The Ombudsman investigated, upon referral from the Independent Commissioner Against Corruption, whether Cr Anne Moran breached a City of Adelaide confidentiality order and thereby committed misconduct in public administration.

The Council had ordered, under section 90(2) of the Local Government Act 1999, that an item regarding a presentation about the 2026 Commonwealth Games be considered in confidence and subsequently, under section 90(3)(j) of the Local Government Act,that the meeting minutes recording that item be kept in confidence.

The Ombudsman’s view was that, in disclosing part of the discussion under that item to a journalist, Cr Moran breached the terms of the order made under section 90(3)(j) of the Local Government Act. The Ombudsman concluded that in doing so Cr Moran contravened clause 3.3 of the Code of Conduct for Council Members thereby committing misconduct for the purposes of section 5(3) of the Independent Commissioner Against Corruption Act 2012. The Ombudsman recommended that the City of Adelaide, by means of a public statement, reprimand Cr Moran for her misconduct in public administration.

The Ombudsman conducted an investigation into the treatment of two young people in the Adelaide Youth Training Centre. The investigation found that the agency formerly known as the Department for Communities and Social Inclusion, now the Department of Human Services, erred in its treatment of the two young people by subjecting them to inhumane treatment, including extended periods of isolation and solitary confinement.

The Ombudsman conducted an investigation, upon referral from the Independent Commissioner Against Corruption, relating to the corporate credit card expenditure of the City of Onkaparinga during the period of 2014-2016.

After an extensive investigation, the Ombudsman formed the view that the council committed maladministration in public administration for purposes of section 5(4)(a)(i) of the ICAC Act by its practice which resulted in the substantial mismanagement of public resources, in relation to the following expenses:

• expenditure by the Director’s Group, including restaurant meals, hire cars and catering
• catering for council employees
• gifts for council employees
• purchases of flowers
• expenditure on a hire car and accommodation for the former Chief Executive Officer’s trip to New Zealand
• a roof climb at Adelaide Oval.

The Ombudsman also formed the view that:

• the former Mayor did not commit maladministration in public administration for thepurposes of section 5(4)(a)(i) of the ICAC Act in relation to various expenses
• by failing to keep accurate records of credit card transactions, the council acted in a manner that was wrong under section 25(1)(g) of the Ombudsman Act.

The Ombudsman considered whether Cr Ian Tooley failed to comply with a finding of inappropriate behaviour for the purposes of clause 3.18 of the Code of Conduct for Council Members (the Code).

The Ombudsman noted that:

• regardless of whether he agreed with the finding of inappropriate behaviour, the council had validly resolved that he apologise. Cr Tooley did not apologise despite being given two opportunities to do so
• refusing to apologise is unnecessarily obstructive, shows a disregard for the principles underpinning the Code and potentially undermines community confidence and trust in local government
• despite Cr Tooley’s personal views, there was no reason why he should not be able to comprehend or comply with the council’s resolution.

The Ombudsman’s view was that Cr Tooley’s failure to apologise amounted to a failure to comply with a finding of inappropriate behaviour for the purposes of clause 3.18 of the Code.

On that basis, Cr Tooley the Ombudsman considered that Cr Tooley acted in a manner that was contrary to law within the meaning of section 25(1)(a) of the Ombudsman Act 1972. To remedy the error, the Ombudsman recommended that the council propose a resolution censuring Cr Tooley for his failure to comply with the Code.

The Ombudsman investigated a matter referred by the Independent Commissioner Against Corruption that raised allegations of maladministration in respect of the Department of Planning, Transport and Infrastructure and South Australia Police. The referral arose from a workplace fatality at SA Police’s Echunga Training Reserve in October 2016. It was alleged that, prior to the fatality, DPTI had failed to inspect the majority of SAPOL’s worksites under the Across Government Facilities Management Arrangement, and that SAPOL had failed to ensure that its worksites were being inspected under the arrangement. The investigation examined the AGFMA framework and the agencies’ practices prior to the incident in Echunga and determined that both agencies had committed maladministration in public administration. In this regard, the Ombudsman concluded that, prior to the fatality, DPTI had failed to undertake regular and meaningful inspections of the worksites falling within its service responsibility, contrary to its obligations under the AGFMA framework. The Ombudsman expressed the view that DPTI’s practices in this regard presented an unreasonable risk to the health and safety of persons using government premises. The Ombudsman concluded that, prior to the fatality, SAPOL had also failed to ensure that its worksites were being regularly inspected by DPTI under the AGFMA, and that this also presented an unreasonable risk to the health and safety of persons using SAPOL’s premises. The Ombudsman made several recommendations to DPTI and the South Australian government aimed at remedying the issues identified by the investigation.

The Ombudsman conducted an ‘own initiative’ investigation into the use of spit hoods in Adelaide’s youth detention centre. The Ombudsman’s investigation was commenced in light of the Royal Commission into the youth justice system in the Northern Territory and following calls from civil society.

The investigation reviewed CCTV footage, incident reports and other data and obtained information about interstate practice. The investigation determined that South Australia was the only Australian jurisdiction to still make use of spit hoods in its youth detention system. After reviewing the evidence, academic research and relevant human rights instruments, the investigation concluded that a sufficiently compelling case for the use of spit hoods in the Adelaide Youth Training Centre had not been made. The Ombudsman concluded that the use of spit hoods in the incidents reviewed by the investigation contravened the Charter of Rights for Youths Detained in Training Centres and was in accordance with a practice that was unreasonable and unjust. The Ombudsman concluded that two incidents that took place after the commencement of the Youth Justice Administration Act 2016 were also contrary to law. The Ombudsman recommended that the Department of Human Services cease using spit hoods within 12 months and then remove the implements from the list of approved mechanical restraints for use in the Adelaide Youth Training Centre. The Ombudsman recommended that the department investigate whether additional protective equipment, training and other measures could be provided to staff working in the Adelaide Youth Training Centre. The Ombudsman also recommended that the South Australian government review section 33 of the Youth Justice Administration Act 2016 and consider whether the provision authorising the use of force to ‘maintain order’ in a training centre should be repealed.

