due to a failure by the Personal Estates Officer to submit relevant information to Centrelink, the client paid higher aged care fees than required; both resulting in significant losses to the estate. It was alleged that the agency failed to properly oversee the management of the client’s estate and that subsequent to the client’s death, the agency then failed to properly address the issues identified with the management of the estate.

In relation to the Personal Estates Officer, the Ombudsman was satisfied that it was clearly the role of the Personal Estates Officer to both obtain Age Pension entitlements on behalf of the client and provide the client’s information to Centrelink so that aged care fees could be properly determined. It was evident that the Personal Estates Officers had been prompted to do so on separate occasions and there was no evidence to support that the Personal Estates Officer had fulfilled these duties.

In relation to the Personal Estates Officer, the Ombudsman concluded that both failures amounted to:

  • substantial mismanagement in or in relation to the performance of official functions and therefore maladministration in public administration
  • conduct that was sufficiently serious enough to amount to a contravention of the requirements of the Public Sector Code of Ethics and therefore misconduct in public administration, as well as contrary to law for the purposes of the Ombudsman Act.

In relation to the agency, the Ombudsman was satisfied that there was insufficient oversight of the management of the client’s estate. Subsequent to the client’s death the agency reviewed the client’s file and ultimately reimbursed the estate approximately $79,000 in relation to the Aged Pension benefits owed to the client. However, the Ombudsman identified issues in the agency’s handling of the review of the client’s file and identified that the agency had failed to calculate or reimburse the potential overpayments made by the client in relation to aged care fees.

In relation to the agency, the Ombudsman concluded that both failures amounted to the agency acting in a manner that was wrong within the meaning of the Ombudsman Act.

January 2019: Town of Gawler – Alleged misconduct in public administration – Cr Jim Vallelonga
The Ombudsman received a referral from the Independent Commissioner Against Corruption concerning an alleged breach of Part 3 of the Code of Conduct for Council Members by Cr Jim Vallelonga.

On 26 September 2017 a confidential report was tabled at a meeting of the council. The report concerned the divestment and sale of council-owned portions of land on Krieg Road, Evanston Park. The report included the recommended reserve price for Allotment 500 Krieg Road, Evanston Park.

Cr Vallelonga received a copy of the report, but later declared a perceived conflict of interest in relation to the relevant agenda item. He did not participate in the council’s discussion of the matter at the council meeting.

An auction of Allotment 500 Krieg Road, Evanston Park was held on 11 May 2018. Cr Vallelonga attended the auction and placed two bids on Allotment 500 during the auction. His bids were not successful.

It was alleged that Cr Vallelonga had utilised information contained within the confidential report, namely, the reserve price of Allotment 500 Krieg Road, Evanston Park when he placed two bids at the auction.  It was alleged that this was a breach of clauses 3.1, 3.15 or 3.16 of the
Code of Conduct for Council Members.

The Ombudsman conducted a preliminary investigation of the above allegation. The Ombudsman considered that he was not satisfied that the information available suggested that Cr Vallelonga had breached clauses 3.1, 3.15 or 3.16 of the Code of Conduct for Council Members. The Ombudsman considered that continuing to investigate this issue was unnecessary or unjustifiable.

However, the Ombudsman considered that it was ill-advised for an elected member to bid on property owned by the council, in circumstances where the elected member is privy to information about that property by virtue of their position as an elected member.

January 2019: Department for Child Protection – Failure to provide procedural fairness in respect of decision to suspend family contact
The Ombudsman received a complaint regarding a determination of the Department for Child Protection to suspend contact between a child and members of his biological extended family for a period of approximately seven months. The department’s decision was said to be based on recommendations from a psychological assessment of the child that had been commissioned by the department.

The Ombudsman conducted an investigation and came to the view that the department’s determination to suspend contact was unjust for want of procedural fairness. In this regard, the Ombudsman observed that the department did not appear to have provided the complainant with a meaningful opportunity to present her views against the department suspending the contact arrangements prior to the determination being made. The Ombudsman made various recommendations to the department, including that it revise its Practice Guidelines to better recognise the requirement to observe the principles of procedural fairness in the making of decisions relating to contact arrangements. The department accepted the Ombudsman’s conclusions.

January 2019: Department of Planning, Transport and Infrastructure
The applicant sought access to documents about the proposed right hand tram turn at the corner of King William Street and North Terrace. Following the agency’s belated determination giving access to some documents and parts of documents, the applicant was only aggrieved by the agency’s refusal to release one document. The agency claimed that document was wholly exempt as a document affecting personal affairs (clause 6(1)) and an internal working document (clause 9(1)). The Ombudsman also considered whether document was exempt as a document affecting business affairs (clause 7(1)(c)) given an interested party’s earlier objections to disclosure. The Ombudsman was not satisfied that the document contained information concerning anyone’s personal affairs. In reaching this conclusion, he had regard to the document’s contents and context in which employees’ names, email addresses and telephone numbers appeared, noting that they all formed part of correspondence created in connection with the performance of the employees’ employment duties. Additionally, the Ombudsman was not satisfied that disclosure of the document would, on balance, be contrary to the public interest, could reasonably have an adverse effect on the business affairs of any party, or would prejudice the future supply of information to the Government or an agency. In so doing, the Ombudsman considered the obligations on public sector employees, as well as businesses’ financial interests in dealing with the government and agencies. The Ombudsman reversed the agency’s determination with respect to the document under review.

December 2018:  Regional Council of Goyder – Unreasonable internal review of an investigation of a dog attack
The complainant was dissatisfied with the council’s internal review of a council’s decision in regards to the council’s response to a complaint about a council employee and his investigation of the dog attack.

The complainant initially lodged a complaint with the council about the investigation of the dog attack that resulted in the death of his dog. The complaint included a complaint about the council employee’s conduct in relation to the investigation. The complainant was dissatisfied with the council’s response to the complaint and submitted a request to the council’s CEO for an internal review (s270) of the decision. The council advised the complainant of the outcome of the internal review which found that there was no error with the original decision and that the allegations about the council employee were “unfounded”. The complainant was dissatisfied with the outcome of the internal review and thereafter raised a new complaint with the Ombudsman’s Office. The complainant did not consider that in issuing its decision, the council and the external reviewer considered those issues of concern he had about the investigation and the competency of council’s investigating officer.

In regards to issues one and two, the Ombudsman’s view is that the council did not act in a manner that was unreasonable or wrong within the meaning of section 25(1) of the Ombudsman Act by failing to take action in relation to complaints about the dogs or in relation to investigating the incident. In relation to issues three and four, the Ombudsman’s view is that the council acted in a manner that was wrong within the meaning of section 25(1)(g) of the Ombudsman Act in its handling of the complaint about the council investigator and in conducting the internal review.

The Ombudsman recommended that the council apologise to the complainant for not conducting an internal review in accordance with its Review Procedure. The Ombudsman also recommended that the council conduct a further internal review in accordance with its Internal Review Procedure and to thereafter provide the complainant with details about the evidence relied upon and that those issues raised by the complainant were addressed.

November 2018: Statement on investigation – Alleged misconduct by a council employee

December 2018:  SA Housing Trust – Delay in addressing asbestos at a property
The Ombudsman investigated a complaint as to the agency’s handling of Housing SA tenant’s concerns about asbestos being disturbed at a block of units. The Ombudsman found that the agency’s delay in addressing the asbestos was wrong. The Ombudsman also addressed issues about Housing SA maintenance requests, issues and complaints more generally.

December 2018:  Wattle Range Council
The applicant sought external review of the agency’s decision to require payment of $2163.20 in fees and charges in relation to the cost to it of searching for documents, sorting, compiling and scanning them, and consulting with interested parties. The applicant had sought access to all documents held by the agency relating to a particular property or a particular person over a two year period.

On external review the Ombudsman pointed out that, under the FOI Act, an agency is not permitted to impose fees and charges for reviewing or redacting documents. He also considered that while he could take into account the circumstances of the agency, placing too much weight on the particular challenges faced by regional councils would result in applicants having to pay comparatively more than applicants living in metropolitan areas; this would not be fair or reasonable. It was also reasonable to expect that agencies hold their documents in a manner that facilitates retrieval. The Ombudsman also observed that the FOI Act requires that agencies conduct reasonable searches for documents; while he did not wish to discourage thorough searches by agencies, there is a need for them to be mindful of their finite resources and the need to utilise their time effectively and efficiently. In this case the agency had searched too broadly and had used search terms that it anticipated would return a large number of irrelevant results. The Ombudsman did not accept the agency’s claim that it had spent 10 hours consulting with eight interested parties.

