Tasmanian
OMBUDSMAN
26th annual report 2004/2005
Tasmanian Ombudsman
The Twenty-Sixth Annual Report 2004 – 2005
To the Honourable Donald George Wing President
of the Legislative Council and the Honourable
Michael Robert Polley Speaker of the House of
Assembly.
I have the honour to submit a report on the exercise
of the Ombudsman’s functions during the year
ended 30 June 2005 for presentation to the
Parliament pursuant to the provisions of Section 30
of the Ombudsman Act 1978.
ISSN 1441-4295
Inquiries about this report, or any of the information
or references contained within, should be directed to:
The Ombudsman Jan O’ Grady
GPO Box 960 Ombudsman
Hobart Tasmania 7001
Tel: 1300 766 725 August 2005
Fax: (03) 6233 8966
E-mail: ombudsman@justice.tas.gov.au
Web site: www.ombudsman.tas.gov.au
CONTENTS
FROM the OMBUDSMAN …………………………………………. 1
ROLE of the OMBUDSMAN ………………………………………. 10
PROFESSIONAL DEVELOPMENT PROGRAM ………………… 13
COMMUNITY OUTREACH 15
COMMONWEALTH OMBUDSMAN ………………………………. 20
PUBLIC INTEREST DISCLOSURES (PID) ……………………… 21
FORMAL INVESTIGATIONS ……………………………………... 24
POLICE & PRISON COMPLAINTS ……………………………… 28
AGENCY CASE SUMMARIES …………………………………….. 33
State Government Departments 33
Prescribed Authorities 37
Local Government 38
FREEDOM OF INFORMATION REVIEWS ………………………... 40
OFFICIAL VISITOR PROGRAM ……………………………………. 49
APPENDICES:
A Statistics
B Financial Statements
C Organisational Chart
D Ombudsman Amendment Bill 2005
– Clause Notes
E Child Abuse Review Report
– Ombudsman Foreword
– Ombudsman Recommendations and Government
Responses
FROM THE OMBUDSMAN
I have much pleasure in presenting
the 26th Annual Report of the
Tasmanian Ombudsman. This is
my fifth and final report as
Ombudsman as I shall retire on 19
August 2005. In addition to
reporting on this year’s activities, I
take the opportunity to highlight
some of the more notable events of
my time in office and to identify
some of the challenges likely to be
faced by the incoming Ombudsman.
Report for the Year 2004/2005
I am pleased to report that in the past year, in addition to our core function of
investigating complaints, many other significant tasks have either been completed or are
nearing completion.
Review of the Ombudsman Act 1978
The Ombudsman Amendment Bill 2005 will receive Royal Assent on 11 July 2005. This
follows a comprehensive 20-month review process. A Special Projects Officer with an
extensive background in legislative policy development was appointed on a fixed term
basis to undertake the review. I wish to acknowledge the thorough and efficient way in
which the review and various other specialist tasks were conducted; specialist tasks
which fell outside the normal ambit of the Ombudsman’s activities, such as instructing
Parliamentary Counsel in respect of amendments to the Health Complaints Act 1995
and preparing Guidelines and Training Modules for the introduction of the Public Interest
Disclosures Act 2002.
The review was much needed as the Ombudsman Act had not been comprehensively
reviewed since it was introduced in 1978, and I am pleased that it has been completed
during my term of office. I am confident that the changes to the legislation will
significantly streamline the investigation process and take account of contemporary
developments in information technology, the continuing privatisation of government
services and the trend towards greater use of alternative dispute resolution strategies.
The most significant amendment changes the method of determining the Ombudsman’s
jurisdiction. The Ombudsman’s jurisdiction had previously been prescribed by means of
Schedule 1 in the Act. An amendment to Section 4 of the Act provides for an inclusive
definition of a ‘public authority’ in the body of the Act: this includes government
agencies, local authorities, including councils, statutory officers and authorities,
Ministerial bodies, government business enterprises and State-owned companies. Also,
OMBUDSMAN - Annual Report 2004/2005 1
there is provision to prescribe non-government organisations, which are funded by State
Government money or are otherwise under the control of Government.
Other key amendments include:
• A Deputy Ombudsman may be appointed;
• The Freedom of Information Act 1991 will not apply to information held by the
Ombudsman in relation to a complaint;
• A complaint may be referred to conciliation, which will be voluntary;
• A complaint will be able to be made orally, as well as in writing;
• Amendments to the preliminary inquiry and investigation processes reflect current
practices and will provide greater flexibility for complaint resolution;
• The Ombudsman can investigate the administrative actions of third parties under
contract to a public authority.
Further details in respect of the amendments are provided in Appendix D.
The Energy Ombudsman Act 1998
With the introduction of natural gas into the Tasmanian energy market, the Electricity
Ombudsman became the Energy Ombudsman on 1 January 2005 and from 1 July 2005
will take complaints related to the service and supply of both natural gas and electricity.
I wish to record my appreciation of Government funding to enable the new jurisdiction to
be established over the six month lead in time.
On 27 June 2005 the new Energy Ombudsman jurisdiction was officially launched by the
Attorney General, the Hon Judy Jackson MHA, who confirmed the Government’s
commitment to providing an effective dispute resolution scheme for energy consumers.
Ms Fiona McLeod, the Victorian Energy and Water Ombudsman, and Ms Deirdre
O’Donnell, the Western Australian Gas Industry Ombudsman, attended the launch to
offer their support for the expanded Tasmanian energy jurisdiction and to speak briefly
about their own jurisdictions. Their willingness to attend the launch is indicative of the
high level of support that Tasmania has consistently received from members of the
Australian and New Zealand Energy and Water Ombudsman Network (ANZEWON).
Review of claims of abuse from adults in State care as children
In November 2004 I provided my Report and Recommendations in respect of 247 claims
of alleged child abuse to the Secretary and to the Minister for Health and Human
Services. The Government responded positively to the Recommendations and has
allocated significant additional resources for implementation. The Report’s Foreword
and Recommendations (including Government response) are included as Appendix E.
Premier Paul Lennon delivered an apology in Parliament on 17 May 2005 saying “I want
to place on the record the Government’s recognition of the hurt and suffering
experienced by the victims of this terrible mistreatment”. The Premier has also
OMBUDSMAN - Annual Report 2004/2005 2
apologised in writing to individual victims of abuse. To the best of my knowledge, no
other Australian State Premier has done so and this should be a matter of pride for all
Tasmanians.
One of the key recommendations was that the Review should continue. This was
accepted and the Premier announced a closing date of 30 June 2005. Claims made
after that date will be accepted for counselling and support purposes but will not be
eligible for ex gratia payments.
Since the Premier announced that further claims would be accepted, a total of 449 new
claims have been registered. Concern was expressed about the large number. The
Solicitor General was asked by the Government to make recommendations for reducing
the possibility of fraudulent claims. Steps to strengthen the validation of the claims had
already been undertaken; claimants were being asked at interview for proof of identity
and why they had not come forward to lodge a claim in the first round.
Acting on the Solicitor General’s advice, the Government determined that two further
precautionary steps should be taken. These were the signing of a Statutory Declaration
by the claimant and carrying out a Police check for crimes of dishonesty.
It was agreed that the Ombudsman’s Office would obtain the Statutory Declaration and
advise each claimant that a Police check was required. The Department of Health and
Human Services appointed an Independent Advisor to arrange for the Police checks.
Given the large number of claims made to the Ombudsman prior to the closing date it is
unlikely that they will all be finalised before mid 2006.
The Ombudsman Child Abuse Review Team is accommodated off-site and after two
years operates relatively autonomously. Direct costs of the Review continue to be borne
by the Department of Health and Human Services. Notwithstanding this, from July 2003
until the publication of the report in November 2004, oversighting the Review and writing
the Report made heavy demands on my own time. The processes have now largely
stabilised and should prove significantly less time consuming for the new Ombudsman.
The Review has been a very demanding exercise. There has been some public
criticism, but it has been far less than I might have expected given the complexity and
the sensitivity of the issues involved and given that there was no ‘model’, or best
practice guidelines, that could be used for undertaking a Review of this nature. Any
criticism has been more than offset by the many wonderful healing stories to come out
of the Review. I wish to place on record that, in a career in public service spanning thirty
years, nothing has been more personally rewarding and fulfilling than my involvement in
the Review of abuse of children in State care. I also wish to acknowledge the dedicated
work of the Coordinator of the Ombudsman Review team.
Complaint numbers
Following a slow decline in complaints over the past five years, total complaint numbers
(including FOI applications) have increased by 21 per cent this year, rising from 825
new complaints in 2003/2004 to 995 for the current year. The Department of Health and
Human Services, the Department of Justice and the Department of Police and Public
Safety continue to be the agencies most complained about. For the first mentioned,
OMBUDSMAN - Annual Report 2004/2005 3
matters related to public housing comprise about half the number of complaints, which is
consistent with previous years, but there has been an increase this year in the number
of complaints made against the Children and Families Division (21 received in
2003/2004 compared with 36 in 2004/2005). Some of these complaints have been
made as a consequence of people discovering that they could not be included in the
Child Abuse Review. Most, however, relate to child protection disputes and these are
often difficult matters for my office to resolve. Quite apart from acrimony, they frequently
involve court decisions, which the Ombudsman is precluded from investigating, or they
involve the merits of ‘line ball’ professional decisions, which are consistent with
departmental philosophy and policies and as such tend to fall outside the Ombudsman’s
domain of ‘administrative action’. I am aware that the Department recognises these
difficulties and is exploring various options for addressing them. I would encourage this.
With regard to the Department of Justice, complaints against Corrective Services have
risen from 58 in 2003/2004 to 73 this year. It is likely that the increase is largely a
reflection of management issues and continuing inmate unrest associated with the
urgency of the need for completion of the new Prison at Risdon. I have recently sought
advice from the Department of Justice requesting progress details on implementing the
recommendations contained in the Ombudsman’s major Prison reports released in June
2000. Cooperation from Prison management in attempting to resolve inmate grievances
is generally good and is significantly better than it was some years back.
The number of complaints against Tasmania Police has increased from 38 last year to
69 this year. There is no immediately apparent reason for the increase.
Freedom of Information (FOI) applications
Freedom of Information applications for review have shown a major increase, rising from
79 last year to 134 this year. An additional FOI officer has been appointed on a short
term contract to assist with the increased numbers and I am pleased to report that this
has helped to avoid a backlog developing. A further detailed report can be found in
tables 12 – 18 (page 43 -46).
New complaints management database
All jurisdictions in the Ombudsman’s office use the Raemoc database. Regrettably,
Raemoc is becoming increasingly unstable and there is an urgent need for the office to
have a new database. This is particularly the case in the Energy Ombudsman
jurisdiction, where the addition of gas complaints is likely to place an unsustainable load
on the system. After several abortive attempts over the past few years to replace
Raemoc, we are now at a stage where shortly we can go to tender.
Staff turn-over
In the past two to three years, high staff turnover has become a major problem. Half the
office staff are on fixed term contracts (this does not include the child abuse review
team, all of whom are on contract). A few of the contract appointments are relatively
long term as a result of permanent employees taking sustained leave, but in most cases
we have been forced into making short term appointments because of lack of
guaranteed funding continuity. As a result it is difficult to attract and to retain good staff.
I believe that what is needed is a fixed staffing complement for the office which is based
OMBUDSMAN - Annual Report 2004/2005 4
on a realistic assessment of statutory functions and which will be responsive to any
increase in responsibilities. This may be a matter for the new Ombudsman to take up
with the Department of Justice.
Highlights of the Past Five Years
2000/2001
• October 2000 – appointed Acting Ombudsman and Electricity Ombudsman
following the resignation of Mr Damon Thomas. Also appointed Health
Complaints Commissioner.
• December 2000 – Advisory Committee appointed to assist with the review of the
Health Complaints Act 1995.
• March 2001 – hosted ANZEWON meeting.
• May 2001 – my report on an own motion investigation into the Risdon Prison,
Risdon Prison Hospital and the Forensic Mental Health Unit, following five deaths
in custody, was tabled in Parliament. A total of 162 recommendations were made
and the reports represented arguably the most significant investigation ever
undertaken by the Tasmanian Ombudsman. The Government committed to
building a new Prison on the existing Risdon Prison site and to a new Secure
Mental Health Unit.
• Challenge to the Ombudsman’s jurisdiction by the Tasmanian Anti Discrimination
Commissioner in the Supreme Court following a complaint made to the
Ombudsman by the Director of Public Prosecutions.
• Complaint numbers for the year (752) show a 23 per cent decrease over the
previous year, but there is a significant increase in the number of ‘formal’
investigations under Section 23 of the Ombudsman Act 1978, reflecting a national
trend towards more complex matters being brought to the Ombudsman.
2001/2002
• October 2001 – confirmed in the position of Ombudsman and Electricity
Ombudsman. First woman to be appointed.
• 9 May 2002 – the challenge by the Anti Discrimination Commissioner concerning
the Ombudsman’s jurisdiction to investigate a complaint made to the
Ombudsman by the Director of Public Prosecutions was dismissed. On 30 May
2002 the Commissioner filed a Notice of Appeal.
• Slight drop in complaint numbers – 739 in 2001/2002 compared with 752 the
previous year.
2002/2003
• April 2003 – Report on the Review of the Health Complaints Act released.
OMBUDSMAN - Annual Report 2004/2005 5
• June 2003 – State Service Commissioner’s Review of Administrative Appeal
Processes handed down in June 2003. A key recommendation was for the
Ombudsman to undertake the first comprehensive review of the Ombudsman Act.
• 4 June 2003 – the Anti Discrimination Commissioner’s appeal against a decision
of the Supreme Court, which upheld the Ombudsman’s jurisdiction to investigate
the Commissioner’s administrative actions, was dismissed by the Full Court. In
handing down its decision the Full Court confirmed the need for a broad
interpretation of ‘administrative actions’.
• September 2003 – hosted meeting of ANZEWON.
• Continued decline in complaint numbers – 706 in 2002/2003 compared with 739
the previous year.
2003/2004
• July 2003 – the Ombudsman and the Secretary of the Department of Health and
Human Services enter into an agreement to commence a review of claims of
abuse from adults who had been in State care as children. A special
Ombudsman Child Abuse Review Team is established, with funding provided by
the Department, with the task of assessing each individual claim and making
recommendations to the Department for further action.
• October 2003 – comprehensive review of the Ombudsman Act commences.
• November 2003 – hosted meeting of Australasian Health Complaints
Commissioners.
• December 2003 – Interim Report by the Ombudsman on the Review of claims of
child abuse is released.
• 1 January 2004 – Public Interest Disclosures Act 2002 commences. Prior to
commencement the Ombudsman prepared Guidelines and Model Procedures for
State agencies to adopt or adapt. An intensive training and information program
was carried out in November 2003, with the assistance of the Victorian
Ombudsman’s office.
• 31 January 2004 – 25th anniversary of the commencement of the Ombudsman
Act 1978 is celebrated. On 3 February a reception is held by His Excellency the
Governor of Tasmania at Government House to mark the occasion.
• 30 June 2004 – hosted national meeting of Australian Ombudsman.
• Complaint numbers increased by 15 per cent – from 706 in 2002/2003 to 825 in
2003/2004.
2004/2005
• August 2004 – hosted ANZEWON meeting.
• September 2004 – attended meeting of International Ombudsman Institute in
Quebec, Canada
OMBUDSMAN - Annual Report 2004/2005 6
• November 2004 – release of the Ombudsman’s report on the first phase of the
Child Abuse Review.
• 1 January 2005 – Ombudsman appointed Energy Ombudsman to allow for
complaints about natural gas as well as electricity.
• March 2005 – delivered a paper on ‘The small, multi jurisdictional Ombudsman
Office” at the regional meeting of the Australian and Pacific Ombudsman in
Wellington, New Zealand.
• April 2005 – Government accepts the majority of the Ombudsman’s
Recommendations and apologises to victims of child abuse. The Premier
announces closing date of 30 June 2005 for lodging abuse claims.
• 6 May 2005 – Health Complaints Amendment Bill 1991 receives Royal Assent.
• The Ombudsman Amendment Bill 2005 passes both Houses – to receive Royal
Assent on 11 July 2005.
• Complaint numbers increased by 21 per cent – from 825 in 2003/2004 to 995 in
2004/2005. Applications to the Ombudsman for review under the Freedom of
Information Act show a significant increase.
Future Challenges
Having highlighted some of the past events in my term of office, I believe it is apposite
for me to comment on what I see as challenges ahead for the new Ombudsman. I
comment on three in particular.
1. Strengthening and protecting the Ombudsman’s independence
In my view, the most important challenge will be to protect and strengthen the
independence of the Ombudsman. The credibility and integrity of the Ombudsman’s
role are inextricably linked with the community’s perception of the distance between the
Ombudsman and Executive Government. In the past few years the office of the
Ombudsman has acquired a relatively high profile in the community. This is partly a
consequence of the media’s focus on major inquiries such as the Review of claims of
child abuse, but it also reflects, I believe, the comprehensive outreach program my office
has conducted. (The extent of this year’s program can be seen in Community Outreach
& Professional Staff Development, page 15).
Raising community awareness is a worthwhile objective – there is no point in offering
valuable services if no one knows about them. However, there is an element of risk in
doing so in that the more public attention the Ombudsman’s office receives, the greater
the likelihood that a Government may seek, directly or indirectly, to influence and control
the Ombudsman’s activities. On this issue, various commentators on the role of the
Ombudsman and similar watchdog bodies have noted that the most effective way to
curb the independence of a statutory officer has been to starve it of resources. I do not
consider that my office has been ‘starved’ of resources, but I am conscious that in a
OMBUDSMAN - Annual Report 2004/2005 7
number of smaller ways the independence of the Ombudsman’s office has been
compromised on occasions. I shan’t elaborate here, but there is no doubt that even
quite trivial events, such as misinformation from a member of the public on a radio
talkback program, can have an important symbolic impact in terms of the community’s
perception of the Ombudsman’s independence.
Strengthening the link between the Ombudsman and the Parliament is generally
recognised as being an effective means of protecting the Ombudsman’s independence.
The intent of a close relationship between the two is clearly spelt out in the legislation,
including the requirement that the Ombudsman report to Parliament on annual
performance, but the nexus is weak. Six years ago, the former Ombudsman, Mr Damon
Thomas, made a submission to a Joint Select Committee, which had been established
to enquire into and make recommendations in relation to the Working Arrangements of
Parliament. The enquiry encompassed the Statutory Offices of the Ombudsman, the
Auditor General and the Chief Electoral Officer. In his submission, Mr Thomas
proposed inter alia that:
• The Ombudsman should have greater budget autonomy, which would mean that
the Ombudsman’s budget would no longer be determined as part of the budget
processes of the Department of Justice (nor any other Government Department);
• The Ombudsman should be accountable to a small ‘light touch’ parliamentary
committee for performance and achievement of benchmarks; the committee
would act as the Ombudsman’s voice in the Parliament;
• The Ombudsman parliamentary committee would oversight the selection and
appointment of a new Ombudsman.
None of these proposals were accepted. I put them forward again because I still believe
that their implementation would greatly strengthen the independence of the
Ombudsman.
2. Maintaining the Ombudsman’s impartiality
With the trend towards informal dispute resolution and an increasing focus on systemic
issues, the level of consultation and general interaction between the Ombudsman and
agency staff has inevitably increased. Moreover, recommendations emanating from
major investigations are frequently negotiated with a head of agency while still in draft
form to ensure that they are practicable and will achieve the desired outcome. This
approach is consistent with the body of research on change theory and how to achieve
lasting improvements, but it can pose a perceived threat to the Ombudsman’s
impartiality; sometimes the complainant, the media, or the public generally are
suspicious of what they see as collusion or connivance. Striking the right balance
between genuine consultation and ensuring that it is the Ombudsman, not the agency,
who sets the agenda for reform is a sensitive task and calls for clearly articulated
strategies.
3. Ensuring that resources are commensurate with statutory responsibilities
Since 1992 the Tasmanian Ombudsman has taken on more and more statutory
responsibilities until today the office has arguably the most diverse jurisdictional portfolio
OMBUDSMAN - Annual Report 2004/2005 8
in the country. It is through the establishment of a multi jurisdictional, resource sharing
office that successive Tasmanian Governments have chosen to provide the community
with access to the same range of administrative review services available to residents in
larger States. I have made the point in previous Annual Reports that, while this is an
effective strategy for providing access and equity, I do not believe that the additional
responsibilities taken on by the Ombudsman have been matched with a commensurate
increase in resources for the office. The increase continues with the new Personal
Information Protection Act 2004, for which the Ombudsman has a key responsibility,
coming into effect on 5 September 2005. Guarding against the temptation of
Governments to place additional unresourced responsibilities onto the office is
something the new Ombudsman will need to be vigilant about.
I wish to thank my hardworking and dedicated staff for their unswerving loyalty and
support. Team work is important for any small office, but it is essential in a small multi
jurisdictional office, where staff frequently need to be deployed across the jurisdictions to
cope with fluctuating workloads. While there is a benefit to be gained from multi skilling,
changing jobs can also be very confronting and I am grateful that the staff have always
been willing to take on new roles and new tasks at short notice. This was particularly
evident when the Review of child abuse claims was being established.
In conclusion, I wish to say that it has been immensely rewarding and a great honour
and privilege to serve as Tasmanian Ombudsman. It is an office worthy of support and
protection. I have always held very strong views about fairness, equity and access and
the need to protect the rights of people who through no fault of their own are
disadvantaged or rendered powerless by the very systems set up to serve them. I
believe that I have established effective working relationships with agencies and I am
confident that the office is well respected and accepted as relevant by the community. I
am equally confident that the new Ombudsman will receive the same level of support
and cooperation that I have enjoyed.
Jan O’Grady
Ombudsman.
August 2005
OMBUDSMAN - Annual Report 2004/2005 9
ROLE of the OMBUDSMAN
The Tasmanian Ombudsman has a very wide jurisdiction. Currently, jurisdiction is
exercised in relation to:
• All State Government Departments;
• All Government Business Enterprises;
• All Local Government authorities (Councils);
• Over 70 separately prescribed authorities, including:
- The Anti Discrimination Commissioner (appointed under the Anti-Discrimination Act 1998)
- The Energy Regulator (appointed under the Electricity Supply Industry Act 1995)
- The Health Complaints Commissioner (appointed under the Health Complaints Act 1995)
- The Public Trustee
- The Government Prices Oversight Commissioner (established under the Government Prices
Oversight Act 1995)
- The Guardianship and Administration Board (established under the Guardianship and
Administration Act 1995)
- The Mental Health Tribunal (established under the Mental Health Act 1996)
- The Public Guardian
- The University of Tasmania.
