Cr Kim Miller of the District Council of Peterborough (the council), refused to apologise in accordance with a recommendation by the Local Government Association of South Australia’s Governance Panel (the Panel), for conduct that was found to have breached Part 2 of the Code of Conduct for Council Members (the Code of Conduct).

The Ombudsman determined that Cr Miller’s failure to apologise was in breach of Part 3 of the Code of Conduct for Council Members, and therefore amounted to misconduct. The Ombudsman determined that Cr Miller had acted contrary to law for the purposes of section 25(1) of the Ombudsman Act 1972, and recommended that:

• the council reprimand Cr Miller
• the council require Cr Miller to reimburse the council for the cost of the Panel investigation in the amount of $6,957.19, pursuant to section 263B(1)(c) of the Local Government Act 1999
• the council require Cr Miller to issue an apology.

The Ombudsman received a complaint about the use of social media by the Department for Health and Wellbeing (the department) during the COVID-19 pandemic.

The first issue raised by the complaint concerned the sharing of social media content on the SA Health Facebook account from the Facebook account of the South Australian Premier, the Hon Steven Marshall MP (the Steven Marshall Facebook account). Unlike the SA Health Facebook account, the Steven Marshall Facebook account is not operated by the South Australian Government. The complaint alleged that in sharing content from the Steven Marshall Facebook account, the department was potentially acting in a politically-partisan manner.

The second aspect of the complaint concerned the publication of social media content on the SA Health Twitter and Facebook accounts that promoted the SA Government decision not to privatise SA Pathology. Those posts, published on 22 April 2020, included a statement that ‘[t]oday the Marshall Liberal Government announced that SA Pathology will remain in public ownership’.

The Ombudsman determined that by sharing social media content on the SA Health Facebook account from the Steven Marshall Facebook account, and by disseminating the Facebook and Twitter social media content of 22 April 2020, the department acted in a manner that was, in each instance, wrong within the meaning of section 25(1) of the Ombudsman Act 1972. In each instance, the Ombudsman determined that the department had promoted, or gave the appearance of promoting, a political party and /or the Premier, contrary to the obligations on the department to be politically impartial.

To remedy these errors, the Ombudsman recommended that the department refrain from sharing or otherwise using content from politically affiliated social media accounts or websites on its digital platforms (and removing content that had not yet been removed); that the department update its Social Media Communications Policy Directive to incorporate a prohibition on making party political statements or sharing content from social media sources run by political parties, politicians, or political candidates; that the department update its communications training so staff ; and that the department publicly acknowledge and apologise for the above errors.

The Ombudsman received a referral from the Independent Commissioner Against Corruption concerning the alleged conduct of Mayor Robert Walsh, District Council of Franklin Harbour. It was alleged that Mayor Walsh committed misconduct in public administration by:

1. acting improperly in regard to the rezoning and tenure of properties in Lucky Bay, and suggested that his private interests as an owner of a shack in Lucky Bay conflicted with his duties as a council member in relation to this issue
2. providing false and misleading information in a council report in order to obtain Commonwealth funding on a project in which he had a private interest
3. making repeated and inappropriate contact with the Department of Water and Environment

The Ombudsman determined that Mayor Walsh did not commit misconduct in public administration in regard to the first two issues, but did form the view that Mayor Walsh committed misconduct in relation to his communications with employees of the Department of Water and Environment. Accordingly, the Ombudsman recommended that the council require Mayor Walsh issue a public written apology to the DEW and its employees affected by his conduct.

The Ombudsman received a complaint from a South Australian Country Fire Service (CFS) volunteer, Ms Amani O’Brien, about what she perceived to be an inadequate response to her complaint about alleged sexual harassment by another CFS volunteer in 2018.

The allegations were serious in nature. The CFS, upon obtaining advice from the South Australian Fire and Emergency Services Commission (SAFECOM), had attempted to resolve Ms O’Brien’s complaint by requiring that she attend an informal meeting with the alleged perpetrator to reach a resolution to her complaint.

Following the informal meeting, employees of CFS and SAFECOM deemed the complaint to be resolved, but soon after, Ms O’Brien expressed her concerns to the agencies that the informal resolution was unsatisfactory and inappropriate, and informed them that she wished to escalate her complaint. Despite several requests over a period of approximately two years to escalate the complaint, Ms O’Brien was repeatedly advised that she was required to re-initiate the complaints process through her Brigade Captain, who had allegedly laughed at inappropriate comments made by the alleged perpetrator.

On 19 December 2019, Ms O’Brien complained to my Office, in addition to the South Australian Police and the Equal Opportunity Commissioner.

My Office received a complaint from Mr Chris Picton MP regarding the Women’s and Children’s Health Network in relation to two applications under the Freedom of Information Act 1991. Mr Picton complained that two internal review determinations made by the agency’s accredited FOI Officer had been delayed due to a process which was described as ‘noting’ by the Minister’s office. As a result of the noting process, the applications had not been determined within the statutory time frames set out in the FOI Act.

The agency stated that although it endeavoured to comply with statutory time limits, it was required to inform the Minister of sensitive or contentious issues under a SA Health Policy Directive.

I investigated the matter and determined that the agency had acted unreasonably by delaying the issue of the two determinations while awaiting the Minister’s noting process. I also noted that State Records has published a Guideline which provides a stepped guide and flow chart to assist in an agency’s processing of FOI applications. The guide contemplates that if a Minister is to be briefed, that should occur early in the FOI assessment process to avoid delays. In the present case, I concluded that the accredited FOI officer should not have postponed the provision of determinations to Mr Picton in order that the Minister’s office could note their contents prior to their issue.

