The Ombudsman received an ICAC referral about allegations involving the conduct of Mayor Andrew Lee of the City of Mount Gambier relating to his involvement in a State-funded trip to China and his subsequent acquisition of an interest in a South Australian winery. The matter was the subject of an article in the Advertiser on 30 January 2017, since which time it has attracted significant attention. There were two allegations that were investigated. First, of misconduct by Mayor Lee in conducting personal business while representing the council when attending the Shandong business delegation in China in 2016. The Ombudsman found no evidence of personal business being conducted; therefore, there was no finding of misconduct. The second allegation concerned Mayor Lee’s use of his mayoral position to gain a personal benefit by acquiring shares in the Rymill Coonawarra winery. The Ombudsman found no evidence of inappropriate use of mayoral position in there acquisition; therefore, there was no finding of misconduct.

The Ombudsman received an ICAC referral alleging misconduct in public administration by an elected member who it was alleged improperly revealed confidential information to a journalist. The Ombudsman found that all elected members and some council staff had received a legal briefing from solicitors Kelledy Jones in relation to a planned Development Plan Amendment and that the elected member had contacted the journalist and revealed the information. The Ombudsman found that the elected member ought reasonably had known the information was confidential because it was legal advice and discussed personal details of elected members by name and whether each should declare a conflict of interest. The Ombudsman found that the elected member breached clause 3.3 of Part 3 of the Code of Conduct for Council Members and on that basis committed misconduct in public administration for the purposes of section 5(3)(a) of the ICAC Act, and the provisions of section 63(2) of the Local Government Act which requires compliance with the Code of Conduct for Council Members. The Ombudsman recommended that the elected members 1) undertake training in respect of confidentiality 2) apologise to the council in person at a council meeting for disclosing confidential information and 3) be reprimanded by the council by means of a public statement.

The Ombudsman received an ICAC referral alleging misconduct in public administration by an elected member who disclosed confidential information included within a special council meeting agenda prior to the meeting being convened. The Ombudsman found that the elected member should reasonably have known that the information was confidential and by disclosing it he breached clauses 3.2 and 3.3 of the Code of Conduct for Council Members and therefore committed misconduct in public administration within the meaning of section 5(3) of the ICAC Act. The Ombudsman recommended that the elected member 1) undertake training relevant to confidentiality provisions and 2) issue a public apology to the council in relation to the disclosure of the confidential information.

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.

The complainant approached the Ombudsman with various concerns about additions and alterations to her neighbour’s property. The complainant was primarily concerned with the glare caused by her neighbour’s newly installed roof, but also raised several other issues in relation to the development. The complainant was of the view that the council had failed to consult with her and her husband prior to granting development approval for the alterations, that the council had also failed to take action against what the complainant perceived was not authorised development, and that the council had failed to consider the Mount Gambier Development Plan in assessing the development application. The complainant also considered that the council had failed to conduct a proper and robust review of her complaint. Whilst the Ombudsman did not make any findings of administrative error by the council, his report highlighted that the council ought to have sought proper advice in regard to interpreting provisions under the Development Act 1993 that it had relied on in responding to the Ombudsman’s enquiries.

The Ombudsman received a complaint from a prisoner that the prisoner had been in prison for over 4 weeks and had only just managed to contact his family by telephone. The Ombudsman conducted an investigation and found that by failing to induct the complainant when he entered the prison, as well as failing to induct the complainant as he entered various different units within the prison, the department acted in a manner that was wrong within the meaning of the Ombudsman Act 1972. The Ombudsman also found that by failing to assist the complainant to make phone calls, such as a free officer-assisted call that each prisoner gets upon entry to prison, and by failing to pass along messages from the complainant’s wife, who had been trying to get in contact with him, the department acted in a manner that was wrong within the meaning of the Ombudsman Act 1972. The Ombudsman made a range of recommendations, including that the department implement a procedure of compliance checks to ensure that inductions are being completed, that the department apologise to the complainant, and that the department conduct a review of how contact from family members is managed.

