Policing - NSW Ombudsman - NSW Government

Highlights››Reviewed 1,896 individual complaints that wereinvestigated or resolved by police, and found themajority of them had been handled satisfactorily. SEEPAGE 74››Investigated police practices for destroyingfingerprints, using tasers and activating in-car videoand provided recommendations for improvement.SEE PAGEs 78–79››Reviewed more than 3,000 complaint recordsfrom across the state during one investigation, andwill use the findings to work with the ProfessionalStandards Command to improve police systems forrecording complaints on c@tsi. SEE PAGE 80››Inspected the records of 342 controlled operations,and prepared an annual report on our monitoringwork under the Law Enforcement (ControlledOperations) Act 1997. SEE PAGE 85››Prepared six monthly reports for the Attorney-General on our inspections of 449 surveillancedevice records of NSW law enforcement agencies.SEE PAGE 86››Completed two inspections of the NSWPF’s recordsfor covert search warrants, reviewing 48 files. SEEPAGE 863PoliceandComplianceOur police and compliance branchis responsible for oversighting theway police handle complaints.We do this through auditingcomplaints, reviewing policecomplaint investigations andconducting our own directinvestigations. We also monitor theexercise of certain police powersthrough our legislative review role.We monitor compliance withrequirements relating to covertoperations. We hear appealsand handle complaints relatingto witness protection.Police and CompliancePolicing 74Witness protection 84››Covert operations 85Policing73

Police and CompliancePolicingWe are committed to workingwith police to achieve a policecomplaint system that reachesfair and just outcomes and fostersgood customer service. We alsoaim to help police improve theway they operate by addressingissues raised in complaints.To do this, we closely reviewcomplaints about serious policemisconduct and provide feedbackto the NSW Police Force (NSWPF)about best practice in complainthandling.We also check howwell police are handling lessserious complaints and regularlyaudit the effectiveness of theircomplaint-handling systems.Our legislative review role includeskeeping under scrutiny how policeuse certain new powers. We alsoinvestigate particular areas ofpolice practice if we think it isin the public interest to do so.Our role in the policecomplaints systemThe police complaints system isgoverned by the Police Act 1990,which sets out how complaints are tobe addressed. Approximately 5,000complaints about police officers aremade each year. These come fromboth the public and from within thepolice force itself. Approximately60% of these complaints are directlyassessed by our office.Under the statutory framework, policeconduct the majority of complaintinvestigations. We are required tooversee the way these complaintsare handled, including any decisionsnot to investigate. Police must notifythe Ombudsman about more seriouscomplaints – such as complaintsinvolving allegations of criminal,corrupt or unreasonable conduct.We complete detailed reviews of allpolice investigations of more seriouscomplaints. Our role is to ensurethese investigations are effectiveand timely and the action taken isappropriate. For example, we may:››ask police to review the action takenif we consider it is inadequateseek further informationmonitor the police investigation››prepare a report about theinvestigation if we consider itdeficient››investigate the matter of our ‘ownmotion’››report to Parliament about issues ofsignificant public interest.We have a class or kind agreementwith the Police Integrity Commission(PIC) that sets out the types ofless serious complaints that canbe handled by police without ouroversight – such as complaints aboutpoor customer service, rudenessor minor workplace conduct issues.These complaints are resolved bylocal commanders without our directoversight. However police are stillrequired to register the details ofthese complaints on their complaintsmanagement system, and we conductregular audits to make sure they arebeing handled appropriately.Current complainttrends andoutcomesThis year we received 3,032 formalor written complaints about policefor individual assessment andoversight. This included complaintswe received directly as well as thosethat were notified to us by police orreferred from the PIC. We finalised3,093 complaints. Figure 36 showsthe number of complaints we havereceived and finalised over the pastfive years.We determined that 27% ofcomplaints could be declined forinvestigation for reasons such asthe availability of an alternative andsatisfactory means of redress – suchas raising the allegations in courtif they directly related to a charge.Another 340 complaints wereassessed as local managementissues and referred to commandsfor direct action. We quality reviewed1,896 individual complaints thatwere fully investigated or resolvedby police, and found that themajority of them had been handledsatisfactorily. However, in 283matters (15%) we considered thehandling to be deficient. This included161 or 8.5% of matters where webelieved the initial investigationor proposed management actiontaken in response to the findings ofthe investigation was deficient, and122 or 6.5% of matters where thetimeliness of the investigation alonewas found to be unsatisfactory.Following our advice, police were ableto remedy the deficient investigationand management actions in 74%of the cases where we identifieddeficiencies.Figure 37 shows the proportion ofoversighted complaints about policeofficers made this year by fellowpolice officers and by members ofthe public, compared to the previousfour years. The high proportion ofcomplaints raised by officers abouttheir colleagues is an indicator ofthe low tolerance for misconductwithin the current NSWPF. Figure 38shows a breakdown of the kinds ofcomplaints that were notified to us thisyear (some complaints may containmore than one allegation). Appendix Aprovides more detail about the typesof complaints and the way they werehandled.Figure 36: Formal complaints about police received and finalisedMatters 05/06 06/07 07/08 08/09 09/10Received 3,753 3,466 2,969 2,948 3,032Finalised 3,833 3,555 3,254 3,094 3,093Figure 37: Who complained about the police?This figure shows the proportion of formal complaints about police officersmade this year by fellow police officers and from members of the general public,compared to the previous four years.05/06 06/07 07/08 08/09 09/10Police 1,151 1,268 1,056 1,158 1,090Public 2,602 2,198 1,913 1,790 1,942Total 3,753 3,466 2,969 2,948 3,03274 NSW Ombudsman Annual Report | 2009–2010 35 years of making a difference