The Tasmanian Ombudsman holds a number of statutory positions. In addition to the
general Ombudsman role, the Ombudsman is the Tasmanian Health Complaints
Commissioner, under the Health Complaints Act 1995, and the Energy Ombudsman,
under the Energy Ombudsman Act 1998. The Ombudsman also has a responsibility to
review decisions related to requests for information under the Freedom of Information
Act 1991; to investigate disclosures made under the Public Interest Disclosures Act
2002; to carry out reviews under the Adoption Act 1988 and to oversee compliance by
Tasmania Police of the provisions of the Telecommunications (Interception) Tasmania
Act 1999.
The different jurisdictions operate largely as separate entities, with some cross
jurisdiction movement of investigation staff according to demand. All are located at 99
Bathurst Street Hobart, and there is a branch office in Launceston, which is staffed by
an investigator who deals with enquiries in respect of all jurisdictions from North and
North West complainants. Administrative and corporate support services are shared
and the Ombudsman exercises an oversighting, corporate management role across all
jurisdictions. There is a Director to head each of the separate jurisdictions.
All of the jurisdictions operate on the principles of independence, impartiality, equity,
fairness and accessibility with a commitment to the resolution of disputes in an
expedient and efficient manner. The office is also committed, through its education and
training program, to promoting awareness of its functions and to reducing the incidence
of complaints, thereby improving the quality of public administration, health service
provision and electricity services.
Ombudsman
Under the Ombudsman Act 1978, the Ombudsman receives complaints related to the
administrative actions of State Government Departments, Local Government bodies and
OMBUDSMAN - Annual Report 2004/2005 10
specified public authorities. The Ombudsman will investigate complaints that fall within
jurisdiction and if there is evidence of defective administration, will prepare a report for
the agency head, which will include recommendations for rectifying action. If necessary,
a report will also be prepared for the relevant Minister and/or Parliament. While the
Ombudsman has no power to enforce recommendations and is dependent on
persuasive arguments, it is rare for an authority not to accept the Ombudsman’s
recommendations.
FOI Review
Under the Freedom of Information Act 1991, the Ombudsman receives requests for a
review of decisions made by State Government departments, local government and
various public authorities to exempt information sought under the Act. The Ombudsman
has the power to make a fresh determination and direct an authority to release the
information if she believes that an inappropriate decision has been made.
Public Interest Disclosures
The Public Interest Disclosures Act 2002 commenced on 1 January 2004. The
Ombudsman has a major role under the Act to receive and investigate disclosures and
oversight the way public bodies deal with disclosures.
Health Complaints Commissioner
Under the Health Complaints Act 1995, the Commissioner receives complaints related
to the provision of any health service in both the public and the private sectors. Under
the Act the Commissioner is required to:
• assess, conciliate, investigate or dismiss complaints;
• refer all matters involving an issue of clinical competence to the appropriate
registration board;
• promote the principles of the Charter of Health Rights within the community;
• provide information, education and advice to all stakeholders;
• promote equity, access and fairness and bring about improvements in the quality
and standard of health care in Tasmania;
• prepare reports and make recommendations to the Secretary and to the Minister
for Health and Human Services.
Energy Ombudsman
Under the Electricity Ombudsman Act 1998, consumers are able to refer complaints
against electricity entities to the Ombudsman for investigation and resolution. Under the
Act the Ombudsman has the power to make determinations and awards against the
energy entities.
Cross-jurisdiction services
The Ombudsman’s Office conducts an extensive professional development program.
The program includes one and two day complaint handling workshops and a two-day
investigation skills course. The complaint management and communication skills
courses are designed and run by external facilitators; the investigation skills course is
OMBUDSMAN - Annual Report 2004/2005 11
run by Ombudsman staff with the assistance of expert presenters from outside the
office. Courses can be developed to meet the needs of individual clients.
The Ombudsman’s Office also plays an important role in referring members of the public
to an appropriate source for the redress of grievances, which fall outside the
Ombudsman’s jurisdictions. Alternatives would include, for example, the Financial
Industry (Banking) Ombudsman, the Telecommunications Ombudsman and the Anti
Discrimination Commissioner.
In 1999 the Commonwealth Ombudsman entered into a cost sharing agreement with the
Tasmanian Ombudsman and appointed a Tasmanian delegate who is located at 99
Bathurst Street. Tasmanians who wish to complain about a Commonwealth body can
make a complaint directly to the delegate.
Approaching the office
Any member of the Tasmanian community who feels they have been ‘wronged by the
system’ in respect of a service provided by a Government agency and who has tried to
resolve their grievance directly with the agency without satisfaction, may bring their
matter to the Ombudsman. The Ombudsman will decide whether the matter may be
accepted. If accepted, inquiries will commence and an investigation may ensue, the
main objectives being to improve and promote the quality of public administration.
The Ombudsman offers a free service characterised by fairness, impartiality and
confidentiality.
OUR To serve the Tasmanian community by resolving individual complaints and addressing systemic issues
deriving from administrative deficiencies and through independent, objective and impartial investigations to
MISSION
improve and promote good conduct and fair decision-making in public administration.
The Vision of the Ombudsman is:
• to be recognised as an effective, independent and impartial office for the investigation and resolution of
OUR complaints and the promotion of excellence in public administration;
VISION • to be a key force in activities which assist authorities to effectively address complaints through internal
review processes; and
• to provide an effective mechanism for identifying major systemic issues.
We are committed to ensuring:
OUR • fair and equitable access for everybody who approaches us;
• high standards of probity, integrity and conduct;
VALUES • effective and efficient use of resources;
• accountability for our actions and decisions.
OMBUDSMAN - Annual Report 2004/2005 12
PROFESSIONAL DEVELOPMENT PROGRAM
The Ombudsman’s Professional Development Program comprises a series of training
course modules designed to assist government agencies in providing staff training in
effective complaint handling techniques and strengthened communication skills, with the
aim of reducing the amount of time taken by staff and management in handling
complaints. This also reduces the amount of stress placed on staff handling complaints
and, ultimately, the number of complaints that come to our office.
Complaint Management training
During the reporting year, there has been a real demand for Complaints Management
training, not only for those working in the front line of their organisation but also for more
senior staff, particularly those in middle management. For participants, this has had the
benefit of a) increasing awareness of the problems faced at varying levels of an
organisation; and b) endorsing the need, across the board, for sound complaint handling
strategies.
This year we have provided general Complaints Management training sessions on four
occasions in Hobart, and two occasions in Launceston. Participants invariably welcome
the relaxed, informal structure of the training facilitated by consultant, Ryanda Mee.
Ryanda has the ability to draw everyone comfortably into the group through her unique
and contemporary presentation style.
Ryanda has been involved with the Professional Development Program since it was
developed in 1998, and we acknowledge her efforts on our behalf. She has extensive
experience in service delivery, staff training and development, human resource
management and corporate communications. She is also a qualified mediator and
conciliator.
As a result of the Complaints Management training participants should be able to:
• Identify differences between consumers’ needs and expectations;
• Develop and enhance skills and techniques to effectively handle complaints
whether in writing, in person or on the telephone;
• Develop and enhance communication skills central to each stage in resolving a
complaint;
• Identify individual techniques for minimizing the negative affects that handling
complaints can have.
We also provided Complaints Management training for North West Regional Hospital on
three separate occasions – at the Burnie Campus for front line staff; at the Burnie
Campus for nurse managers; and, at the Mersey Campus for administrators and nurse
managers. For each session, specific issues of concern were identified and considered
in the preparation for the training.
Oral Health Services Tasmania also offered the opportunity for Complaints Management
training to all their staff working in the north and north west of the State. Twenty people
undertook the training in May.
OMBUDSMAN - Annual Report 2004/2005 13
Investigation training
An abridged version of the Conducting a Good Investigation training was provided as an
induction session for new investigation staff in our office in March 2005.
Regrettably we were not able to offer this training more widely this year due to the
demand for Complaints Management training and stretched resources. We hope to
rectify this in the forthcoming year.
Let’s Talk FOI – Introduction to Freedom of Information in Tasmania
The last in a series of scheduled sessions conducted by the Ombudsman’s Senior FOI
Investigation Officer, Terry McCully, was provided in Hobart in July 2004. These
sessions were primarily for officers working within State Government organisations, with
little or no working knowledge of the legislation but who may expect to have a role in
processing requests for information.
The aim was to provide practical information on the responsibilities, appointment and
functions of an officer acting within the scope of authority to make decisions under the
Freedom of Information Act 1991.
Expected learning outcomes:
• Appreciate the purpose of the legislation and the various exemption provisions;
• Know how a request is made;
• Able to identify the information that can be requested;
• Understand why access might be refused; and
• Understand the rights of review under the Act.
OMBUDSMAN - Annual Report 2004/2005 14
COMMUNITY OUTREACH and STAFF
PROFESSIONAL DEVELOPMENT
___________________________________________________________________________
During the reporting year I have accepted every invitation and explored further
opportunities to talk with members of the community about the services offered by the
Ombudsman – services which are free, independent, impartial, informal and accessible
to all Tasmanians who feel they have been let down by ‘the system’. The Ombudsman
is essentially the public watchdog and I remain committed to promoting this message as
widely as possible.
I am also committed to providing professional development training opportunities for my
staff to ensure they maintain the competencies and skills required to effectively support
the work of the Ombudsman.
Here is a précis of outreach and training events involving my staff or myself during the
reporting year.
July 2004
Participation in the 2004 Australian Institute of Administrative Law forum held in
Hobart.
Closing address to the 2004 Australian Institute of Administrative Law forum.
Presentation to the Tasmanian Regional Group of the Australasian Evaluation
Society in Hobart.
Participation in the Content, Format and Effectiveness of Sexual Offender Treatment
training workshop in Hobart.
Attendance at Hydro Tasmania’s Business Luncheon in Hobart.
Attendance at the session by Dr Bill Marshall on Preventing Sexual Abuse in the
Church: Consultations with the Vatican, held in Hobart. Dr Bill Marshall is Professor
of Psychology, Professor of Psychiatry, Associate Professor in Urology at Queen’s
University in Ontario, Canada, and Director of Sexual Offender Programs at Bath
Institution (a medium security federal penitentiary).
Attendance at the Justice Department’s Performance Management session,
including new policy guidelines, in Hobart.
August 2004
Keynote address and presentation of Awards to the Tasmanian Branch of the
Australian College of Educators’ Tasmanian Quality Teaching Awards 2004 in
Hobart.
Hosted the ANZEWON (Australian and New Zealand Energy and Water
Ombudsman Network) quarterly meeting in Hobart.
Attendance at the Launch of Making a Difference Together, the Performance
Management Strategy for the Justice Department, in Hobart.
Attendance at the IPPA forum on Parliamentary Reform, in Hobart.
Presentation on the role and functions of the Ombudsman to the Braid Foundation
Christian Centre in Launceston.
Provision of Complaint Management training to North West Regional Hospital
frontline staff.
Provision of a general Complaints Management training session in Launceston.
OMBUDSMAN - Annual Report 2004/2005 15
September 2004
Involvement in the VIIIth Conference of the International Ombudsman Institute
themed Balancing the obligations of Citizenship with the recognition of individual
rights and responsibilities: The Role of the Ombudsman in Quebec, Canada.
Participation in the Anti Discrimination Commissioner’s conference themed
Cooperation out of Conflict – Beyond Bullying, in Hobart.
Attendance at the Solicitor General’s Delegation training session in Hobart.
Involvement in the Australasian Health Commissioners Meeting in Melbourne.
Attendance at the forum – Opportunity Knocks – to mark the 10th anniversary of the
Community and Health Services Act in Canberra, ACT.
Participation in the ANZEWON (Australian and New Zealand Energy and Water
Ombudsman Network) Statistics Meeting in Melbourne.
Presentation on the Public Interest Disclosures Act 2002, to Crown Law staff in
Hobart.
October 2004
Attendance at the Tasmania Division of the Australian Institute of Company
Directors’ Annual Gold Medal Awards in Hobart.
Attendance at the Australian Institute of Administrative Law (AIAL) Tasmanian
Chapter seminar on Whistleblowing: the new Public Interest Disclosure Act, in
Hobart.
Participation in the Mediation for Managers training session in Hobart.
Provision of a general Complaints Management training session in Hobart.
November 2004
Attendance at the meeting of the University Council to showcase the new research
and teaching Theme area on Community, Place and Change, in Hobart.
Presentation on the role and functions of the Ombudsman to the University of
Tasmania Foundation Women’s November Forum, in Hobart.
Participation in the 5th National Investigation Symposium held in Manly, NSW.
Familiarisation visit to the Health Review office in Perth, WA.
Familiarisation visit to the WA Ombudsman office in Perth, WA.
Familiarisation visit to the Energy and Water Ombudsman’s office in Sydney, NSW.
December 2004
Attendance at the opening of Transend Network’s new administration building in
Lenah Valley.
Official address to the University of Tasmania graduation ceremony, candidates from
the Faculty of Law, in Hobart.
Attendance at the University of Tasmania’s Graduation Dinner in Hobart.
Presentation titled Complaint resolution in Tasmania’s changing energy market to the
Tasmanian Power Conference 2004 in Hobart.
Attendance at the Australian Securities and Investments Commission function in
Hobart.
Attendance at the celebration for the commencement of the Electoral Act 2004, in
Hobart.
OMBUDSMAN - Annual Report 2004/2005 16
Attendance at the Government’s Legal Issues Seminar on Do’s and Don’ts of
administrative decision-making and Judicial Review of such decisions, in Hobart.
January 2005
Attendance at the Ecumenical Service at St Joseph’s Church, Hobart, for the
Opening of the Legal Year 2005.
Attendance at the celebratory dinner for the appointment of His Excellency the
Governor the Hon William Cox AC RFD ED, in Hobart.
February 2005
Participation in the meeting of the National Ombudsman network in Wellington, New
Zealand.
Presentation to the Australasian and Pacific Ombudsman’s Conference themed The
Small Ombudsman Office held in Wellington, New Zealand.
Attendance at the ANZOA (Australian and New Zealand Industry Ombudsman)
Executive Meeting in Wellington, New Zealand.
Involvement in the ANZEWON (Australian and New Zealand Energy and Water
Ombudsman Network) quarterly meeting in Wellington, New Zealand.
Attendance at the Tasmanian Stakeholders consultation meeting on the Review into
the future governance arrangements for Safety and Quality in Health Care, in Hobart.
Participation in the Government’s seminar on General Contractual Issues in Hobart.
Visit to the office by the new Prison Operational Review Officer.
Provision of induction training in Investigation Skills.
March 2005
Involvement in the Apollo Root Cause Analysis – Practitioners Course in Melbourne,
Victoria.
Involvement in the meeting of the Australia and New Zealand Health Care
Complaints Commissioners in Sydney, NSW.
Attendance at the Australian Broadcasting Commission’s Advisory Council’s function
in Hobart.
April 2005
Presentation to Members of State and Federal Parliament by the Tasmanian and
Commonwealth Ombudsman on their respective role and functions, held at
Parliament House, Hobart.
Attendance at the public launch of the new secure Mental Health unit located on the
Risdon Prison site near Hobart.
Presentation on the role and functions of the Ombudsman as part of U3A
Kingborough Inc’s Law and Our Community course at Kingston.
Attendance at the official opening of the Nursing Board of Tasmania’s new premises
in Hobart.
Visit to our office by Futoshi Iwata, Associate Professor of Law at Sophia University,
Tokyo, Japan, as part of his research project on the role of law in medical ethics.
Presentation to the Swansea Veteran Affairs group on the role and functions of the
Ombudsman, at Swansea.
Attendance at the Combined Colleges’ State Health Congress – Embracing the Next
Generation of Healthcare – in Launceston.
OMBUDSMAN - Annual Report 2004/2005 17
Attendance at the launch of Aurora Energy’s hardship policy – Assisting Customers
in Need – in Hobart.
Provision of two general Complaints Management training sessions in Hobart.
May 2005
Involvement at AGFEST promoting the new Energy Ombudsman jurisdiction and the
introduction of natural gas to the Tasmanian marketplace, at Carrick.
Involvement in the Positive Aging Expo under the banner of Protecting Your Rights in
George Town.
Participation in the LEADR Dispute Resolution workshop in Melbourne, Victoria.
Familiarisation visit to the Victorian Energy and Water Ombudsman’s office in
Melbourne, Victoria.
Participation in the training course on Medical Records Analysis Methodology, in
Launceston.
Attendance at the 2005 State Budget Breakfast in Hobart, presented by Premier and
Treasurer, the Hon Paul Lennon, in Hobart.
Attendance at the University of Tasmania Council Reception in Hobart.
Familiarisation visit to the Energy and Water Ombudsman office in Sydney, NSW.
Familiarisation visit to the Health Care Complaints Commissioner’s office in Sydney,
NSW.
Familiarisation visit to the NSW Ombudsman office in Sydney, NSW.
Involvement in the University of Tasmania Administrative Law Moot in Hobart.
Attendance at the Government’s Legal Issues Seminar on Privacy and
Confidentiality in Hobart.
Presentation to Psychologists at the University of Tasmania, Hobart, on the Health
Complaints Commissioner’s process for dealing with complaints.
Attendance at the ANZEWON (Australian and New Zealand Energy and Water
Ombudsman) quarterly meeting in Sydney, NSW.
Presentation on complaint management and the role and functions of the
Ombudsman to State Library of Tasmania regional staff, in Hobart.
Provision of Complaints Management training to Oral Health Services in Devonport.
Provision of a general Complaints Management training session in Launceston.
June 2005
Presentation to the Tasmanian Club’s First Wednesday Dining Group’s dinner, in
Hobart.
Attendance at the Insurance Ombudsman Service Chair’s luncheon in Hobart.
Presentation on the role and functions of the Ombudsman to West Tamar Rotary
Club, at Beaconsfield.
Presentation on role and functions of the Ombudsman to Bicheno Veterans Affairs
group, at Bicheno.
Presentation to the 2005 Local Government Annual Conference as part of Speakers
Corner, in Hobart.
Attendance at the Leadership and Communication Skills for Managers seminar
presented by Mark McCrindle in Hobart.
Attendance at the Consumer Representatives’ Forum on alternative dispute
resolution schemes in Melbourne, Victoria.
Attendance at the ANZOA (Australian and New Zealand Ombudsman Association)
Learning and Development seminar in Melbourne, Victoria.
OMBUDSMAN - Annual Report 2004/2005 18
Launch in Hobart of the new Energy Ombudsman jurisdiction, established to take
natural gas complaints (in addition to electricity) from 1 July 2005.
Provision of Complaints Management training to North West Regional Hospital –
Burnie Campus nurse managers, in Devonport.
Provision of Complaints Management training to North West Regional Hospital –
Mersey Division administration staff and nurse managers, in Latrobe.
OMBUDSMAN - Annual Report 2004/2005 19
COMMONWEALTH OMBUDSMAN
Co-location arrangement
I am pleased to report that Mr Jim Farley has continued as Commonwealth Ombudsman
delegate in Tasmania, having commenced in June 2003. Jim has extensive experience
in dealing with Commonwealth Government agencies, and a sound knowledge of
investigative practices and the role and functions of the Commonwealth Ombudsman.
The Commonwealth Ombudsman continues, under the co-location arrangement with the
State Ombudsman, to provide the Tasmanian community with a local point of service for
complaints about services provided by Commonwealth government agencies, including
Centrelink and the Australian Taxation Office.
The arrangement provides:
• a ‘one stop shop’ for advice and for handling complaints under both State and
Commonwealth legislation;
• for effective and economic use of available resources;
• opportunities to promote sound public administration;
• joint community outreach opportunities.
Joint presentation to Members of Parliament
In April 2005 Commonwealth Ombudsman, Professor John McMillan visited Hobart
primarily to join Tasmanian Ombudsman, Ms Jan O’Grady, in a meeting with Members
of Parliament to talk about their respective roles and functions.
The Ombudsman view their role in handling complaints referred by MPs to be a
distinctive and important feature of their office. There are areas of common objective,
notably addressing the grievances of members of the public and pursuing executive
accountability. The meeting was aimed at strengthening the Ombudsman’s role in
working alongside MPs and encouraging a) greater use by MPs of the Ombudsman’s
investigative function; and b) Parliament’s support in protecting and fostering the
independence of the Ombudsman.
The meeting was attended by approximately thirty MPs who welcomed the opportunity
to talk with the Ombudsman. MPs in the north and north west of the State who were
unable to attend have requested similar meetings in their areas, and it is intended to
coordinate these meetings in the forthcoming year.
OMBUDSMAN - Annual Report 2004/2005 20
PUBLIC INTEREST DISCLOSURES (PID)
The Act
The Public Interest Disclosures Act 2002 commenced on 1 January 2004. The Act
gives the Ombudsman a major role in both receiving and investigating disclosures and
also over sighting the way public bodies deal with disclosures.
The main objective of the Act is to encourage and facilitate the making of disclosures
about improper conduct by public officers and public bodies. The Act provides
protection for persons making a disclosure and establishes a system for the matters
disclosed to be investigated and rectifying action to be taken.
The Act applies to a “public body” which is defined to include all agencies, councils,
government business enterprises, state owned companies and statutory authorities.
The Act provides that an officer, employee or member of a public body (or a contractor
to a public body) may make a disclosure to the public body, the Ombudsman or, in
certain circumstances, other named persons.
Under the Act, the main functions of the Ombudsman include:
• Publishing guidelines to assist public bodies in interpreting and complying with the
Act;
• Reviewing written procedures established by public bodies;
• Determining whether a disclosure received by the Ombudsman warrants
investigation;
• Investigating disclosures;
• Monitoring investigations initiated by public bodies or referred to public bodies;
• Collating and publishing statistics about disclosures handled by the Ombudsman.
The Guidelines and model procedures for public bodies set out in considerable detail the
operation of the Act and the suggested processes for bodies to comply with the Act.
The Guidelines, model procedures and a complete training package are available on the
Ombudsman website at www.ombudsman.tas.gov.au/public_interest_disclosures
Annual Reporting requirements s84
Section 84 of the Act sets out the annual reporting requirements for the Ombudsman
(refer table 1). These are as follows for the period 1 July 2004 - 30 June 2005.
The current Guidelines published by the Ombudsman under Part 6 are available on the
Ombudsman website at http://www.ombudsman.tas.gov.au/public_interest_disclosures (A hard copy
may be viewed at the Ombudsman’s Office located on the Ground Floor at 99 Bathurst
Street, Hobart, on request during business hours.)