The Ombudsman received two complaints concerning Mayor Lorraine Rosenberg’s conduct at two separate council meetings. The complainant asserted that Mayor Rosenberg’s conduct amounted to breaches of the Code of Conduct for Council Members.  In relation to the first complaint, it was submitted that Mayor Rosenberg moved an item as urgent business and insisted that it be considered in confidence without any proper explanation. Further, the complainant alleged that councillors were not provided with relevant documents and not given adequate time in which to consider those documents prior to voting on the matter. In relation to the second complaint, it was submitted that Mayor Rosenberg moved a matter into confidence without a proper explanation and only advised councillors that the matter concerned alleged breaches of the Local Government Act 1999 but did not provide any information about those breaches. The Ombudsman found that in relation to both complaints Mayor Rosenberg did not breach the Code of Conduct for Council Members and did not act in a manner that was unlawful within the meaning of section 25(1)(a) of the Ombudsman Act.

The Ombudsman received a report from Mayor John Trainer, City of West Torrens, that he had failed to declare a material conflict of interest for the purposes of section 74 of the Local Government Act 1999 in relation to an Agenda Item that was voted on during a council meeting held on 4 April 2017. The purpose of the Agenda Item was to endorse Mayor Trainer’s participation in a state government delegation to Shandong, China in May 2017 at the council’s expense. The Ombudsman found that despite Mayor Trainer’s assertion that his failure to declare a conflict of interest was not intentional, and that he did not perceive the pecuniary benefit as advantageous, he nonetheless received a pecuniary benefit and therefore had a material conflict of interest that he failed to declare. The Ombudsman recommended that Mayor Trainer issue a public apology to the council.

The Ombudsman received two complaints concerning the Kangaroo Island Council’s decision to disclose information concerning a confidential complaint about the council’s Chief Executive Officer. It was submitted that information published by the council about that complaint had the effect of disclosing the identity of a whistleblower, contrary to the provisions of the Whistleblowers Protection Act. The Ombudsman conducted an investigation and determined that the complaint concerning the council’s Chief Executive Officer amounted to an ‘appropriate disclosure of public interest information’ for the purposes of the Whistleblowers Protection Act. The Ombudsman found that the council’s disclosure of the complainant’s identity absent their consent contravened section 7(1) of the Whistleblowers Protection Act and was accordingly contrary to law within the meaning of section 25(1)(a) of the Ombudsman Act. The Ombudsman recommended that the council apologise to the complainant and take appropriate action to remove reference to the complainant’s identity in its public documents. The Ombudsman further recommended that the council revise its policies to better reflect the operation of the Whistleblowers Protection Act.

The Ombudsman investigated a complaint that the City of Mount Gambier had erred by failing to ensure a Certificate of Occupancy had been issued for a commercial building. The complainants were tenants running a business from the commercial building, but upon learning that their occupation of the building was illegal because no Certificate of Occupancy had been issued, the complainants were forced to close their business. Under the Development Act, the owner of a commercial building must inform the council when construction of the building is complete, with a Statement of Compliance, and then the council will issue a Certificate of Occupancy at which point it is legal to occupy the building. The Ombudsman found that the council became aware in 2011 that the building had not had a Certificate of Occupancy issued, yet failed to take appropriate action to ensure it had sighted a Statement of Compliance and then issue a Certificate of Occupancy. By failing to issue a Certificate of Occupancy until 2017, the Ombudsman found that the council had acted in a manner that was wrong within the meaning of the Ombudsman Act. The council also failed to take any action, or make a record of the conversations, when the complainants approached the council with issues regarding the safety and compliance of the building.

Further, the owner of the commercial building had an annual obligation to return an Essential Safety Provisions Form 3. Between 2010 and 2016, the owner of the commercial building supplied only one Form 3 to the council. By failing to take any action regarding unreturned Form 3s, the Ombudsman found that the council had acted in a manner that was wrong within the meaning of the Ombudsman Act and recommended that the council implement a policy to ensure the council staff were taking appropriate follow up action to ensure Form 3s were being submitted by commercial building owners. The Ombudsman also recommended the council implement a policy to ensure that Requests for Service are properly actioned and recorded.

The Ombudsman received a complaint from a prisoner concerning the circumstances and duration of his separation from other prisoners within G Division of Yatala Labour Prison. The Ombudsman conducted an investigation and concluded that the Department for Correctional Services unreasonably failed to document confidential intelligence information leading to the prisoner's separation, unjustly directed that the prisoner be separated from all other prisoners and contravened section 36(9) of the Correctional Services Act by failing to provide a report to the Minister as soon as reasonably practicable after giving the direction. The Ombudsman further found that the department's failure to revoke the separation direction for a period of 66 days was oppressive and was in accordance with a rule of law (namely section 36 of the Correctional Services Act) that is oppressive. The Ombudsman issued a range of recommendations, including that the department issue an apology and consider the provision of an ex gratia payment to the prisoner. The Ombudsman also recommended that section 36 of the Correctional Services Act be amended to establish a maximum period that a prisoner may ordinarily be kept separated from other prisoners and to require regular review by the Minister of a prisoner's prolonged separation under the Act.