The Ombudsman investigated, upon referral by the Independent Commissioner Against Corruption, whether:

1. The former Chief Executive of the Department of Planning, Transport and Infrastructure (the agency) committed misconduct by determining an internal review under the Freedom of Information Act 1991 in respect of a request for information concerning his own meals, entertainment and purchase card expenditure
2. Whether the agency’s practice of funding the purchase of meals, drinks and entertainment by the former Chief Executive amounted to maladministration
3. Whether the former Chief Executive committed misconduct and/or maladministration by making inappropriate use of public funds to purchase meals, drinks and entertainment
4. Whether the agency’s Chief Corporate Officer committed misconduct and/or maladministration by approving inappropriate purchase card transactions incurred by the former Chief Executive.

In relation to the first issue, the Ombudsman considered that, while there were some mitigating circumstances, he was satisfied that the former Chief Executive Officer’s conduct amounted to a contravention of the requirements in the Code of Ethics for the South Australian Public Sector to avoid actual or potential conflicts of interest and to be diligent in the discharge of his roles and duties. Accordingly, the Ombudsman was satisfied that the former Chief Executive Officer committed misconduct. The Ombudsman also considered that the former Chief Executive Officer’s breach of the professional conduct standards amounted to a breach of the Public Sector Act and was accordingly contrary to law for the purposes of section 25(1)(a) of the Ombudsman Act.

In relation to the second issue, the Ombudsman considered that the agency’s practice of funding purchase of meals, drinks and entertainment by the former Chief Executive Officer resulted in the substantial mismanagement of public resources, insofar as it:

• was done in the absence of sufficient justification for the expenditure incurred
• involved transactions which in many cases appear of dubious public value and in excess of reasonable community expectations
• involved the purchase and consumption of significant quantities of alcohol, absent sufficient or any rationale
• lacked necessary supporting documentation
• was not subject to sufficient controls at the policy level.

Accordingly, the Ombudsman considered that the agency’s practice amounted to maladministration.

In relation to the third issue, the Ombudsman considered that, in light of his views on the second issue, it was not necessary to further consider the former Chief Executive’s conduct under the ICAC Act. The Ombudsman’s opinion was, however, that the former Chief Executive’s use of the purchase card to incur the expenditure was wrong within the meaning of section 25(1)(g) of the Ombudsman Act.

In relation to the fourth issue, the Ombudsman’s view was that (despite some genuine concerns), having regard to:

• the nature of the Chief Corporate Officer’s responsibilities in respect of the purchase card
• her subordinacy to the former Chief Executive within the organisation
• the overall deficiencies of the agency’s policy framework

a conclusion of misconduct or maladministration was not warranted in relation to the Chief Corporate Officer.

The Ombudsman did, consider, however, that the Chief Corporate Officer’s approval of purchase card transactions was wrong within the meaning of section 25(1)(g) of the Ombudsman Act.

The Ombudsman recommended in relation to the agency:

1. To the extent that this has not already occurred, that the FOI Policy be adequately amended so as to address the potential for a conflict of interest on the part of accredited FOI officers.
2. To the extent that this has not already occurred, that a suitable policy be developed and implemented in respect of the identification and management of conflicts of interest on the part of departmental officers.
3. That suitable polic(ies) be developed and implemented in respect of:
   • the provision of catering and other forms of official hospitality through use of departmental funds
   • out of hours meetings
   • the purchase of alcohol through use of departmental funds.
4. That the Purchase Card Policy and other relevant policies be revised so as to expressly require that transactions be reasonable and publicly defensible, and to emphasise that it is the responsibility of both cardholders and card supervisors to ensure that all transactions meet this criteria.

The Ombudsman also recommended that a suitable whole-of-government policy be developed and implemented in respect of the procurement (including by way of use of government-issued purchase cards) of meals, drinks (including alcohol) and other forms of entertainment through use of public funds.

The Ombudsman investigated whether Cr Peter Charles had a conflict of interest in relation to the council’s consideration of a Final Report of an earlier Ombudsman investigation into a complaint against Cr Charles. The Final Report of the earlier investigation was considered at a council meeting on 23 July 2018. At the meeting three motions were moved to receive the Final Report, note my findings that Cr Charles had breached the code of conduct and the recommendation that Cr Charles offer a public apology for sharing incorrect information to the general public. The three motions were carried. The official recording of the council meeting indicates that Cr Charles did not declare that he had a conflict of interest and voted against each motion.

The Ombudsman determined that Cr Charles had both an actual and perceived conflict of interest in relation to each of the motions and that he did not deal with the conflict in a transparent and accountable way. The Ombudsman recommended that the council reprimand Cr Charles and that Cr Charles issue a public apology to the council.

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.

Upon referral from the Independent Commissioner Against Corruption the Ombudsman investigated whether a public officer committed misconduct in public administration by recording telephone conversations of a colleague without their consent and whether the public officer’s manager (who is also a public officer) committed misconduct in public administration by engaging the public officer to make the recordings. The investigation substantiated the allegations and concluded that both public officers breached the Code of Ethics for the South Australian Public Sector and had thereby committed misconduct in public administration for the purposes of section 5(3)(a) of the ICAC Act. Their misconduct was reported to the Chief Executive of the Department as required by section 18(5) of the Ombudsman Act.

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.

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.

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.