Over the past three years, wehave seen an increase in the useof informal resolution by police toaddress complaints and a reductionin formal investigations, as shownin figure 39. This shift reflects theeffects of the new streamlinedcomplaints resolution approachintroduced across the NSWPF in2008. The aim of this streamlinedprocess is to resolve less seriouscomplaints more efficiently, ratherthan relying on resource intensivecomplaint management teams.The NSWPF is still not meeting itsown internal timeliness standardsfor completion of investigationsand informal resolutions althoughcompletion times are continuing toimprove (see figure 40).An important issue we monitor isthe adequacy of the managementaction the NSWPF takes followinga complaint. Even if an allegation isnot sustained against an individualofficer, police may decide someaction is required to improveoperational issues or the complainthandlingprocess. In 2009–2010,66% of the investigations wereviewed resulted in some form ofmanagement action (see figure 41).Figure 38: What people complained aboutSubject matter of allegationsNo. of allegationsArrest 134Complaint-handling 211Corruption/misuse of office 278Custody/detention 153Driving-related offences/misconduct 107Drug-related offences/misconduct 178Excessive use of force 723Information 678Inadequate/improper investigation 677Misconduct 1,414Other criminal conduct 398Property/exhibits/theft 200Prosecution-related inadequacies/misconduct 265Public justice offences 167Search/entry 149Service delivery 1,148Total 6,880Note: Please see Appendix A for more details about the action that theNSW Police Force took in relation to each allegation.Figure 39: Action taken in response to formal complaints aboutpolice that have been finalisedAction taken 07/08 08/09 09/10Investigated by police and oversighted by us 1,983 1,395 1,145Resolved by police through informal resolution andoversighted by us 99 443 751Assessed by us as local management issues andreferred to local commands for direct action 490 468 340Assessed by us as requiring no action (eg alternateredress available or too remote in time) 682 788 857Total complaints finalised 3,254 3,094 3,093Figure 40: Timeliness of the completion of investigations andinformal resolutions by the NSW Police ForcePercentage of 05/06 06/07 07/08 08/09 09/10Investigations less than 90 days 28 28 34 40 44Informal investigations less than 45 days 21 14 15 41 47Figure 41: Action taken by the NSW Police Force followingcomplaint investigations05/06 06/07 07/08 08/09 09/10No management action taken 895 936 837 500 386Management action taken 1,236 1,221 1,146 895 759Total investigations completed 2,131 2,157 1,983 1,395 1,145Of the 751 informal resolutions of notifiablecomplaints we oversighted, policetook some form of management actionin almost half (47%). Non-reviewablesanctions such as managementcounselling, official reprimands or warningnotices, additional training, performanceagreements and mentoring are the maintypes of management actions used tocorrect misconduct. In the majority ofcases we have agreed with police that theproposed management was appropriateand reasonable.The system continues to work well inrelation to complaints about seriousmisconduct. In matters where disciplinaryaction was finalised this year, 95 officershad been charged with a total of 300offences. Some of the most commoncharges were for unauthorised accessto information/data (56 charges werelaid against four officers), assault (46charges laid against 34 officers), anddriving offences, including drink driving(24 charges laid against 24 officers), andnegligent/dangerous driving (16 chargeslaid against nine officers).Police and CompliancePolicing75

Police and ComplianceA total of 31 officers were chargedwith 51 ‘other summary offences’,including public mischief, makingfalse statements, unauthorisedpossession of a prohibited weapon,and failure to quit premises. The 69criminal charges for ‘other indictableoffences’, were laid against 12officers, and included offences suchas possession of child pornography,firing a firearm in a manner likelyto injure persons or property, anddrug offences. Case study 27 is anexample of a dismissal as a result ofcharges laid against the officer.CS 27: Stealing army clothingAn on-duty police officer stole severalhundred dollars worth of army clothingwhile supervising a boot camp heldat Holsworthy army base, aimed atpreventing youth offending. The officerplaced the clothing in a police vehicle,and then drove to a nearby servicestation where he put the items in hisgirlfriend’s car. Police at the campwrongly accused the young peopleof stealing the property and searchedtheir bags. Later, a complaint intothe officer’s conduct was initiated byanother officer who had witnessed theremoval of the property. As a result ofthe investigation into the complaint,the officer was charged with larceny.He was convicted, fined $5,000, anddismissed from the police force as aresult of his conduct.Twenty five police officers wereremoved from the NSWPF duringthe financial year and at leastanother four resigned as a resultof disciplinary procedures.See figure 42 for a five yearcomparison of charges againstpolice arising from complaints thatwere finalised during each period.Overseeing serious misconduct investigationsThe complaints system is more thana disciplinary process for individualswho have acted wrongly. It is alsoabout ensuring police act reasonablyand police policies and proceduresare reasonable. The complaintssystem allows police action to bereviewed and officers to be educatedwhen mistakes have been made.Complaints may also help policeidentify circumstances where theirpractices need to change.Our role is to help police achieve bestpractice in complaint-handling andinvestigation by:CS 28: Difficulties