Six disclosures alleging improper conduct and two disclosures alleging detrimental
action were received in this reporting period. Three allegations of improper conduct
were carried over from the previous year. Six disclosures were not accepted as
OMBUDSMAN - Annual Report 2004/2005 21
protected disclosures, and two have been accepted as protected disclosures and
determined to be public interest disclosures under s30. One of these has been referred
to the Auditor General in accordance with s41 of the Act and one matter is currently
under investigation.
The Ombudsman received one notification from a public body of a public interest
disclosures determination in accordance with s34 and one disclosure was referred to
the Ombudsman by a public body, however the Ombudsman declined to investigate. In
reference to the notification, the public body is currently carrying out an investigation and
will advise the Ombudsman the outcome of the matter, as required under the Act.
There have been no referrals of disclosures to the Ombudsman from public bodies in
accordance with s35, nor from the State Service Commissioner in accordance with s28,
the President of the Legislative Council or the Speaker of the House of Assembly in
accordance with s78.
There have been no formal reviews of public body procedures under s62. Public
bodies have prepared their written procedures in consultation with the Ombudsman.
Most follow the model procedures prepared by the Ombudsman.
Table 1 S84 (a) to (l) - Period covered: 1 July 2004 - 30 June 2005
Sub- Annual Report requirements Response
Section
(a) Information as to how persons may obtain or access copies of the Ombudsman website or
current guidelines published by the Ombudsman under Part 6; and Ombudsman Office
(b) The number and types of disclosures made to the Ombudsman 6 improper conduct,
during the year; and 2 detrimental action
received
(c) The number and types of determinations made by the Ombudsman 6 matters NOT protected
during the year as to whether disclosures are public interest disclosures
disclosures; and 2 public interest
(3 carried over from previous year for determination) disclosures
(d) The number and types of disclosed matters that during the year the 1 detrimental action
Ombudsman has investigated; and investigation carried over
(e) The number and types of disclosed matters that during the year the 1 disclosure of improper
Ombudsman has referred – conduct referred to the
(i) under section 41, to the Commissioner of Police, the Auditor- Auditor-General
General, a prescribed public body or the holder of a prescribed
office to investigate; or
(ii) to a public body to investigate under Part 7; and
(f) The number and types of disclosed matters –
(i) that the Ombudsman has declined to investigate during the year; 1
or
(ii) that were referred by a public body during the year to the
Ombudsman to investigate; and
(g) The number and types of disclosures referred to the Ombudsman Nil
under this Act by the President of the Legislative Council or the
Speaker of the House of Assembly during the year; and
(h) The number and types of investigations of disclosed matters taken Nil
over by the Ombudsman during the year; and
(i) The number and types of investigations of disclosed matters for Nil
which the Ombudsman has made a recommendation during the
year; and
(j) The recommendations made by the Ombudsman during the year in N/A
relation to each type of disclosed matter; and
(k) The recommendations made by the Ombudsman during the year re No formal reviews
the procedures established by a public body under Part 7; and
(l) The action taken during the year on each recommendation of the N/A
Ombudsman under this Act.
(m) Notification under s34 by a public body 1
OMBUDSMAN - Annual Report 2004/2005 22
Public Interest Disclosures Case Summary
Case study
Forum Shopping
The Ombudsman received eight disclosures from one public officer against the employing public body.
All of the matters related to an ongoing dispute with the employer. No new issues were alleged in the Public Interest
Disclosures Act matters. In fact, elements of the matters “disclosed” had been already considered in a variety of
forums including the State Service Commissioner, the Ombudsman in both the Ombudsman and Freedom of
Information jurisdictions and the Anti-Discrimination Commissioner. Most related to events in 2001.
It was not disputed that there had been some valid issues in the Ombudsman complaints and FOI reviews, but they
did not meet the standard required under the PID Act. It appeared that the officer was “forum shopping” in an attempt
to resolve the issues with the public body.
Having said that, each disclosure made under the Act was considered carefully. Each was assessed separately
against the Act, and in particular against the meaning of “improper conduct”. After careful analysis of the information,
and after some detailed research, none of the disclosures was found to be a protected disclosure under the Act. They
did not meet the criteria as set out in Part 2 of the Act.
In relation to one matter, the Ombudsman advised the officer that she was of the opinion that the “disclosure” was
verging on vexatious.
Case study
Mismanagement of public resources or improper conduct?
The Ombudsman received a disclosure about mismanagement of a public body’s finances and in particular apparent
mishandling of money. The discloser was able to provide sufficient information to satisfy the Ombudsman that there
was substance to the disclosure and the disclosure was determined to be a public interest disclosure under s33 of the
Act.
As the disclosure related to financial matters, the Auditor-General was consulted about the possibility of the matter
being referred to him under s41.
Section 41 states that the Ombudsman may refer a disclosed matter to the Auditor-General (or other prescribed
persons) to investigate if the Ombudsman considers it appropriate to do so. The Auditor-General accepted the
referral and the matter is being dealt with under the Financial Management and Audit Act.
The Ombudsman has no further function in relation to the disclosure, but the disclosure and the public officer remain
protected from reprisal by the Act.
OMBUDSMAN - Annual Report 2004/2005 23
FORMAL INVESTIGATIONS
What has become known as “formal investigations” are simply investigations carried out pursuant to
Division Three of the Ombudsman Act 1978 (“Act”) as opposed to ‘preliminary inquiries’. This distinction
reveals an interesting history vis-à-vis contemporary investigation practice, which recent Act amendments
have responded to.
In the 1970s there was parliamentary debate as to whether an Ombudsman was even needed. Some
parliamentarians, and others, incorrectly anticipated that the Ombudsman might not receive many
complaints. Even more doubt was raised as to how many would require investigation. Within this context
the original Act was drawn so the Ombudsman, and Ombudsman staff, could conduct ‘inquiries’ in order
to ascertain whether an investigation was required or not. Further, if an investigation was required a
formal notification process had to be undertaken before the investigation could commence; that is, the
agency, complainant and responsible Minister had to be notified. Upon conclusion of an investigation the
Ombudsman was then obliged to provide an investigation report to the agency and the responsible
Minister.
With an ever increasing number of complaints, since the 1980s, it has become increasingly impractical,
and arguably unnecessary, to notify the responsible Minister every time preliminary inquiries became
more than just an ‘inquiry’, into the matters raised in the complaint. Formally notifying the agency and the
complainant in such circumstances is arguably even more unnecessary, given that both parties are clearly
aware (or are made aware) of the complaint from the outset of the Ombudsman accepting the complaint.
Hence, by the 1990s the vast majority of complaints were treated as ‘inquiries’, and ‘formal’ investigations
were reserved for the more serious and/or systemic complaints. Clearly the provisions of the Act were
becoming increasingly anachronistic in respect of this distinction between ‘inquiries’ and ‘investigations’.
This will be the last Annual Report that will have to address this technical and arguably
specious distinction. As of July 11 2005, Act amendments will reflect the fact that most
complaints are progressed as preliminary inquiries, and that such inquiries are not
necessarily conducted towards determining if a formal investigation is required. Also,
the responsible Minister, in most instances, will no longer have to be formally notified
and provided with an investigation report upon the conclusion of an investigation. The
Ombudsman will be able to make recommendations for change to an agency, which
was formerly only possible in a s23 Investigation. In other respects the amendments do
not reflect any change: investigations will remain reserved for the more systemic,
serious and complex complaints. In short, the Act now reflects contemporary complaint
handling practice.
Between July 1, 2004 and June 30, 2005 only one formal investigation was finalised.
Huon Valley Council
Proposed Development on Garden Island
Case No. (700-0309018)
Introduction. A complaint was received in September 2003 from a rate-payer in the Huon Valley
municipality, raising various concerns about Council’s actions in response to a proposed (stratum-based)
development of Garden Island. The complainant owned land near Garden Island. The island is
comprised of one title, and to date had only experienced intermittent and small-scale development. The
majority of the island is comprised of dry coastal sclerophyll forest. The development was in effect a
subdivision of the more developed northern end of the island. The developers wanted to create coastal
residential ‘bush blocks’ that would hopefully attract purchasers from the interstate holiday home market.
Helipad and other facilities were planned to attract this market.
OMBUDSMAN - Annual Report 2004/2005 24
The complainant had concerns as to how far Council was prepared to accommodate the developers, and
the complaint raised various administrative concerns revolving around planning, environmental and public
consultation issues. In particular, the complainant was concerned that Council was in effect facilitating a
subrogation of wider planning (and related) law - via strata title legislation - to enable the proposed
development to proceed. The complainant considered that any subdivision should be progressed via
normal title subdivision processes. The developers encountered difficulties with this approach, given
planning scheme provisions and current zoning of the island. The developers therefore sought to
progress the development via strata title.
It was noted in correspondence to the complainant from the Minister for Primary Industry Water and the
Environment that the Minister shared the complainant’s concerns regarding this issue “…if in fact the
Strata Tiles Act 1998 [was] being used to circumvent the normal planning process”.
The complaint was particularised into the following three allegations:
1
1. Council, by accepting the stratum-subdivision proposal for consideration, and in advising the
developer to date, is facilitating a circumvention of the Tasmanian Resource Management
Planning System, namely (i) a circumvention of external planning appeals, and (ii) not facilitating
at least a 3 week public consultation process (Council had proposed a two week consultation
process).
2. Council (i) incorrectly claimed the State Coastal policy does not apply to stratum subdivision and
therefore Council does not have to consider it as part of its deliberations, and (ii) has failed to
acknowledge the proposed development is a potential contravention of the State Coastal Policy.
3. Council are wrong in claiming the road access/frontage provisions of the Local Government
(Building and Miscellaneous) Act 1993 does not apply to stratum subdivision proposals.
The investigation into this complaint required a significant, and substantial amount, of time and resources.
Numerous documents were identified and evaluated (Council files, Council and complainant
correspondence, development proposal itself) and various Acts, state policy and planning law precedents
(Resource Management Planning Appeals Tribunal and Supreme Court decisions) and wider planning law
research was undertaken. Meetings were also held with the complainant and Council’s Manager of
Environment and Development Services.
Allegations One –
• Circumvention of Planing Appeal Mechanisms.
It was found that the developers first proposed the issue of stratum based subdivision to address
zoning and planing scheme constraints. Not only did relevant zoning prohibit the intended
development, but arguably other zones, found under the planning scheme, were also unsuitable.
A new or alternative zone could have been progressed via what is commonly referred to as a
“s.43A application”. The latter is used when a developer seeks to have his development
application, and rezoning upon which the latter is contingent, heard simultaneously by the
Resource Planning Development Commission. The latter would have been difficult given that a
new zone would have had to been created. Alternatively the latter process could have been split
and stepped: a new zone could have been created, and following approval the developers could
have sought to rezone and develop Garden Island (or part thereof) either via a s.43A application
or separately.
Stratum title based development arguably avoided the need to have the development site rezoned
due to the planning scheme’s definition of ‘development’. As the planning scheme predated the
introduction of specific strata title legislation, the definition of ‘development’ – via which wider
resource management and planing law applied to developments under the scheme – did not
include stratum subdivision.
In March 2003 the developer’s lawyers indicated to Council that they were intending to progress
the development via stratum subdivision, to over come the above zoning issue and road frontage
requirements (see discussion below in respect of allegation three). Council then accepted internal
advice that the definition of ‘development,’ under the planning scheme combined with the
provisions of strata title legislation, meant Council had to consider stratum based subdivision
proposals outside of the Resource Management and Planning System (“the RMPS system”).
OMBUDSMAN - Annual Report 2004/2005 25
Although Council maintained that it would informally ‘impose’ the conditions and merits of the
RMPS system upon the development, and that it preferred the development to proceed under
RMPS system auspices, it maintained its view that it was bound to consider any stratum based
subdivision outside the system. The consequences of this are essentially twofold for persons,
such as the complainant, with concerns regarding how Council was responding to the proposed
development. Firstly, potential appeals to the Resource Management Planning Appeal Tribunal
would not be available as a possible recourse, if it was a discretionary permit based development.
Secondly, the need to change the zoning of Garden Island, to progress the development, was
avoided and with it all Resource Planning Development Commission review mechanisms that
accompany planning scheme amendments.
Council’s entrenched views on this issue were strengthened by further internal advice that the
definition of ‘development’ under the Land Use Planning Appeals Act 1993 did not include strata
title. As with previous advice, this was not qualified legal advice. Council did eventually, eight
months later, obtain legal (and specialist planning) advice, which strongly advised Council not to
accept the development in form of stratum subdivision.
Given the novel, if not unique nature, and scale of the development the Ombudsman was of the
opinion that Council ought to have obtained such advice much earlier and shortly after learning of
the developer’s intentions to progress the subdivision under strata legislation. Further, it was
found that Council did not proactively encourage the developers to consider other ways of
progressing their intended development within the RMPS system.
In short, requiring the provisions of legislative and other instruments, which collectively comprise
the RMPS system to apply to a development proposal, will not compensate public expectations,
nor exonerate Council actions, that such provisions ought to apply to a development proposal.
Although the Ombudsman found that the Council did not actively seek or encourage the
developers to take advantage of this legal loophole (regarding stratum subdivision) this part of
allegation one was substantiated. It was also noted that parliament may need to consider how to
close this legal loophole, rather then relying on Tasmania’s local councils to ensure that their
various and numerous planning schemes are fully consistent with the Land Use Planning
Approvals Act 1993 – a founding Act underpinning the RMPS system.
Recommendations were made in respect of: encouraging developers to pursue development
under the RMPS system, and in obtaining qualified legal advice in a timely manner when large
and significant proposals (attracting public scrutiny and attention) raise important legal issues.
• Not facilitating a Three Week Public Consultation Process.
By reference to what would occur if the development was accepted as a discretionary
development application, or if the development had involved zoning and thereby planning scheme
amendments, the Ombudsman found that Council’s actions were not unreasonable or wrong.
Under the former scenario a two-week consultation is required whereas three weeks is required
under the latter scenario. Council facilitated a two-week public consultation period.
The Ombudsman considered that a two-week consultation period, akin to that of a discretionary
permit based development, was a bare minimum but acceptable. What falls short of ideal is not
necessarily questionable from the Ombudsman’s perspective. Hence this part of the complaint
was not substantiated and no recommendations were made. Nonetheless the Ombudsman
suggested that at least a three weeks public consultation should be adopted (in the absence of
any statutory imposed time frames) when significant development is proposed within a
municipality.
Allegation Two –
• The State Coastal Policy Does Not Apply.
The State Coastal Policy (“the policy”), as a state policy, plays an important role in ensuring
sustainable development along Tasmania’s coasts. Traditionally the only form of coastal
development regulation and guidance came via local council planning schemes, whereas the
policy applies across all municipalities and thereby forms an integral part of the wider RMPS
system.
OMBUDSMAN - Annual Report 2004/2005 26
Council were of the view that strata title legislation could be administered in a separate manner to
the planning scheme, and therefore it was legally possible not to comply with the State Coastal
Policy. The Ombudsman found that the State Coastal Policy explicitly states that it applies to
Tasmanian councils and that they are required to give effect to its provisions. Legal advice from
the Solicitor-General’s office confirmed the Ombudsman’s research and analysis that if Council
was aware that a development proposal was in breach of the policy then it too would be arguably
in breach if the development was approved. This part of the complaint was substantiated. As
with allegation one, relying on unqualified internal advice did not assist Council: the legal analysis
relied upon was not accepted.
The Ombudsman recommended that the Council must presume that the policy applies to all
coastal development unless legal advice (preferably from a planning law specialist) suggests
otherwise.
• Failure to Acknowledge Potential Contravention of the State Coastal Policy.
It was found that there was one part of the policy that the proposed development was possibly in
breach of: clause 2.4.2. The latter part of the policy prohibits inter alia unrelated cluster
development along the coast. There is argument that the development proposal amounted to
unrelated cluster development. This view was formed with reference to various legal definitions
and planning law tribunal and court decisions. Further, the Ombudsman found that proposed
development was not based on an existing town or township, as required under clause 2.4.2:
there are no towns or townships on Garden Island. In short, there was merit in argument that the
development proposal amounted, if implemented, to a breach of the policy.
However, it was noted that the provisions of the policy are non-prescriptive in nature. That is, the
wording is such that clause 2.4.2 (like much of the policy) is guiding rather then prescriptive,
despite provisions in the policy clearly aimed at prosecuting policy breaches and ensuring
planning scheme consistency. Advice from the Solicitor-General’s office confirmed this view. In
short, it is arguable that if the development proposal proceeded it would not have ‘legally
breached’ the policy.
Further, there is merit in the argument that Council did not have to acknowledge that the proposed
development was tantamount to a breach, or potential breach, of the policy until a final decision
was made to administratively reject or accept the development proposal.
For the above reasons this part of the complaint was not substantiated. Whilst no
recommendations were made, in respect of this part of the complaint, the Ombudsman noted that
ideally such issues (i.e. whether a contravention of the policy occurred) ought to be considered
and determined within the context of the development proposal, by a specialist planning body
such as the Resource Management Planning Appeals Tribunal. Further, the non-prescriptive
nature of clause 2.4.2 (etc) in the policy is a matter that is best considered and addressed (if
required) by parliament.
Allegation Three –
• Road Frontage Provisions Do Not Apply to Stratum Subdivisions.
This allegation was the least important of the three. The now repealed section 41 of the Local
Government (Building and Miscellaneous) Act 1993 stipulated that access onto ‘blocks’ with
dwellings must have access of certain specified dimensions. In turn the definition of ‘block’
referred to land comprising of “one piece of the same owner”. Council were of the view, in
summary, that this section did not apply to stratum subdivisions: under strata title there are
multiple owners of the ‘block’ and there is not “one piece of the same owner”. Legal advice from
the Solicitor–General’s office suggested that Council’s interpretation was correct. The
Ombudsman accepted this advice and therefore this part of the complaint was not substantiated.
OMBUDSMAN - Annual Report 2004/2005 27
POLICE and PRISON COMPLAINTS
As in previous years, the vast majority of complaints lodged against the Department of
Police and Public Safety involve Tasmania Police. Similarly the vast majority of
complaints lodged against Corrective Services (Department of Justice) are Prison
Service complaints. The Prison Service includes not only the maximum Risdon Prison
complex but also the State’s two remand centres (in Launceston and Hobart), the Hayes
Prison Farm and the Women’s Prison located on the same site as Risdon Prison.
With both police and prison complaints the majority of complainants are, what can be
very broadly described as, ‘client stakeholders’: i.e., those that seek, or are subject to,
the services provided by the respective agency. Police complainants are generally
comprised of two kinds of ‘client stakeholders’. That is, those who report criminal
matters and seek police assistance and those that are subject to police inquiries and
investigations. In contrast, for the most part, prison ‘client stakeholders’ are prison and
remand centre ‘inmates’. Inmates are classed as either ‘detainees’ (on remand) or
‘prisoners’ (who have received a prison sentence). However, complaints were received
from other persons in respect of both agencies; for example, agency staff, recruitment
applicants and the family and friends of inmates.
Complaints against Tasmania Police cover a wide area of police operations. Grievance
issues raised during 2004-2005 include, for example:
• inaction (eg. failure to investigate a reported crime);
• acting oppressively or illegally (eg. conducting a house search without a warrant);
• bias in conducting an investigation given the complainant’s criminal record;
• excessive force in effecting an arrest; and
• quality of customer service (eg. failing to update a person who has reported a
matter).
Complaints involved relatively simple matters (eg. officer rudeness) through to serious
and complex matters (eg. officers allegedly involved in serious criminal matters).
Similarly, complaints lodged against the Prison Service are equally diverse, and varied
in both complexity and seriousness. During 2004-2005 complaints concerned an array
of matters, for example:
• internal disciplinary processes;
• alleged correctional officer harassment;
• segregation and punishment imposition and regime issues;
• the cessation of prisoner programs;
• access to education and work opportunities;
• calculation of remission periods;
• placement within the prison system;
• prisoner classification;
• inmate account and property issues; and
• bans from visitor programs.
A notable increase in both police and prison complaints occurred, from the previous
financial year, and generally speaking the number of complex (involving complex legal,
OMBUDSMAN - Annual Report 2004/2005 28
policy or factual issues) complaints had proportionately risen. However the latter trend
applies across all public authorities. Of note, a number of complaints were received
about two Risdon Prison issues: the cessation of the Inside Out program and changes to
the new food service (discussed below).
Police Complaints
The Tasmanian and the Victorian jurisdictions are unique in that the Ombudsman is the
only body oversighting Police activities. The Ombudsman and Tasmania Police have a
good working relationship based upon an agreement that complaints will initially be
referred to Tasmania Police for investigation. Tasmania Police then decide whether the
complaint will be investigated at district level (with Internal Investigations oversight), or
by Internal Investigations. The less serious complaints, which can be broadly described
as customer service complaints, are usually investigated at the district level. The more
serious complaints are usually investigated by Internal Investigations.
The Ombudsman reviews the police investigation of the complaint, which can include
not only reviewing police investigation reports but also interviewing the complainant and
speaking to the investigating police officer(s) and their superiors, and reviewing police
investigation files at Internal Investigations. The Ombudsman, of course, reserves the
right to conduct a fresh investigation at any point in time: at the outset, during, or upon
conclusion of the police investigation. However, it is far more common for the
Ombudsman to highlight any concerns about an investigation and have Tasmania Police
address those concerns themselves. This has resulted in a cooperative and productive
working relationship between the Ombudsman and Tasmania Police, which
complements the complaint handling aspects of the new Police Service Act 2003, which
came into effect in December 2004.
This cooperative yet independent approach to police complaints is reflected in the
agency case summary below ‘Schools Out, Police In’.
Prison Complaints
Under both the Ombudsman Act 1978 and Corrections Act 1997, inmates have a right to
send and receive letters unopened from the Ombudsman. Other than via internal
complaints processes (which exist for inmates), and voicing grievance issues with
Official Visitors, the Ombudsman is the only generalist review body available to inmates
to raise grievance issues. The above legislative provisions reflect the importance of this
role.
A number of inmate complaints were received when the Prison Service introduced a
new food service during 2004, and also in response to the cessation of the popular
program ‘Inside Out’.
The New Food Service – Cook/Chill
(Case No. 700-0407002)
In March 2004 a new food service was introduced into Risdon Prison. The previous food
service involved preparing meals shortly prior to consumption. The new food service is
based on the ‘cook-chill’ method of cooking: food is prepared a few days prior to when it is
served, it is then rapidly chilled and stored, and subsequently reheated (to standard
specifications required under law) just prior to consumption. This method of preparing
OMBUDSMAN - Annual Report 2004/2005 29
meals is found in a range of institutions across the country and overseas (eg. aged care,
student accommodation).
The Prison Service also flagged its intention to cease mess-room eating – and instead
serve meals in cells - given the number of assaults and disturbances that were associated
with moving whole divisions between division yards and the mess rooms, three times a
day.