The Ombudsman considered that it was fair and reasonable for the agency to require the applicant to pay total fees and charges in the amount of $1261.44 for finding, scanning, sorting and compiling documents and consulting with the interested parties.

December 2018:  City of Onkaparinga – Failure to declare membership of political party on Register of Interests – former Councillor Hazel Wainwright
The Ombudsman investigated, upon his own initiative, whether former councillor Hazel Wainwright breached Part 3 of the Code of Conduct for Council Members by failing to declare her interest as a member of the SA Best party.

The Ombudsman concluded that:

  1. Ms Wainwright had failed to notify the Chief Executive Officer of the City of Onkaparinga of a change in the information appearing on her Register of Interests within one month of becoming a member of the (former) Nick Xenophon Team, which was contrary to section 67(1) of the Local Government Act 1999. On that basis, Ms Wainwright acted in a manner which was contrary to law.
  2. Ms Wainwright had failed to notify the Chief Executive Officer of the City of Onkaparinga of a change in the information appearing on her Register of Interests within one month of becoming a member of the SA Best party, which was contrary to section 67(1) of the Local Government Act 1999. On that basis, Ms Wainwright acted in a manner which was contrary to law.
  3. Ms Wainwright had failed to provide an accurate Ordinary Return on 28 August 2017 which recorded her political interest as a member of the SA Best party, which was contrary to clause 3.11 of the Code of Conduct for Council Members and, consequently, section 63(2) of the Local Government Act 1999. On that basis, Ms Wainwright acted in a manner which was contrary to law.

As Ms Wainwright was not re-elected as a member of the City of Onkaparinga following the council elections in November 2018, the Ombudsman made no recommendations.

December 2018:  FOI Determination – A council
The applicant sought an external review of the agency’s determination under section 18(2a) of the FOI Act to refuse to deal with her access application. This section permits an agency to refuse to deal with an application if, in the opinion of the agency, the application is part of a pattern of conduct that amounts to an abuse of the right of access conferred by the Act, or is made for a purpose other than to obtain access to information.

On external review the Ombudsman observed that section 18(2a) is not to be used lightly but that it serves to strike a balance between the right of access to an agency’s documents and the resources used by the agency to provide that access. He also noted that in establishing that a particular application was part of a pattern of conduct, the agency could properly have regard not only to the number of FOI applications made by a particular applicant but also other conduct of the applicant when communicating with the agency.

The Ombudsman determined that there were sufficient grounds for the agency to have reasonably formed the view that this particular application was part of a pattern of conduct that amounted to an abuse of the right of access. In reaching this view, the Ombudsman took account of the fact that the applicant had made a number of access applications since November 2016. Many of the applications had similar or identical wording and were broad in scope. Each related to the operation of a single business operating in the council area. As well as making FOI applications, the applicant had otherwise corresponded extensively with the agency during the same period. Given these factors, the agency’s determination was confirmed.

December 2018:  Alexandrina Council – Maladministration in public administration
The Ombudsman received a referral from the Independent Commissioner Against Corruption concerning the Alexandrina Council’s failure to obtain development approval prior to the Goolwa Wharf Recreational Boating Facility’s construction. Pontoons were constructed in 2010 and 2011 but subsequently deteriorated and a subsequent structural assessment identified numerous defects. The council was unable to recover from the construction company which had gone into liquidation. While development planning consent had been approved at the time of construction, the council never obtained building rules consent.

The Ombudsman concluded that:

  • the conduct of the council’s then General Manager Infrastructure Planning and Design in failing to obtain building rules consent amounted to maladministration in public administration
  • the council’s practice in not ensuring all relevant approvals had been granted prior to construction amounted to maladministration in public administration
  • by proceeding with the development in the absence of building rules consent, the council acted contrary to law.

After preliminary enquiries, the Ombudsman considered that investigation of a fourth issue was not necessary or justifiable, and reference to that issue has been redacted from the report.

Given the age of the matter and the fact that many of the key staff and elected members are no longer at the council, the Ombudsman did not consider it necessary to make any formal recommendation.

September 2018:  Department for Education
This determination has been affirmed by SACAT.

The applicant, a student teacher at a public high school, sought documents relating to allegations, made by students and staff, of inappropriate behaviour towards students during his teaching placement.  The Department for Education refused access to the documents on the basis that they were exempt pursuant to clauses 6 (personal affairs) and 16 (1)(a)(iii) and (b) (adverse effect on management or assessment of personnel).

On external review, the Ombudsman determined that the documents contained personal affairs information of both the students who were reported to have made allegations of inappropriate statements by the applicant about other students, and the students about whom the statements were allegedly made.  The Ombudsman considered the factors in determining whether it would be unreasonable to disclose this information and determined it would be unreasonable.

The Ombudsman determined that where allegations of this nature exist against an individual, the risk is not just to students at the campus at which the alleged behaviour is said to have occurred, but to any child who may come in contact with that individual.  The Ombudsman considered that whilst staff members have oblations under the Public Sector Code of Ethics to report and assist in such matters, it could reasonably be expected that staff may be less likely to provide information with candour in relevant investigations where the contents of such information may become a matter of public knowledge.  As such it could reasonably be expected that disclosure would have a substantial adverse effect on the management or assessment by the agency of the agency’s personnel.

In assessing whether disclosure would be contrary to the public interest, the Ombudsman considered the public interest in people understanding the nature of allegations made about them in order to ensure they are afforded appropriate procedural fairness.  The amount of information already known by the applicant was taken into account.  The Ombudsman considered it was a significant public interest factor against disclosure that release could reasonably be expected to prejudice the Department for Education’s ability to obtain information relating to the behaviours of adults who work with children.

October 2018: Port Pirie Regional Council – Maladministration and misconduct in public administration
The Ombudsman received a referral from the Commissioner concerning the alleged maladministration and misconduct of the then Deputy Mayor Leon Stephens. It was alleged that Deputy Mayor Stephens advertised the Chief Executive Officer’s position without having the authority to do so.

The investigation found that Deputy Mayor Stephens did approve the publication of the advertisement in circumstances in which he did not have the authorisation to do so, in breach of clauses 3.2 and 3.4 of the Code of Conduct for Council Members. On that basis it was found that Deputy Mayor Stephens committed misconduct in public administration. The Ombudsman determined that Deputy Mayor Stephens’ actions did not constitute maladministration in public administration.

The investigation revealed that Deputy Mayor Stephens had used his private email address to conduct council business, and this was reported to the Office for Public Integrity. The Commissioner referred this matter to the Ombudsman for investigation. It was determined that, by using his private email address, Deputy Mayor Stephens had failed to comply with the Code of Conduct and the Local Government Act.

It was recommended that the council reprimand Deputy Mayor Stevens at a public meeting of the council.

It became apparent during the course of the investigation that expenses were incurred by the council which may have been as a result of it proceeding with the recruitment of a new CEO rather than retracting the advertisement. This issue was assessed by the Commissioner as raising a potential issue of maladministration in public and referred to the Ombudsman for investigation. It was determined that the council’s failure to retract the advertisement, and halt the recruitment process, did not amount to maladministration because the expenses incurred by the council as a result of it not retracting the advertisement could have been incurred even if it had retracted the advertisement. As such, the Ombudsman determined that the council did not commit maladministration in public administration.

November 2018: Department for Child Protection – Errors in transitioning child between foster carers
The Ombudsman received a complaint from a foster carer in respect of a determination of the Department for Child Protection to transfer care of her former foster child to another foster carer. The foster carer complained that the department unreasonably refused her request that the child be placed in her long term care, improperly managed the child’s transition to the new carer and, following that transition, unreasonably determined to deny her further contact with the child. The foster carer also complained that the department failed to address her concerns about the transition and failed to provide an explanation for action that was taken.

The Ombudsman conducted an investigation and concluded that, although the decision to transfer the child to a new foster carer was likely consistent with the Aboriginal Child Placement Principle and the Children’s Protection Act, the department erred in formulating its decision insofar as it omitted to arrange for a meeting of all the stakeholders upon being made aware of the complainant’s request to assume long-term care of the child, ceded responsibility for the transition determination to the foster care agency and omitted to seek the advice of a psychologist in respect of the competing transition proposals. The Ombudsman also concluded that the department unreasonably failed to make arrangements for the prospect of further contact between the complainant and the child, despite it having received psychological advice which suggested that such contact was consistent with the best interests of the child. This notwithstanding, the Ombudsman concluded that the department did not err in subsequently determining to deny further contact between the complainant and the child, noting the professional advice that was provided to the department at that time. The Ombudsman separately concluded that the department erred in failing to communicate the outcomes of an internal review of the matter to the complainant in a timely manner. The Ombudsman made various recommendations to the department. The department accepted the Ombudsman’s conclusions and indicated its preparedness to implement the Ombudsman’s recommendations.

