Norman Waterhouse

Normans Briefly

In this issue

Welcome to the October edition of our Local Government Briefly.

Thank you to those who attended the Norman Waterhouse Regional CEO and Principal Members Symposium last week.

Sean Keenihan, the South Australian Government’s Strategic Adviser for China, President of the Australia China Business Council (SA Branch) and the Chairman of Partners at Norman Waterhouse Lawyers gave a presentation on the developments in China and in the South Australian Government’s work with China, that present significant opportunities for South Australia’s agribusiness sector.
 
Justin Ross, PIRSA’s Agribusiness Director, presented the China Agribusiness Initiative and action plan, focussed on 4 pillars. Justin also spoke about observations on the development and direction of Government’s interactions with China and opportunities for industry to capitalise on our existing high-quality food and wine.

Held on the eve of the LGA Conference and General Meeting, this event was a great opportunity to network with our Regional clients.

Walking the Talk – Industrial Relations in the Real World
Full Day Seminar
4th April 2014

Following our highly successful industrial relations conference in 2013, the Norman Waterhouse Employment and Industrial Relations Team invites you to join them again for a full day of in-depth and interactive analysis of workplace issues.

Please click here to download a printable flyer.

This is your chance to submit your topics of interest to marketing@normans.com.au.

>   Governance – Where does the Ombudsman fit into the new public integrity landscape?
>   Employment – The pitfalls of neglecting procedural fairness in summary dismissals
>   Property – Strategic management of council's assets - Appropriate documentation
>   Local Government Regulatory Services – Investigate all breaches within an incident, not just the major breaches
>   Development, Compliance, Public and Environmental Health – Hoarding, domestic squalor, and the Development Act 1993

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Governance – Where does the Ombudsman fit into the new public integrity landscape?

Much has been made of the Independent Commissioner Against Corruption (ICAC), whose office (along with the Office for Public Integrity (OPI) which the Commissioner heads) is the centrepiece of the Independent Commissioner Against Corruption Act 2012 (SA) (the ICAC Act).

However, the ICAC Act has also amended a significant cross-section of the legislation which regulates local government in South Australia. Some of the most significant changes have expanded the role of the Ombudsman within local government, an expansion which is quite separate from the ICAC Act’s primary purposes of establishing the ICAC and the OPI.

This article seeks to clarify certain frequently asked questions and misconceptions about the Ombudsman.

Is the Ombudsman just a lesser agency which the ICAC directs and controls?

No. The Ombudsman exists alongside the ICAC, and will receive complaints, conduct investigations and publish reports independently of the ICAC.

It is true that the Ombudsman is an ‘inquiry agency’ under the ICAC Act. What this means is that if a matter comes before the ICAC which the ICAC considers raises potential misconduct or maladministration, then the ICAC can refer the matter to the Ombudsman for investigation. When making such a referral, the ICAC may give directions and/or guidelines to the Ombudsman.

However, while the Ombudsman has now been made an ‘inquiry agency’ for the purposes of the ICAC Act, this does not mean that the Ombudsman loses any former powers. In fact, the Ombudsman still retains all of his former powers and functions, plus some additional new powers under the Ombudsman Act 1972 (SA) (Ombudsman Act) and new functions under the Local Government Act 1999 (SA) (LG Act) which are unconnected with the ICAC and OPI.

What are the new powers of the Ombudsman under the Ombudsman Act 1972 (SA)?

The Ombudsman now has the ability to compel agencies (including councils and subsidiaries) to produce documentation and otherwise give evidence which would normally be subject to privilege. Thus, councils and subsidiaries must provide information to the Ombudsman regardless of any privilege, including legal professional privilege.

The Ombudsman may now publish public statements regarding investigations if the Ombudsman is satisfied that such publication would be in the public interest. Decisions not to investigate or to cease investigating may also be published by the Ombudsman.

What are the new functions of the Ombudsman under the Local Government Act 1999 (SA)?

Firstly, the Ombudsman may now investigate any potential breaches by council members of Chapter 5 Part 4 of the LG Act (encompassing Sections 62–75). This means that the Ombudsman may investigate potential breaches of council members' general duties, the Code of Conduct for Council Members, registers of interest provisions and conflict of interest provisions.

Secondly and relatedly, the LG Act now requires that anything which could form the basis of a complaint in the District Court (which again is a breach of Chapter 5 Part 4, i.e. Sections 62–75) must be investigated by the Ombudsman before a complaint can be lodged in the Court by a public official. Thus, the Ombudsman has gained the function of being a de facto ‘bottleneck’ on whether a complaint against a council member may reach the District Court.