The new food service also involved other changes. For example, an external dietician
vetted menu planning for the first time resulting in less meat and more dairy content. Also,
during weekdays, inmates no longer received a hot meal but sandwiches.
Inmates had a number of concerns, but in summary they raised three main issues: that the
quality (taste and nutritional value) of the meals had deteriorated, that meal sizes were
smaller and eating in cells was unhygienic given the close proximity of the toilet. The
Prison Service, well aware of inmate discontent, invited both Official Visitors and the
Ombudsman to inspect the state of the kitchen and sample meals. Official visitors and the
Ombudsman accepted the invitation but decided to conduct a far more comprehensive
review of the new food service. This included:
• a review of interstate and overseas research and evaluation of prison food services;
• a review of the 2001 Department of Health and Human Services (“DHHS”) review of
Risdon Prison food service;
• liaising with a range of external persons involved in developing or monitoring the new
food service (eg. the dietician who conducted menu planning for the new food service,
the Clarence City Council’s Senior Environmental Health Officer, the NSW Corrective
Services Food Services Manager, DHHS health officers);
• randomly selecting and weighing meals, within a statistically rigorous research
framework, during unannounced inspections of the kitchen (June-July, 2004);
• eating/tasting meals during unannounced kitchen inspections;
• reviewing relevant departmental documentation concerning the implementation of the
new food service (from cost-benefit analysis information to menu planning); and
• liaising with Prison Service Staff, in particular the Food Services Manager.
In summary, the main findings and outcomes of the review are outlined below.
1. The new cook-chill food system menu provides a nutritious diet for inmates complying
with contemporary Australian standards. Whilst the cook-chill system will arguably not
produce food that will be as tasty as daily cooked food, it is arguably more nutritious
then the previous food service.
2. Since the new Food Services Manager, a fully qualified and experienced chef,
commenced employment with the Prison Service (August 2001) the nutritional quality
of food had steadily improved.
3. Dinner Meals appeared to be increasing in size and by July 2004 were no longer
under size on a whole (initial ‘teething problems’ in determining the correct raw versus
cooked meal weights resulted in some underweight meals being served).
4. Meals appear to be increasing in weight, towards (or even beyond) objective weights,
however meal weight variance was an issue until addressed. To overcome this
problem the Prison Service agreed to weigh every meal towards ensuring that meals
did not vary in weight by more then 15% (7.5% under or over the target meal weight).
5. The quality of the meals was on a whole were good, although some minor changes
were suggested.
6. The suggestion was made that hot soup in addition, or instead of, sandwiches be
provided during the colder months. The Prison Service agreed to consider this
suggestion.
7. The Ombudsman and Official Visitors expressed concern about the cessation of mess-
room eating. There were two main concerns, hygiene issues given the close proximity
OMBUDSMAN - Annual Report 2004/2005 30
of unlidded toilet and doubling up in cells and the lack of social interaction, which is
available when eating in a communal setting.
The Prison Service agreed to have this issue independently assessed by the DHHS.
The latter’s health officers found the practice safe subject to certain recommendations
regarding inmate hygiene and the time in which meals are consumed. However, whilst
mess-room eating will cease inmates will be able to eat evening meals communally in
their division yard.
8. Some relatively minor concerns were raised in respect of kitchen hygiene issues,
which the Clarence City Council’s Senior Environmental Health Officer had identified.
The Prison Service agreed to address these issues, and also agreed to the
Ombudsman and Official Visitor’s recommendation that Council officers be permitted
to inspect the kitchen and bakery unannounced. (The 2001 Ombudsman inquiry into
Risdon Prison recommended that the Council be allowed to inspect prison facilities in
the first place).
The Prison Service is working towards having the new prison food service HACCP
accredited, after which it will become subject to external independent checks in addition to
checks from the Clarence City Council. It is envisaged that many ongoing environmental
health and hygiene issues will be addressed by the redevelopment of both the prison
kitchen and bakery during 2005-2006. The Ombudsman and Official Visitors conducted
further unannounced kitchen inspections in January and February 2005, involving meal
tasting and weighing. The latter confirmed, overall, that improvements in the food service
had been made and that the quality and weight of meals was acceptable.
The Cessation of the Inside Out Program
(Case No. 700-0407048; 0407002; 0407058; 0407011; 0407013)
A number of complaints - in addition to a petition signed by over 100 inmates - were
received in response to the decision to discontinue the popular ‘Inside Out’ program. This
decision attracted media attention and even a public protest during the second half of
2004. Originally this program was introduced in response to a number of deaths in custody
in 1999 and 2000. The program originated in Victoria where it is delivered by Community
Care and Concern, where it was principally aimed at young offenders.
When first implemented the program had no guidelines for service delivery, evaluation and
reporting and the Prison Service claimed it had little input into its selection. In 2004 the
Prison Service decided that whilst it was providing a valuable service, a number of
improvements in correctional services had negated the need for the service. In particular,
it was argued that the program could be replaced with an Anglican Chaplaincy service
since there were now:
• more mental health professionals in Correctional Health Services then there was in 1999-
2000,
• coronial recommendations in relation to the exchange of information between the Prison
Service and Correctional Health Service had been implemented (regarding persons at risk
and categories thereof); and
• an evaluation by the Criminology Research Unit of the University of Tasmania had raised
a number of management issues associated with the program (“Evaluation Report”).
The Prison Service also reasoned that the Anglican Chaplaincy service would better
complement prison health services given those running the program did not have formal
counselling qualifications. A copy of both the Memorandum of Understanding, between
the Prison Service and the Anglican Church, and the Evaluation Report was requested and
reviewed as part of preliminary inquiries.
In September 2004 the Ombudsman wrote to the Prison Service and expressed concerns
at the decision to discontinue the program, as well as the reasons used to justify the
decision. In particular, the Evaluation Report noted the success of the program relied
upon the ‘lay’ persons who delivered the program, who were not a part of, nor seen to be
OMBUDSMAN - Annual Report 2004/2005 31
in deference to the Prison Service. The Ombudsman expressed concerns that an
Anglican chaplaincy service could develop the same rapport amongst inmates; particularly
given that the Child Abuse Review process had revealed that many inmates were wary of
churches given the abuse they, and family members, had suffered whilst in their care. It
was noted the memorandum did provide for improved service objectives, reporting
mechanisms and accountability in addition to fostering better wider prison service
understanding of its roles and functions. (The Evaluation Report identified a lack of wider
Prison Service staff understanding of what the focus and benefits of the program were).
The Evaluation Report, whilst highlighting some management and reporting concerns, was
overall in favour of retaining the program. The Ombudsman was also circumspect that
implementation of the coronial recommendations, and improvements in correctional health
services - without wishing to detract from the invaluable service and improvements seen in
this area since 1999 – provided argument for discontinuing the program.
Notwithstanding the above concerns, the Ombudsman decided that whilst the decision to
cease the program was arguably not ideal there was not sufficient to justify a view that
there had been defective administration.
OMBUDSMAN - Annual Report 2004/2005 32
AGENCY CASE
SUMMARIES
STATE GOVERNMENT Hobart GPO which had not yet been sent to the Fred
Hollows Foundation. The glasses (and cases) did not
DEPARTMENTS have any name, initials or other unique identifying
feature. The investigation officer then took the two sets
of glasses (and their cases) that best matched the
DEPARTMENT of JUSTICE description given by the complainant’s partner and took
them to the complainant, that day, at the Hayes Prison
Farm. The complainant readily identified the two sets
Corrective Services of glasses (and cases) that the investigation officer
(Prison Service) thought were his, out of approximately six that were
presented to him (which were later returned to Australia
Post).
SEEING THINGS CLEARER
(700-0407056) During preliminary inquiries the investigation officer
learnt from an Australia Post officer that there might be
A complaint was received from a Hayes Prison Farm another officer who could recall the glasses being
inmate alleging that Corrective Services had not given returned. This officer was contacted who recalled them
him his reading glasses. The complainant was initially being returned and making a record of what was written
detained at the Hobart Remand Centre. Before being on the (now destroyed) parcel by Prison Service staff.
transferred elsewhere within the prison system his The investigation officer requested a copy of the record
partner had sent him his reading glasses, which the made. A few days later a record was provided from an
Prison Service denied ever receiving. Australia Post database that recorded that the parcel
was returned to Australia Post with “not approved within
The complainant claimed he had written to the Prison the jail” written on it. The complainant claimed that he
Service administration, and then lodged an internal had sought, and was granted permission, to have the
inmate complaint about the missing glasses, about glasses before his partner sent them. The Ombudsman
three months after they were mailed. The inmate was of the view that in any event the parcel should not
complaints coordinator wrote to the complainant, have been returned to Australia Post: if permission had
outlining enquiries conducted, and confirmed that not been obtained the glasses (and their cases) should
Australia Post records indicated that the glasses were have been retained until permission was granted, or
sent, via Express Post parcel, but Prison Service stored with the rest of the complainant’s property
records did not indicate ever receiving the parcel. retained by the Prison Service.
Hence the Prison Service did not substantiate the
complaint. The Ombudsman substantiated the complaint and
suggested the following. Firstly, that the receipt of any and
Since Express Post parcels have a receipt number all inmate property be properly and fully recorded.
Australia Post had sufficiently detailed records to track Secondly, that serious consideration be given to
items. However, the investigation officer experienced establishing a database to register all incoming and
difficulties in determining whether the Hobart Remand outgoing inmate mail. Thirdly, all staff at the Hobart
Centre had received the parcel. The main problem was Remand Centre be formally informed that no inmate mail
that records and returned parcels were only kept for is to be returned to the sender or Australia Post (or any
approximately three months, which had since expired. other mail/courier service) without the permission of the
The Ombudsman commenced preliminary inquiries into centre’s manager. The Prison Service implemented the
the complaint, approximately six months after the third suggestion.
glasses were allegedly sent. If the parcel had not been
accepted and returned to Australia Post – and there
was no return address – the parcel would have been
destroyed prior to the Ombudsman receiving the PUSHY PRISONER
complaint. The complainant’s partner could not recall if (700-0312004, 700-0407012)
the parcel had a return address. However, after
numerous telephone calls to different Australia Post A complaint was received from a Risdon Prison inmate
officers the investigation officer learnt that even if the alleging that the Prison Service had breached its own
parcel had been destroyed, as suspected, the glasses representation that he would be administratively
would have been retained. Australia Post’s Customer segregated for only 90 days in Division Seven (a unit
Care section retains glasses from the ‘dead letter’ area, used for segregation, as opposed to punishment).
which are then donated to the Fred Hollows Segregation arose from being charged with abusing the
Foundation. internal inmate complaint process. The complainant
had often lodged internal complaints, about various
The investigation officer, after having the complainant’s matters, during his current and previous sentences.
partner describe the two sets of glasses (and their However, this was not the first complaint received from
protective cases) sorted through the glasses kept at the the complainant concerning disciplinary matters.
OMBUDSMAN - Annual Report 2004/2005 33
The above complaint followed a previous and Preliminary inquiries revealed that the
connected complaint (“the first complaint”), that he had complainant had received a written
been unfairly treated by a Correctional Officer resulting representation from the Prison Service that he
in a prison offence charge, that he claimed should not would not be segregated longer than 90 days.
have been laid. The complainant also alleged that the The Director of Prisons had not supported a
investigation into the charge was biased, in that divisional review panel’s decision to return the
independent (inmate) witnesses were not interviewed. complainant to mainstream accommodation,
Allegedly the complainant, who has a documented upon the expiry of 90 days. This
history of ‘baiting’ prison service staff, had referred to a administrative support was required to
Correctional Officer in a derogatory manner, during a endorse the divisional review panel’s decision.
morning divisional hygiene parade. This resulted in the It is not an issue whether the divisional review
complainant being charged with a disciplinary offence. panel’s decision recommendation could be, in
The witnesses could supposedly support the effect, overruled. What was in question was
complainant’s claims that he did not use the derogatory the reason underpinning this decision. The
term he allegedly uttered in response to a direction, main reason, it seemed, for the initial decision
given during the parade. The complainant conceded to not support the divisional review panel was
that he was “cheeky” at times to custodial and other that the complainant had lodged a Freedom of
prison service staff, but was adamant that he had not Information application, which somehow
used the derogatory term, for which he had been focused upon an “officer” - presumably the
charged. Rather he claimed he had questioned the same officer subject to the first complaint
direction given to him (“what for ?”). The complainant (details of the application were not provided).
acted inappropriately and aggressively in response to It was claimed, in Prison Service documents,
being charged, ultimately resulting in further that this indicated the complainant had
punishment. After this punishment the complainant ongoing “issues” with the officer. The
was administratively segregated for 90 days for the Ombudsman advised that this was not a
reasons outlined above, and discussed in detail below sound basis upon which to extend the
(“the second complaint”) segregation period, despite the complainant’s
documented tendency to focus upon, and bait,
Preliminary inquiries were conducted which involved certain members of staff.
interviewing the complainant (twice), and reviewing
relevant: Prison Service files, Directors Standing Orders As noted above, the complainant was returned to
issued pursuant to the Corrections Act 1997, other mainstream accommodation as a consequence of the
legislation and court precedents, and common law Ombudsman’s suggestions arising from the first
pertaining to natural justice and procedural fairness complaint; prior to preliminary inquiries concluding in
(particularly within the context of both binary and unitary respect of the second complaint. It should be noted
prison disciplinary systems). that subsequent to the first overruling of the divisional
review panel - and not in response to the second
The first complaint was partially substantiated. The complaint or the Ombudsman’s views - the Director of
Ombudsman declined to consider and investigate the Prisons did endorse a subsequent divisional review
issue of whether the complainant had used a panel recommendation for the complainant to be
derogatory term in reference to the reporting returned incrementally to mainstream accommodation.
Corrections Officer. To do so would have consumed It was during the latter period that the complainant was
significant resources and time that are normally returned to mainstream accommodation, on a full-time
reserved for more serious complaint issues. Preliminary basis, upon suggestion from the Ombudsman.
inquires determined that procedural fairness and
natural justice had not been adhered to in the
investigation of the offence: i.e. none of the witnesses,
who the complainant claimed could assist in his DEPARTMENT of EDUCATION
defence, were interviewed. Natural justice and
procedural fairness arguably required the witnesses to
EDUCATION EDUCATED
be interviewed. Further, Director’s Standing Order
(700 – 0412036)
(Disciplinary Process) requires that a ‘sufficiently
comprehensive investigation’ is to take place before an
This is a complaint by an unemployed teacher that
inmate can be found guilty of an offence. The Prison
despite long service and flexibility regarding temporary
Service conceded that witnesses were not interviewed
and short term placements she had not met the criteria
and ought to have been.
for permanent appointment.
It was suggested to the Prison Service that the offence
The teacher had, since graduation, sought to be a
ought to be expunged from the complainant’s prison
permanent teacher within the state education system.
offence record. Other relevant suggestions were made
With this in mind she has been extremely flexible in
towards preventing this incident repeating. The
terms of accepting positions in most areas of the state,
Ombudsman also suggested that the complainant be
and had taught in over forty (40) different schools in a
returned to mainstream accommodation given that the
wide range of subjects. Through her time with the
internal complaint had a legitimate basis. The Prison
Department she had been employed for over twelve
Service implemented this suggestion.
(12) terms as a fixed term teacher, as well as significant
periods undertaking relief work.
Before preliminary inquiries were finalised in respect of
the first complaint, the second complaint was received.
She had been recognised as an experienced and
This second complaint was substantiated given the
valued teacher in the Department summary of her
following:
OMBUDSMAN - Annual Report 2004/2005 34
position in relation to permanent employment, and Tasmania Police had charged her with speeding and
assessments provided at the termination of various inattentive driving. The complainant refuted these
periods of fixed term employment similarly reflect a charges and placed the matters before a magistrate.
capable and valued employee. The magistrate dismissed both charges. As the
Ombudsman has no jurisdiction to investigate any
Two programs had been applied during the teacher’s decision made by a court, this issue did not form part of
broad period of employment which led to inequities in the preliminary inquiries.
deciding who may achieve permanency and who may
not. These stem from the chance nature of temporary The Ombudsman then contacted the Land Transport
employment within the Department. Regardless of the Safety Division of the Department of Infrastructure,
level of employment the temporary teacher wants, Energy and Resources. The advice received was that
matters beyond their control govern the number of the Registrar’s decision still stood, due in part to the
positions available, and the allocation of a temporary Registrar’s duty of care to ensure that licensed drivers
teacher to any particular position. in Tasmania are not a danger to themselves or other
road users and are mentally and physically capable of
It was the luck of the draw as to where a teacher may driving with a proper knowledge of the road rules.
be employed and the vagaries of temporary
employment in the Department combined with the The Ombudsman then wrote to the complainant to
particular criteria applied to conversion at any point in advise that there were no grounds to accept the
time that have precluded her from the possibility of complaint, as the decision made by the Registrar of
conversion to a permanent appointment. This example Motor Vehicles was not administratively incorrect. It
reflected a systemic problem, albeit perhaps for a small was her decision alone not to comply with the
group of teachers who appeared to “fall through the Registrar’s request, that was, in the Ombudsman’s
cracks” and become marginalised. view, soundly based upon a Police report. It was
suggested to the complainant that there would unlikely
The Department ultimately agreed that this teacher’s be any impediment to her having her licence reinstated
situation was an anomaly arising out of past practice. if she was medically fit, had a good knowledge of the
The Department also advised that in the case of Road Rules and was capable of driving a motor vehicle
teachers who for some reason did not meet the new correctly.
guidelines, the Department would work on an individual
case management basis to assist in practical ways to The complainant was afforded 14 days to respond and
enable their engagement. provide reasons why the complaint should be accepted
and investigated further. There was no response and
the file was closed on the basis that the complaint was
withdrawn.
DEPARTMENT of
INFRASTRUCTURE ENERGY & DEPARTMENT of POLICE &
RESOURCES PUBLIC SAFETY
Registrar of Motor Vehicles Tasmania Police
DRIVEN TO DISTRACTION SCHOOL’S OUT, POLICE IN
(700 - 0503705) (700 - 0408012 & 0405023)
A complainant complained to the Ombudsman about A complaint was lodged against Tasmania Police who
the actions of the Registrar of Motor Vehicles. She had taken a child from a school and interviewed him
claimed that Tasmania Police had reported her to the without parental permission. A guidance officer had
Registrar of Motor Vehicles after charging her for accompanied the child to the Police Station. An initial
alleged speeding and inattentive driving. The investigation undertaken by police had established that
description given by Police was that her driving was the matters of complaint were considered not able to be
‘…nothing short of dangerous…’ and her ‘…ability to substantiated.
understand and abide by the Road Rules is in doubt.’
As a consequence, she received correspondence from The Ombudsman referred the complaint to the Police
the Registrar requiring her to undertake a medical Internal Investigation Unit, who conducted a second,
examination and undertake a driving test, both at her thorough investigation. This inquiry found that there
cost, to determine her suitability to drive a motor were procedural shortcomings in the conduct of the
vehicle. The letter also advised that should she fail to initial investigation. The second investigation
comply with the Registrar’s request within a specified established that the boy was interviewed without
period, steps would be taken to suspend her driver’s parental consent.
licence. This request was made under Section 56 of
the Vehicle and Traffic Act 1999. The complainant The actions of the officer concerned in conducting the
applied for a review of the Registrar’s decision under interview breached well established police procedures,
the Vehicle and Traffic (Review of decisions) which is designed to protect parental rights, the welfare
Regulations 2000, however, the Registrar’s decision of a young person and to ensure that the evidence
was upheld. obtained during any criminal investigation is admissible
OMBUDSMAN - Annual Report 2004/2005 35
in court. The case against the boy did not proceed to a Preliminary inquiries found that whilst consignment (and
prosecution and the complaint was filed. other) documents were available for inspection at the
Quarantine barrier, copies of those provided by the
Tasmania Police have advised that the Officer who was complainant lacked sufficient detail to enable an
in charge of the interview was to be formally appraisal of consignment content. After six weeks of
reprimanded in accordance with the Code of Conduct inspections the Department learnt of the availability of
provisions of the Police Service Act 2003. Appropriate sufficiently detailed documentation. However the
remedial action was also taken in respect of the other transport operators, who collected imported
officers involved and administrative action was taken to consignments, were not presenting this documentation
ensure that matters similar to those, which occurred in at the Quarantine barrier.
this case, do not happen again.
On one hand the Department was quickly responding to
The Department of Education advised that they had a what was perceived as a very real risk to Tasmania’s
policy which dealt with police matters in their Guidelines aquaculture industry. Of note the Department claimed
to Legal Liability for Schools and Colleges. The policy it was releasing, without delay or charge, all imports
requires that if a police officer is investigating a crime in that were accompanied with sufficiently descriptive
which the student is possibly implicated, the teacher’s documentation to enable appraisal of consignment
public duty is to assist the police officer. It also content. On the other hand, the Department was in the
provides that the teacher’s duty of care in relation to the practice of advising transport operators of changes to
child does not cease merely because the student is importation inspection procedures. If importers had
being interviewed by a police officer. What this duty been advised (soon after the inspection system
requires will vary with the circumstances. commenced) of what documentation was required, the
number of unnecessary consignment inspections
Clearly the Principal of the school acted appropriately in (which had no frozen seafood content) may have been
accordance with this policy, but it was not ultimately notably reduced. Hence this part of the complaint was
helpful to the police. partially substantiated.
The discrepancy between the policies and procedures It was found that it was reasonable for the Department
of the Departments in relation to the same set of to conduct inspections without any advanced notice to
circumstances was pointed out to each with a the complainant and other importers. Any advance
recommendation that they develop a joint policy to meet notice of an inspection, or the introduction of a new
their differing requirements. inspection system, may have compromised the integrity
of inspections. The total amount of fees and costs
incurred by the complainant was not disputed, and was
determined by legislation. Hence the second complaint
issue was not substantiated.
DEPARTMENT of PRIMARY The Department did not specifically refute the
complainant’s claim that all of his consignments, during
INDUSTRIES, WATER & the six periods of inspections, were inspected. Rather,
ENVIRONMENT the Department claimed that inspections were randomly
conducted. Although this part of the complaint was
substantiated the Ombudsman was not required to
Quarantine suggest remedial action. The Department credited the
complainant’s account for the amount he was invoiced,
SOMETHING FISHY FROM NORWAY over the entire six-week inspection period, prior to the
(700-0312004) conclusion of the Ombudsman’s preliminary inquiries.
It appeared that all, or nearly all, of the complainant’s
A complainant imported dry, chilled and frozen food. consignments had been inspected.