November 2018: Statement on investigation – Alleged misconduct by a council employee

September 2018: Audit Report – Audit of compliance with the Criminal Law (Forensic Procedures) Act 2007
Media Release
This report documents compliance by SA Police and Forensic Science SA with the provisions of the Criminal Law (Forensic Procedures) Act during the period 8 February 2017 to 10 May 2018.

The audit carried out by Ombudsman SA revealed that, while there is an overall high level of  compliance with the provisions of the Act, individual cases gave rise to concerns. Some of these  instances of non-compliance involved forensic procedures that were carried out on children. Although the Criminal Law (Forensic Procedures) Act does not require Ombudsman SA to make recommendations to improve compliance levels, the Office took the liberty of making seven recommendations, which it looks forward to being implemented.

October 2018:  Port Pirie Regional Council – Maladministration and misconduct in public administration – Mayor John Rohde
The Ombudsman received a referral from the Independent Commissioner Against Corruption concerning the conduct of the Mayor of the Port Pirie Regional Council, Mr John Rohde. The referral concerned the decision of the Mayor to organise and undertake a ‘trade mission’ to the Philippines in the absence of formal approvals from the council’s elected body and in circumstances where the Mayor did not declare to the council that he had formed an online relationship with a resident of the Philippines.

The Ombudsman conducted an investigation and concluded that the Mayor’s actions in undertaking the ‘trade mission’ amounted to maladministration in public administration, insofar as the Ombudsman was satisfied that the Mayor caused the council to expend several thousand dollars (i) for the purposes of a significant initiative that should have been, but was not, formally authorised by the council’s elected body; (ii) in the absence of any business plan; and (iii) in circumstances where any authorisations that were provided by the council’s administration were made in opaque circumstances and were not documented properly or at all. The Ombudsman also concluded that the Mayor’s conduct in this regard amounted to misconduct in public administration.

The Ombudsman also concluded that the Mayor’s failure to declare the fact of his relationship with a resident of the Philippines and his intention to meet with this person during the council-funded trips to the Philippines amounted to misconduct in public administration.

The Ombudsman separately concluded that the council did not commit maladministration in public administration in the circumstances.

October 2018: Port Pirie Regional Council – Misconduct in public administration – Cr Kendall Jackson
The Ombudsman received a referral from the Independent Commissioner Against Corruption concerning the conduct of an unidentified officer of the Port Pirie Regional Council. The referral concerned the allegation that an elected member of the council disclosed to a journalist (or intermediary) information from two confidential council documents in circumstances where the elected member was not authorised to do so.

The Ombudsman conducted an investigation and concluded that Cr Kendall Jackson disclosed a copy of one of the documents to a third party (being her campaign adviser for the purposes of the 2018 state election), contrary to the Code of Conduct for Council Members. The Ombudsman formed the view that Cr Jackson’s conduct amounted to misconduct in public administration.

September 2018: Town of Gawler – Breach of council member code of conduct
The Ombudsman investigated whether Mayor Redman failed to appropriately declare and deal with a conflict of interest. The alleged conflict of interest arose in the Town of Gawler council meeting on 13 June 2018 which commenced at 7.00 pm. At 4.00 pm that same day, the Local Government Association (LGA) had released a press release announcing that the new President of the LGA would be Cr Sue Clearihan of the City of Adelaide. The press released also mentioned that Mayor Redman had been appointed as a Vice President of the LGA.At the council meeting on 13 June 2018, a motion without notice was raised relating to whether the council should remain a member of the LGA. The motion was amended to propose that the council administration undertake an investigation as to the value of the council remaining a member of the LGA. Four councillors each voted for and against this motion respectively. Mayor Redman cast her casting vote against the motion.

The Ombudsman determined that Mayor Redman did not have a material conflict of interest, as she would not directly benefit from the outcome of the motion. However, the Ombudsman determined that Mayor Redman had both an actual and a perceived conflict of interest, given that:

  • Mayor Redman had a personal interest, as the position of Vice President of the LGA is a position of some prestige
  • Mayor Redman had a pecuniary interest, as a Vice President of the LGA is entitled to a sitting fee
  • If the council were to vote for an investigation into the value of remaining in the LGA, and subsequently voted to leave the LGA, Mayor Redman would be unable to remain a Vice President of the LGA
  • Mayor Redman therefore had an interest in the outcome of the motion
  • This interest conflicted with the public interest.

As Mayor Redman did not declare any conflict of interest, there was a real danger that the outcome of the vote could have potentially led to a decision that was contrary to the public interest. The Ombudsman considered that Mayor Redman had breached the conflict of interest provisions of the Local Government Act and Part 3 of the Code of Conduct for Council Members, and acted in a manner that was contrary to law for the purposes of the Ombudsman Act. The Ombudsman recommended that Mayor Redman issue an apology in a public council meeting.

October 2018:  Town of Gawler
The applicant sought access to a report commissioned by the agency about the rural areas of Gawler (the report) and associated correspondence. The agency claimed various documents exempt as documents affecting personal affairs (clause 6(1)), documents affecting business affairs (clause 7(1)(c)), internal working documents (clause 9(1)), and documents containing confidential material (clause 13(1)(a)). Although not relied on by the agency, having regard to existing confidentiality orders, the Ombudsman found the report exempt as subject to secrecy provisions under the Local Government Act 1999 (clause 12(1)). In addition, the Ombudsman accepted the agency’s clause 9(1) claim to the extent that information in one document would disclose the contents of the report. The Ombudsman rejected the remaining claims of exemption. The Ombudsman also concluded that a contract entered into after 1 January 2005 could not be exempt under clause 7(1), given clause 7(3). The Ombudsman varied the agency’s determination to enable various documents to be released. The Ombudsman also commented on the agency’s failure to engage in the public interest balancing process and noted that it had purported to make a determination to release some documents without having undertaken the required consultation.

September 2018:  City of Burnside – Conduct of Cr Lance Bagster
The Ombudsman received a referral from the Independent Commissioner Against Corruption concerning allegations that Cr Lance Bagster of the City of Burnside had over an extended period of time engaged in inappropriate and offensive communications with his fellow elected members and council staff.

The Ombudsman conducted an investigation and concluded that Cr Bagster had committed twelve acts of misconduct in public administration. Most significantly, the Ombudsman concluded that Cr Bagster had bullied and harassed his fellow council officers, including council staff, creating a risk to health and safety. The Ombudsman recommended that the council lay a complaint against Cr Bagster in the District Court seeking that he be disqualified from office and that he be further disqualified from becoming a member of a council for a period not exceeding five years.

The Ombudsman otherwise observed that the existing statutory framework appeared ill-equipped towards dealing with conduct of an elected member of a council that creates a risk to health and safety. In light of this, the Ombudsman recommended that the State Government cause a review of the Local Government Act 1999 and the Work Health and Safety Act 2012 so as to determine whether either Act should be amended.

September 2018: Attorney-General’s Department
The applicant sought access to resolutions or decisions of the Legal Practitioners Conduct Board to lay charges or amended charges against him. The agency claimed that various documents were exempt as documents affecting personal affairs, internal working documents, documents subject to legal professional privilege, documents relating to judicial functions etc, documents the subject of secrecy provisions (in conjunction with section 73 of the Legal Practitioners Act 1981), and documents containing confidential material. The Ombudsman accepted that some documents or parts of documents were exempt as documents affecting personal affairs, documents subject to legal professional privilege and documents relating to judicial functions etc, but rejected the agency’s remaining claims of exemption. The Ombudsman varied the agency’s determination to enable some documents and parts of documents to be released. The Ombudsman also made observations about his obligations to consult interested parties.

September 2018:  Department for Correctional Services – Handling of a prisoner’s diabetes
The Ombudsman investigated, upon his own initiative, three issues arising from the Department for Correctional Services’ (the department) handling of a prisoner with type 1 diabetes. The investigation was instigated on the basis of information received from the Office of the Health and Community Services Complaints Commissioner (HCSCC).

On 8 February 2017, the prisoner was transferred from Port Lincoln Prison to Port Augusta Prison and shortly after approached South Australian Prison Health Service (SAPHS) about high blood sugar levels. On 21 February 2017, SAPHS forwarded a medical instruction to the General Manager of the Port Augusta Prison and requested that he consider the prisoner being managed in a facility where he could have insulin three times a day or, alternatively, give SAPHS staff access to him three times a day. SAPHS continued to raise concerns with prison management about the failure to facilitate doses of insulin three times daily. The Port Augusta Prison did not accommodate the three times daily doses. The prisoner was ultimately transferred to another prison on 28 March 2017.