I concluded that that by delaying the issuing of two FOI determinations while awaiting the Minister’s noting process, the agency acted unreasonably within the meaning of section 25(1)(b) of the Ombudsman Act. I recommended that the agency amend the Directive to clarify that any briefing of the Minister by way of noting should happen in such a manner so as not to cause any delay in the issuing of determinations or provision of documents, and that determinations are not issued subject to Ministerial approval. I also recommended the agency remind all relevant staff of their obligations to comply with the timeframes in the FOI Act.

Cr Belinda Spooner, District Council of Peterborough, failed to apologise in accordance with a recommendation by the Local Government Association of South Australia’s Governance Panel (the Panel), for her conduct during an altercation with another council member at a local Foodland.

The Ombudsman determined that Cr Spooner’s failure to apologise was in breach of Part 3 of the Code of Conduct for Council Members, and therefore amounted to misconduct. The Ombudsman determined that Cr Spooner had acted contrary to law for the purposes of section 25(1) of the Ombudsman Act, and recommended Cr Spooner be reprimanded.

The Ombudsman conducted an investigation into a complaint about a breach of the Service Standards under Schedule 5 of the Return to Work Act 2014 (RTW Act) by claims agent, Gallagher Bassett Services.

The complaint concerned an unreasonable delay by the claims agent in resolving the payment of outstanding invoices for medical treatment related to the complainant’s workplace injury.

The investigation found that the claims agent breached Service Standards 4(e) and 4(f) as set out in Schedule 5 of the RTW Act by:

• failing to notify the complainant at first instance that payments for services provided by Community Health Group were rejected
• failing to adequately communicate with the complainant about resolving issues related to the complainant’s injury claim
• demonstrating a lack of fairness, respect and courtesy, and compliance with stated timeframes

The Ombudsman recommended under Schedule 5, Clause 7 of the RTW Act that the claims agent:

1. provide a written or oral apology to the complainant for the breaches of Standard 4(e) and 4(f)
2. review its internal processes to provide written guidance to relevant staff that requires:
   • written notification to injured workers and service providers where an invoice cannot be paid, including reasons and options for progressing payment
   • Processing and payment of invoices as soon as reasonably practicable.

The Ombudsman, on referral from the ICAC, investigated former Minister Stephan Knoll’s removal and appointment of Adelaide Cemeteries Authority Board directors. The Ombudsman’s view was that Mr Knoll committed misconduct in public administration by purporting to remove directors from the Board.

Publication was delayed due to judicial review proceedings issued by Mr Knoll.  Those proceedings have recently been discontinued.

The Ombudsman conducted an ‘own initiative’ investigation of the Department for Correctional Services’ handling of various issues before and after the death of an Aboriginal prisoner, Mr Wayne Fella Morrison, in 2016.

The Ombudsman’s view was that there was error in relation to eight of nine issues, including that the department:

• failed to raise a ‘notification of concern’ and treat Mr Morrison as an ‘at risk’ prisoner, despite his past attempted suicide and family history of suicide
• failed to have proper processes in place to identify Mr Morrison as an Aboriginal person (and to provide support accordingly)
• transported Mr Morrison in a van without video recording capacity and failed to record meaningful footage of Mr Morrison’s restraint by Correctional Officers
• failed to provide Mr Morrison’s family with sufficient:
  • information
  • support
  • access to Mr Morrison while he was in hospital
• failed to maintain official records.

The Ombudsman made 17 recommendations which include that the department:

• apologise to Mr Morrison’s family for various errors
• review and change its internal procedures and remind relevant staff of their obligations
• take steps to implement body-worn cameras in all prisons (with a recommendation to the State Government that it consider allocation of funds accordingly).

The Ombudsman conducted an investigation upon referral from the Independent Commissioner Against Corruption concerning the conduct of the Chief Executive Officer of the District Council of Cleve. The Ombudsman’s view was that the CEO committed maladministration and misconduct in public administration by using council funds to pay costs of the Cleve and Districts Bowling Club.

The Ombudsman conducted an investigation about written submissions to the Minister about the Leigh Creek Energy underground coal gasification trial.

The complainant alleged that:

• the department had redacted his submission prior to its publication on the Environmental Register on the department’s website
• the department had removed all submissions made by the public from its website between 24 April 2018 and 1 May 2018.

The department advised the Ombudsman that it had applied the exemption clauses under Schedule 1 to the Freedom of Information Act 1991 (FOI Act) to redact information within the submissions prior to their publication online.

Issue one

The Ombudsman considered whether the department’s application of the FOI Act exemptions to redact the complainant’s submission, prior to publication on the Environmental Register (available on the department’s website) was a mistake of law.

After investigating this issue, the Ombudsman’s view was that:

• the department misapplied the FOI Act to information that is required by law to be available on a public register. On this basis, the department acted in a manner that appears to have been based on a mistake of law.
• by applying the FOI Act more broadly (to redact information when publishing information and documents on the department’s website) the department acted in manner that appears to have been based on a mistake of law.

The Ombudsman’s recommendations included:

• completion of an internal procedure and guide to manage potentially sensitive information within submissions received under relevant legislation
• completing a review of information currently available on the Environmental Register to ensure that the department’s website is compliant with the relevant law, and publish all information required to be recorded on the Environmental Register
• creating a procedure or guideline on how to publish information that is required under the relevant law to be available on the Environmental Register on the department’s website.

Issue two

The Ombudsman also considered whether the department’s removal of the public’s submissions from the Environmental Register between 24 April 2018 and 1 May 2018, was a mistake of law.

After investigating this issue, the Ombudsman’s view was that:

• this issue did not amount to a serious failure to meet a proper standard of public administration that warrants further investigation
• the fundamental error in the department’s process had been sufficiently addressed in the report in regard to issue one
• further investigation of this issue was not necessary or justifiable.