Thirdly, the Minister’s former ability to appoint investigators to investigate a potential irregularity in affairs, breach of statute or failure to discharge a statutory responsibility by a council or subsidiary has been removed. Instead, if the Minister suspects any such failings, the Minister cannot appoint an investigator but instead may refer the matter to the Ombudsman.

What are the consequences of failing to implement the Ombudsman’s recommendations?

As was the case even prior to the recent reforms, the Minster may give directions to a council if the Minister considers that the council has not responded appropriately to a recommendation of the Ombudsman.

An additional consideration applies where the Ombudsman recommends that a council impose requirements upon a council member who the Ombudsman considers has breached Chapter 5 Part 4 of the LG Act. Specifically, the council must ensure a complaint is lodged in the District Court against the council member if the council member does not then comply with those requirements which the council has passed on from the Ombudsman.

If the Council does not adhere to that process, they may not only be subject to Ministerial directions, but also (as was suggested in Parliament) could be considered as having failed to discharge a statutory responsibility. This could ultimately form the basis of the Minister making a referral to the Ombudsman for an entirely new investigation, this time into the Council’s failure to comply.

Take home message

The Ombudsman is not merely a part of the ICAC and OPI framework. The Ombudsman is also a powerful independent investigator in its own right, and has recently gained new powers and functions particularly in respect of local government.

For more specific information on any of the material contained in this article please contact Felice D'Agostino on 08 8210 1202 or fdagostino@normans.com.au.


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Employment – The pitfalls of neglecting procedural fairness in summary dismissals

The recent Fair Work Commission cases of B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 and McAdie v Vanderfield Pty Ltd [2013] FWC 7888 demonstrate the caution to be adhered to in relation to procedural fairness and natural justice when dealing with summary dismissals, no matter how straightforward a matter seems. While both decided in the Federal jurisdiction, the lessons of these cases are equally applicable in the State jurisdiction. 

B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191

The facts

B, C and D (Employees) were employed by Australian Postal Corporation (Employer). Software filters detected the distribution of pornography by the Employees. This was in clear breach of the Employer’s IT Policy (the Policy); the Employees were summarily dismissed.

The proceedings

The Employees challenged the decision, claiming the termination was ‘harsh, unjust or unreasonable’ and hence they had been unfairly dismissed.

The Full Bench of the Fair Work Commission (the Commission) found the Employees’ dismissals were harsh, with the majority observing:

  • the Employer failed to draw Employees’ attention to the Policy and stress the importance of it;
  • a culture of tolerance existed in the Employer's workplace for breaches of this Policy;
  • no prior warning was given to acknowledge that breaches of the Policy were to be treated as serious enough to warrant dismissal; and
  • the long periods of satisfactory service (in excess of 10 years each) and the potential for hardship of the Employees and their families should have been taken into account.

The Commission acknowledged the right of employers to have policies regarding pornography and other matters which can warrant dismissal. However, the Commission also noted that it is the duty of the employer to take reasonable steps to inform employees of any policy and the consequences of a breach. Orders were made for the reinstatement of the Employees with continuity of employment.

Distinction from Queensland Rail

An interesting counterpart to the above case is the decision in Queensland Rail v Wake (2006) 156 IR 393. In that case, an employee was dismissed for accessing and storing pornography on their workplace computer. The employee was not reinstated on appeal, even though the breach was not serious and the employee had been employed for a substantial period. This decision was reached because the employer made ‘sustained efforts over a number of years to make employees aware of its policy and the consequences of breaching the policy’. The sustained efforts included reminders on payslips, educational videos, multiple agreements and legal notices every time an employee logged in and an amnesty period. These were active and sustained steps to address the problem over an extended period of time. While these steps are not a foolproof basis for dismissal, they are a good guideline. 

McAdie v Vanderfield Pty Ltd [2013] FWC 7888

The facts

Mr McAdie (Employee) had worked for Vanderfield Pty Ltd (Employer) for a period of 15 months as a service advisor. During this time he developed difficulties with his interpersonal communication skills, leading to a number of recorded incidents involving customer dissatisfaction and culminating in an incident leading directly to the Employee’s dismissal. That incident comprised alleged misconduct, described by the Employer as ‘repeated unsuitable communications with customers and similar unsuitable communications with other staff members’.

It was suggested the Employee take the remainder of the day off. After initially leaving the premises the Employee returned launching a ‘loud and aggressive complaint directed forcefully’ at the regional manager. After this incident the Employee was summarily dismissed.