The Ombudsman received an ICAC referral raising allegations of misconduct and maladministration in public administration on the part of the former Presiding Member of the Veterinary Surgeons Board of South Australia. The Ombudsman found that the former Presiding Member directed more than $20,000 in payments to board members, including herself, which were not authorised at law or by relevant administrative instructions. The Ombudsman found that the former Presiding Member failed to ensure that the payments made at her direction were properly authorised, and failed to take appropriate action when the propriety of the payments was called into question by the board’s Registrar. The Ombudsman also found that the former Presiding Member submitted two expiation notices for payment in circumstances where it was wholly inappropriate to do so. The Ombudsman found that the former Presiding Member committed misconduct and maladministration in public administration within the meaning of the ICAC Act.

The Ombudsman received an ICAC referral alleging misconduct by the CEO who improperly influenced council staff in relation to withdrawing an expiation notice issued to a council resident. The Ombudsman found that the CEO did not appropriately deal with the application by the resident (who was assisted in his application by an elected member) because he did not follow the council’s procedure as stated on its website. The Ombudsman found that the CEO influenced the staff member to withdraw the expiation notice by including commentary on the request forwarded to the staff member who withdrew the expiation notice in 42 minutes. The Ombudsman found that the CEO breached clauses 2.2, 2.4 and 2.7 of the Code of Conduct for Council Employees and therefore committed misconduct in public administration. The Ombudsman recommended that all staff be reminded of the council’s procedure in dealing with applications for withdrawal of expiation notices, and that council staff record the grounds of the Expiation of Offences Act 1996 (SA) by which the expiation notice was withdrawn on the council database.

As envisages under Part 3 of the Code of Conduct for Council Members the Chief Executive Officer of the Mount Barker District Council referred to my Office a complaint he had received about a Council Member that the council considered were alleged breaches of Part 3 of the Code of Conduct. The CEO advised that the council would address allegations of possible breaches of Part 2 of the Code of Conduct. In the complaint, the Part 3 allegations related to a public meeting of the council during which the Council Member divulged information that was subject to confidentiality and therefore a breach of Part 3 of the Code of Conduct. Due to speculation by parties about the identity of the complainant and that attempts by the Office of the Ombudsman to contact the complainant, the Ombudsman SA determined that, on the basis of the information before him, the issues raised were sufficient for him to conduct an own initiative investigation pursuant to section 13(2) of the Ombudsman Act as a potential breach of Part 3 of the Code of Conduct.

In assessing the complaint it was established that the basis of the complaint to the council rested primarily upon the article that appeared in the Courier Newspaper in which the reporter considered that, during discussions about an agenda item, the Council Member disclosed information about the location of a proposed car park that was subject to confidentiality. The Council Member refuted the allegations and denied that she had breached confidentiality in anything that she had said about the car park. At the time of printing the article, the reporter was not aware that there was information on the council website about possible locations for the car park that was not subject to confidentiality.

The Ombudsman SA considered submissions from the council and Council Member and on the basis of the Briginshaw standard, was not satisfied that she had disclosed information that was not already in the public domain. Therefore, the Ombudsman SA did not consider that the Council Member breached Part 3 of the Code of Conduct and did not act in a manner that was unlawful within the meaning of section 25(1)(a) of the Ombudsman Act.

The complaint received by the Ombudsman concerned a resolution passed by the council in relation to the findings of an investigation undertaken by an external investigator about alleged breaches of Part 2 of the Code of Conduct by an elected member. The external investigator found breaches of the Code of Conduct. The Ombudsman found that the council ‘s resolution not to accept the findings due to the timeframe associated with the complaint handling process and the resolution to instead apologise to the parties for the delay, were based on irrelevant grounds. The Ombudsman considered that although there was a notable delay in the process, it was concerning that the council had resolved not to accept findings of breaches of the Code of Conduct and to apologise for the delay when the investigator did not consider the delay to be an issue and was satisfied that the evidence was reliable.