handling a noise complaint››providing feedback aboutpotential problems in investigativeapproaches››highlighting operational issues thatmay not have been identified in theprocess of handling the complaint.Police have to take into considerationa multitude of laws and regulationswhen policing in the community.Sometimes, they get things wrong– as shown in case studies 28 and29. This can adversely impact therights of the public and may alsocompromise criminal investigations.In response to a late-night noise complaint, police attended a propertywhere a fancy-dress party was being held. After receiving no response fromknocking on the front door, the officers went to the rear of the property througha side gate. They encountered the owner of the property and another persondressed in police uniforms claiming to be police officers. The owner told theofficers to leave the property and not to come back without a warrant.The officers promptly left and contacted a more senior officer who wentto the property a short time later. The officers went to the front door, againwithout a warrant. The senior officer recognised the two people dressed inpolice uniform as ex-police officers and asked that they return the uniforms.After a short while, the officers entered the house and seized the uniforms.The ex-police officers were later charged with possession of police uniformsand impersonating a police officer. A magistrate dismissed the charges onthe basis that the attending officers trespassed when obtaining evidenceof the offences. Costs of $15,000 were ordered against the police.The owner of the property complained about the unlawful actions of theofficers. The police investigator made no sustained finding, stating theofficers erred on a point of law and did not intentionally abuse their powers.We raised concerns about this finding given that the magistrate foundthat the officers acted unlawfully. We recognised that they had acted ingood faith when trying to deal with the noise complaint, but neverthelessexceeded their powers. We also acknowledged the officers attemptedto deal with the noise complaint in a sensible and practical manner.We suggested that the issues raised in this complaint provided anopportunity for educating all police officers on their powers of entry whendealing with noise complaints. The NSWPF agreed with our suggestionand issued a Law Note published in the Police Weekly. This outlined thevarious powers of entry when dealing with noise complaints – including therequirement to obtain a warrant if an occupant requests that police leavethe property before they have a chance to address the noise complaint.Figure 42: Police officers criminally charged in relation tonotifiable complaints finalisedNumber of 05/06 06/07 07/08 08/09 09/10Complaints leading to charges 65 63 50 63 92Officers charged 64 60 49 60 95Total charges laid 101 184 136 259 300Officers charged followingcomplaints by other officers 51 48 32 45 68Percentage of officers charged 79 80 65 75 7276 NSW Ombudsman Annual Report | 2009–2010 35 years of making a difference

We regularly receive complaints aboutthe lawfulness of arrests. The issueraised in case study 30 demonstratesthat some police officers may not fullyappreciate the fact that an arrest is ameasure of last resort, and suspectscan only be arrested for limitedpurposes outlined in section 99(3)of the Law Enforcement (Powers andResponsibilities) Act 2002.CS 29: Searching garages andmail boxesPolice attended a residence to seeif a person wanted for questioningwas present. Without the consent ofthe owner, police opened the garagedoor to check if the person’s vehiclewas there. They also opened andsearched the mail box and the mailinside. Police claimed they did thisto establish whether the person waspresent at the location. The initialcomplaint investigation found that theofficers’ actions were an acceptablepart of police investigative processand no adverse findings were made.After reviewing the matter and therelevant legislation, we formed theview that police did not have thepower to conduct these searchesin the circumstances. We wroteto the NSWPF and asked them toreconsider the findings made and takeappropriate management action.Police reconsidered the matter andaccepted that the searches wereunlawful. As a result, sustainedfindings were recorded, the officersinvolved were counselled aboutappropriate search practices,and training was provided toall general duties officers in thelocal area about the legalities ofsearching mail boxes and garageswithout the owner’s consent.CS 30: When is an arrest unlawful?Investigators from the Professional Standards Command were investigatingallegations that two police officers were running a debt collection business withouta licence and without secondary employment approval – and they arrested theofficers while they were on duty. The purpose of the arrest was to give the officersthe opportunity to participate in a criminal interview and ensure they could becontrolled during the execution of search warrants at their respective homes.During the subsequent legal proceedings, a magistrate found the investigatorsunlawfully arrested the officers.After the charges for conducting a debt collection business without a licence weredismissed, the officers complained to us about the unlawful arrests. The NSWPFinitially declined to investigate the allegation on the basis that the investigatorsrelied on internal legal advice when deciding to arrest the officers, and on theunderstanding that the magistrate did not make any adverse finding or commentabout the conduct of the investigators.We obtained a copy of the transcript, noting the magistrate criticised the actionsof the investigators in arresting the officers. We prepared a comprehensive legaladvice outlining our view that the investigators appeared to have unlawfullyarrested the officers – given that their purpose of arrest was to conductinvestigative procedures and to control the officers, rather than start legalproceedings at the time of the arrests. We gave a copy to the NSWPF requiringthem to investigate the issue of unlawful arrest. We also suggested that thecomplaint provided an opportunity to clarify legal and procedural issues about