Megan Philpot - Institute of Public Administration Australia

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INVESTIGATION CHALLENGES When the going gets tough... Megan Philpot SA Deputy Ombudsman 9th National Investigations Symposium

Transcript of Megan Philpot - Institute of Public Administration Australia

INVESTIGATION CHALLENGES When the going gets tough...

Megan Philpot

SA Deputy Ombudsman

9th National Investigations Symposium

Ombudsman SA

Two major jurisdictions

• investigation of administrative decisions of state and local government

agencies under the Ombudsman Act 1972 (SA) & Local Government Act 1999 (SA)

• review of freedom of information determinations of these agencies and

Ministers of the Crown under the Freedom of Information Act 1991.

Investigative powers for both derive from the Ombudsman Act and

Royal Commissions Act 1917 (SA).

What and when we investigate

What?

• ‘ administrative acts’… (or omissions) not judicial acts or policy (City of Salisbury v. Biganovsky (1990) 54 SASR 117)

• allegations of fraud and corruption must be referred to the Anti-

Corruption Branch of the SA Police (Whistleblowers Protection Act 1993 (SA))

When?

• on receipt of a complaint

• on the Ombudsman’s own initiative

• on receipt of a referral from the SA Parliament

Features of the SA Ombudsman jurisdiction

The Ombudsman is the inquisitor – the fact finder and final decision maker.

This means double the responsibility of ensuring propriety in investigations

and decision making.

We have :

• broad (royal commission) investigation powers

• broad discretion about the how and when to use investigation powers and

means of obtaining evidence

• wide powers of entry and inspection

• not bound by the rules of evidence

• power to obtain Crown legal advice

Features of the SA Ombudsman jurisdiction, contd…

• power to determine whether parties may have legal representation

• investigations are in private

• we are prohibited from disclosing information obtained in an investigation –

except for the purposes of the investigation or report

• not a court of record

• not subject to FOI legislation

• decision on investigation is not subject to external review or appeal (except

judicial review), although Ombudsman SA offers internal review

While these features strengthen and offer considerable flexibility in an

investigation, they can also be a source of vulnerability if internal controls are not

in place.

Managing expectations of the parties

We need to manage expectations of parties. This also brings a

necessary accountability to our processes and procedures.

Information Sheet at the beginning of the investigation

dealing with:

• who, what, when, how and why of the investigation

• the powers that will be used, and our responsibilities (eg confidentiality, procedural fairness)

• the parties’ and witnesses’ responsibilities and the consequences of breaching those responsibilities

• legal representation; confidentiality, protections and privileges

• what will happen with transcripts of evidence

• release of provisional report for comment in the ‘natural justice’ phase, prior to finalisation of opinion and final report

• offer realistic timelines for conclusion of the investigation

City of Charles Sturt - St Clair Reserve decision • Council located in Labor heartland – decided to revoke the community status

of St Clair Reserve under the Local Government Act.

• This allowed the Council to swap the Reserve with adjacent land from a former contaminated industrial site owned by the state government’s property arm, the Land Management Corporation (LMC).

• The land swap enabled the state government to deliver on a target in its new planning strategy for Greater Adelaide, by establishing the first of its proposed 13 Transit Oriented Developments (TODS) next to St Clair Reserve (and a railway station).

• The LMC had much earlier purchased the industrial land from developers for a significant sum – in anticipation of achieving the land swap and establishing a TOD.

City of Charles Sturt - the community’s response

• The Council’s revocation decision attracted community anger, as the Council

had few ‘open space’ areas.

• The community felt excluded, and that the Council’s consultation processes

under the Local Government Act had been a sham.

• There was concern that 12 out of the 17 Councillors were members of the

Labor Party, (3 had been employed in Labor MP’s electorate offices), and that

the Councillors had been improperly influenced in their decision to revoke the

community status of the Reserve by the (local) Member for Croydon (then the

Attorney General).

Legislative Council - Terms of Reference (1)

• Noted general community concern about the influence of the ALP on the

elected members, including:

• 12 of 17 Councillors were ALP members

• 3 Councillors were employed by Labor MPs

• and the influence of the Member for Croydon

• Noted specific concerns about potential for conflict of interest in the

revocation of the community status of the St Clair land arising from -

• … the revocation of land was essential to the policy objectives of the

State Government

• … the Council decision-making process would be assessed by a Labor

Minister

• the Council’s lack of any strategy adopted … to manage potential

conflicts of interest arising from the role played by ALP members

Legislative Council - Terms of Reference (2)

Referred the following matters to the Ombudsman for investigation and report:

• the potential for actual conflict of interest of elected members of the

Council in relation to revoking the community status of land at St Clair

• the extent to which the Council met its prudential risk obligations under the

Local Government Act to manage the risk of conflict of interest associated

with the revocation of the community status of land at St Clair

• any other relevant matter.