The Ombudsman received an ICAC referral alleging misconduct by a councillor who did not appropriately declare a material conflict of interest in accordance with the Local Government Act. The Ombudsman found that the councillor appropriately declared a material conflict interest at item 4 of the council meeting in relation to item 17.3 when the council voted on who would attend a conference. The councillor was nominated to attend the conference and remained in the chamber when nominations were discussed, despite earlier declaring a material conflict of interest. The Ombudsman found that whilst he could not be satisfied that the councillor did not make the declaration due to an inaudible audio recording, the councillor should not have remained in the chamber and heard the debate because he had a material conflict of interest. The Ombudsman recommended that the councillor apologise to the council.

The worker’s advocate complained that Return to Work SA breached the service standards by failing to appropriately investigate a number of complaints that he lodged with the Corporation’s Service Improvement Team. The Ombudsman found that Return to Work SA had breached the service standards as it failed to identify whether information provided to it by the claims agent was accurate and could be relied upon to form a response to the advocate’s complaint.

The Ombudsman received an ICAC referral following an Ombudsman report to him from an FOI review. The referral raised the possibility that TAFE SA, the TAFE SA Board or the Chair committed misconduct or maladministration in public administration by failing to keep accurate records of its proceedings in December 2014. The Ombudsman formed the view that the TAFE SA Board is not a public authority for the purposes of section 5(4) of the ICAC Act; therefore it is not subject to a finding of misconduct or maladministration. Further, neither the Chair of the TAFE SA Board nor TAFE SA committed misconduct or maladministration in public administration within the meaning of sections 5(3) and 5(4) of the ICAC Act.

The investigation also examined the possibility that TAFE SA committed an act that was unlawful, unreasonable or wrong under the Ombudsman Act 1972 by failing to keep accurate records of its proceedings in December 2014.

The Ombudsman’s opinion is that the agency, in failing to record decisions or deliberations relating to the abolition of a senior Executive position and the termination of Mr A’s appointment in December 2014, acted in a manner that was wrong for the purposes of section 25(1)(g) of the Ombudsman Act. The Ombudsman recommended that: 1) TAFE SA review its Board of Directors Meeting Procedures and Protocols and Information Management - Creation and Capture of Official Records policy and amend them to provide guidance as to the circumstances under which in camera sessions will be held and when discussions and decisions will be documented in separate minutes, and 2) that the revised policies include a requirement that any decision or deliberation must be documented as a formal record as per relevant legislation.

District Council of Coober Pedy - Misconduct and maladministration - Report 1 (2015/09623) (PDF, 4.4 MB)

District Council of Coober Pedy - Misconduct and maladministration - Report 2 (2015/09623) (PDF, 5.6 MB)

The Ombudsman received an ICAC referral in relation to various issues of alleged misconduct and maladministration involving the former Finance and Administration Manager and Chief Executive Officer of the District Council of Coober Pedy. While  most of the allegations involving the former Chief Executive Officer were not substantiated, the Ombudsman found that he failed to act with reasonable care and diligence in relation to proposed use of the council seal on a loan application. The Ombudsman found that the Former Finance and Administration Manager committed both misconduct and maladministration in relation to various matters, and that the council committed maladministration in relation to a failure to pay contractors which arose in the context of poor accounting practices. While the Ombudsman did not make any recommendations in relation to the former employees, he recommended that the council reviews its practice of receiving all funds into one account, devise a written policy in relation to handling of grant funding and devise a written policy in relation to approval of employee leave entitlements.

The Ombudsman received a complaint by Yongala resident Mr Kim Miller about the Council and the CEO Mr Peter McGuinness’s dealing of a complaint that his property was flooded. The Ombudsman found that whilst the Council reasonably dealt with the flooding complaint, it unreasonably refused to undertake an internal review pursuant to section 270 of the Local Government Act 1999 (SA) and that the CEO acted unreasonably in banning Mr Miller from conversing with Council staff. The Ombudsman recommended that the Council review its Internal Review Policy to ensure that it adequately reflects its current process; that the Council forward a copy of the report to the Local Government Association’s Mutual Liability Scheme; and that the CEO retract his letter to Mr Miller dated 17 June 2015 and that retraction letter be tabled at a Council meeting.