thearrest of police officers and members of the public during criminal investigations.The NSWPF agreed the investigators unlawfully arrested the officers. The officersreceived an apology and internal complaint-handling guidelines have beenamended to clarify the scope of the power of arrest when conducting criminalinvestigations involving police officers.Case study 31 involved serious allegations against a senior police officer.Unfortunately, police failure to properly investigate the matter affected theoutcomes that could be reached. We identified problems with the investigation,including a failure to properly follow complaint-handling protocols. We hope thiswill help police to avoid similar problems in the future.CS 31: A lack of integrity and a missed opportunityA superintendent who was a local area commander was detected by highwaypatrol (HWP) officers driving at 176kph in a 100kph zone. When stopped by theHWP officers, the superintendent claimed he was in pursuit of another driverfor a traffic offence. The HWP officers joined this pursuit with two vehicles, buteventually realised the vehicle the superintendent referred to did not exist.The region commander took action after a short investigation. We were criticalof this investigation as it failed to conduct criminal inquiries and ask adequatequestions about the superintendent’s reasons for speeding. Although thesuperintendent admitted he had lied to HWP about the involvement of anothervehicle, his admissions could not be used in any criminal proceedings as hehad not been criminally cautioned and the admissions were not electronicallyrecorded. In our view, the superintendent’s conduct could have constituted anoffence of public mischief and an attempt to pervert the course of justice.As the complaint involved an integrity issue, it needed to be referred to the InternalReview Panel (IRP) – a panel of senior officers who recommend managementaction for complaints involving serious misconduct and integrity issues. Howeverthis did not occur. We raised this with the commander of Professional StandardsCommand who agreed the conduct should have been notified to the IRP. Theycould have provided a more robust and independent consideration of the matter.The superintendent received a region commander’s warning notice, a fine of$1,674 and a six month licence suspension. He was also decertified from drivingpolice vehicles for the same period and required to requalify. No action was takenagainst the region commander in relation to his handling of the investigation as hehad retired from the NSWPF.Police and CompliancePolicing77

We look at the complaint historiesof both complainants and subjectofficers when we are assessingcomplaints. Case study 32 showshow not disclosing the identity ofcomplainants may affect both thecomplaint investigation and ouroversight.Investigations by theOmbudsmanIn addition to our powers tooversee police complaints underthe Police Act, we may decide toinvestigate police practices using theOmbudsman Act if it is in the publicinterest to do so.Destroying records offingerprintsOn 12 December 2006, theLaw Enforcement (Powers andResponsibilities) Act 2002 ‘LEPRA’was amended to allow fingerprintstaken by police to be destroyed ifthey were taken for an offence wherethe person was found not guilty orwas acquitted, or the charges werewithdrawn or dismissed.CS 32: Problems with anonymous allegationsAn officer made an allegation of illicit drug use by another officer. The officer whomade the allegation wanted to remain anonymous, and said they had received theinformation from another officer who also wanted to remain anonymous.The Police Act requires the NSWPF to protect the identities of internal policecomplainants, but there are no provisions for granting anonymity. If officers are notidentified, it may have an impact on the effectiveness of the complaint investigation.Lines of inquiry are immediately closed down. Identification is important forreviewing the complaint history of the involved officers to see if they may be makinga reprisal complaint. Additionally, failure to identify the complainant means we areunable to properly monitor the complaint investigation and attend any interviews.As the officer who made the allegation declined to provide the NSWPF with thename of the officer who reported their observations, no further enquires were ableto be conducted with that officer. We also understand that there were other officerspresent at the function where the alleged drug use had occurred. These officerswere also not able to be identified or interviewed.We requested the identities of all the officers in this matter. The local areacommander advised that he could not comply with our request as undertakingshad been given to the officers that their identities would not be disclosed.The investigator had also failed to review the subject officer’s history. This showedhe had previously admitted to illicit drug possession and use, but was allowed toremain with the NSWPF as he had provided information about other police whowere alleged to be using illicit drugs.We raised the matter with Professional Standards Command who directed thelocal area commander to provide us with the identities of the involved officers.The NSWPF subsequently amended their guidelines to reflect the requirement forcomplainants’ identities to be disclosed to our office.Police and ComplianceAfter the amendment to LEPRA,people began applying to have theirfingerprints destroyed. We received anumber of inquiries and complaintsabout the NSWPF refusing to destroyfingerprints after valid applicationshad been made. The NSWPF advisedus that they were relying on legaladvice suggesting that destroyingfingerprint ‘records’ would contravenethe State Records Act.The inconsistency between LEPRAand the State Records Act wasresolved on 6 March 2009, allowingthe NSWPF to lawfully destroyfingerprint records. They destroyedthe fingerprint records of the fivepeople who had complained to ouroffice, but had no plans to re-visitrejected applications where theapplicant had not complained to us.We decided to investigate theNSWPF’s practices for destroyingfingerprints and found out thatthere were a further 414 rejectedapplications. The NSWPF