During October 2004 the complainant received invoices
for a new system of Quarantine inspections, conducted
over a six-week period. The latter was a response to
the detection of frozen Norwegian salmon in Tasmanian Crown Land Services
supermarkets and fine food outlets. Freezer containers
entering Tasmania, prior to the detection of Norwegian CROWN RESERVE CAUSES FIERY CONCERN
salmon, were considered a low quarantine risk and (700-0501017)
subject to non-chargeable document surveillance.
The complainants owned property adjoining a crown
In summary the complainant alleged: land road reserve. On the other side of the reserve was
another property owner. The complainants claimed that
1) the inspection of his consignments was during 2001, as licensees, they undertook fence work
unnecessary given that documents were available and cleared gorse in the reserve. Subsequently the
showing the absence of frozen seafood content; other property owner fenced in part of the reserve.
2) the absence of notice, that inspections may occur,
was unreasonable (resulting in extra unforeseen By 2003 the complainants considered the reserve a fire
costs); and hazard and the presence and density of gorse
3) that his consignments were singled out for problematic again. The complainants sought to
inspections. purchase part of the reserve to reduce the presence of
gorse and remove other fire hazards (dead trees, etc).
They claimed that the other property owner refused to
OMBUDSMAN - Annual Report 2004/2005 36
assist the complainants or contribute financially to Information provided by the Casino during the
address the hazard, stating it was the responsibility of investigation of the appeal, was critical of the
the Department. The complainants also claimed that complainant in much wider terms than the matter
the Department was not addressing their concerns leading to the Exclusion Order, and that information
regarding both the fire hazard and illegal occupation of was not made known to the complainant, nor made
the reserve by the other property owner. Rather, in available to him for comment but was included in the
respect of the fire hazard, the Department allegedly Decision Paper justifying the decision to dismiss the
advised the complainants that the other property owner appeal.
should be consulted given he had fenced in, and was
occupying, the reserve. The investigation conducted following the appeal was
brief and superficial. Information was not appropriately
The Department then advised the complainants that recorded, and this resulted in unsubstantiated
their application to purchase was declined, and that the information being considered by the Commission in
other property owner would be required to formalise his reaching its decision in relation to the appeal. This led
illegal occupation of the reserve (by purchase), after he to an unsound decision, which did not afford the
successfully claimed he needed it for property access. complaint procedural fairness and led to an
The complainants also claimed their application fee (to unreasonable and oppressive outcome.
purchase part of the reserve) had not been refunded,
despite numerous requests. The complainants had The Commission agreed that in future all care would be
been informed their application fee would be refunded if taken to make sure that full procedural fairness be
they were not successful. afforded to appellants, and to ensure that all aspects of
the matters are investigated and appropriately
The complainants did not object to the other property documented. They also undertook to conduct a fresh
owner purchasing the reserve. What they desired to investigation into the complainant’s matter.
see was that his occupation of the reserve was
formalised and remedial action in respect of the fire On the same day that the Commission made this
hazard. In December 2004, the Tasmanian Fire commitment, the Wrest Point Casino wrote to the
Service emailed the Department, highlighting and complainant advising him that as a result of legislative
detailing the fire hazard (principally gorse), which posed changes he was no longer excluded under the
a threat to the complainant’s property. The provisions of the Gaming Control Act 1993, but that he
complainants lodged their Ombudsman complaint in was still excluded under the provisions of the Liquor
January 2005. and Accommodation Act 1990. There is no right of
appeal to exclusion under the latter Act.
For the most part, the complaint was substantiated.
Firstly, preliminary inquiries revealed that the The Ombudsman expressed concern to the
Department had not refunded the complainants’ Commissioner that Wrest Point had decided to cease to
application fee in a timely manner. The complainants rely on venue operator gaming exclusions altogether.
received their refund during carriage of the complaint. The actions of Wrest Point management appeared to
Further, the Department undertook fire hazard perpetuate a lack of procedural fairness in relation to
reduction works and attempted, once again, to the management of gaming venues, which was clearly
formalise the other property owner’s occupation of the not intended when the legislation was introduced. The
reserve in response to the complaint. The Department Tasmanian Gaming Commission has the capacity to
had already made repeated attempts to negotiate the make rules as to the operation of the exclusion process
issue of illegal occupation but had experienced and clearly the decision of Wrest Point rendered this
difficulties in contacting the other property owner, who capacity irrelevant.
lived interstate. The Department also agreed to return
and spray gorse that had not been removed by the The Ombudsman made a recommendation that
contractor and retained to address the issue of fire amendments be considered to the Liquor and
hazard. Accommodation Act 1990 to provide for an appeal
mechanism. The effect of the actions of shuffling
between jurisdictions was to again deny procedural
fairness and to further delay any reconsideration of the
exclusion order by the Gaming Commission until the
PRESCRIBED AUTHORITIES order had been in effect for almost 12 months.
Wrest Point Casino subsequently decided that the
Revenue and Gaming Commission exclusion should again be changed back to an
exclusion under the Gaming Control Act 1993.
A CONSIDERABLE GAMBLE
The Commission then investigated further and decided
(700 – 0405047)
that the appeal should be upheld.
A complaint was made against the Tasmanian Gaming
Commission, relating to the Commission’s refusal to
provide reasons for the decision not to overturn an
exclusion order made by the Wrest Point Casino,
following an appeal against an exclusion order under
the Gaming Control Act 1993 (the Act).
OMBUDSMAN - Annual Report 2004/2005 37
Council in its response stated that the calculation of
The Public Trustee residential density was made in accordance with a
consistently applied interpretation of the relevant
ADMINISTRATIVE ACTION OR NOT? planning scheme requirements. This and a second
(700 - 0412702) statement by Council provided no information as to how
Council in fact carried out the calculation of urban
A complaint was made against The Public Trustee density. However they did not dispute the
requesting that they allocate sufficient funds to maintain complainant’s assertion, so the Ombudsman accepted
the costs of a vehicle, previously purchased by The that the compass on a map was the method used.
Public Trustee for the complainant’s 18 year old son.
There would be few, if any, situations where all the
The complainant alleged that the vehicle purchased by allotments either partly or totally within a circle of 100
The Public Trustee proved to be unreliable and was metre radius would be precisely the same size. The
extremely expensive to maintain. effective density will vary again, dependent on the area
within the circle which is taken up with land that is
As a consequence, the complainant alleged that this within the Business and Shopping zone, Professional
was causing emotional and financial problems for her. Offices zone, Public Open Space, Special Use or
She had approached The Public Trustee with a request designated as a road. For these reasons the density
to cover the maintenance costs for the vehicle. The calculated in accordance with the Planning Scheme will
Public Trustee refused. vary considerably from one situation to another,
depending on the size of the allotments and the number
The Ombudsman wrote to The Public Trustee, provided of dwellings on a particular allotment and the proportion
a copy of the complaint and requested a response to of land within the circle with a residential “D” zoning
the issue of complaint. The Public Trustee advised that
as trustee of funds provided by MAIB for her son, The Enquiries were made of Geo-Data Services at DPIWE
Public Trustee may, at its discretion, advance income to ascertain whether there is a more precise means of
and part of the capital for his maintenance, education determining the extent of the circle in a particular case.
and advancement or otherwise for his benefit. The With computer technology based on aerial
decision as to whether or not advance money from photographs, there is a slightly more accurate means of
these trust funds is a matter for the judgement of The determining the placement of the circle. Neither the
Public Trustee as trustee. compass on the map nor the aerial photographs take
account of the topography and the impact of variable
As a consequence of this advice, The Public Trustee slopes on the actual surface area of the land. Both
advised that the decision made in this matter was not systems presume the land is flat.
an ‘administrative action’ within the meaning of the
Ombudsman Act 1978. As such, the matter does not In view of the above, the ombudsman considered it was
fall within the jurisdiction of the Ombudsman to not significant that Council uses the relatively
investigate. inaccurate means they do to calculate the density. The
selection of 48 dwellings as the arbitrary number
The complainant was advised that the complaint did not permitted within a particular circle, the variable size of
refer to an administrative action and was therefore blocks and the number of dwellings on some blocks
deemed to be out of jurisdiction. appears to allow for so much variation that an
inaccuracy of 2 millimetres in drawing the circle, is not
material. If the Planning Scheme were to be interpreted
more accurately, it would need to prescribe a huge
LOCAL GOVERNMENT range of considerations to take account of varying
situations. This was not the intention when the
Planning Scheme was developed.
Clarence City Council
ROUND AND ROUND IN EVER DECREASING
CIRCLES Launceston City Council
(700 – 0306010)
STONEWALLED
This complaint was against the Clarence Council and (700- 0502702)
the process used to establish whether a proposed
development met the Planning Scheme provisions as to A complainant lodged a complaint with the Ombudsman
urban density in an area zoned residential “D”. The against the Launceston City Council. In the complaint,
Planning Scheme required that no more than 48 he advised that he had bought a block of land in 2003
dwellings could be built within a 100 metre circle, drawn and was now in the process of building a house on it.
from the centre of the block to be developed. This Council had previously constructed a retaining wall in
included blocks that were only partly within the circle. front of his property and the complainant claimed that
because of Councils’ actions, connecting his
The complainant maintained that the Councils method stormwater and sewerage within a reasonable distance
for defining this circle was to draw on a map with a from his land was going to be expensive. The
compass and count the number of blocks within the complainant approached Council for financial
circle. He maintained that this system was highly assistance, however, this was denied.
inaccurate and could lead to incorrect calculations.
OMBUDSMAN - Annual Report 2004/2005 38
The Ombudsman wrote to the Launceston City Council, consider the proposed design as well as lodge
detailing the complainant’s issues and requested a any complaints. Council advised that they did
response. Council’s response provided the following not receive any complaints about any of the
information: retaining structures along Westbury Road and
assumed that property owners would have
• The complainant bought the block in 1993 and been pleased to be provided with these
there were no services (sewerage, stormwater safeguards at no cost to them;
or water). This was probably reflected in the • There was no impediment to the complainant
price that was paid; to connect to Council services and Council
• At the time of purchase, Council provided the advised that it was unreasonable to expect
complainant with a Section 337 Certificate ratepayers to subsidise the provision of
advising that there was no record of service services to the block.
connections for sewer, stormwater or water;
• The retaining wall was constructed in 1992 as The Ombudsman then wrote to the complainant
part of the Westbury Road reconstruction. advising that there was no liability upon Council to
The complainant did not own the land at that contribute toward the costs of connecting to services.
time; The complainant would have been aware that there
• The area where the land is situated is landslip. were no services connected to the block at the time of
It varied from Class 4 at the front of the block purchase. He would also have been aware of the
to Class 3 for the remainder. The retaining retaining wall and any impediment it may have imposed
wall was constructed to prevent land slip; concerning the cost of connecting to Council’s services.
• Councils’ consultation processes during the The file was closed on the basis that there was no
Westbury Road reconstruction were thorough, defective administration.
with all property owners at the time being
consulted and provided with an opportunity to
OMBUDSMAN - Annual Report 2004/2005 39
FREEDOM of INFORMATION REVIEWS
The Ombudsman has a statutory
responsibility under the Freedom of
180 Information Act 1991 (the FOI Act) to
160 conduct the external review of agency
140 decisions.
120
100
The FOI Act extends as far as possible
the right of “the people of Tasmania” to
80
be given access to information in the
60
possession of the government. Unless
40 the information to which access is
20 sought is exempt within the meaning of
0 the FOI Act every person has a legally
1999/00 2000/01 2001/02 2002/03 2003/04 2004/05 enforceable right to be provided with
information contained in records in the
possession of an agency or a Minister.
During the reporting period my office received 134 (79) new applications, 55 more than
last year, representing a 70% increase. One applicant who made 40 separate new
applications to have the decisions of an agency reviewed can largely account for the
increase. Within the period 157 applications were finalised compared to (57) in the
previous reporting period. Of the 157 applications, 40 external reviews were undertaken,
23 more than last year, representing a 135% increase. The increasing demand for the
service (the conduct of an external review) and the commencement of the Personal
Information Protection Act 2004 will in my opinion require a review to be undertaken of the
resources required to carry out the work.
The applications received by my office indicate that external review applicants now come
from every part of society. For example, applications are made by politicians, journalists,
citizen groups, public servants, businesses, people who have made complaints to a
government body, people seeking access to their own or a relative’s medical records and
prisoners. There is an increasing trend for people to seek information for use in legal
proceedings. Often a request is broadly framed in the form of a legal document seeking
access to many categories of information. The information responsive to a request is often
voluminous. An application often requires my staff to make preliminary inquiries to
establish whether the Ombudsman has jurisdiction to conduct a review, and to ascertain
whether there are any third parties who need to be consulted about the review. In these
cases it is difficult to meet the 30-day time limit permitted for my office to carry out a
review.
An authorised officer of an agency usually makes the initial FOI decision. The FOI Act
provides for both an internal and external review procedure in respect of an initial decision
with Parliament giving the Ombudsman the ultimate task of deciding whether a decision
made by an agency under the FOI Act was correct.
Several review applications in the reporting period reveal recurring areas of dispute and
refinement as to whether the disclosure of information would be contrary to the public
interest or would involve the unreasonable disclosure of information relating to the
OMBUDSMAN - Annual Report 2004/2005 40
personal or business affairs of a person. One application required my office to consider in
some detail “sufficiency of search” issues in a case where the access applicant strongly
asserted that an agency had not identified and dealt with all of the information falling within
the ambit of the request. As mentioned my office is now often dealing with requests drafted
in the form of a subpoena or notice to give discovery of documents. The consideration of
the exemption provisions where Parliament judged the disclosure of information might
have a prejudicial effect which was against the public interest or the private or business
affairs of members of the community requires a careful balancing of the legitimate interests
of the government, the applicant for the information and the public.
I regard the provision of information and assistance activities to improve understanding by
agencies and the community of rights and obligations under the FOI Act as core business.
During the reporting period my office conducted the final in a series of 4 training
workshops that were attended by over 100 agency staff in Hobart and Launceston. The
aim of the workshops was to give FOI Officers practical material to acquaint them with the
responsibilities, appointment and functions of authorised officers under the FOI Act. There
is a demand for more training sessions. Subject to the availability of resources to prepare
material, further workshops providing more tailored training, are proposed to be
conducted.
Overview of the external review procedure
The Ombudsman has the power to review the specific categories of decisions set out in
S.48 (2) and (3) of the FOI Act, including that the FOI applicant is not entitled to the
information requested; that the information requested is exempt information or as to the
expected charge to be paid for the information. By virtue of S.48 (3) an application can be
made for the review of a decision not to amend personal information or to provide personal
or business affairs information to another person (a “reverse” FOI application).
The Ombudsman has the same power as the agency and in carrying out a review is
required to make a fresh decision. As far as possible, to facilitate the earliest disclosure of
information, attempts are initially made to resolve FOI applications by discussions with the
agency and the FOI applicant.
Section 48 (6) of the FOI Act requires the Ombudsman to make a decision in respect of an
application for review within 30 days of receiving the application or within such further
period as may be agreed by the applicant. As mentioned, particularly when a formal
decision is required the time frame is often exceeded.
In making a decision a review must usually be confined to a consideration of the reasons
given by an agency to the FOI applicant about the information in issue and the material
received from the parties. Where there are a large number of documents in dispute or
either party raises legal issues about the application of exemption provisions, the review
process becomes more complex and the task of preparing a written determination
requiring the provision of reasons for a decision is time consuming and difficult.
The System of Exemptions
Part 3 of the FOI Act (Exempt Information) embodies Parliament’s assessment of the
interests that require, or may require to an extent that justifies an exception to the general
right being granted, access to government information.
OMBUDSMAN - Annual Report 2004/2005 41
As mentioned many exemption provisions are subject to an overriding “public interest” test.
This means that in order for an agency to refuse access, the agency must show, on
balance, that it would be contrary to the public interest to release the information.
Just because information may qualify for exemption does not mean that access should be
refused. Section 12 of the FOI Act encourages an agency to publish or provide information
(including exempt information), otherwise than as required by the FOI Act. When making
decisions, agencies need to be conscious of and take into account the underlying
philosophy of the FOI Act that is to extend, as far as possible, access to information in the
possession of the government. Access to information is absolutely vital if citizens are to
meaningfully participate in the processes of government and understand the precise basis
for decisions and policies. Information requested by an applicant can also be partially
released with any exempt information being deleted.
Reasons for Decisions
The FOI Act requires a decision-maker to give an applicant reasons for any refusal to
provide access to the information. Section 22 (2) provides a notice must –
(a) state the finding on any material question of fact, referring to the
material on which that finding was based, and the reasons for the
decision; and
(b) if the decision was made on behalf of an agency – state the name and
designation of the person who made the decision; and
(c) inform the applicant of –
(i) the applicant's right to apply for a review of the decision; and
(ii) the authority to which the application for review can be made; and
(iii) the time within which the application for review must be made; and
(d) if the decision involves or relies upon consideration of the public interest
in the application of a provision of this Act – state the public interest
considerations on which that decision was based.
Significantly, “giving reasons” requires substantially more than the repetition of an
exemption provision. It is necessary to explain to the FOI applicant why the exemption is
applicable, setting out in as much detail as possible the reasons and, where relevant,
findings of fact necessary to support the reasoning process adopted by the decision-
maker.
A failure of a decision maker to give reasons is a breach of the FOI Act. In appropriate
circumstances the failure could enliven the need for the Ombudsman to consider whether
disciplinary action arises under S.52. Also if an agency does not give an applicant reasons
for refusing access to information, a review must be conducted by taking into account the
applicant’s request and an examination of the disputed information. That analysis might
lead to a result that could potentially embarrass the agency by the need to disclose the
information withheld without cause.
OMBUDSMAN - Annual Report 2004/2005 42
FOI Review Website
The Ombudsman’s Office maintains a website, to assist in the making of an application.
The web site is linked to the Information Commissioners in Queensland and Western
Australia.
The current web address is www.foi.tas.gov.au
Freedom of Information Statistics
Table 12: FOI Results of Finalised Reviews 1999 - 2005
Decision 1999/00 2000/01 2001/02 2002/03 2003/04 2004/05
Agency decisions affirmed in full 5 9 7 12 11 19
Agency decisions affirmed in part 1 12 17 5 1 7
Agency decisions reversed in full 3 5 2 6 2 9
Extended time - - - - 3 2
Decision varied (2) - - - - - 3
Total External 8 26 26 23 17 40
Review/Determinations
Other
No jurisdiction 2 4 4 3 3 10
Lapsed, withdrawn or discontinued 1 - 18 11 1 -
Advised that within jurisdiction - 4 - 6 - -
No commentary available - 1 - - - -
Resolved after interim determination - - - - 8
Alternative review process (1) - - - - - 60
Resolved (with the assistance of the 8 7 8 8 28 ** 47
office albeit without an external review
completed)
TOTAL 20 42 56 55 57 157
Note: 1 Sixty review applications relate to one applicant who was provided with an alternative review process to
amend their personal information.
2 Alternative reasons for a decision where the information was not initially provided.
In 2004/2005, there has been an increase of 13 external reviews conducted against State
Government Departments, 4 against Local Councils and 6 against Prescribed Authorities,
compared with 2003/2004. (refer table 13,14 & 15).
OMBUDSMAN - Annual Report 2004/2005 43
Table 13: Reviews by State Government Departments 2002-2005
Departments 2002/03 2003/04 2004/05
Economic Development (DED) N/A 1 1
Education (DOE) 2 5 1
Health & Human Services (DHHS) 2 1 2
Infrastructure, Energy & Resources (DIER) - - -
Justice (DOJ) 2 - 7
Police and Public Safety (DPPS) 5 3 8
Premier and Cabinet (DPAC) - - 1
Primary Industries, Water & Environment (DPIWE) 1 2 3
Treasury & Finance (DT&F) - - 1
Tourism, Parks, Heritage & Arts (DTPH&A) N/A - 1
Sub-Total 12 12 25
Table 14: Reviews by Local Government 2002-2005
Local Government 2002/03 2003/04 2004/05
Break O'Day Council - - 1
Central Coast - - 1
Clarence City Council 2 - -
Glenorchy City Council - - 1
Hobart City Council 1 1 1
Latrobe Council 2 - -
Launceston City Council 1 - 1
Sub-Total 6 1 5
Table 15: Reviews by Prescribed Authority 2002-2005
Prescribed Authorities 2002/03 2003/04 2004/05
Anti-Discrimination Commissioner 1 1 3
Clyde Water Trust - 1 2
Director of Public Prosecutions 1 1 -
Forestry Tasmania - - 2
Law Society of Tasmania 2 - -
Psychologists Registration Board - 1 -
Tasmanian Ambulance Service - - 1
University of Tasmania 1 - 2
Sub-Total 5 4 10
TOTAL (tables 13, 14 & 15) 23 17 40
OMBUDSMAN - Annual Report 2004/2005 44
Closure Reasons
Table 16: 2004/2005 Closure Reasons – State Government Departments
Department Case No. Decision
Department of Economic Development 700-0311016 Upheld in Full
Department of Education 700-0505113 Extension of time
Department of Health and Human Services 700-0403022 Reversed
Department of Health and Human Services 700-0404054 Reversed
Department of Justice 700-0403072 Reversed
Department of Justice 700-0406015 Upheld in Full
Department of Justice 700-0409030 Decision Varied
Department of Justice 700-0412015 Upheld in Full
Department of Justice 700-0504050 Upheld in Full
Department of Justice 700-0505019 Upheld in Full
Department of Justice 700-0411051 Upheld in Full
Department of Police and Public Safety 700-0309014 Upheld in Part
Department of Police and Public Safety 700-0407004 Upheld in Part
Department of Police and Public Safety 700-0408042 Reversed
Department of Police and Public Safety 700-0410058 Reversed
Department of Police and Public Safety 700-0412029 Upheld in Full
Department of Police and Public Safety 700-0503031 Upheld in Full
Department of Police and Public Safety 700-0504055 Upheld in Full
Department of Police and Public Safety 700-0505074 Upheld in Full
Department of Premier and Cabinet 700-0407007 Upheld in Full
Department of Primary Industries, Water & Envnment 700-0309001 Upheld in Full
Department of Primary Industries, Water & Envnment 700-0310011 Upheld in Full
Department of Primary Industries, Water & Envnment 700-0404055 Reversed
Department of Tourism, Parks, Heritage & The Arts 700-0411053 Upheld in Part
Department of Treasury & Finance 700-0503015 Reversed
Table 17: 2004/2005 Closure Reasons – Local Government
Council Case No. Decision
Break O'Day Council 700-0502007 Decision Varied
Central Coast Council 700-0505020 Upheld in Full
Glenorchy City Council 700-0411025 Upheld in Full
Hobart City Council 700-0412004 Upheld in Full
Launceston City Council 700-0503036 Upheld in Full
OMBUDSMAN - Annual Report 2004/2005 45
Table 18: 2004/2005 Closure Reasons – Prescribed Authorities
Prescribed Authority Case No. Decision
Anti-Discrimination Commissioner 700-0306025 Upheld in Part
Anti-Discrimination Commissioner 700-0408027 Upheld in Part
Anti-Discrimination Commissioner 700-0502004 Upheld in Part
Clyde Water Trust 700-0404056 Extension of time
Clyde Water Trust 700-0410008 Reversed
Forestry Tasmania 700-0407001 Upheld in Full
Forestry Tasmania 700-0502018 Decision Varied
Tasmanian Ambulance Service 700-0504017 Upheld in Full
University of Tasmania 700-0406013 Reversed
University of Tasmania 700-0407033 Upheld in Part
Freedom of Information Case Summaries
Freedom of Information Review under s.48 of the Freedom of
Information Act 1991
Case Summary 0404054
The issue in this review was whether the access applicant was entitled to a copy of a report that had been prepared by a
Psychologist, Mediator and Family Therapist (the report).