The department and the Department for Health and Wellbeing have a Joint Systems Protocol (the Joint Systems Protocol) which provides guidance on the shared care for prisoners requiring complex case management. The department also has a standard operating procedure (SOP 001A) which deals with prisoner admission and case management.

The Ombudsman considered three issues:

  1. Whether the department wrongly failed to comply with the Joint Systems Protocol and SOP 001A
  2. Whether the department unreasonably delayed taking action following receipt of a medical instruction from SAPHS regarding the prisoner
  3. Whether the department unreasonably delayed taking action following receipt of a medical instruction from SAPHS regarding the prisoner.

In relation to issue 1, the Ombudsman’s view was that the department’s failure to comply with the Joint Systems Protocol and SOP 001A was wrong within the meaning of section 25(1)(g) of the Ombudsman Act. The Ombudsman recommended that the department provide a further report on the progress of the review of food options and completion of the Diabetes Management Action Plan.

In relation to issue 2, the Ombudsman’s view was that the department’s failure to accommodate three times daily access or otherwise give proper consideration to transferring the prisoner to another prison was unreasonable within the meaning of section 25(1)(b) of the Ombudsman Act. The Ombudsman recommended that the department amend its procedure regarding medical instructions to include:

  • an indication as to the level of urgency/seriousness of an instruction
  • a timeframe for compliance
  • a requirement that the department provide reasoning if a medical instruction cannot be complied with, including a timeframe for responses in this regard.

In relation to issue 3, the Ombudsman’s view was that by failing to retain official records, the department acted in a manner that was contrary to law within the meaning of section 25(1)(a) of the State Records Act. The Ombudsman has informed the Manager of State Records of this matter.

September 2018: Department for Child Protection – Statement on investigation – Alleged failure to protect young people from sexual exploitation

July 2018: Adelaide Hills Council – Breach of council member code of conduct
A complaint was received from the Adelaide Hills Council that one of its elected members may have breached clauses 3.2 and/or 3.4 of the Code of Conduct for Elected Members by not following its Records Information Management Policy in relation to dealing with an email.  Upon investigation it was discovered that part of the email was missing from the original email and that council therefore only had a partial record. I determined that, whether inadvertent or deliberate, there had been a lack of care and diligence by the elected member who had therefore breached clause 3.2 of the Code.  I recommended the elected member receive training in the requirements of the State Records Act 1997 (SA) and council’s Records Information Management Policy.  However, I declined to investigate breaches of clause 3.4 of the Code because I did not consider that the elected member was attempting to authorise or perform, or purport to exercise or perform, a power, duty or function that he was not entitled to exercise as an elected member.

August 2018: City of Victor Harbor – Failure to declare a conflict of interest
The Ombudsman investigated whether Cr Peter Charles failed to appropriately declare and deal with a conflict of interest when a previous report by the Ombudsman was received and considered by the council.  While Cr Charles ultimately left the chamber while three of four recommendations were considered, he was present when the first recommendation was considered and voted to received the report.

The Ombudsman considered that while Cr Charles did not have a material or actual conflict of interest, he had a perceived conflict of interest given that an impartial, fair-minded person could reasonably perceive that he had a conflict of interest given that:

  • the subject matter of the final report related to him
  • the report made findings about his conduct
  • the report made recommendations that required him to take particular action.

The Ombudsman considered that Cr Charles should have informed the meeting of his interest and should have stated why he thought it appropriate for him to remain in the chamber and vote on the matter.

The Ombudsman considered that Cr Charles breached the conflict of interest provisions of the Local Government Act and Part 3 of the Code of Conduct and acted in a manner that was contrary to law for the purposes of the Ombudsman Act.  The Ombudsman recommended that the council require Cr Charles to attend training relevant to the conflict of interest provisions.

September 2018: Summary of FOI determination – Central Adelaide Local Health Network

August 2018: City of Onkaparinga
The applicant sought access to documents relating to the agency’s Fringe Benefits Tax returns over a three year period. The agency provided access to one document in full and provided partial access to the remaining documents. The agency relied upon various exemption clauses, including clause 16 of Schedule 1 to the FOI Act, which deals with documents concerning the operations of agencies. The majority of the redacted information related to the agency’s employees, including their names, position descriptions and team identifiers. However, the agency also redacted information related to car services and businesses.

On external review, the Ombudsman accepted the agency’s submissions that release of the employee’s details could reasonably be expected to have a substantial adverse impact on the management by the agency of its personnel. The Ombudsman also determined that release of the employee’s details would be contrary to the public interest, noting in particular that the FOI Act is concerned with transparency and accountability of the agency as a whole and that by releasing most of the information relating to the Fringe Benefits Tax, the agency had already substantially promoted transparency and accountability. The Ombudsman concluded that to release the names and details of individual employees would likely cause detriment to those employees and would affect the agency as a whole, whilst not meaningfully furthering the objects of the FOI Act. However, the Ombudsman varied the agency’s determination to release the information related to car services and businesses.

August 2018: SA Police
The applicant sought access to documents relating to a police attendance at his property. The agency refused access to any such documents on the basis that disclosure of the same would constitute an offence against the Police Complaints and Discipline Act 2016 (the PCD Act). The agency determined that the documents were therefore exempt under clause 12(1) of the FOI Act. This clause states 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. The Ombudsman accepted the agency’s advice that a complaint had been made about the police attendance at the property and that that complaint had been made under the PCD Act. Section 45(3) of that Act states that a person who receives information knowing that information is connected with a matter that forms or is the subject of a complaint under the PCD Act must not disclose that information and prescribes a maximum penalty of $2,500 or six months imprisonment for such a disclosure. Had the agency’s FOI officers disclosed the documents to which the applicant was seeking access, they would have committed an offence under section 45(3). The information in those documents was therefore exempt pursuant to clause 12(1).

August 2018: Yorke Peninsula Council – Breach of council member code of conduct
The Ombudsman received a complaint from the Yorke Peninsula Council that Councillor Stock had failed to comply with a finding of inappropriate behaviour by an independent investigator that had found Cr Stock to be in breach of the Code of Conduct for Council Members.

The original complaint was made by Deputy Mayor Hoyle about Cr Stock’s conduct at a meeting on 15 April 2017.  Deputy Mayor Hoyle alleged that Cr Stock may have breached six clauses of the Code of Conduct.  The complaint was investigated by EMA Legal who determined that Cr Stock had breached two clauses of the Code of Conduct by failing to act in a way that generates community trust and confidence in the council and failing to endeavour to maintain a respectful relationship with all councillors.  EMA Legal recommended that Cr Stock make a public apology to the Council.  The Council accepted the report of EMA Legal at the Council meeting on 14 February 2018 and a motion was passed requiring Cr Stock to apologise.  Cr Stock advised the Council via her lawyers that she did not intend to apologise and did not believe she was required to.

The Council therefore referred the matter to the Ombudsman for investigation.  The Council also indicated that Cr Stock may have further breached the Code of Conduct by divulging confidential information at a Council meeting.

Clause 3.18 of the Code of Conduct states that ‘a failure to comply with a finding of inappropriate behaviour (by the Council, independent investigator or Ombudsman) under Part 2 is also grounds for a complaint under this Part’ . In my view, by refusing to apologise, Cr Stock had failed to comply with the finding of inappropriate behaviour that had been made by EMA Legal.  Cr Stock had also failed to comply with clause 2.6 of the Code of Conduct by failing to comply with the council resolution requiring her to apologise.  Cr Stock had therefore breached the Local Government Act by failing to observe the Code of Conduct.

I also investigated whether Cr Stock divulged confidential information at a Council meeting in breach of clause 3.3 of the Code of Conduct.  In my view, while Cr Stock could have exercised greater discretion, I do not consider that she divulged confidential information.

I recommended that the Council issue a reprimand to Cr Stock for breaching clause 3.18 of the Code of Conduct.