proposedto write to the rejected applicantsinviting them to complete a freshapplication. There did not appear tobe any legal requirement for a freshapplication – and it would just resultin more time-consuming paperwork.We also thought there might besome unforeseen or unintendedconsequences if the NSWPF usedfingerprint records after there hadbeen a valid application for them tobe destroyed.We recommended that theNSWPF act upon all previous validapplications and only ask for furtherinformation from applicants if theycould not identify the fingerprintrecord to be destroyed. We alsorecommended that they provide clearinformation on their website aboutthe process for applying to havefingerprints destroyed.The NSWPF agreed with ourrecommendations and are currentlyimplementing them. This includeswriting to previous applicants toadvise them that their fingerprintshave been destroyed.Using TasersIn March 2009, an experienced policeofficer used a taser on a person whohad been seen walking erratically inthe middle of the road near OxfordStreet. The officer stated that theperson appeared drug or alcoholaffected and initially did not respondto his requests to get off the road.CCTV footage indicates that theperson eventually complied with thepolice direction to move onto thefootpath. By this time, at least fourother police had arrived although theofficer’s evidence was that he wasnot aware of this. When the personattempted to step onto the footpath,the police officer tasered him in theback and he fell onto the roadway.He then stood up and wassurrounded by four police. The taserwas then used a second time and theperson again fell onto the roadwaybefore being physically controlledby the other attending police. Hewas subsequently found to be inpossession of a small amount of illicitdrugs and arrested.A subsequent complaint investigationby police found that the use of thetaser was appropriate and within theNSWPF guidelines. We had concernsabout the adequacy and outcomeof the investigation but, as theincident was to be reviewed in courtproceedings, we decided to wait forthe outcome of those proceedings.The magistrate dismissed all chargesagainst the person on the basis thatthe arrest was unlawful and the useof the taser was unreasonable andamounted to assault.Having considered all the availableinformation, we issued a statementof provisional findings andrecommendations to the police.In our view, the officer’s use of thetaser constituted excessive force.We recommended that an adversecomplaint finding be made againstthe officer and that he and the otherinvolved officers receive furthertraining in appropriate use of tasers.We also recommended that this casebecome an example in police trainingof how a taser should not be used.78 NSW Ombudsman Annual Report | 2009–2010 35 years of making a difference

While the officers involvedsubsequently received additionaltraining, the police did not supportmaking an adverse finding against themain officer although it acknowledgedthat the NSWPF could have handledthe incident differently. The NSWPFexpert in relation to taser deploymentalso did not concur with ourconclusion that the taser use wasinappropriate and police stated thatthere were less ambiguous examplesof inappropriate use available fortraining purposes.At the time, the standard operatingprocedures (SOPs) for Tasers didnot, and still do not, contain aninstruction prohibiting the dischargingof tasers upon a subject in passivenon-compliant situations. Theofficer, most probably in goodfaith, used his discretion within thetactical operations model utilisedby the NSWPF to take control ofthe situation and justified his taseruse within the terms of the relevantSOPs on the basis he was actingto prevent potential injury to theperson as a consequence of beingstruck by a motor vehicle or toothers as a result of the person’sperceived irrational behaviour.We continue to believe that the SOPsthat guide police use of tasers containcriteria for use that are capableof too wide an interpretation andleave too much to the discretion ofindividual officers. In our 2008 reportto Parliament on The Use of TaserWeapons by New South Wales PoliceForce we recommended among otherthings that the SOPs be tightened tomake clear that they should only beused in situations where a personis violently confronting or resistingpolice. The NSWPF have refused todo this. Interestingly, Victorian Police,like some other jurisdictions, recentlyissued SOPs that make it abundantlyclear that tasers must not be used asa compliance tool against individualsoffering passive resistance.Prior to finalising our considerationof this individual matter, the PoliceIntegrity Commission utilisedits power under section 70 ofthe Police Integrity CommissionAct 1996 to take over from theCommissioner the investigation ofthis and a related complaint. Asa consequence the matter wastaken outside Part 8A of the PoliceAct 1990 and the Ombudsman’soversight role with respect to thisincident at this time has ceased.Performance indicators2009–2010 criteria (%) Target ResultFormal reports about police conduct that maderecommendations relating to law, policy or procedures 70 86Recommendations in formal reports supported orimplemented by the NSW Police Force 80 96Activating in-car videoIn December 2009 we started an investigation into compliance with legislationand police guidelines for using in-car video (ICV).ICV is a key tool in modern traffic policing. It is an objective source of evidenceand can be invaluable to establish or clearly refute allegations of misconduct.Getting the best out of ICV, for the NSWPF and the public, relies on havingappropriate guidelines that are reinforced by commanders and supervisors. Italso relies on the NSWPF having procedures in place that ensure that ICV is usedboth as a source of evidence and as a tool for identifying and addressing risks intheir command and fostering good police practice.Since ICV was introduced in 2004, we have overseen a number of ICV relatedcomplaints. ICV evidence has often been invaluable in establishing whethermisconduct has occurred – such as in case study 33. However we have alsoidentified some ongoing concerns.These concerns are:››Police are not always activating audio when required. When they fail to activateaudio, there is often no attempt to explain why or for investigators to act on noncompliance.