The proceedings

The issues raised centred on whether the dismissal was ‘harsh, unjust or unreasonable’. The Commissioner found significant deficiencies existed in the process, namely failure to provide the Employee the opportunity to respond along with the failure to allow the Employee to have a support person in attendance during the dismissal meeting. While these deficiencies existed, it was found the dismissal was not harsh, unjust or unreasonable. Nevertheless, the Commission emphasised the need for procedural fairness even in apparently obvious cases. This includes the importance of an opportunity to respond, even where no satisfactory explanation seems plausible.

Message for employers

The decisions outlined above have considerable impact on employers when considering summary dismissal.

The decision in B, C and D v Australian Postal Corporation highlights the importance of communicating policies. If a policy is not effectively communicated to employees, a tribunal might consider that employees in breach of the policy are unaware of their wrongdoing. Educate, caution and monitor employees on their behaviour and if an employee’s behaviour is still an issue, only then consider dismissal.

McAdie v Vanderfield highlights the importance of following procedural fairness to eliminate any claim of ‘harsh, unjust or unreasonable’ dismissal. Even in cases of unambiguous serious misconduct involving behaviour of the employee, best practice would be to ensure that procedural fairness is complied with when summarily dismissing an individual.

For more specific information on any of the material contained in this article please contact Lincoln Smith on 08 8210 1203 or lsmith@normans.com.au.


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Property – Strategic management of council's assets - Appropriate documentation

In last month’s Briefly, we discussed the importance of councils adopting and using appropriate policies to govern their leasing and licensing activities. This month we look at the next step, documenting the arrangements.

Once a decision is made to lease or license land (including council buildings and other assets) to a third party in accordance with a council’s policy, the council will then need to ensure that the terms of that arrangement are appropriately documented.

Broadly speaking, there are two key tools that a council will use to allow a third party to occupy their land temporarily. These are by a lease and by a licence. In many respects a lease and a licence operate in the same way, but the key difference is that a licence does not give the third party exclusive possession of the land and does not give them any form of legal interest in the land. This is an important difference to consider when determining whether a lease or a licence is appropriate in any given situation.

As such, a lease should be used in circumstances where the council is giving the third party exclusive use and occupation of the council’s land.  Where non-exclusive use is being given, or where there will be shared use, a licence should be issued.

We recommend that councils adopt one of two options in relation to the documentation of their usual leasing and licensing arrangements. First, councils can ensure that they have a suite of standard documents, which the Council staff granting leases and licences understand well and can use to document specific situations. Secondly, councils can seek advice on each arrangement and outsource the documentation of that arrangement. The best solution for a particular council will depend on its in-house capabilities and the amount of leasing and licensing they have planned in the short term.

More complex situations, such as commercial leases, ground leases, joint use arrangements and management agreements, will require tailored documents and we believe that councils are well served to obtain advice on arrangements like these up front. This will not necessarily mean that the council cannot complete the documentation itself, but may provide council officers with some useful tips to achieve the best outcome.

For more specific information on any of the material contained in this article please contact Mark Henderson on 8210 1220 or mhenderson@normans.com.au or Lisa Hubbard on 8217 1369 or lhubbard@normans.com.au.


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Local Government Regulatory Services – Investigate all breaches within an incident, not just the major breaches

The Ombudsman has recently released a report outlining the extent to which his recommendations have been complied with, including by councils. Among the various local government matters which the Ombudsman has reviewed is a case which serves as a reminder of the need for all breaches of legislation and by-laws to be investigated in circumstances where multiple breaches of legislation occur in the same incident.

One incident, two attacks

The particular case in question involved a dog which attacked a person (the Complainant) and their dog. The Complainant’s dog was killed as a result of the attack.

When the incident was investigated by the relevant council, the investigation focussed largely on the fatal attack upon the complainant’s dog. The council inspector did not give consideration to taking any enforcement action in relation to the attack on the Complainant.

The Ombudsman’s finding and recommendations

The Ombudsman was critical of the lack of consideration given to the attack upon the Complainant. The Ombudsman also considered that this shortcoming would not have occurred if standard operating procedures which the council already had in place had been adhered to.

Amongst other things, the Ombudsman recommended that the council develop a checklist to ensure that inspectors consider relevant policies, procedures and guidelines during an investigation. The Ombudsman also recommended that all inspectors be given further guidance regarding the level of detail which must be recorded in an investigation file. Discussions regarding the outcome of investigations should be included in such files.

Upon revisiting the matter, the Ombudsman was satisfied that the council had implemented the recommendations.