May 2018: Kangaroo Island Council – Breach of council member code of conduct
Mayor Clements of the Kangaroo Island Council referred to the Ombudsman a complaint he received from Cr Liu in which it was alleged that Cr Willson failed to declare a conflict of interest for agenda item 13.2 at the council meeting on 14 February 2017.  Cr Liu submits that Cr Willson has an interest in a property in the vicinity of the proposed road upgrade for agenda item 13.2 that she failed to declare before participating and voting on the matter.  The Ombudsman’s investigation found that Cr Willson failed to declare her interest and concluded that it was beyond dispute that if the road upgrade were to be undertaken the result would be beneficial in terms of improving drainage, driveability and safety of the road however, the wording of the motion did not guarantee that the upgrade would proceed.  However, given that the wording was ‘high priority’, it was probable at the time that it would go ahead however, it was possible that the project was only a priority amongst others.  Therefore on that basis the Ombudsman found that Cr Willson did not have a material conflict of interest in relation to agenda item 13.2.  The Ombudsman’s investigation found that Cr Willson was found to have had an indirect, personal interest in the agenda item and that because of her property interest, Cr Willson’s interest met the substantial proportion test and that that interest was in conflict to the public’s interest.  On that basis, the Ombudsman considered Cr Willson to have had an actual conflict of interest in agenda item 13.2. In regards to the perceived conflict of interest, the Ombudsman considered all facts of the matter and concluded that an impartial, fair-mined person apprised of the facts could reasonably take that Cr Willson had an actual conflict of interest and therefore a perceived conflict of interest in agenda item 13.12.  The Ombudsman considered therefore that in failing inform the meeting of her interests in agenda item 13.2, Cr Willson did not comply with section 75A(1) of the Local Government Act and deal with that interest in accordance with section 75A(2) of the Local Government Act. The Ombudsman’s view was that Cr Willson breached the provisions of section 75A of the Local Government Act and Clause 3.13 of Part 3 of the Code of Conduct and thereby acted in a manner that was unlawful within the meaning of section 25(1)(a) of the Ombudsman Act.

July 2018: Northern Adelaide Local Health Network
The applicant sought access to documents relating to the establishment of a High Dependency Unit at the Modbury Hospital. The agency’s principal officer extended the time for dealing with the application beyond the 30 day deadline, on the basis that 2,225 documents had been generated during the relevant period, and as a result, dealing with the application within 30 days would unreasonably divert the agency’s resources from their use by the agency in the exercise of its functions.

While the Ombudsman noted that the agency held a large number of documents, which had been generated during the relevant period, the agency had conceded that it would not be necessary to search through all those documents to determine whether they fell within the scope of the application. The Ombudsman further noted that application was for access to documents generated over a relatively short period, being approximately two months, and that the application was for documents concerning a single subject matter. It was reasonable to expect that the agency would keep electronic records of the documents it held and that those records could be electronically searched. As such, on external review, the Ombudsman was not satisfied that the determination to extend the time for dealing with the application was justified. While the Ombudsman accepted that the agency had received a large number of access applications during the preceding months and appreciated that it might be operating under resource constraints, the applicant should not have to bear the delay caused by this. Section 14A of the FOI Act does not permit an agency to extend the time for dealing with a particular application on the basis that it lacks sufficient resources to process the number of access applications it receives.

July 2018: Department for Child Protection – Failure to address concerns regarding assessment of notifications
The Ombudsman received a complaint concerning the Department for Child Protection’s alleged failure to respond to concerns raised in respect of the safety and wellbeing of the complainant’s two children. The Ombudsman conducted an investigation and determined that between 2015 and 2017 the department received approximately nine notifications raising allegations of neglect and inappropriate discipline within the father’s home, all of which had been screened-out by the department as not meriting a child protection response. The Ombudsman observed that the agency’s files disclosed a discernible rationale for its assessment of the notifications, however this appeared never to have been communicated to the complainant. The Ombudsman formed the view that the department erred in omitting to address the complainant’s concerns regarding its assessment of the notifications when responding to a complaint made to the agency’s Complaints Unit. The Ombudsman recommended that the department write to the complainant to provide further information concerning its assessment practices and its cumulative assessment of the notifications.

April 2018: Town of Gawler – Breach of council member code of conduct
In accordance with clause 2.15 of the Code of Conduct for Council Members, Cr Koch of the Town of Gawler made a complaint to my Office about a potential Part 3 breach of the Code of Conduct by Cr Vallelonga. It is noted that a failure by a council member to report an alleged breach of Part 3 of the Code of Conduct may in itself represent a breach of Part 3 (Behavioural Code). Cr Koch alleged that at the council meeting on 28 February 2017, Cr Vallelonga failed to declare a conflict of interest in a matter before the council. It was alleged that Cr Vallelonga had business and property interests in the vicinity of the proposed project that he failed to declare before participating and voting thereafter on the matter. Although Cr Vallelonga later sought to re-phrase his comment in the local Bunyip newspaper, It is alleged that during discussions on the matter, Cr Vallelonga was heard to have said ‘this is a detriment to our business. My investigation found that after prompting by the council Mayor, Cr Vallelonga declared a perceived conflict of interest in the matter and stated that he would deal with that conflict by remaining in the meeting and participate in discussions on the matter. In conducting his investigation the Ombudsman found that potential impacts (loss or benefit) upon his business was at best speculative and that this was insufficient to conclude that he had a material conflict of interest in the matter. In regards to an actual conflict of interest, the Ombudsman was satisfied that Cr Vallelonga had an indirect pecuniary interest in the matter and that the removal of the left slip lane and construction thereof, could impact upon his business. The Ombudsman concluded that Cr Vallelonga’s narrow interest in the matter conflicted with those of the broader community. The Ombudsman was satisfied that Cr Vallelonga had an actual and perceived conflict of interest in agenda item 8.5 and therefore breached section 75A(2) of the Local Government Act by failing to act in a transparent and accountable manner as required by section 75A(1) of the Local Government Act. The Ombudsman formed a view that in failing to comply with the conflict of interest provisions under the Local Government Act, Cr Vallelonga breached Clause 3.13 of the Code of Conduct. The Ombudsman recommended that Cr Vallelonga issue a public apology to the council and undertake training in relation to conflicts of interest.

August 2018: City of Onkaparinga – Statement on investigation – Breach of council member code of conduct – Cr Holtham

July 2018: District Council of Coober Pedy, Department of State Development and Minister for Mineral Resources and Energy — Coober Pedy Power Purchase Agreement
Media Release
The Ombudsman received two referrals from the Independent Commissioner Against Corruption concerning alleged maladministration in public administration by the District Council of Coober Pedy, the Department of State Development and the former Minister for Mineral Resources and Energy, the Hon Tom Koutsantonis MP.

The Ombudsman’s investigation concerned the decision of the District Council of Coober Pedy to enter into a $198 million Power Purchase Agreement with a private supplier, Energy Generation Pty Ltd, in the absence of a competitive tender process, as well as certain actions of the Department of State Development and the former Minister for Mineral Resources and Energy that had the effect of subsidising the council in respect of its obligations under the agreement.

As a result of the investigation, the Ombudsman formed the view that the District Council of Coober Pedy committed maladministration in public administration through its negotiation and execution of the Power Purchase Agreement. The Ombudsman invited the Minister for Transport, Infrastructure and Local Government to consider taking action under the Local Government Act 1999 in respect of the council. The Ombudsman also formed the view that the Department of State Development and Mr Koutsantonis did not commit maladministration in public administration through their involvement in the project. However, the Ombudsman determined that the department erred in omitting to brief the former Minister in respect of certain matters. The Ombudsman recommended that the newly-created Department for Energy and Mining revise its briefing template to address this error.

Addendum: Addendum to the Ombudsman’s final report relating to an investigation into the District Council of Coober Pedy, the Department of State Development and the former Minister for Mineral Resources and Energy – July 2018

July 2018:  Department of Planning, Transport and Infrastructure
The applicant requested documents relating to the evaluation of a proposal his company, Ebor Computing Pty Ltd, submitted in August 2017 in response to a tender that was advertised by the Department of Planning, Transport and Infrastructure (the department).  The department determined there were three documents within the scope of the applicant’s request, and refused access to two documents relating to the evaluation process.  The documents contained information relating to the evaluation of all proposals that were submitted in response to the tender.

During the external review process, the Ombudsman sought clarification from the applicant in regard to the scope of his request, in particular, whether he was seeking information relating to the evaluation of other proposals. The applicant confirmed he did not seek access to this information.  As a result, the Ombudsman limited his consideration of the agency’s determination to information specifically relating to Ebor Consulting’s proposal, and commented that the agency could have avoided unnecessary consideration of information that the applicant did not wish to access.  The Ombudsman also commented that the agency had failed to turn their mind to their obligation under section 20(4) of the FOI Act to give partial access to a document where it is appropriate to do so, noting that the agency had given access to information in one document that was identical to information contained within another document where access was refused in full.