Background
The access applicant had been employed by the agency and claimed to be aggrieved at evidence presented against her
at an “Inability Inquiry held (under) the State Service Act 1984”. The access applicant wanted the report to correct errors
and to protect her reputation to the full extent possible. The agency initially decided the report was exempt under S.33 (1)
(b) (the information obtained in confidence exemption) of the FOI Act. The decision was affirmed on internal review.
External review
In carrying out a review under Part 3 of the FOI Act the task of the Ombudsman is to decide whether the Act has been
properly applied to the information in issue (the information in this case being the report). The external review process
involved firstly, obtaining and examining the report and secondly, I invited the parties to provide any additional evidence
or submissions to support their contentions for the exemption or disclosure of the report.
Relevant Law
As mentioned the Agency claimed the report was exempt under S.33 (1) (b) of the FOI Act. In submissions to me the
agency also sought to rely upon S.30 (the information affecting personal privacy exemption) in relation to references
contained in the report about other employees of the agency.
Section 33 (1) (b) provides that information communicated in confidence to an agency is exempt if the disclosure of the
information would be contrary to the public interest because the disclosure would be reasonably likely to impair the ability
of any agency to obtain similar information in the future. Whether information is communicated in confidence is a
question of fact and it is not necessary to consider whether legal obligations of confidence are set up by the
communications in question. It is necessary to look at the terms of the document, the nature of the information, the
purpose for which and the circumstances in which it was provided, in determining its confidentiality.
Section 30 exempts information if its disclosure would involve the unreasonable disclosure of information relating to the
personal affairs of a person. The application of this provision calls for a two-step process: first, determine whether a
document contains information that can properly be characterised as relating to the personal affairs of an individual other
than the access applicant; and if so, then determine whether disclosure of that information would be
unreasonable. Whether or not matter contained in a document comprises information concerning an individual's personal
affairs is a question of fact, to be determined according to the proper characterisation of the information in question.
OMBUDSMAN - Annual Report 2004/2005 46
Decision
On the material provided I was not satisfied the exemption claimed under S.33 was made out. My reasons were as
follows. The agency provided no evidence regarding the terms on which it engaged the service provider. I assumed the
report was generated in accordance with the professional business activities of the author on a fee for service basis (paid
for by the agency). Except for information concerning other employees the report itself did not seem remarkable or of a
particularly sensitive nature.
The agency did not provide me with, nor did I believe it could produce any evidence or submission to satisfy the second
limb that disclosure of the report would be contrary to the public interest because the agency would be impaired in
obtaining the professional services referred to in the report in the future if the report was disclosed to the applicant.
I have commented before about the tensions created between the requirements of the FOI Act and for example other
legislation that need to be considered when generating or receiving information. In relation to S.33, to make out the
exemption, an agency must be able to demonstrate to the level required that disclosure of the report would be contrary to
the public interest by reason of it not being able to obtain similar information in the future.
In relation to the application of S.30 the report was prepared pursuant to an employee assistance program. Several
current employees had participated in the process. Whilst the report did not identify any staff member by name there was
information in the report that would enable an employee to be identified. In the circumstances I believed it reasonable to
delete from the report information referring to employees who were not involved in the preparation of the report.
I decided to partially release the report after deleting personal affairs information.
Case Summary 0309014
The issue in this review concerned the sufficiency of searches the agency had conducted to locate information
responsive to a request under the FOI Act.
Background
The background to the application was complex, being inextricably intertwined with the agency’s investigation of alleged
criminal offences involving the applicants, the applicants being charged with offences, standing trial and appealing
against the verdicts (the judicial proceedings). The judicial proceedings were controversial. It was claimed the
prosecution had not disclosed the existence of evidence prior to trial.
The review had to distinguish between procedures available to the applicants through the judicial system to obtain
information and the making of a request under the FOI Act. The external review of an administrative decision under the
FOI Act is not in my view an opportunity to re agitate issues that could properly have been the subject of a resolution in
the judicial proceedings. Specifically, an agency would not need to duplicate the supply of information provided during
judicial proceedings.
Issues
The issues I was required to determine during the review process included whether there were reasonable grounds to
believe information existed; and if so, whether the search efforts made by the agency to locate such information were
reasonable in all the circumstances.
Additional searches
I requested the agency to conduct further searches and inquiries to locate additional information. The additional searches
consisted of conferring with 30 police officers, Forensic Science Services Tasmania and viewing the exhibits held in the
Launceston Police Property Store. The agency located a further 67 pages of information the majority of which was released in
full (49 pages) and the remaining information was partially released.
'Sufficiency of search' issues
My staff, as far as possible, scrutinised the search processes undertaken by the agency and cross-checked by an examination
of the contents of the information provided to the applicants for the purpose of identifying any references to specific documents,
or agency’s files, that had not been identified and dealt with in the agency’s responses to the request.
Notwithstanding the efforts of my staff and the staff of the agency, the applicants persisted in a general complaint that they
were not satisfied that the agency had identified and dealt with all the information in its possession and control.
In a 'sufficiency of search' case, where an applicant asserts that the agency has failed to identify a requested document, and
the applicant has information that will enable the agency to identify the document so that it can conduct appropriate searches, it
is incumbent on the applicant to provide that information to the authorised decision-maker (be it an agency decision-maker on
internal review, or the Ombudsman on external review).
OMBUDSMAN - Annual Report 2004/2005 47
Moreover, it is a practical consequence of the issues to be determined in 'sufficiency of search' cases that applicants will
ordinarily need to explain fully their grounds for believing that an agency holds additional responsive documents, and to
disclose any relevant documentary or other evidence that tends to support the existence of reasonable grounds for such a
belief. The practical reality is that there are inherent limitations in most records management, or document tracking systems.
From the information provided to me I was unable, independently, to identify any further relevant avenues of search or inquiry
that the agency could reasonably be required to undertake. I was satisfied the additional searches and inquiries made by the
agency (and the additional information located and dealt with) responsive to the request was reasonable in all the
circumstances of the case.
Case Summary 0309001
This was a ‘reverse FOI’ application against a decision of the agency to release information under the FOI Act.
Background
The background to the application was straightforward. The agency decided to release information about a property
owned by the review applicant. As required before making the decision the agency consulted with the review applicant
who objected and continued to maintain an objection to the release of information based upon the personal and business
affairs exemption provisions of the FOI Act.
External review
I examined the information in issue. The agency’s internal review decision comprised 19 pages, containing a
comprehensive explanation of the process undertaken by the decision maker, the reasons for decision and the
application of various exemption provisions including S.29 (legal privilege), S.30 (information affecting personal privacy),
S.31 (information likely to expose an undertaking to competitive disadvantage) and S.33 (information obtained in
confidence) to information the agency identified as falling within the scope of the FOI application.
Decision
On the basis asserted by the review applicant, I was not satisfied that the information in issue qualified for exemption
within the meaning of S.30 or S.31 of the FOI Act. Specifically, the information that remained in issue related to the
business affairs of the applicant rather than personal affairs.
I was not provided with any evidence or material to establish that the disclosure of the information would result in the
applicant being exposed to any “competitive disadvantage” in the sense required to make out the exemption under S.31
of the FOI Act. A business, commercial or financial entity when negotiating with a government agency over issues of the
kind involved in this matter must in my view anticipate a greater degree of public interest and scrutiny and more
importantly the likelihood of an application being made under the FOI Act for access to information that may result in
information being disclosed to the public.
OMBUDSMAN - Annual Report 2004/2005 48
OFFICIAL PRISON VISITOR PROGRAM
HEALTHY PRISON TEST
The Official Visitors use the Healthy Prison Test as the guiding principle in visiting and reporting on
Tasmanian prisons. This requires that:
Prisoners are held in safety;
Prisoners are treated with respect as fellow human beings;
Prisoners are expected to improve themselves, and are given the opportunity to engage in
purposeful activities;
Prisoners are helped to resettle in society and reduce the likelihood of their re-offending.
Official Visitors conduct a regular program of visits to all Tasmanian prison locations; each
visitor is allocated to a prison or several prisons in particular. Official Visitors are not
advocates for individuals in custody. On their visits, Official Visitors inquire into the
treatment, behaviour and conditions of prisoners and detainees as well as receiving and
investigating individual complaints.
The complaints presented to Official Visitors are discussed with the Manager of the prison
at the end of each visit and many are resolved at that time. More complex matters may not
be dealt with immediately, but a system is in place to ensure that all issues raised are
properly resolved.
Following the Ombudsman’s report on the inquiry into the Risdon Prison Complex in 2001,
closer working relationships were developed between the Ombudsman and the Official
Visitors, including locating the Coordinator of the program in the Ombudsman’s Office and
appointing a Senior Official Visitor.
Oversight of the operations of the prison service have changed since that time. The
Senior Official Visitor position has not been filled since 2003, and the Department of
Justice has created a position of Operational Review Officer to undertake inspections of
custodial facilities, review custodial services and undertake investigations.
The Ombudsman and the Department of Justice have entered into a memorandum of
Understanding for the operation of this process, which includes the Ombudsman
approving draft reports, or initiating further inquiries if necessary.
Official Visitors, as a consequence, have reverted to a more traditional role without the
focus on research and investigation of systemic issues. Official Visitors are volunteers,
who spend limited time working within the prison system as a valuable external monitoring
mechanism.
A significant review was conducted jointly with Ombudsman staff into the changes made
during the year in arrangements for provision of food to inmates. Detail about this review
is contained in this report under Ombudsman.
Official visitors recognise the strains under which the Prison Service is operating.
However, Official Visitors also remain concerned that static security and control issues
OMBUDSMAN - Annual Report 2004/2005 49
predominate at the expense of rehabilitation, personal development and programs which
confront offending behaviour. Almost all inmates are ultimately released into the
community, and it is part of community expectations that the prison experience should
reduce the likelihood of future offences.
OMBUDSMAN - Annual Report 2004/2005 50
APPENDIX A – STATISTICS
Note: Figures and percentages shown in (red) reflect the previous reporting period 2003/2004.
There has been a 21% increase in the number of complaints received this year. This is
the largest increase for five years. The number of matters received by the Ombudsman
increased from (739) in 2001/2002 to 995 for 2004/2005 (refer table 1). These figures
include applications for FOI Reviews as well as complaints under the Public Interest
Disclosures Act 2002.
Table 1 Complaint activity for the period 2001/02 to 2004/2005.
2001/2002 2002/2003 2003/2004 2004/2005
Open at beginning of period 156 138 85 151
Opened in period 739 706 825 995
Closed in period 736 770 755 1003
Opened & closed in period 592 628 690 834
Open at end of period 138 85 151 184
Note: The above table includes Public Interest Disclosures for 2003/2004 & 2004/2005.
It should be noted that a large number of matters have been closed in this reporting year,
representing a 30 per cent increase over the previous year. This result indicates a marked
increase in the staff workload.
With respect to the additional role of undertaking Public Interest Disclosures (PID), the 10
(4) PID matters, although low in number, are considerably complex and require extensive
time and resources; no funding has been provided to cover this additional investigative
function.
In addition to matters that fall specifically within the Ombudsman’s jurisdiction, the office
also receives in the order of 2000 to 2500 enquiries each year, usually by telephone. In the
main these relate to queries about complaint handling processes and whether or not a
matter comes within the jurisdiction of the Ombudsman. Frequently, the caller is referred to
another more appropriate review body.
Table 2 Breakdown of complaints received (excluding FOI) for the period 2002 to 2005.
Complaint Opened in Period Closed in Period Opened & Closed in
Type Period
02/03 03/04 04/05 02/03 03/04 04/05 02/03 03/04 04/05
Ombudsman 654 738 848 709 694 835 586 632 701
Public Interest
Disclosures N/A 4 10 N/A 1 12 N/A 1 8
Sub-Total 654 742 858 709 695 847 586 633 709
FOI our
Records Nil 4 3 Nil 4 4 Nil 4 3
FOI Reviews 52 79 134 61 57 152 42 53 122
TOTAL 706 825 995 770 756 1003 628 690 834
SUMMARY 2004/2005
• Government Departments
Overall there has been a slight increase (15%) in the number of complaints
received against State Government Departments, compared with the reporting
period 2003/2004. The Departments of Health and Human Services, Justice and
Police and Public Safety again are the main departments complained about. This
trend is consistent with previous years:
The number of complaints received against the Department of Health &
Human Services has increased by 34% from the previous reporting period
(125 2004/05; (83) 2003/04). Of these 44% (55%) of the complaints made
against the Department are against Housing Services.
There has been a 26% increase (73 2004/2005; (58) 2003/2004) in the
number of complaints received against Corrective Services (Department of
Justice).
There has been a marked increase in the number of complaints against
Tasmania Police – an increase of 52% (82 2004/2005; (54) 2003/2004).
• Local Government
The number of complaints received against local government is relatively stable.
• Prescribed Authorities
This reporting period the number of complaints received against prescribed
authorities is also stable.
Table 3
Complaints received against State
Government Departments
(excludes FOI)
Agency 2002/2003 2003/2004 2004/2005
Total Total Total
Department of Economic Development 43 19 1
Department of Education 41 27 23
Department of Health & Human Services 31 83 125
Department of Infrastructure, Energy & Resources 21 21 21
Department of Justice 22 74 92
Department of Treasury & Finance 5 12 7
Department of Premier & Cabinet 5 7 4
Department of Primary Industries, Water & Environment 28 28 30
Department of Police & Public Safety 66 54 82
Department of Tourism, Parks, Heritage & Arts Nil 2 Nil
Department Total 262 327 385
Table 4
Complaints against Local Government
(excludes FOI)
Council 2002/2003 2003/2004 2004/2005
Total Total Total
Break O'Day Council 9 10 9
Brighton Council 9 6 6
Burnie City Council 1 5 1
Central Coast Council 2 3 3
Central Highlands Council 2 2 1
Circular Head Council 4 3 3
Clarence City Council 20 14 16
Derwent Valley Council 4 8 2
Devonport City Council Nil 3 1
Dorset Council 5 3 4
Flinders Island Council Nil Nil 3
George Town Council 1 4 6
Glamorgan/Spring Bay Council 1 15 10
Glenorchy City Council 3 10 8
Hobart City Council 15 10 14
Huon Valley Council 5 6 7
Kentish Council 7 4 5
King Island Council Nil 1 Nil
Kingborough Council 10 12 9
Latrobe Council 2 2 2
Launceston City Council 19 11 9
Meander Valley Council 4 3 5
Northern Midlands Council 1 7 2
Sorell Council 5 6 13
Southern Midlands Council 1 2 3
Tasman Council 4 9 9
Waratah/Wynyard Council 5 2 2
West Coast Council 1 Nil 7
West Tamar Council 2 5 8
Local Government - Total 142 166 168
Table 5
Complaints against Prescribed Authorities
(excludes FOI)
Public Body 2002/2003 2003/2004 2004/2005
Total Total Total
Anti-Discrimination Commissioner 5 3 3
Director of Public Prosecutions 1 3 2
Forest Practices Board 3 1 1
Guardianship and Administration Board 1 Nil 3
Health Complaints Commissioner Nil Nil 1
Hobart Ports Corporation Nil Nil 1
Hobart Water Nil Nil 1
Inland Fisheries Service Nil 4 Nil
Legal Aid Commission 8 16 14
Marine and Safety Tasmania 4 3 2
Medical Council of Tasmania 1 Nil Nil
Metro 1 Nil 1
Mineral Resources Tasmania Nil Nil 1
Motor Accidents Insurance Board 2 Nil 1
Ombudsman 1 Nil Nil
Parole Board Nil Nil 2
Port Arthur Historic Site Management Authority Nil Nil 1
Private Forests Nil Nil 2
Public Guardian Nil 1 Nil
Public Trustee 3 24 23
Retirement Benefits Fund Board 6 7 4
Rivers and Water Supply Commission Nil 1 Nil
Southern Regional Cemetery Trust Nil 1 1
TAFE Tasmania Nil 3 2
Tasmanian Fire Service Nil 2 Nil
Tasmanian Greyhound Racing Council 1 Nil 2
Tasmanian Harness Racing Council Nil Nil 1
Tasmanian Qualifications Authority Nil Nil 2
Totalizer Authority Board (TAB) 3 Nil Nil
University of Tasmania 3 5 3
Prescribed Authorities - Total 43 74 74
Table 6
Complaints against Government Business
Enterprises & Other Authorities
(excludes FOI)
Public Body 2002/2003 2003/2004 2004/2005
Total Total Total
Hydro 1 1 Nil
Forestry Tasmania Nil 3 5
Motor Accident Insurance Board Nil 3 5
Government Business Enterprises (GBE’s)- Total 1 7 10
State Services Commissioner Nil 2 Nil
Other Authority Total Nil 2 Nil
GBE’s & Other Authority Total 1 9 10
Grand Total 448 576 637
Overall, the percentage of complaints sustained in full or in part for this year has remained
unchanged. Complaints that have been resolved by negotiations with government
authorities have decreased slightly (compared with 2003/04, refer table 7), however, this is
still significantly higher than previous periods. For full breakdown of closure reasons by
agency, refer tables 8, 9 and 10.
Table 7 – Reasons for closure (excluding FOI)
Reasons for Closure 2001/2002 2002/2003 2003/2004 2004/2005
% % % %
Declined to investigate (1) 32% 28% 25% 25%
Discontinued (matters resolved 26% 27.5% 40% 35%
through negotiation with agency) (2)
No defective administration found 32% 30% 25% 28%
Complaint sustained in whole or in 10% 14.5% 10% 10%
part
Public Interest Disclosure N/A N/A N/A 2%
100% 100% 100% 100%
Total Number of Complaints 672 535 542 662
Note: 1) The ‘declined’ category includes matters out of jurisdiction; matters for which alternative means of redress
are available; and matters which have not been taken up with the agency in the first instance.
2) Discontinued includes matters largely resolved through negotiations with agencies as well as matters
that were unable to be determined.
Table 8
Closure Reasons by State
Government Departments
Breakdown of complaints (excluding FOI)
PID- Determination Not Investigated
Unable to make a Determination
PID- Determination Investigated
PID- Determination Disclosure
No Defective Administration
Partly Substantiated
Out of Jurisdiction
No Jurisdiction
Substantiated
Discontinued
Grand Total
Declined
AGENCY
Department of Economic Development (DED)
Departmental 1 1
Department of Health & Human Services (DHHS)
Departmental 3 4 1 2 1 11
Adoption and Information Services 1 1
Children & Families Division 5 17 6 28
Disability Services 1 1
Housing Tasmania 13 31 14 4 2 1 1 66
Intake and Assessment 1 1
Pharmaceutical Services 1 1 2
Royal Hobart Hospital 1 1
Total 23 53 24 6 2 2 1 111
Department of Infrastructure, Energy & Resources (DIER)
Departmental 4 4 3 11
Infrastructure Policy 1 1
Registration & Licensing 2 2
Resource Mngnt & Plan Appeal Tribnl 1 1
Roads & Public Transport 3 3 1 7
Workplace Standards Tasmania 2 1 1 4
Total 5 7 8 1 5 26
Department of Education (DOE)
Departmental 2 8 5 1 1 8 25
Human Resources Management 1 1 2
Schools & Colleges 1 3 1 5
State Archivist 1 1
Total 4 11 7 2 1 8 33
Department of Justice (DOJ)
Departmental 1 1 2
Attorney General 1 1
Births, Deaths and Marriages 1 2 3
Community Corrections 1 1
Consumer Affairs and Fair Trading 2 2
Coronial Division 1 1
Table 8
Closure Reasons by State
Government Departments
Breakdown of complaints (excluding FOI)
PID - Determination Not Investigated
PID - Determination Investigated
PID - Determination Disclosure
No defective Administration
PID - No Jurisdiction
Partly Substantiated
Out of Jurisdiction
No Determination
Substantiated
Discontinued
Grand Total
Declined
AGENCY
Department of Justice (DOJ) cont’d
Corrective Services 16 14 34 4 12 1 1 82
Fines Enforcement 1 1 1 3
Guardianship and Administration Board 1 1 2
Magistrates Court 1 1 1 3
Parole Board 1 1 2
Victims Assistance Unit 1 1
Total 21 22 39 5 13 1 1 1 103
Department of Treasury & Finance (DOTF)
Departmental 1 3 1 2 1 8
Revenue Operations Branch 1 1
Total 1 3 1 2 1 1 9
Department of Premier and Cabinet (DPAC)
Departmental 1 1
Local Government Division 1 1
Seniors Bureau 1 1
Service Tasmania Business Unit 2 1 3
Tasmanian Industrial Commission 1 1
Total 3 2 2 7
Department of Police and Public Safety (DPPS)
Departmental 13 38 16 3 2 6 78
Deputy Commissioner of Police 1 1
Total 14 38 16 3 2 6 79
Department of Primary Industries, Water & Environment (DPIWE)
Departmental 1 2 1 3 7
Crown Land Services 1 1 2 4
Environment 1 1
Food Agriculture & Fisheries 1 1
Office of the Recorder of Titles 1 1 2 1 5
Office of the Valuer General 1 1 2
Parks & Wildlife Services 1 1
Total 3 5 6 4 3 21
Department of Tourism, Parks, Heritage & The Arts (DTPHA)
Departmental 1 1
TOTAL (Departments) 74 141 103 17 23 21 1 1 - - 10 391
Table 9
Closure Reasons by Government Business
Enterprises & Prescribed Authorities
Breakdown of complaints (excluding FOI)
PID - Determination Not Investigated
PID - Determination Investigated
Unable to make a Determination
PID - Determination Disclosure
No defective Administration
PID - No Jurisdiction
Partly Substantiated
Out of Jurisdiction
Substantiated
Discontinued
Grand Total
Declined
Name
Prescribed Authorities (PA)
Anti-Discrimination Commissioner 2 4 1 7
Director of Public Prosecutions 1 1 2
Health Complaints Commissioner 1 1
Hobart Water 1 1
Legal Aid Commission 3 5 6 1 1 16
Marine and Safety Tasmania 1 1
Metro Tasmania 1 1
Mineral Resources Tasmania 1 1
Public Guardian 1 1
Retirement Benefits Fund Board 1 2 1 1 5
TAFE Tasmania 1 1
TAFE Tasmania Administration 1 1
Tasmanian Greyhound Racing Council 1 1 2
Tasmanian Harness Racing Council 1 1
Tasmanian Qualifications Authority 1 1 2
University of Tasmania 2 2
Total 8 16 14 3 0 3 1 45
Government Business Enterprises (GBE's)
Forestry Tasmania 4 1 5
MAIB 2 5 1 8
Port Arthur Historic Site Mngmnt Auth. 1 1
The Public Trustee 5 6 8 2 3 4 28
Total 7 15 10 3 3 4 42
Out of Jurisdiction
Other Authorities 18 18
TOTAL (PA; GBE's; & Other) 15 31 24 24 3 7 - - - - 1 105
Note: Named agencies in Other Authorities above were not listed in schedule 2 of the Ombudsman Act.