1. Jurisdiction – identifying the administrative act

• The Terms of Reference were generally worded. Our task was to identify

and the administrative act/s to investigate.

• We notified parties that we would be investigating the administrative acts

concerning:

• Councillors’ responsibilities in relation to conflict of interest, acting

without bias, and code of conduct; and the impact of ALP membership

and the Member for Croydon on the discharge of these responsibilities

in relation to the Council’s revocation decision

• Council’s community consultation; meeting confidentiality orders; and

prudential risk in relation to the decision.

2. Legal representation

• This became a significant issue. The Ombudsman has the power to

decide whether witnesses may be legally represented in an

investigation.

• The Council and some of the ALP Councillors were initially represented

by the same legal representative. However, the Council’s and the

different Councillors’ interests were clearly not congruent. We were

concerned to protect the confidentiality of evidence, and the integrity of

the investigation.

• We advised the legal representatives that they had a conflict of interest

in their representation of the Council and the Councillors.

2. Legal representation, contd

• We decided that no legal representation would be permitted at

interview, but witnesses could have a support person, provided that this

was not the same person for each.

• Further, we decided that:

• the Councillors and the Council were required to maintain

confidentiality in respect of their interviews

• information could not be divulged, except to legal advisors for the

bona fide purpose of obtaining legal advice and provided that the

legal advisors did not have a conflict of interest and/or duty arising

out of or in connection with the investigation and the maintenance of

each client’s obligations of confidence.

3. Providing transcripts of evidence

• We initially decided not to provide copies of transcripts to witnesses – to

protect the integrity of the investigation.

• In the ‘natural justice’ phase of the investigation, we envisaged that

witnesses could come to the Ombudsman SA office and listen to their

hearing tapes and/or read their transcript.

Legal proceedings

• Six months into the investigation, after we had interviewed 24

witnesses, the Council commenced proceedings in the Supreme Court.

• The grounds included:

• 1. failure to sufficiently define the administrative acts that we were

investigating. The Council essentially wanted us to define a single

administrative act, namely the Council’s decision to revoke the

community status of the St Clair Reserve.

• 2. denial of procedural fairness in not allowing witnesses legal

representation at interview.

• 3. denial of procedural fairness in not providing witnesses with a

copy of their transcript of evidence after their hearing.

Suspension of the investigation, mediation

• We notified all parties that we would suspend the investigation.

• We advised the parties and the Legislative Council of the suspension,

and the Council’s reasons for initiating proceedings.

• We continued to assess the evidence to see if evidence indicating

corrupt activities needed to be referred to the Anti-Corruption Branch of

the police.

• Five months and $55,000 in legal fees later, we achieved a mediated

outcome.

Mediation outcome

• 1. We set out the administrative acts with greater clarity.

• 2. We permitted legal representation of the 17 Councillors at interview,

on the condition that they had separate representation from each other

and from the Council.

• 3. We provided witnesses with hard copy individually watermarked

pages of their transcript of evidence, after they had signed a

confidentiality undertaking.

What did we learn?

• Clarifying the administrative acts we were investigating was not a

‘game changer’. However, in future, we will seek to have input into

drafting any Terms of Reference.

• The mediation outcome allowing separate legal representation,

addressed our concern. We invited back those Councillors whom we

had already interviewed, for another interview in the presence of

their lawyer. (There was no response.) We will continue to question

legal representation when we think a conflict of interest arises and

where there are threats to the integrity of our investigation.

• Releasing transcripts after interview was a helpful step. With

appropriate confidentiality undertakings in place, this prevented a

‘bottleneck’ during the natural justice phase.

Finally …

• Six months later, we released our ‘provisional report’ in the natural justice

phase.

• There were more threats of legal proceedings from individual Councillors.

• We halted the investigation again, and released our final report 6 months

later.

• We were reasonably satisfied with our process; but although we put in place

steps which we thought would fairly manage issues of accountability and

expectations of parties in the investigation, it didn’t prevent legal proceedings

from being issued.