July 2018:  District Council of Robe – Breach of council member code of conduct
The Ombudsman received a complaint from the District Council of Robe that Cr Loxton had failed to comply with a finding of inappropriate behaviour by an independent investigator that had found Cr Loxton to be in breach of the Code of Conduct for Council Members. The independent investigator, EMA Legal, had investigated Cr Loxton’s conduct at the Council meeting on 13 June 2017 and determined that Cr Loxton had failed to act in a way that generates community trust and confidence in the Council; failed to show respect for others if making comments publicly; and failed to endeavour to establish and maintain a respectful relationship with all other Council members. In its report, EMA Legal recommended that Cr Loxton be required to apologise to the Mayor.

The Council accepted the report of EMA Legal at its meeting of 9 January 2018 and a motion was passed requiring Cr Loxton to apologise. At the Council meeting on 30 March 2018, Cr Loxton was provided with the opportunity to apologise. Cr Loxton advised the Council that he refused to make an apology to the Mayor. The Council therefore referred the matter to me for investigation.

Clause 3.18 of the Code of Conduct states that “a failure to comply with a finding of inappropriate behaviour (by the Council, independent investigator or Ombudsman) under Part 2 is also grounds for a complaint under this Part”. In my view, by refusing to apologise, Cr Loxton had failed to comply with the finding of inappropriate behaviour that had been made by EMA Legal. Cr Loxton had therefore breached the Local Government Act 1999 by failing to observe the Code of Conduct. I recommended that the Council issue a reprimand to Cr Loxton.

April 2018:  SA Police
The applicant sought access to the first ten incidents from 1 January 2016 which involved taser footage including the corresponding incident reports. The agency identified 20 documents within scope of the applicant’s request, ten being taser footage and ten being corresponding incident reports.

Clauses 4(2)(a)(iii), 4(2)(a)(iv), 4(2)(a)(vi), 4(2)(b), 6(1), 6(2), 6(3a), 11(b), 16(1)(a)(iv) and 16(1)(b) of Schedule 1 to the FOI Act were relied upon by the agency. Access to all footage and two incident reports, which related to matters that were still pending before a Court, were refused entirely by the agency. The remaining  incident reports were partially redacted to remove names, addresses, dates of birth and other similar personal details of third parties.

During the external review the agency withdrew its reliance on clause 11 as the related court matters had finalised by that stage. The applicant also confirmed that the eight partially released incident reports could be excluded from the external review. As a result ten taser footage documents and two incident reports remained in issue.

The Ombudsman formed the view that clauses 4 and 16 did not apply because the documents did not reveal anything that was not already known or assumed by the general population; therefore, disclosure could not reasonably be expected to have any adverse effect on law enforcement or public safety. The Ombudsman conceded with the agency that clause 6 applied quite broadly because any third party’s involvement in such an incident, whether as a victim, the accused or a witness, should be regarded as incidents of private concern to those individuals. However, the Ombudsman’s view was that where documents could be sufficiently redacted to ensure that it would not be possible to identify third parties, and the remaining information was something the applicant would still wish to have access to, they should be redacted and released in that form. The Ombudsman varied the agency’s determination such that six documents were refused entirely and the remaining six documents could be partially released following extensive redactions to all personal details, visual images that might tend to identify an individual (including images of a person’s property), and audio that might tend to identify an individual.

June 2018: Department for Correctional Services – Failure to amend record of gender
Media Release
The Ombudsman investigated a complaint by a transgender prisoner, Ms Krista Richards (the complainant), that the Department for Correctional Services (the department) had failed to amend its records to reflect that she identifies as a female, resulting in a delay in her transfer to the Adelaide Women’s Prison (AWP). The complainant also raised concerns that the department had failed to amend the name on her cell door to reflect her chosen name. The Ombudsman’s view was that there were no proper grounds for the department’s refusal to amend its records and identify the complainant by her chosen name, and that it had been aware of these issues as early as 2015 yet failed to take steps to address them until after it had been notified of the investigation in September 2017. The Ombudsman did not, however, consider that the department had unreasonably delayed the complainant’s transfer to AWP. The department accepted the Ombudsman’s provisional recommendations prior to the finalisation of the investigation.

June 2018:  Audit Survey Report – Assessment of state agencies’ complaints management systems
Media Release

The Audit Survey Report documents the progress made by 13 key state government departments in developing their complaint management systems (CMS).

The report identified some improvements as well as some deficiencies in the CMS.  Three recommendations were made: the renewal of the DPC Circular PC039 – Complaint Management in the South Australian Public Sector (including adherence to the Australian Standard on complaint management), improved complaint management and access for disadvantaged and vulnerable people and the development of departmental Strategic Planning goals to deliver service improvements linked to complaints.

June 2018:  City of Victor Harbor – Misconduct in public administration
Cr Andrews
Cr Charles
The Ombudsman received an ICAC referral alleging misconduct in public administration in relation to the conduct of two of its elected members.

It was alleged that Crs Andrews and Charles had misled the public by posting and commenting a ‘media release’ that Cr Andrews had drafted. The ‘media release’ informed the general public that the council had resolved to close the Whale Centre, which was untrue. I concluded that Crs Andrews and Charles breached clauses 2.5, 2.7 and 2.8 of the Code of Conduct for Elected Members because the ‘media release’ did not indicate that it was Cr Andrews’ private view that the Whale Centre would be closed but instead stated that the council voted to close the Whale Centre by discontinuing its funding, the ‘media release’ was not a ‘media release’ at all, the information conveyed to the media was wrong, they did not deal with the information in a responsible manner, nor did they endeavour to provide accurate information to the public.

It was additionally alleged that Cr Andrews used his council signature block on personal emails was in breach of clauses 2.5, 2.7, 2.8, 3.1 and/or 3.2 of the Code of Conduct for Elected Members. The personal emails were sent to government agencies in relation to the Granite Island Sculpture Park, a personal project of Crs Andrews and Charles. I did not consider that Cr Andrews had breached clauses 3.1 or 3.2 of the Code of Conduct for Elected Members because he was not acting in the performance of his official functions and duties when emailing government employees or promoting the launch of the Granite Island Sculpture Park. I did not consider that Cr Andrews had breached clauses 2.5, 2.7 or 2.8 of the Code because describing himself as a councillor in the emails were not inaccurate, the email content did not indicate a particular view or deal with information irresponsibly.

It was therefore determined that Crs Andrews and Charles breached section 63 of the Local Government Act and clauses 2.5, 2.7 and 2.8 of the Code of Conduct for Elected Members and on that basis committed misconduct in public administration for the purposes of section 5(3)(a) of the ICAC Act. I recommended that Cr Andrews and Charles offer a public apology and that Cr Andrews undertakes training in elected member responsibilities particularly how relationships with external parties, including media ought to be conducted.

May 2018: Department for Education
The applicant, an employee of the agency, sought access to documents concerning complaints from other employees concerning him, panel reports for teaching positions he had applied for and documents concerning psychological tests conducted by the agency.  The agency released 16 documents in full, 20 in redacted form and refused access to four documents falling within the scope of the application.  In refusing access, the agency relied on clauses 6(1) (personal affairs) and 16(1)(a)(i) and (ii) (operation of agencies) of Schedule 1 to the FOI Act.

On external review the Ombudsman confirmed the agency’s determination.  The Ombudsman considered when information will be characterised as concerning other people’s personal affairs and the factors that are to be taken into account when determining whether it would be unreasonable for that information to be disclosed.

In relation to the psychological test information, the Ombudsman concluded that to release information that reveals the content of tests, or the assessment method for tests, would prejudice the effectiveness of those tests.  The Ombudsman acknowledged that there is a public interest in persons who are subject to tests having access to information to promote accountability of the process, however the overwhelming public interest is in maintaining the integrity of tests designed to assess the suitability of persons to work with children.

April 2018: Public Trustee – Unreasonable management of finances
The Public Trustee was appointed the administrator of [X]’s affairs in 2015. The Ombudsman found that between 1 March 2016 – 10 October 2017, the Public Trustee had unreasonably failed to cancel a lease on a unit that the Office of the Public Advocate had determined [X] was not capable of returning to. As a result of the Public Trustee’s actions, [X] had been paying for both the lease in addition to nursing home accommodation for a period of almost two years. The Ombudsman recommended that the Public Trustee reimburse [X] for the payments made on the lease between 1 April 2016 – 10 October 2017. On 30 April 2018, the Public Trustee repaid [X] a total of $9,601.68.

May 2018: Summary of final report in relation to SA Health’s EPAS Procurement Issues

May 2018: Flinders University
The applicant sought access to documents containing feedback provided to the agency in relation to a particular change proposal. The agency refused access to all documents falling within the scope of the application in reliance on various exemption clauses, including clause 13(1)(b) of Schedule 1 to the FOI Act, which deals with documents containing confidential information.