Table 10
Closure Reasons by Local
Government
Breakdown of complaints (excluding FOI)
PID - Determination Not Investigated
PID - Determination Investigated
Unable to make a Determination
PID - Determination Disclosure
No defective Administration
PID - No Jurisdiction
Partly Substantiated
Out of Jurisdiction
Substantiated
Discontinued
Grand Total
Declined
AGENCY
Local Government (Councils)
Break O'Day Council 1 1 2 2 1 7
Brighton Council 1 2 2 5
Burnie City Council 1 1 2
Central Coast Council 1 2 1 4
Central Highlands Council 1 1
Circular Head Council 1 1 2
Clarence City Council 2 3 8 1 14
Derwent Valley Council 2 1 3
Devonport City Council 3 1 4
Dorset Council 2 1 1 4
Flinders Island Council 1 1
George Town Council 1 1 1 3
Glamorgan/Spring Bay Council 2 4 2 1 2 11
Glenorchy City Council 2 1 3 6
Hobart City Council 1 7 5 1 14
Huon Valley Council 1 1 3 1 6
Kentish Council 1 1 1 3
Kingborough Council 2 2 4 1 1 10
Latrobe Council 2 2
Launceston City Council 3 5 1 1 10
Meander Valley Council 1 3 4
Northern Midlands Council 1 1
Sorell Council 6 5 1 12
Southern Midlands Council 1 1 2
Tasman Council 1 4 3 8
Waratah/Wynyard Council 1 1 2
West Coast Council 1 2 1 1 5
West Tamar Council 4 4
TOTAL (Councils) 21 56 51 6 8 5 1 - 1 1 - 150
GRAND TOTAL 110 228 178 47 34 33 2 1 1 1 11 646
Who is being complained about?
Figure 2 – Who is being complained about
(13%)
Prescribed
Authorities
(1%)
Other Authorities 11%
3%
GBE's Local Government
2% 25%
(1%) (28%)
Departments
(57%) 59%
Figure 3 - Which State Government Department is being complained about
140
120
100
No. of Complaints
80
60
40
20
0
DED DPAC DOTF DIER DOE DPIWE DPPS DOJ DHHS
Complaint Issues and Objectives
Complaint Issues
State Government Departments & Prescribed Authorities
Figure 4 – Main Issues complained about Departments and Prescribed Authorities
(12%)
Approv als
Citizen Rights Other Issues 03/04 04/05
(permits,
7% (5%) Legal 0.17% 3.46%
licenses, etc) Administrativ e
Employment 0.99% 3.21%
(10%) 10% practices/policy
Natural justice 3.63% 2.96%
32%
Financial issues Licenses 1.32% 0.99%
(39%) Superannuation Nil 0.25%
(9%) 14%
Communication/ Housing
Customer 19%
Serv ice (15%)
18% (14%)
Tasmania Police (DPPS)
Figure 5 – Main Issues complained about Tasmania Police
Arrest/detention
Other Other Issues 03/04 04/05
(19%) /w arrant
8% Not recorded 2.33% Nil
16% (16%)
Assault by Police 4.65% 1.25%
Traffic offences 11.63% 6.25%
Misconduct by
Inv estigations Police
and 25%
prosecutions
51% (37%) (28%)
Corrective Services (DOJ)
Figure 6 – Main Issues complained about Corrective Services Other Issues 03/04 04/05
Work and education 1.72% 13.89%
Daily Routine Food & Diet 16% 13.89%
Other (3.45%) 21% Medical 5.17% 13.89%
(47%) 38% Failure to ensure Legal 1.72% 11.11%
physical safety Record keeping 1.72% 8.33%
11% Mail 3.45% 8.33%
Officer Property 9% 8.33%
(12%)
Misconduct Transfers Nil 5.56%
Classification
Segregation 1.72% 5.56%
8% 12%
Visits Probation and parole 5.17% 5.56%
(5%) (16%) Periodic detention Nil 2.78%
10%
(3.45%) Canteen supplies 5.17% 2.78%
Local Government
Figure 7 - Main Issues complained about Local Government
General Other Issues 03/04 04/05
management Regulations, By-laws 1.31% 5.56%
Other
of Councils Services 1.31% 7.41%
30%
(31%) Animals 1.96% 7.41%
31% (22%)
Trees 1.96% 3.70%
Maintenance
Zoning 1.96% 3.70%
1%
(6%) Health 3.27% 9.26%
Rates and
Nuisance 3.27% 16.67%
charges
Land Use Drain/Sew ers Maintenance 6% 2.33%
11% (18%)
10% Planning 8% Fences/Boundaries 3.92% 12.96%
9% Roads 5.23% 9.26%
(7%) (8%)
(8%)
Markets Nil 1.85%
Complainant Objectives
All Agencies
Other Objectives 03/04 04/05
Figure 8 - Complainant Objectives sought Obtain Apology 1.15% 1.49%
Adequate Obtain Entitlement 1.15% 1.00%
Other Objectiv es
Serv ice Other Objective 6.53% 7.96%
(26%) 25%
(22%) Register Concern 1.34% 1.12%
20%
Change Compensation 3.65% 1.87%
Procedure Obtain Information 4.22% 7.59%
12% Disciplinary Action 4.41% 3.73%
(13%) Ex planation
11%
Access Serv ice Financial
19% (14%)
Change Policy Correction
6% 7%
(13%)
(10%) (8%)
Complainant Outcomes
All Agencies
Figure 9 - Complaint Outcomes finalised
(1%) (2%)
Other Apology Given Change in Complaint form
Other Outcomes 03/04 04/05
(3%) Outcomes 1% Procedure not lodged PID - Referred Nil 0.35%
2% 2% 8% (10%)
Disciplinary action Nil 0.12%
Service
Concern Policy Change 0.14% 0.23%
Obtained
Registered Financial correction 1.22% 1.05%
(8%) 8%
(3%) 4% Entitlement Granted 0.41% 0.35%
Objective Not Explanation
Obtained Given
43% 32%
(42%)
(41%)
Table 11 Top five most common objectives requested as a percentage of all objectives -
all agencies
Objectives 2001/2002 2002/2003 2003/2004 2004/2005
To gain adequate service 23% 19% 28% 20%
To gain access to services 17% 11% 12% 19%
To gain an explanation 13% 20% 14% 11%
To change procedures 12% 7% 13% 13%
To gain a financial 9% 9% 10% 7%
correction
Time taken to Finalise Complaints
Figure 10 below shows an increase this year in the percentage of complaints resolved on
the same day compared with the previous year. It is also important to note that a
significant percentage of complaints for 2004/2005 took longer to resolve.
Figure 10 – Time taken to finalise complaints (includes FOI)
50.0%
45.0%
40.0%
35.0%
2004/05
30.0%
% of Cases
2003/04
25.0%
2002/03
20.0%
2001/02
15.0%
10.0%
5.0%
0.0%
Same day Week Month Quarter Half Year Year Greater than
Year
Profile of Complainants
Figure 11 - Complainant Type
Group
3%
As is in previous years, the
majority of complaints, 97%
(98%) are made by an
individual.
Individual
97%
Figure 12 - Who is the Complainant Represented by?
Person
Other appointed by
1% the user
2% The overwhelming majority of complaints received
are made by the person who is aggrieved
(Consumer). Under section 14 (2) of the
Ombudsman Act 1978, a complaint may be made
by a person’s personal representative or by
another person.
Consumer Other No.
97% Person Approved by the Ombudsman 1
Minister 2
Parent or guardian of a child 2
Figure 13 - Gender of Complainant
Unknown
3%
Female
37% The proportion of complaints
Male by males has slightly
decreased, 60% (64%).
60%
Geographic distribution of complaints
Complaint numbers and enquiries again continue to be received primarily from the heavily
populated urban areas in the south of the State. Although this increase is significant in
comparison to the other major urban areas, the number of complaints received for these
other major areas are showing a significant increase compared with previous reporting
periods. This overall increase in the number of complaints received for 2004/2005 could be
attributed to significant media exposure.
450
400
350
300 2002/03
No. of Cases
250
2001/02
200
150 2003/04
100
50
0
Overseas Interstate Unknown West 7400 Nth West North South Hobart
- 7499 7300 -7399 7200 - 7100 - 7000 -
7299 7199 7099
Figure 14 – Postcode distribution of complaints by area
APPENDIX B – FINANCIAL STATEMENT
CONSOLIDATED FUNDS
OMBUDSMAN
REVENUE 2002/03 2003/04 2004/05
Consolidated Revenue $609,743 (1) $668,297 (1) $724,317
OPERATING EXPENDITURE
Salary expenditure $382,482 $361,168 $450,973
Employee related $ 9,134 $13,106 $ 17,845
Total Salary expenditure $391,616 $374,274 $468,818
General administration $ 2,113 $ 2,200 (3) $ 37,574
Information technology $ 19,512 $ 19,353 $ 34,753
Personnel expenses $ 6,540 $ 2,016 $ 220
Travel and transport $ 15,862 $ 11,954 $ 9,557
Property expenses $ 63,998 $ 79,883 $ 66,050
Operating expenses $ 19,866 (2) $145,044 (2) $ 86,084
Consultants $ - $ - $ 7,265
Total Non-salary expenditure $127,890 $260,450 $241,503
Total Expenditure $519,506 $634,724 $710,321
Notes: (1) Includes an amount of $65,000 allocated for the set-up of the Energy Ombudsman jurisdiction
2003/04 & 2004/05.
(2) Ombudsman - 2003/2004 & 2004/2005 Includes additional cost for Energy Ombudsman Set-up
Project Officer and a fixed term Principal Investigation Officer (Special Projects) to finalise a
review of the Ombudsman Act 1979.
(3) Ombudsman – 2004/2005 increase in General Administration due to Advertising for Ombudsman
position, office furniture and Energy Ombudsman set-up.
FREEDOM of INFORMATION REVIEW
REVENUE 2002/03 2003/04 2004/05
Consolidated Revenue $68,827 $47,010 $76,474
OPERATING EXPENDITURE
Salary expenditure $36,384 $44,300 $58,758
Employee related $ 287 $ 287 $ 1,087
Total Salary expenditure $36,671 $44,587 $59,845
General administration $ 538 $ - $ 784
Information technology $ - $ - $ -
Personnel expenses $ - $ - $ 310
Travel and transport $ 831 $ 11 $ -
Property expenses $ 55 $ - $ -
Operating expenses $ 888 $ 4,477 $ 4,836
Consultants $ - $ - $ -
Total Non-salary expenditure $ 5,312 $ 4,488 $ 5,930
Total Expenditure $41,983 $49,075 $65,775
TRUST ACCOUNTS
OMBUDSMAN (General Recoveries & Professional Development) & Commonwealth
REVENUE 2002/03 2003/04 2004/05
Revenue $65,979 $77,486 $114,741
OPERATING EXPENDITURE
Salary expenditure $11,473 $15,609 $14,459
Employee related $ 419 $ 429 $ 82
Total Salary expenditure $11,892 $16,038 $14,541
General administration $ 1,408 $ 14 $ 2,093
Information technology $ 739 $ $
Personnel expenses $ 726 $ $
Travel and transport $ $ 1,125 $ 350
Property expenses $14,252 $14,308 $14,719
Operating expenses $20,691 $12,179 $ 1,759
Consultants $ - $ - $ -
Total Non-salary expenditure $37,816 $27,626 $18,921
Total Expenditure $49,708 $43,664 $33,462
Note: Ombudsman General Recoveries relates to the maintenance and management of the case management
database (Raemoc). Commonwealth relates to the co-location expenses for a commonwealth delegate
APPENDIX C – OMBUDSMAN ORGANISATION CHART
OMBUDSMAN
Jan O’Grady
Executive Officer / Professional Principal Investigation Officer
Development Officer (Special Projects)
Karen Adams Anne Horner (1.0 FTE)
Ombudsman FOI; PID & PIP Corporate
Director (Ombudsman FOI Review Officer Business Manager
Investigations) Terry Mc Cully (1.0 FTE) Nigel Robertson
Geoff Storr (0.50 FTE)
Investigation Officer
Snr. Investigation Nick Mackey (1.0 FTE)
Officer Enquiries Officer Administrative
Tim Walter (1.0 FTE) Joanne Kent (0.5 FTE) Assistant
Jan Breen / Carol Hutton
Investigation Child Abuse Review
Officer (Ltn)
Tony Byard (0.9 FTE)
Review Co-ordinator - Maureen Sheehan Reflects fixed term appointment
Investigation Admin Assistant - Emily Briggs / Lee Menzie
Officer 6 x Interviewers - Anne Foot; David Fleming;
David Paton; Ros Langmaid; FOI - Freedom of Information
Vacant (1.0 FTE) PID - Public Interest Disclosures
Ginelle Cardoz; Angie Robertson
PIP – Personal Information Protection
Note: The Ombudsman, corporate and administrative staff, are allocated on 0.33 Full-Time
Equivalent (FTE). Total FTE for Ombudsman (Investigations) = 6.9 (excludes Child Abuse Review)
APPENDIX D– OMBUDSMAN AMENDMENT BILL 2005
CLAUSE NOTES
Clause 1: Short title.
Clause 2: Commencement.
Clause 3: Principal Act.
Clause 4: Section 3 Interpretation section is amended by adding definitions of
“conciliator”, “Deputy Ombudsman”, “tribunal” and a number of types of
public authorities which are referred to in section 4.
Section 3(2) is amended by clarifying that a reference to a public authority
includes a reference to the principal officer.
Clause 5: Section 4, which sets out the application of the Act and refers to Schedule
1, is repealed and replaced. The new section 4 lists the persons, bodies
and authorities which are public authorities for the purposes of the Act.
Section 4(2) lists the persons and bodies which are not public authorities
for the purposes of the Act.
Section 4A(1) gives the Ombudsman the discretion to refuse to investigate
a complaint if the complainant has not raised the matter with the authority
in the first instance.
Section 4A(2) relates to public authorities that are energy entities as
defined in the Energy Ombudsman Act 1998 and is intended to avoid
“double dipping” complaints. If a complaint is made under the
Ombudsman Act about an energy entity and relates to a matter that can
be the subject of a complaint made under the Energy Ombudsman Act,
the Ombudsman must refuse to accept the complaint under the
Ombudsman Act.
Clause 6: Provides for the appointment of a Deputy Ombudsman by the Governor.
The Deputy Ombudsman will have all the functions of the Ombudsman if
the Ombudsman is unable to perform the functions of his or her office – for
example if the Ombudsman is absent from the State or is on leave.
Clause 7: Section 12(1) of the Principal Act says that the Ombudsman may
investigate any administrative action ‘taken by or on behalf of a public
authority. The new subsection (1A) clarifies the meaning of “on behalf of”.
The reason for the proposed amendment is to make sure that the
Ombudsman is not prevented from investigating administrative action
which falls within the powers or functions of a public authority by the
circumstance that it was not carried out by the authority directly, but rather
was carried out by a third party which may not in law have been the agent
of the authority.
The effect is that if a public authority contracts out its powers or functions
or instructs another to those things, the Ombudsman can investigate those
actions.
The new subsection (1B) provides that subsection (1A) does not have
retrospective application. It applies to contracts made on or after the
commencement of the Amendment Act.
Clause 8: Section 14(1) of the Principal Act provides that a complaint is to be in
writing. The amendment allows for a complaint to be made either in
writing or orally, but gives the Ombudsman the discretion to require that an
oral complaint be put into writing if appropriate.
Clause 9: Section 17 of the Principal Act facilitates the provision of information to the
Ombudsman as part of the complaint and investigation process. It
overrides any provision in any other Act that might restrict or prohibit the
disclosure or communication of information to the Ombudsman. The
section refers to the making of a complaint and the carrying out of an
investigation. The amendment extends the application of the section to
include the making of preliminary inquiries into a complaint.
Clause 10: The new section 20A provides that the Ombudsman may make preliminary
inquiries to determine if a complaint should be investigated. Subsection
(1) restates existing inquiry provisions in section 21(2) and section 23(2).
Subsection (2) states that the principal officer of a public authority is to
provide the Ombudsman with reasonable assistance so the inquiries may
be made and subsection (3) provides that, depending on the nature and
seriousness of the complaint, the Ombudsman may resolve the complaint
without proceeding to investigation.
Clause 11: Amends section 21 by omitting subsection (2). The inquiries referred to in
subsection (2) will be carried out under the new section 20A.
Clause 12: Amends section 22 to provide that where the Ombudsman resolves a
complaint under s20A(3), the Ombudsman shall inform the complainant in
writing of the decision.
Clause 13: Inserts a new Division providing for the conciliation of complaints.
New section 22A provides that if the Ombudsman believes that a
complaint may be resolved by conciliation, the Ombudsman, an officer of
the Ombudsman or a person who is authorised by the Ombudsman to act
as a conciliator, may attempt to resolve the complaint by conciliation.
New section 22B sets out some procedural matters, but also provides that
the Ombudsman may regulate the procedure for conciliation in any
manner he or she considers appropriate. Conciliation is voluntary and a
person may withdraw from conciliation at any time. The Ombudsman or
the person conducting the conciliation may terminate conciliation at any
time, and the conciliation is to be held in private.
New section 22C relates to an unsuccessful conciliation attempt. If an
attempted conciliation is unsuccessful, the complaint is to be further dealt
with under the Act as if the conciliation had not taken place. If this occurs,
the officer or conciliator concerned is excluded from participating in any
further investigation of the complaint.
New section 22D provides that evidence of anything said, written or done
during conciliation and any document prepared for conciliation are
privileged. They are not admissible in any subsequent proceedings or
actions under the Act or as evidence in any court or other evidentiary
proceedings. However a person may consent to the use of such
information if the information relates to the person.
New section 22E provides that the remuneration of a conciliator is to be
borne by the parties as agreed or, failing agreement, in equal shares or as
the Ombudsman directs. (If the Ombudsman or an officer of the
Ombudsman undertakes the conciliation, section 22E does not apply.)
Clause 14: Repeals section 23 and replaces it with a new section 23 and section 23A.
The repealed section provided for notice to be given to the principal officer
and Minister for all investigations and sets out the Ombudsman’s powers.
The new sections restate the powers but reduce the mandatory notice
requirements.
The new section 23 provides that the Ombudsman must give notice of an
investigation to the principal officer of the authority and the complainant
prior to commencing a routine investigation. There is no requirement that
the responsible Minister be notified unless subsection (2) applies.
Subsection (2) applies to high level investigations and provides that the
Ombudsman will notify the principal officer and the responsible Minister
before commencing an investigation -
• on the Ombudsman’s own motion, or
• on a reference from the Governor, or
• on a reference from either House of Parliament or from a parliamentary
committee, or
• in which the Ombudsman invokes the powers of a Commission under
the Commissions of Inquiry Act 1995 in accordance with section 24(1).
The new section 23A restates the provisions of existing section 23(3) to
23(10) relating to the procedure on investigation with some rearrangement
and updating of language. It restates that
• the Ombudsman may regulate the procedures of an investigation as he
or she considers appropriate;
• the Ombudsman is not required to hold a hearing;
• the Ombudsman may obtain information from any persons in any
manner and make any inquiries he or she considers appropriate;
• an investigation is to be conducted in private;
• the Ombudsman may determine if a person may be represented and
the conditions of such representation;
• a person or a public authority is to be given the opportunity to respond
to any adverse or derogatory comments contained in an Ombudsman
report before the Ombudsman releases the report;
• the Ombudsman may bring evidence of a breach of duty or misconduct
by a member, officer or employee of a public authority to the notice of
the principal officer or the responsible Minister (if the officer in question
is the principal officer); and
• the Ombudsman may at any time discuss any matter relating to an
investigation with the Minister concerned with that matter.
It also provides that the Ombudsman may use in an investigation any
information gathered while making preliminary inquiries.
Clause 15: Inserts a new Division 3A Secrecy and Obstruction of Ombudsman.
Clause 16: The amendments are consequent upon the new conciliation provisions.
Section 26 relates to secrecy provisions and places obligations on the
Ombudsman and an officer of the Ombudsman in relation to information
gained under the Act. The amendments extend the obligations to a
conciliator.
Clause 17: The amendments are consequent upon the new conciliation provisions.
Section 27 provides for offence provisions against persons in their
dealings with the Ombudsman or an officer of the Ombudsman under the
Act. The amendments add reference to a conciliator.
Clause 18: Amends section 28 which sets out the procedures on completion of an
investigation. Section 28(1) provides that if at the completion of an
investigation the Ombudsman forms an opinion that the complaint has
substance, the Ombudsman shall take action as set out in subsection (2).
The amendment to subsection (1) adds a reference to an alternative action
in a new subsection (1A).
The new subsection (1A) provides that the Ombudsman may resolve the
matter informally with the principal officer of the public authority. This
action reflects the situation where a complaint may be resolved after
investigation with the cooperation of the public authority and there is
therefore no need to proceed to make a formal report and
recommendation.
The amendment to section 28(3) provides that the Ombudsman is to give
a copy of a report made under section 28(2) to the responsible Minister, if
the Minister was notified of the investigation under section 23(2).
The amendment to subsection (5) provides that if the Ombudsman sends
the Premier a copy of the report, a copy is to be sent to the responsible
Minister.
Clause 19: The amendments are consequent upon the new conciliation provisions.