The lesson for regulatory officers

While this case is in the dog management context, its lesson applies to all regulatory officers involved in investigations and enforcement proceedings. A council, through its regulatory officers, must consider all breaches of relevant legislative and by-law provisions during an investigation. This is the case even for breaches which may seem overshadowed by other more significant, simultaneous breaches.

Properly executing this responsibility to investigate all breaches ensures consistency and promotes community safety. With the commencement of the Independent Commissioner Against Corruption Act 2012, it is now more important than ever for officers performing their high corruption-risk role to have a proper understanding of the critical steps they must follow to conduct a successful investigation. To that end, Norman Waterhouse has developed an in-depth intensive two-hour seminar for regulatory officers on investigation procedure. We would be pleased to deliver the course to your council’s regulatory team for a fixed fee of $1,000 (plus GST).

As this case shows, regulatory officers should be reminded that in any one incident, the lesser breaches should not be ignored because of the major breaches. To let individuals ‘off-the-hook’ for lesser breaches simply because they have committed even greater breaches is both unsound and, in some cases, unsafe.

To find out more information or to book an investigative procedure training session for your Council’s regulatory officers, please contact Dale Mazzachi on 08 8210 1221 or dmazzachi@normans.com.au.


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Development, Compliance, Public and Environmental Health – Hoarding, domestic squalor, and the Development Act 1993

SA Health recently released its guideline “A Foot in the Door – Stepping towards solutions to resolve incidents of severe domestic squalor in South Australia” (guideline).  The guideline is primarily aimed at assisting local government environmental health officers understand, identify and intervene in instances of severe domestic squalor under the South Australian Public Health Act 2011.

The guideline describes ‘severe domestic squalor’ as “households that are extremely cluttered, in a filthy condition, and where the accumulation of items such as personal possessions, rubbish, excrement and decomposing food creates an environment that jeopardises the health and wellbeing of the occupants”.  It further identifies that squalor may be ‘wet’ squalor, such as the accumulation of filth and refuse, or ‘dry’ squalor, being the accumulation of items and possessions.

Behaviour that results in squalor is commonly referred to as ‘hoarding’.  However, not all instances of ‘hoarding’ amount to ‘severe domestic squalor’ of the kind that may be addressed through the SAPH Act.  For example, an occupant may have accumulated a large (even extreme) volume of goods, materials or non-putrescible waste of seemingly little or no intrinsic value, yet which poses no threat to the health of the occupants or nearby residents (perhaps aside from an elevated fire load).

While many instances of ‘hoarding’ may not give rise to a threat to health, they are, more often than not, a cause for continual complaints to local councils.  In such circumstances, the Development Act 1993 provides a number of compliance tools to address instances of ‘hoarding’.

Generally speaking, the Development Act will address 'hoarding', including animal keeping, where the nature or intensity of the use of the land for the storage of goods, materials or waste, or for the keeping of animals, is beyond what is ordinarily regarded as reasonably incidental to the use of residential land

The Development Act provides a range of compliance tools, including broad inspection powers permitting authorised officers to enter and inspect any land where a breach of the Act is reasonably suspected.

Enforcement notices may be issued in appropriate circumstances, directing that specific action be taken within a specific time to address the use of the land for storage.  In some instances it may be appropriate for a relevant authority to issue a fire safety notice if the condition of the property or nature of the materials being stored creates a fire hazard.

In some instances an enforcement notice will be sufficient to either bring about compliance with the Act, or otherwise open a dialogue between the parties.

In circumstances where any initial notice or agreement is not complied with, or in instances requiring urgent attention, the Development Act allows for applications to be made to the Environment, Resources and Development Court for an order remedying or restraining the particular use of the land. 

As part of the court process, parties are required to attend a mandatory conciliation conference.  In our experience, these conferences provide an effective, non-adversarial forum at which the parties can discuss, with the Court’s assistance, a realistic and achievable resolution to the issue.  Sometimes a resolution is agreed at the conference stage, without proceeding to a contested hearing in respect of the orders sought.

If appropriate, additional service providers, such as a clinical psychologist, social worker, or other community service can be incorporated at the conference stage, or as part of any final agreement.

Environmental health officers, compliance officers and development officers looking to address instances of ‘hoarding’ within the community that do not constitute ‘severe domestic squalor’ for the purpose of the guidelines are encouraged to consider the range of options available under the Development Act.

For more specific information on any of the material contained in this article please contact James Nicolson on 82171342 or jnicolson@normans.com.au.


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