››ICV is not always used effectively as a source of evidence. Incidents arereviewed or investigated and statements prepared without looking at the ICVrecord.››In a number of cases where assault is later alleged, the ICV shows the detainedperson being removed from the field of view of the ICV camera – and thereason for this is not adequately explored.In May 2010, we gave the NSWPF a copy of the provisional findings andrecommendations of our investigation. The NSWPF have since supported all ofthe recommendations made.CS 33: Police officer detected not driving safelyICV provides valuable evidence in pursuit matters. Reviewing ICV after a pursuitcan also help senior police to find out whether the pursuit was conductedin accordance with best practice. Sometimes, ICV can even detect seriousmisconduct.After a review of the ICV in one pursuit, a region traffic coordinator detected somevery serious breaches of the safe driving policy by one of the vehicles involved.The officer driving the vehicle had activated the ICV, but not the audio. The ICVfootage showed that, although the pursuit had been terminated, the officercontinued to follow the subject vehicle – driving dangerously with no flashing lightsor sirens and driving on the wrong side of the road up a crest. At the Safe DriverPanel convened to consider this officer’s conduct, the region traffic coordinatorcommented that he had ‘never seen such a blatant breach’.Although we are not usually notified of breaches of the safe driving policy, in thismatter we were. This was because of the seriousness of the breaches and theofficer’s poor complaint and driving history.Significant management action was taken in relation to the driver of the policevehicle, including reducing his driving classification. He was also referred forconsideration of reviewable management action.Police and CompliancePolicing79

Police and ComplianceSafe drivingSafe driving has been a prominentissue this year with the introductionof the Crimes Amendment (PolicePursuits) Act 2010 in March.In December 2006, we issued theNSWPF with a report about ouraudit of police compliance with thesafe driving policy. We made 39recommendations, with 18 relating tothe terms of the safe driving policy.Police are the experts in policedriving, so our aim was to promptthe NSWPF to genuinely evaluatetheir policy in light of the investigationfindings. Of the 18 recommendationswe made about safe driving, eightwere not implemented and fourwere only partially implemented.Those not implemented includedrecommendations such as the useof ICV to routinely review pursuits,the review of all pursuits by the StatePursuit Management Committee,providing greater guidance to policedrivers to assess the seriousness ofthe offence and the appropriatenessof engaging in a pursuit, andguidance about what is required aftera pursuit has been terminated.We will continue to closely monitorcomplaints about police pursuits, ICVand other traffic policing situations.Keeping thecomplaint systemunder scrutinyThe Ombudsman’s role includesan obligation to the keep the overallpolice complaints system underscrutiny. This includes inspectingrecords to ensure NSWPF arecomplying with requirements underthe Police Act, and examining thesystems used by police to checkhow well they are operating. Thisyear we have looked at systems andprocedures in a number of areas –such as assessing and registeringcomplaints, Working With ChildrenChecks, handling domestic and familyviolence complaints (see page 81)and drug testing of police officers.Registering complaintsPart 8A of the Police Act sets out howcomplaints about police conductare to be handled. The NSWPF isrequired to register all complaintsthat fall within the terms of Part 8Aon c@tsi, their complaint informationsystem – including the details of theinvestigations conducted and themanagerial actions taken to remedycomplaints that are found to be‘sustained’.Complaints that are resolved directly by police without our oversight are alsoregistered on c@tsi.Complying with this requirement is essential to the effectiveness of the complaintsystem. This is because:››Complaint histories of individual police officers inform decision-making aboutnew complaints, and are used by the NSWPF to assess the integrity of officersbeing considered for promotion.››Recording complaints encourages consistency in decision-making andpromotes transparency and accountability.››We access c@tsi to audit complaint-handling and assess the reasonablenessof complaint outcomes.››Complaint records provide information about trends across the NSWPF,including levels of complainant satisfaction, and provide data that can be usedto drive improvements to service delivery.This year we started an investigation into the NSWPF’s practices for decidingwhether to register a complaint on c@tsi. We inspected over 3,000 recordsfrom across the state. Our provisional findings suggest a widespread failure tocomply with the requirements for registering complaints. We found more than250 complaints that the NSWPF had incorrectly assessed as being ‘not Part 8A’complaints and therefore had not recorded on c@tsi – such as case study 34. Ofthese, 104 included allegations of serious misconduct that the NSWPF failed tonotify to the Ombudsman, such as the example at case study 35.The NSWPF has accepted our findings. In the next year we plan to work closelywith the Professional Standards Command to improve police compliance withrequirements for registering complaints on c@tsi.CS 34: Road rage incident not notifiedA local area command received a complaint alleging that an off-duty probationaryconstable used offensive language and improperly displayed his police badgeduring a road rage incident. The complaint was handled by informal resolutionand the officer was counselled about his conduct. The NSWPF took steps toresolve the complainant’s concerns and to address the officer’s conduct, but thenassessed that the complaint was ‘not Part 8A’. As a result, the complaint was notregistered on c@tsi or notified to the Ombudsman.CS 35: Letter not classified as a complaintA community worker