Section 33 provides for protection for the Ombudsman and an officer of
the Ombudsman from liability for any civil or criminal action for actions
done under the Act in good faith. The amendments extend the protection
to a conciliator.
Clause 20: This clause inserts a new section 33A which states that the Freedom of
Information Act 1991 does not apply to information in the possession of
the Ombudsman if the information relates to a complaint and ensuing
actions under the Ombudsman Act and other Acts where the Ombudsman
has a complaint handling function. (The Act provides at section 29 that
the Ombudsman shall inform the complainant of the result of an
investigation in such manner as the Ombudsman thinks fit.)
Clause 21: Repeals Schedule 1. The new section 4 lists the public authorities to
which the Act applies.
Clause 22 Schedule 2 lists excluded administrative action –that is, action that the
Ombudsman shall not investigate as stated in section 12(3). The
amendment adds two additional items.
• Item 6 Action taken by a tribunal or a member of a tribunal in the
performance of the tribunal’s decision making functions.
• Item 7 Action taken by the Tasmanian Electoral Commission or
Electoral Commissioner that may be the subject of -
- an appeal or application in the Supreme Court under the Electoral
Act 2004; or
- an application in the Supreme Court under the Local Government
Act 1993 in respect of a dispute about the result of an election.
APPENDIX E – CHILD ABUSE REVIEW
OMBUDSMAN’S FOREWORD
“Listen to the Children” – Report on the Review of Claims of Abuse
From Adults in State Care as Children – November 2004
_________________________________________________________
In July 2003 the Tasmanian Government announced a review of claims of abuse from
adults who had been in State care as children. When I agreed that my office would review
the individual claims, it was in the belief that the Ombudsman’s independence and
impartiality would lend credibility to the review process and provide reassurance to the
people who came forward that their stories would be listened to impartially and in
confidence.
I knew that it would be a difficult and daunting task. I had no idea how difficult and complex
it would be, nor how long it would take. We learnt very quickly that uncovering people’s
lives to expose secret, painful memories that had lain hidden for 30, 40 and 50 years was
not a task that could be rushed. Many of the adults who came forward confessed that they
had never told anyone of their childhood experiences. Others who had told someone in
authority are still bitter that they were not listened to, or were not believed.
The Review is a cooperative undertaking between the Ombudsman’s office and the
Department of Health and Human Services (‘the Department’) carried out by the
Ombudsman under Part 3 Division 3 of the Ombudsman Act 1978. A Protocol of
Agreement between the Ombudsman and the Secretary of the Department set out the
scope of the Review and the respective tasks of each party. The Department provided the
Ombudsman’s office with additional resources and a special Ombudsman Child Abuse
Review Team was established to receive and review the claims. A similar team was
established by the Department to undertake further research and to assist claimants in the
implementation of my recommendations.
Some six weeks after the Review commenced the Premier announced that ex gratia
payments up to $60,000 would be available and appointed Mr Peter Cranswick QC as the
Independent Assessor.
As Ombudsman my task has been to assess each claim of past abuse and to make
recommendations to the Department for individual reparation (other than the providing of
ex gratia payments). It was not my task to investigate or review the current child protection
system. I agreed to prepare a report for the Minister for Health and Human Services, which
would be made public and which would provide a general overview of the information
collected as a result of the review of claims. As well, the report was to identify any issues
relevant to current practice, which had emerged from the Review, together with
appropriate recommendations. This is that report.
The Department’s task is to consider and implement the recommendations for individual
reparation and to liaise with service providers, including Church authorities. The outcome
will be reported to the Minister by the Department.
Mr Cranswick’s task is independent of the Ombudsman and the Department. It is to make
decisions in respect of individual ex gratia payments and to prepare a report for the
Premier.
As with any retrospective survey of this nature, which is essentially a collection of
individual case studies based largely on interviews, disclaimers about the validity of the
information and the conclusions to be drawn are essential. It is particularly important in this
case because the information is highly sensitive.
The first such limitation relates to the number of people who presented with claims of
abuse. As at 30 June 2003 there were 600 children on care and protection orders in
Tasmania and statistics (see Appendix 3) reveal that over the period of the Review that
figure has been relatively stable. The annual totals are cumulative because children need
to be counted across more than one year, but by any reckoning the total number of
children in State care for the full period covered by the Review would be many thousands.
By contrast, the adults who participated in this Review are a small, self selected group who
numerically represent only a very small fraction of the total. It is not possible to view them
as a representative or reliable sample in any statistical sense of the word and the findings
and the conclusions need to be seen in that light.
A total of 364 adults contacted the Ombudsman Review Team, most of them wishing to
register a claim. Of those, 247 met the Review criteria and have had their claims
assessed. We were surprised at the number of claims we received. Although we had no
basis for predicting beforehand what the number might be, it was larger than expected.
There appears to be no definitive information about the overall incidence of past abuse of
children in State care. As a consequence, we have no firm idea as to how many more
children in State care may have been victims of abuse over the years. It is probable that
some people have been able to bury their past successfully, but anecdotal evidence from
claimants about siblings and acquaintances, indicates that there are others who are still
suffering, but are nervous and distrustful of authorities and reluctant and embarrassed to
reveal details of what they regard as shameful incidents. The predatory way in which
abusers of children operate has left indelible, life long scars. Numbers of the people we
spoke to have had problems accepting that they were the victims of abuse and not co-
conspirators.
While issues of statistical reliability are relevant, it cannot be denied that every victim of
child abuse represents an individual human tragedy. Inevitably it must be concluded that
for at least half a century, child protection systems in Tasmania, as elsewhere, have not
adequately protected all of the children entrusted to the care of the State. Further, it must
be concluded that many of the former institutions and Approved Children’s Homes named
in the Review failed in their own duty of care to children.
The Government has already confronted the issue of duty of care by initiating the Review.
Because it is very likely that there are people still in the community who did not lodge a
claim before the Review was closed, either because they chose not to do so at the time, or
because they had not heard of the Review, I have made a recommendation that the
current Review process be continued. Further details are provided in the
Recommendations section of the report.
A second important consideration relates to the authenticity of the information. The
Government made it clear when the Review was announced that the focus was to be on
healing and closure. It was not to be on retribution, not on pursuing the ‘truth’ of the
allegations. As a consequence, no attempt has been made by the Ombudsman Review
Team to test the information through rigorous investigation, such as the identification and
questioning of possible witnesses, although there has been considerable research into
files, cross referencing of information and other means of inquiry normally employed in an
Ombudsman investigation. As it transpired, many of the claims were so old as to preclude
the likelihood of obtaining sufficient corroborative evidence to prove allegations.
That is not to say, however, that matters of a serious nature have been ignored,
irrespective of how long ago the alleged abuse occurred. At the commencement of the
Review, the Ombudsman’s office agreed on a Protocol with Tasmania Police for the
referral of potentially criminal matters. An Assistant Commissioner and a Detective
Sergeant were nominated as Liaison Officers. A total of 33 cases have been referred to
Police with the agreement of the person making the claim. The position taken was that
unless the abuse victim agreed and was prepared to give evidence in court, there was little
likelihood of a successful prosecution. A number of other claimants also reported
potentially criminal matters to the Ombudsman Review Team but declined to lay charges,
usually because they were concerned about appearing in court, or because they accepted
that there was little likelihood that the matter would proceed to court. At the time of
preparing this report, seven cases are still active, two others have resulted in convictions,
and one has resulted in court proceedings.
File research carried out by the Ombudsman Review Team indicated that, over many
years, 21 allegations of abuse had been previously referred to Police, none of which had
resulted in a conviction. (Appendix 5 provides further information). As part of the current
process, eight of these matters were referred to Police again at the request of the claimant
on the grounds that new evidence may have come to light since the matter was first
investigated. Since 1990 new forensic tools, particularly DNA profiling, have also become
available to assist Police with successful prosecution.
Where allegations were made of a serious, but non-criminal matter, and where there was
any possibility that the person named might still be alive and in a position to potentially
harm children, a referral was made to the appropriate authorities for investigation. Six
cases were reported to the Department’s child protection authorities. Similarly, Church
authorities have been advised by the Secretary of the Department of allegations made
against them.
Lest it be assumed that the Ombudsman Review Team had doubts about the authenticity
of the information, that is not the case. While specific allegations may not have been
tested, overall the accounts provided by most claimants were considered to be credible. In
addition to matters investigated by Police or child protection authorities, there was a
considerable amount of corroboration provided by the claimants themselves or by a
number of independent witnesses who came forward voluntarily. Possible collusion was
not considered to be a significant consideration.
Another issue relates to the age of the claims. Two thirds of the adults who alleged that
they had been abused, as children in care were aged 45 years or older and their claims
dated back 30, 40 and 50 years. Moreover most incidents occurred in institutions that have
been closed for many years. On that basis it would seem reasonable to conclude that
there has been a significant improvement in child care practices and procedures over the
past 20 years or so. However, that does not necessarily mean that the current system of
child protection is without flaws. One of the findings from the Review relates to claims of
abuse from 12 young adults, presently in the 20 to 30 age range, who have alleged abuse
occurring as recently as 1998. Eight of the claims were from young women who alleged
sexual abuse in a foster home. I have recommended that the Commissioner for Children
undertake a detailed investigation of the 12 cases to identify any current systemic
shortcomings.
The emergence of child abuse as a widespread social problem is a relatively recent
phenomenon. There appear to have been a number of reasons for this, some of which
may be described as commonly held assumptions. The results of the Review have helped
to dispel some of these. One such relates to the sexual abuse of young boys. Historically,
the community has regarded girls as much more likely to be the targets for sexual abuse
than boys and has tended to be more protective of girls. The legislation of the past reflects
this. While the overall incidence of allegations of sexual abuse amongst females in the
Review was higher than amongst males, the difference was not as great as might have
been expected, given past reports. This lends support to the view that there has been
under reporting of sexual abuse of boys in the past. In line with many recent revelations,
we heard numerous accounts of vulnerable, powerless young boys, who were allegedly
targetted for sexual abuse in what can only described as a calculated and ruthless
manner.
Changing standards in respect of child abuse must also be considered. Sexual abuse of
children is regarded with universal abhorrence and is unacceptable by any standards of
human behaviour. It is a highly emotive topic and even for the Ombudsman Review Team,
whose task was to remain impartial, it was not possible to remain unmoved by the anguish
and despair of some claimants as they recounted the awful events of their childhood.
There has been, however, a general tendency to partially excuse physical and emotional
abuse on the grounds that they need to be seen in the context of the time in which they
occurred. It is true that what would be perceived as abuse today was not necessarily seen
as abuse 50 years ago, or even 30 years ago. Changes in societal values and approaches
to disciplining children, as well as advances in child psychology and child rearing, need to
be taken into account in assessing the seriousness of allegations of physical and
emotional abuse.
It is not possible, however, to be dismissive of the allegations of physical and emotional
abuse as simply reflecting the social and cultural mores of the day. This view did not stand
up to scrutiny. The Review revealed too many credible instances of sadistic and intolerable
cruelty to young, helpless children to be simply indicative of changes in the way that
society disciplines even its most difficult young people.
There has also been a tendency to assume that sexual abuse is necessarily more
deleterious than physical or emotional abuse in respect of its long term effects. This also
did not stand up to scrutiny. One of the strongest impressions to emerge from the Review
was that physical and emotional abuse can cause damage and scar lives as much as
sexual abuse. It was apparent from the interviews that sustained emotional abuse almost
invariably accompanied physical and sexual abuse and may well have had the most long
lasting effects.
Many of the adults we spoke to have had damaged lives, marred by broken relationships,
welfare dependency, prison terms, substance abuse, low self esteem, under employment
and low educational attainment. Many reported an inability to extend love and affection to
their own families and a lack of trust in other people. While it might be tempting to infer that
such problems are a direct result of the time in care, it must be remembered that many
children came into care because of serious behavioural problems, or already severely
damaged as victims of broken, dysfunctional families. Not all of the problems experienced
by victims in later life can be laid at the door of the State. It is equally apparent, however,
that irrespective of the legacy they took with them as children, many of the adults we
spoke to had not been helped by their time in care.
It was the fervent hope of the late Premier of Tasmania, the Honourable Jim Bacon, that
the Review would provide victims of past child abuse with an opportunity for healing and
closure. In our view this objective has already been met in large part. While the individual
reparations have still to be finalised and there are claimants still seeking assistance and
support and anxious to know if they will receive an ex gratia payment, feedback to both
the Ombudsman and the Department’s Review Teams has been positive. Claimants have
appreciated being able to tell their stories in confidence to someone non judgemental and
they have expressed gratitude for the Government’s offer of professional psychological
counselling, the opportunity to be guided through their personal files, and other forms of
personal assistance. The Government has also made a commitment to offer an apology to
abuse victims and it is evident that for many final closure will not be achieved until they
receive one.
The Government decided to offer ex gratia payments as part of the healing process.
Compensation was not in issue because it was recognised that the suffering of many
people was not compensable and because in many cases the time that had elapsed
meant that it would be unlikely that abuse allegations could be proved.
It would be naïve to believe that the Government’s offer of an ex gratia payment has had
no effect on the number of claims made. Equally, it would be cynical to believe that it was
the only consideration. A significant number of people came forward before the offer was
made and the Ombudsman Review Team is convinced that for many others money was
not the primary motivation.
I am aware that there are people in the community who would like the Government to
establish a full Commission of Inquiry into child abuse, which would extend beyond the
boundaries of children in State care and would presumably encompass present as well as
past abuse. When the matter was initially raised, the former Premier indicated that he
would be ‘guided’ by the Ombudsman in respect of whether a full Commission of Inquiry
should be established. At the time, I made a public statement that I believed that to be a
political decision and not one for the Ombudsman. I still hold to that view. However, I am
prepared to put forward my views on the subject, which are partly personal and partly
drawn from the results of the Review.
I do not see that a full Commission of Inquiry into child abuse can be justified based on the
results of the Review. The great majority of claims were old. Recent information indicative
of shortcomings in the present system was limited. This situation may change once the
Commissioner for Children has completed his investigation into recent cases of abuse.
My primary concern, however, relates to resources. Commissions of Inquiry are
exceedingly costly for Governments and ultimately for the community. The Government
has already made a substantial financial commitment to reparation for individual victims of
past child abuse and I have flagged my recommendation that, for equity reasons, the
Government should continue the current Review process. If further funding and resources
were available, in my view they should be targetted primarily at strengthening the present
child protection system, at identifying and implementing effective prevention strategies and
at ensuring that counselling and support services continue to be made available to both
adults and children. I have made a recommendation to this effect. One of the outcomes
most frequently sought by claimants was an assurance that what happened to them as
children would not happen to another child.
The Review disclosed a high level of welfare dependency amongst the claimants and,
while this cannot all be attributed to the effects of past abuse, it highlights the generally
acknowledged view that there are sound economic reasons for preventing child abuse, as
well as humanitarian ones.
Secondly, I believe that Commissions of Inquiry are of greatest value in identifying and
illuminating areas where the parameters and the magnitude of a significant problem are
not known. We already know from many reliable sources that child abuse is a widespread
social problem that extends beyond the boundaries of the State’s responsibilities. This has
been reinforced by the recently released Senate Report by the Community Affairs
Reference Committee entitled Forgotten Australians. There is no reason to believe that
Tasmania is markedly different from any other part of Australia. While a Commission of
Inquiry would be likely to reveal evidence of child abuse on a larger scale than indicated by
the present Review and might lead to the exposure of individual wrongdoers, this still
would not seem reason enough for a full public inquiry. There are other processes, such
as the Police and child protection authorities, which exist to deal with wrongdoing.
Commissions of Inquiry are also largely dependent on witnesses coming forward to be
questioned, but our experience in dealing with victims of abuse is that many would be very
reluctant to provide evidence in a formal hearing, even a closed hearing. This is evidenced
by the fact that many are reluctant even now to press charges against alleged perpetrators
because of their fear of appearing in court. Moreover, asking people who have already told
their stories to repeat them could be traumatic and counter productive.
There is also the issue of outcomes. Commissions of Inquiry normally result in many
significant and far reaching recommendations, but experience shows that they are often
not implemented unless there is a political commitment to do so. It is also reasonable to
assert that recommendations made by an Inquiry are usually at the systemic level and
rarely recommend remedies for individuals. These may be unfair generalisations, but the
point to be made is that the Government has made a public commitment to individual
reparation and implementation has already commenced.
Finally, there is the matter of acknowledgements. I wish to acknowledge and pay tribute to
the remarkable courage and strength demonstrated by the claimants in lodging their
claims and telling their stories. I can only imagine how hard it must have been for this
group of people to relive their experiences and expose their lives to the scrutiny of this
Review and I admire them greatly.
I also wish to acknowledge the staff of the Ombudsman Review Team. They express
admiration for the courage and the resilience of the adults they spoke to, but for the staff
themselves it has also been a difficult and demanding process. Almost every day for over
twelve months they have listened to heart rending stories with patience, tact and great
sensitivity. There was always a danger that they too would be traumatised by the process
and some have sought professional counselling. However, in the main they have found
the task to be deeply rewarding and in many ways a cathartic experience. I am grateful for
their dedication and professionalism.
Staff from the DHHS Review team have contributed invaluable research and advisory
support to members of the Ombudsman Child Abuse Review Team. I am particularly
indebted for assistance in locating old files and for the time consuming compilation of
statistical information extracted from old Annual Reports for the period covered by the
Review.
I am indebted to Tasmania Police for their cooperation and advice in respect of matters
referred by the Ombudsman Child Abuse Review Team.
In closing, I acknowledge the Government’s compassionate response to an issue that for
too long has been avoided and ignored.
Jan O’Grady
Ombudsman.
November 2004
OMBUDSMAN’S RECOMMENDATIONS
AND GOVERNMENT REPONSES (in red below each Recommendation)
“Listen to the Children” – Report on the Review of Claims of Abuse
From Adults in State Care as Children – November 2004
_____________________________________________________________
1. It is recommended that the Government continue the healing process commenced
with the present Review by continuing to accept claims of past abuse from adults
who had been in State care as children. This should be an ongoing arrangement to
apply to adults who had attained 18 years as at 11 July 2003 when the Review was
announced. All current arrangements for assisting and providing redress to
claimants should be retained, including the availability of ex gratia payments. The
reopening of the Review should be widely advertised. It is not known how many
additional people will wish to lodge claims but it is reasonable to assume that there
will be a reduction in the rate of new claims lodged, compared with the current
Review. The level of resources allocated to the task should be evaluated after 12
months.
The Government agreed that the Review should continue until 30 June 2005.
2. It is recommended that the Government identify options to continue the Review
process. This should include establishing a small unit, independent of Government,
to be a first point of contact for receipt of claims and assessment.
The Ombudsman agreed to continue with the Review of claims.
3. It is recommended that a unit be established within the Department of Health and
Human Services to manage claims referred to it by the independent unit, including
the provision of guided access to personal files, assessment of other needs and
referral to appropriate services, and referral to an Independent Assessor for
determining ex gratia payments.
The Government agreed that the DHHS Review team would be maintained for
as long as it takes to complete the claims referred to it by the Ombudsman.
4. It is recommended that the Government note that the Review did not provide
sufficient information about shortcomings in the current child protection system to
warrant the establishment of a Commission of Inquiry. If the investigation carried
out by the Commissioner for Children (see below) reveals that there are significant
systemic shortcomings, it is recommended that the Government reconsider the
matter of an Inquiry.
The Government noted the Ombudsman’s findings and reiterated that it
would not support the establishment of a Commission of Inquiry.
5. It is recommended that the Government allocate funds to establish a private
educational trust fund to assist adults who have been victims of child abuse in State
care to upgrade or continue their educational studies. The approach adopted by the
Forde Foundation in Queensland could serve as an administrative model. It is
recognised that in some cases access to the fund will mean that some people may
in effect be ‘double dipping’ given that they may have already received an ex gratia
payment. However, an opportunity to improve educational attainment was regarded
as so important for some claimants that it would be in the community’s best
interests to encourage and support them. It may also be appropriate to consider
allowing children currently in care to access the funding, as well as those who have
been victims of past abuse. It would be necessary to liaise with the Department of
Education to identify the most appropriate ways of doing this.
The Government did not accept this recommendation on the grounds that
educational needs had been taken into account as part of determining the
amount of the ex gratia payment.
6. It is recommended that the Government liaise with church authorities to seek a
contribution to the establishment of a private educational trust fund.
Supported in principle by Government.
7. It is recommended that the Government liaise with church authorities to seek an
apology for claimants who allege that they had been abused while in Approved
Children’s Homes run by the churches and who have specifically stated that they
desire an apology.
Accepted by Government.
8. It is recommended that the Commissioner for Children be asked by the Minister for
Health and Human Services to investigate the 12 recent cases of alleged abuse
referred to earlier in this report. The main purpose of the investigation should be to
determine what action the Department had taken when the abuse was reported and
whether the actions taken were appropriate. The investigation would also include a
consideration of the selection of the foster families involved. The Commissioner
should be asked to complete his investigation within a specific period and to ensure
that the outcomes of his investigation are made public. Depending on the outcome
of the Commissioner’s investigation it may be necessary to conduct a more
comprehensive audit of files of children currently on care and protection orders. At
this stage, it would be inappropriate to make further recommendations in respect of
foster care until the results of the Commissioner’s investigations are known.
Accepted by Government and additional resources provided to the
Commissioner.
9. It is recommended that, in relation to the provision of services for children in State
care under the Children, Young Persons and their Families Act 1997, the
Commissioner for Children be asked by the Minister for Health and Human Services
to advise if there is a need to:
(a) evaluate the effectiveness of the Working Together protocol between the
Education Department and the Department of Health and Human
Services. This would take into account policies in relation to support
services, curriculum development and discipline;
(b) place restrictions on the number of children and young people or sibling
groups that can be placed with approved foster carers at any one time.
This policy to take into account:
• the number and age of the carer’s own children;
• children with high support needs;
• children who have been sexually abused, or have sexually abused
other children; and
• the placement of more than one sibling group with a carer.
(c) ensure that all children are informed within 24 hours of entering care why
they have been taken into care and what they can expect to happen to
them;
(d) ensure that all children who are the subject of an assessment of risk of
harm and/or enter into the care of the State be given the option of a
support person whom they know and trust.
Accepted by Government.
10. It is recommended that the Commissioner for Children be provided with adequate
resources to carry out the above.
Accepted by Government.
11. It is recommended that there be increased and improved counselling and
therapeutic services for adults who have experienced either recent or past sexual
abuse. Existing support and/or counselling services should be taken into account
when considering the range, adequacy and accessibility of appropriate services that
might be established by Government to serve the community.
Accepted by Government. Some funding provided for 2005/2006 pending the
outcome of a review into the provision of sexual abuse support services.