On external review the Ombudsman confirmed the agency’s determination. In doing so, the Ombudsman concluded that the documents contained matter obtained in confidence and that their disclosure (i) might reasonably be expected to prejudice the future supply of similar information to the agency and (ii) would, on balance, be contrary to the public interest. In reaching this view, the Ombudsman noted that, when inviting feedback, the agency had assured stakeholders that their responses would remain confidential. He also took the view that, should stakeholders form the view that any future feedback they might give would be disclosed under the FOI Act, they would be unlikely to provide such feedback. This would be contrary to the public interest in ensuring that the agency’s strategic planning and decision-making functions were as sound as practicable.

March 2018: City of Onkaparinga – Misconduct and maladministration in public administration
The Ombudsman received an ICAC referral alleging misconduct and maladministration in public administration in relation to the management of a project concerning reform of the information and communication technology systems (the ICT Reform Project) of the City of Onkaparinga (the council).

It was alleged that the Elected Members had been encouraged to select a particular vendor without a competitive tender process and without efficiencies in the vendor’s product being demonstrated, despite the estimated costs being extremely high. It was also alleged that Mr Mark Dowd, Chief Executive of the council, has a background in Information Technology, was driving the ICT Reform Project and had misrepresented information in order to have procurement with the vendor approved. In undertaking this investigation, it was not the Ombudsman’s role to adjudicate or determine whether negotiations with the vendor should proceed.

Information provided to the Ombudsman demonstrated that the council administration had been researching ICT reform options since 2014 and that several external assessments had concluded that reform will result in a more effective and efficient system for the council. It became evident to the Ombudsman that a decision had not yet been made to enter into a procurement agreement with the vendor. Rather, the matter had been put to the Elected Members at a Special Council Meeting, where a resolution was made to enter into negotiations directly with the vendor on the basis that there was no other comparable vendor in the market offering a product suitable to the council’s needs.

The Ombudsman found that not holding a competitive tender process in this case did not amount to maladministration in public administration, for the following reasons:

  • a practice, policy or procedure of the council had not resulted in substantial mismanagement of public resources on the basis that:
  • the council’s Procurement Policy recognises there may be circumstances where a competitive tender process is not suitable and provides a process by which application of the Procurement Policy may be waived
  • although the projected costs are high, the council administration had undertaken sufficient research which had been provided to the Elected Members for their consideration
  • ultimately the Elected Members democratically considered and determined whether to proceed with negotiations with the vendor
  • the Elected Members still have the opportunity to make a final decision in relation to the actual procurement of the vendor’s product
  • given that no procurement had taken place and no public money had been expended on procurement, it was unnecessary for the Ombudsman to consider whether there had been an irregular or unauthorised use of public money
  • there was no indication that Mr Dowd’s conduct amounted to mismanagement or substantial mismanagement. The Ombudsman considered that Mr Dowd, in accordance with his obligations as Chief Executive, had ensured that extensive research had been undertaken so that the Elected Members were provided with sufficient information in order to make an informed decision.

Further, the Ombudsman found that Mr Dowd’s conduct did not amount to misconduct. Mr Dowd had complied with his obligations under the Employee Code of Conduct. The Ombudsman noted that Mr Dowd’s previous experience in the IT Industry may be beneficial to the council in relation to selecting an appropriate product and it did not appear that Mr Dowd had personal ties to the vendor company.

May 2018: ISG Audit Report – Assessing State Government Agencies’ Implementation of the Information Sharing Guidelines for Promoting Safety and Wellbeing
The ISG Audit Report represents a year long investigation into seven state government agencies’ efforts to deliver on a direction by State Cabinet regarding a key policy initiative aimed at protecting some of our most vulnerable citizens. The Information Sharing Guidelines for Promoting Safety and Wellbeing (ISG) defines a process for agencies to share information where there are current or anticipated threats to safety and wellbeing. The aim is that by agencies sharing information and working together at the first sign of risk, harm can be prevented.

The audit found agencies within the scope of the audit had failed to follow the direction issued by State Cabinet to implement the ISG, with the Department for Correctional Services efforts being “entirely inadequate”.  The report makes a number of recommendations for improvement and sets timeframes for agencies Chief Executives to report back to the Ombudsman on progress.

April 2018: University of Adelaide
The applicant sought access to documents relating to a misconduct investigation by the agency for which the applicant was the complainant.  The agency identified 60 documents within the scope of the access application.  It refused access to 7 documents and provided partial access to a further 7 documents, providing full access to the remaining 46 documents.  During the Ombudsman’s external review, he considered clause 9 (internal working documents), clause 10 (legal professional privilege), clause 6 (personal affairs) and clause 8 (documents relating to research).

The Ombudsman varied the agency’s determination, finding that some of the information in 8 of the 14 documents should be released.  In particular the Ombudsman considered the public interest in releasing documents related to research and the meaning of ‘legal advice’ as it applied to legal professional privilege.  The Ombudsman commented that the agency’s submissions were puzzling, given the agency strongly argued against releasing some of the information within the 14 documents, even though it had already released the information willingly within the other 46 documents which it released as per its original determination.

March 2018: Central Adelaide Local Health Network
The applicant sought access to contracts between the agency and St Andrews Hospital in relation to the use of the Da Vinci surgical robot located at St Andrews. The agency’s principal officer made a determination to extend the time for dealing with the application beyond the 30 day deadline on the basis that consultation with interested parties was required.

The Ombudsman noted that the applicant had not sought access to a large number of documents and the application did not necessitate a search through a large quantity of information. In fact only a single document fell within the scope of the application. The Ombudsman further commented that the agency would only have to consult with a single interested party, namely St Andrews Hospital.

On external review the Ombudsman was not satisfied that the determination to extend the time for dealing with the application was justified. It appeared that the determination had been made because the agency’s FOI officer had not been receiving satisfactory responses to her requests for information from agency staff. The Ombudsman observed that the applicant should not have to bear the delay caused by the agency’s internal management of his application and varied the agency’s determination.

March 2018: Department for Education and Child Development – Removal from Family Day Care register
The Ombudsman received a complaint from an educator who had been removed from the Department for Education and Child Development’s Family Day Care register.  The educator complained that the decision had been unreasonable and that procedural fairness had not been afforded.  The Ombudsman investigated and determined that the agency had failed to afford procedural fairness because there was an unreasonable delay in informing the educator of the allegations against her in writing, and the department had failed to inform that the complainant about one of the allegations which was found to be substantiated.

The Ombudsman recommended that the department provide a written apology to the educator and amend its policy to include time-frames in which the steps of an investigation should be undertaken, and a requirement that educators be informed of the nature of the allegations against them in as much detail as possible whilst not disclosing any confidential information.

March 2018: Kangaroo Island Council – Failure of council to assess complaint in accordance with Code of Conduct for Council Members Procedure
The complaint by Mr John Ayliffe alleged that media comments made by the Mayor of Kangaroo Island Council, Mr Peter Clements, constituted breaches of clauses 2.2-2.5, 2.6 and 2.8 of Part 2 of the Code of Conduct for Council Members (the Code of Conduct).

The Deputy Mayor of the council conducted an assessment of the complaint and then proposed mediation between Mr Ayliffe and Mayor Clements to resolve the matter.  Mr Ayliffe indicated that he was reluctant to attend a mediation session.  He suggested that he had suffered damage to his reputation.  The matter was then referred by council to the LGA Mutual Liability Association for their consideration.  The council later dismissed the complaint on the grounds that it was frivolous and/or vexatious.

In summary the Ombudsman found that:

  • the council’s procedure was not followed in that Mr Ayliffe declining the offer of informal resolution, the complaint should have been referred for independent investigation as required by the procedure.
  • If, as asserted by the council, the complaint was dismissed for being frivolous and/or vexatious Mr Ayliffe should have been given reasons for that assessment and an opportunity to respond before the final decision to dismiss was made (as required by principles of procedural fairness which the council procedure adopts).
  • Mr Ayliffe had clearly and appropriately outlined his complaint with reference to six provisions of the code and he was entitled to receive a more detailed explanation for it being dismissed than that there was no case to answer.

Recommendations
That within two months of the date of the final report, the council:

  1. Issue a public written apology to the complainant for the incorrect handling of his Code of Conduct complaint
  2. The council reconsider the assessment of the complaint and either provide Mr Ayliffe with proper reasons for it being dismissed or refer it for independent investigation

 

February 2018: Attorney-General
The applicant sought access to documents about any complaints made, or investigations conducted, in relation to himself. The agency identified eight documents within the scope of the access application. It refused access to five documents in full on the basis that they were subject to legal professional privilege (documents 1 to 3) or otherwise available (documents 4A and 4B), and one document in part because it contained personal affairs information (document 4C). The applicant did not pursue access to documents 4A and 4C. The Ombudsman was satisfied that documents 1 to 3 were exempt under clause 10(1), and that the agency was entitled to refuse access to document 4B (an ABN Lookup) under s20(1)(b) as it was available in accordance with a legislative instrument other than the FOI Act. Accordingly, the Ombudsman confirmed agency’s determination. That said, the Ombudsman commented that the agency did not appear justified in refusing access to document 4A (a court judgment), despite its availability online.