from a drop in centre complained about the conduct ofpolice officers who attended the centre and searched one of its visitors. Theletter of complaint indicated that the complainant considered the use of forcewas unreasonable and excessive, with a number of officers forcing the visitorto the ground and using a taser to subdue him. They felt that the force usedwas unnecessary and could have been avoided, and said police had failed torecognise that the visitor was trying to cooperate with their directions. The localarea command assessed the letter as not being a complaint under Part 8A, soit was not recorded on c@tsi or notified to the Ombudsman. We have asked theNSWPF to investigate this matter.Child-related employment notifications and checksIn February 2008, the NSWPF finalised a class or kind agreement with theCommission for Children and Young People (CCYP). This agreement covers theNSWPF’s obligations to notify the CCYP of completed employment proceedings– that is, proceedings against an employee relating to reportable conduct or actsof violence committed in the course of employment and in the presence of achild. These notifications are required so that the CCYP can provide Working WithChildren Checks for child-related employment.This year we raised concerns with the NSWPF about delays in notifying the CCYPof employment proceedings completed before the class or kind agreement wasfinalised. The Professional Standards Command set up a project to identify andnotify outstanding matters, and this resulted in 75 notifications to the CCYP. Of the75 notified, 19 related to currently serving police officers.80 NSW Ombudsman Annual Report | 2009–2010 35 years of making a difference

We have also had ongoingdiscussions this year with the CCYPabout the application of the childrelatedemployment screeningsystem to general duties sworn policeofficers. Only a handful of policepositions – such as work in a JointInvestigation Response Team or withthe Police Band – currently includea Working With Children Check as arequirement of their employment.We are concerned that generalduties police officers do not haveto undergo a Working With ChildrenCheck when they join the NSWPF, asthe CCYP does not consider they areengaged in child-related employment– as defined by section 33 of theCommission for Children and YoungPeople Act 1998 (CCYP Act).Police officers have statutoryresponsibilities for protectingchildren under the Childrenand Young Persons (Care andProtection) Act 1998. For example,they make mandatory reportsabout children and young peopleat risk of significant harm, applyfor apprehended violence orderson behalf of children, and removechildren and young people who areat immediate risk of serious harm.Given that policing activities involvesignificant contact with children andyoung people, we believe it is in thepublic interest that general dutiesofficers have to undergo a WorkingWith Children Check. We raised theseconcerns in our submission to thestatutory review of the CCYP Act.New drug testing proceduresThe Police Act allows for the testingof police officers for prohibited drugsand steroids. This year the NSWPFintroduced procedures for directingoff-duty police to return to work for adrug test under section 211A of thePolice Act. The power to do this wasintroduced in November 2006, buthad not been previously used. Underthe new procedures, the NSWPF willnotify the Ombudsman within threedays of a decision to direct a policeofficer to return to duty for a drug test.Since its introduction, the procedurehas been used once and led tocriminal charges being laid againstthe officer tested.Policing domesticviolenceA significant development this yearwas the passage of legislationto establish a ‘domestic violencedeath review team’ in NSW. Our2006 report to Parliament, Domesticviolence: improving police practice,drew attention to the benefits of adomestic homicide review processand since then we have reiteratedour support for its establishment onseveral occasions. Disappointingly,the NSW Government has decided toestablish the team in the office of theNSW Coroner, despite the majority ofthe expert advisory panel it convenedrecommending that the function belocated in this office.The advisory panel preferred thismodel based on our significantlegislative functions, powers andexpertise in relation to monitoringand reviewing child deaths as well asreviewing and investigating broadersystemic issues, particularly thedelivery of government and nongovernmentcommunity services andthe policing of domestic violence.This infrastructure, which includesaccess to the NSW Police Force andCommunity Services databases andthe National Coroners’ InformationSystem, would have enabled promptimplementation of the domesticviolence death review model.Importantly, locating the functionin our office would have alsoavoided potential duplication ofeffort and resources in relation toreviewing child deaths. We notethat the NSW Opposition hasstated its opposition to the locationof the domestic violence deathreview team within the office of theCoroner and indicated it will transferthe function to the Ombudsmanif elected to government.This year also saw the public releaseof the NSW Police Force’s Domesticand Family Violence Code of Practice.The development of the code, whichwas launched by the Police Minister inDecember 2009, was one of the keyrecommendations of our 2006 report.We recommended that the code bedeveloped to provide victims andtheir advocates with a document thatclearly delineates and reinforces theresponsibilities of police in respondingto domestic violence. We providedfeedback to police on a draft versionof the code.Auditing domestic and familyviolence complaintsThis year we completed anaudit of the NSWPF’s handlingof domestic and family violencecomplaints. The audit was carriedout in accordance with s.160 of thePolice Act 1990, which requiresus to keep under scrutiny thesystems established by the NSWPFfor dealing with complaints.The audit included both ‘notifiable’and ‘non-notifiable’ complaintsreceived and registered by theNSWPF in the 2008 calendar year.The objective was to generate asnapshot of the handling of domesticviolence related complaints and thequality of the policing of