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 this 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.

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.

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.

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.

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.

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.

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.

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 of Health 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.

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.

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 receive 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 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.

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 me 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.

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.

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.

City of Victor Harbor - Misconduct in public administration - Cr Andrews (2017/11639) (PDF, 100.6 KB)

City of Victor Harbor - Misconduct in public administration - Cr Charles (2017/11639) (PDF, 93.6 KB)

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.

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.

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 upon 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.

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.

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.

The Ombudsman received a complaint from an educator who had been removed from the Department of 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 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 timeframes 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.

Mayor Clements of the Kangaroo Island Council referred to my Office 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 upgradee were to be undertaken the result would be beneficial in terms of improving drainage, drivability 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 of ‘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.

The Ombudsman received a complaint from a medical professional 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 this procedure.

The Ombudsman conducted an investigation and determined that the Commissioner’s determination to take no further action in respect of the complaint 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 that the Commissioner had misdirected himself as to the standard of proof applicable to complaints 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.