December 2017: Department for Correctional Services and Central Adelaide Local Health Network (South Australian Prison Health Service) – Wrongful placement and delay in providing medication

At the time of the complaint, the complainant was a remand prisoner. The complainant’s admission process occurred at Yatala Labour Prison, where he was assessed by both the Department for Correctional Services (DCS) and the South Australian Prison Health Service (SAPHS).  As a result, it was known to both agencies that the complainant is Aboriginal, has a history of self harm and attempted suicide and diagnosed depression for which he takes prescribed medication. The complainant was deemed to be a high risk prisoner and was then transferred to Holden Hill Police Cells. The complainant made his complaint to the Ombudsman on the fourth day when he still had not been provided his medication. The complainant explained that he was not coping with his placement at Holden Hill Police Cells and made threats of suicide.

The Ombudsman found that DCS had acted in a manner that was wrong within the meaning of section 25(1)(g) of the Ombudsman Act by accommodating the complainant at Holden Hill Police Cells and that the delay in SAPHS providing the complainant’s medication was in accordance with a  policy and practice that is unreasonable within the meaning of section 25(1)(c) of the Ombudsman Act. In undertaking the investigation it became apparent that DCS had failed to retain official records in accordance with the State Records Act and therefore the Ombudsman also found that DCS had acted in a manner that was contrary to law within the meaning of section 25(1)(a) of the Ombudsman Act.

February 2018:  Department of the Premier and Cabinet
The applicant sought access to documents relating to job creation schemes funded by the SA Government. The agency identified two documents falling within the scope of the application and refused access to both on the basis that they were exempt documents, having been specifically prepared for submission to Cabinet or containing matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet.

On external review, the Ombudsman took the view that there were in fact 11 documents, four of which related to one Cabinet submission and the remainder of which related to another submission. The Ombudsman concluded that while the agency had justified its claim in relation to 10 of the documents, it had not done so in respect of the remaining document; this document consisted merely of statistical material and did not disclose information concerning a deliberation or decision of Cabinet.

February 2018:  District Council of Grant
The applicant sought access to all information pertaining to two specific addresses for the period 1 July 2013 to 1 April 2015.  The agency identified 67 documents falling within the scope of the applicant’s request.  The agency relied on section 20(1)(b) and clauses 6(1), 7(1)(a), 7(1)(b), 9(1)(a)(i) and 10(1) to refuse access to 61 documents, or parts thereof, while six documents were released in full.

The Ombudsman determined to vary the determination to enable greater access to documents. This determination primarily turned on the fact that much of the redacted information could easily be inferred by collectively considering other documents released to the applicant or publicly available.

The Ombudsman commented on the agency’s failure to sufficiently consult with interested parties given the amount of information it had determined to release and indicated that documents should be considered collectively when determining what may be released and refused. This ensures that what is refused in one instance is not inadvertently revealed elsewhere.

The Ombudsman also commented on a submission that FOI legislation should not be used to gain access to information about a development application when the Development Act 1993 itself did not require disclosure of the application.

January 2018:  Health and Community Services Complaints Commissioner – Mistake of law in assessing complaint
The Ombudsman received a complaint from a medical practitioner in respect of a determination by the Health and Community Services Complaints Commissioner under the Health and Community Services Complaints Act 2004.  The medical professional complained that the Commissioner determined to take no further action in respect of his complaint concerning a health provider, whom he alleged had attempted to procure an unlawful abortion for a patient and had unlawfully directed or incited him to facilitate the procedure.

The Ombudsman conduct an investigation and determined that the Commissioner’s determination to take no further action was based in part on a mistake of law within the meaning of section 25(1)(f) of the Ombudsman Act 1972.  In this regard, the Ombudsman determined the Commissioner had misdirected himself as to the standard of proof applicable under the HCSC Act.  The Ombudsman declined to set aside the determination of the Commissioner on the basis that he was not satisfied that the Commissioner would have reached a different determination had the Commissioner not misdirected himself.

January 2018:  TAFE SA – Maladministration in public administration
The Ombudsman received an ICAC referral alleging maladministration in public administration and substantial mismanagement of public resources in relation to a former director’s conduct in handling a staff misconduct complaint investigation and awarding a Total Voluntary Separation Package (TVSP). Whilst the former director had the complaint investigated internally by TAFE SA the Ombudsman’s view was that the former director’s conduct amounted to mismanagement in their official functions and duties because they:

  • did not provide the alleged perpetrator with all the evidence against them to properly answer the allegations
  • sought to terminate the employment of the alleged perpetrator without having complied with section 54(3) of the Public Sector Act 2009 (SA)
  • authorised converting the suspension with paid leave to suspension without pay without having sought legal advice as to whether TAFE SA had authority to do that
  • offered the alleged perpetrator a TVSP at a cost of $105,320.80 where the review of a restructure which would have seen the abolition of the alleged perpetrator’s role was put on hold and a TVSP would not normally have been offered in these circumstances
  • advised the alleged perpetrator of the intention to terminate their employment for misconduct then subsequently offered them a TVSP.

The Ombudsman determined that the former director’s mismanagement in their official functions and duties was substantial because:

  • of the significant cost of the TVSP
  • the significant errors throughout TAFE SA’s investigation of the staff misconduct complaint
  • a TVSP was offered despite the fact that the restructure was placed on hold at the time
  • the former director took action against the alleged perpetrator without legal advice despite the action having significant consequences for the employment of the alleged perpetrator
  • the handling of the matter put TAFE SA in a poor bargaining position with respect to the alleged perpetrator who had made some admissions to TAFE SA in relation to their conduct.

The Ombudsman’s view was that the former director committed maladministration in public administration for the purposes of section 5(4)(a)(i) of the ICAC Act. In light of the above circumstances the Ombudsman also considered  that there was a substantial mismanagement of public resources for the purposes of section 5(4)(a)(ii) of the ICAC Act. The Ombudsman declined to make recommendations because the former director is no longer employed by TAFE SA.

January 2018:  Improper section 51 clearance arranged by council employee – Maladministration/Misconduct
The Ombudsman found that an employee of council, council employee A, inappropriately arranged clearance under section 51 of the Development Act 1993 in relation to an application for subdivision lodged by council employee B.  Various conditions had been imposed on the application for subdivision by the council, and the effect of arranging section 51 clearance was that the council could then no longer pursue council employee B for non-compliance, or unsatisfactory compliance, with the conditions.

Council employee A was found by the Ombudsman to have breached clauses 2.2, 2.3 and 2.4 of Part 2 of the Code of Conduct for Council Employees, in addition to section 109 of the Local Government Act 1999, and therefore committed misconduct in public administration for the purposes of the Independent Commissioner Against Corruption Act 2012 (the ICAC Act).  It was also found that council employee A committed maladministration in public administration for the purposes of the ICAC Act.  The Ombudsman therefore found that council employee A acted contrary to law for the purposes of section 25(1)(a) of the Ombudsman Act, and recommended that the agency consider taking disciplinary action against the employee.

January 2018:  City of Adelaide
The applicant sought access to documents relating to any certificate issued by the agency under the Expiation of Offences Act 1996. Section 13 of that Act requires agencies that issue expiation notices to provide certificates to the Fines Enforcement and Recovery Officer if they wish that officer to take action to enforce payment of fines.

The agency refused to deal with the application on the basis that it was part of a pattern of conduct that amounted to an abuse of the right of access or was made for a purpose other than to obtain access to information. On external review the Ombudsman confirmed the agency’s determination and concluded that it was reasonable for the agency to have formed this opinion. In reaching this conclusion the Ombudsman took into account the fact that the application was the 15th made by the applicant to the agency in a period of 13 months; each of the 15 applications constituted requests for access to documents relating to the enforcement of a single parking fine issued to the applicant by the agency; 10 of the 15 applications constituted requests for access to documents relating to the certificate provided to the Fines Enforcement and Recovery Officer; and that the requests appear to have been intended to assist the applicant to establish that the Fines Enforcement and Recovery Officer had been taking enforcement action against expiation notice recipients without requiring agencies to comply with section 13 of the Expiation of Offences Act.