The complainant alleged that the Public Trustee (the agency) failed to appropriately handle his financial affairs. From 30 June 2012 to 27 May 2016, the complainant accumulated a debt of $35,226.88 to the Australia Tax Office (ATO) as a result of the agency ceasing payments to the ATO, which was done by submitting a Code 21 as reason for non-payment of Pay As You Go (PAYG) instalments. The Ombudsman found that the agency’s decision to cease PAYG instalments was unreasonable, and that the decision to submit a Code 21, and the failure to lodge an Application for Release to the ATO, was wrong, within the meaning of the Ombudsman Act 1972. To address these errors, the Ombudsman recommended that the agency develop and implement a guideline for ceasing payments to the ATO.

The Ombudsman received an ICAC referral alleging that maladministration occurred within the council over a period of approximately fifteen years. The allegations included failure to follow proper procurement processes in relation to numerous direct engagements, inappropriate expenditure and lack of transparency and a failure to properly address allegations of bullying and harassment. The Ombudsman found that the council and the former Administrator committed maladministration in that the various direct engagements resulted in substantial mismanagement of public resources. The Ombudsman also found that while no formal complaints were received in relation to the alleged bullying and harassment, the council acted in a way that was wrong for the purposes of the Ombudsman Act by not having appropriate procedures in place. The Ombudsman also found that the council acted in a way that was contrary to law by disposing of records other than in accordance with the State Records Act 1997.

The complaint related to a failure by the South Australian Civil and Administrative Tribunal to properly conduct an investigation into a complaint alleging inappropriate behaviour by a bailiff when executing a court order.  There was a failure by the SACAT officer to speak to witnesses rather than accepting the bailiff's version alone.

I found that the failure to interview the witnesses was wrong and that SACAT’s complaints policy did not adequately consider the existence of witnesses when conducting an investigation.  I found that one of the witnesses in particular, had information that should have been considered as part of the investigation.

I made recommendations that SACAT conduct a fresh investigation of the complaint and further that the SACAT complaints policy and the Bailiffs’ Manual be amended.

The Ombudsman received an ICAC referral to investigate a number of issues including whether the council committed maladministration by approving reimbursement of the Chief Executive Officer’s golf club membership, whether that membership should have been included on the Register of remuneration, salaries and benefits and whether confidentiality orders should have been made in relation to the reimbursement of the golf club membership. The Ombudsman found that by approving the reimbursement of the golf club membership the council did not commit an act of maladministration within the meaning of section 5(4) of the Independent Commissioner Against Corruption Act 2012 but acted in a manner that was wrong for the purposes of section 25(1)(g) of the Ombudsman Act 1972. The Ombudsman found that by failing to include the golf club membership on the Register, the Chief Executive Officer did not commit maladministration. The Ombudsman also found that by making the confidentiality orders, the council did not commit maladministration but acted in a manner that was wrong for the purposes of section 25(1)(g) of the Ombudsman Act. The Ombudsman recommended that the council lift the confidentiality orders within three months of the date of his final report.

The Ombudsman investigated a complaint about the department’s treatment of a mental health patient who was subject to a warrant of remand under section 269X(1)(b) of the Criminal Law Consolidation Act 1935 (SA). The patient was held in shackles in the Flinders Medical Centre for four days in October 2015. It was found that the Department acted contrary to law and on the basis of mistake of fact by assuming supervision of the patient; that the department had acted in a manner that was wrong because it failed to adhere to Departmental policy in the shackling of the patient, and that the department had acted in a manner that was contrary to law because it used excessive force in its restraint of the patient.

The Ombudsman received an ICAC referral to investigate an unnamed TAFE SA director in relation to a payment of $63,631 to the Berri Barmera Council for a voluntary separation package. The Ombudsman found that the former director made the irregular payment at the conclusion of a Joint Use Library Agreement but that there was no legal obligation to pay any amount to the Council, and that he had sought advice from the Acting Chief Executive as to whether to make the payment but did not wait for a response. The Ombudsman found that by the making the payment the former Director committed maladministration in public administration because of the substantial mismanagement of public resources. This was because the payment was irregular, substantial, unnecessary, that he did not wait for advice from the Acting Chief Executive and that he was incorrect in his belief that the payment was saving TAFE SA money. The Ombudsman did not make any recommendations because the former director did not have his contract renewed by TAFE SA.