domesticviolence more generally.Using a detailed questionnaire,approximately 400 complaints werereviewed to determine whether theywere correctly classified by theNSWPF and satisfactorily handled,including whether police tookappropriate action to resolve anyimmediate concerns raised by thecomplaint, whether the complaintwas dealt with in a timely manner andwhether the complainant was satisfiedwith the outcome.In addition to providing an insightinto how well the NSWPF handlescomplaints about domestic violence,the audit has revealed usefulinformation about the most commoncomplaint issues and demographicdata about complainants. It hasalso extracted information about thenumber and details of complaintsinvolving police officers alleged to bedomestic violence offenders.We have prepared a preliminary reportto consult with NSWPF that sets outthe findings of the audit and putsforward a range of recommendationsdesigned to improve the handlingof complaints about domesticviolence and the quality ofservice delivery more generallyin this critical area of policing.Working with stakeholdersIn August 2009 the Ombudsmanwas invited to give a keynote addressat the annual conference for theNSWPF’s Domestic Violence LiaisonOfficers. The Ombudsman used thisopportunity to outline the differentways in which we work with police toimprove the service they provide tothe people of NSW. He also dispelledsome of the myths surroundingour role in oversighting the policecomplaints system.Police and CompliancePolicing81

Police and ComplianceFollowing his address, theOmbudsman answered questionsfrom attendees on a range oftopics including recent initiativesaimed at better responding todomestic violence, changes tothe child protection system andconcerns about the ability ofpolice officers and other workersto exchange information.This year the NSWPF sought ourfeedback about the development ofa new specialist domestic violencecourse for police prosecutors. Our2006 report recommended that thistraining be provided. The course willbe rolled out early in 2011. We werealso invited by the NSWPF to sit ona committee convened to consider aproposal to introduce ‘on-the-spot’apprehended domestic violenceorders (ADVOs).We canvassed this issue in our2006 report and were pleasedto have the opportunity to sharethe knowledge we have gatheredabout the operation of the ADVOsystem as a result of our unique roleoversighting complaints about police.In September 2009 we also acceptedan invitation to visit SutherlandLAC to observe the strategiesused by that command to respondeffectively to domestic violence.CS 36: Restoring confidenceOur inaugural Domestic ViolenceCommunity Stakeholders Forum inDecember 2009 was very positivelyreceived. The forum was organisedto provide community workers in thedomestic violence sector with anopportunity to speak directly to usabout their issues and concerns inrelation to the response by police andother agencies to domestic violence,and to enable us to update themabout our ongoing work in this area.The 60 workers who attendedthe forum were addressed by theOmbudsman, Community andDisability Services Commissionerand staff from our strategic projectsdivision and police division. A rangeof issues was covered, includingprogress made by the NSWPF inimplementing the recommendationsof our 2006 report and changes tomandatory reporting and referralprocesses as a result of the WoodInquiry. (For further details about theforum see page 28 in Stakeholderengagement).As a result of feedback providedby participants at the forum, wesubsequently raised a number ofissues with the NSWPF’s CorporateSpokesperson for Domestic Violence,including continuing concern aboutwomen being inappropriatelycharged with domestic violenceoffences because of the allegedfailure of police to correctlyidentify the ‘primary aggressor’.After her ex-partner was convicted for seriously assaulting her, a womanapproached us to complain about her treatment by police some yearsearlier. Prior to the assault for which he was convicted, the woman hadcontacted police on several occasions to report that her ex-partner hadassaulted and was stalking her. She complained that police failed toinvestigate these matters and did not apply for an ADVO on her behalf atthe earliest opportunity. While an ADVO was later sought and granted, thewoman alleged that police then failed to act on her reports that the orderhad been breached. As a result of the poor service she felt she received,the woman reported that she eventually lost confidence in the ability ofpolice to protect her.Because of the ongoing trauma the woman experienced following theserious assault and subsequent, prolonged court proceedings, wearranged to receive her complaint verbally. After reducing it to writingand seeking the woman’s views about what she would like to happenas a result of her complaint, we approached the NSWPF CorporateSpokesperson for Domestic Violence. He agreed to meet with thewoman to provide her with the opportunity to tell her story, and to allowhim to explain the changes that have taken place to the policing ofdomestic violence since her experience. The Corporate Spokespersonsubsequently met with the woman at her home. As a result of hercomplaint, the woman’s story will be featured in a training DVD for policeofficers. The woman was pleased with this outcome and contacted us toconvey her appreciation for the assistancewe provided.This led to the NSWPF CorporateSpokesperson agreeing to supportresearch conducted by the DomesticViolence Coalition which will trackincidents involving women chargedwith domestic violence-relatedoffences and/or where an ADVOis taken out against them. This willbe checked against whether thewoman also has a history as a victimof domestic violence. The feedbackfrom the forum has also informed ourdomestic violence complaints audit.In addition to our stakeholder forumwe liaised with the domestic violencesector on a number of occasionsthroughout the year. We attendedthe NSWPF domestic violencestakeholder forum in September 2009and met with the Domestic ViolenceCoalition, Women’s Health NSW andthe Women’s Domestic ViolenceCourt Advocacy Scheme (WDVCAS)Network to discuss a range of issues,including establishing a regularconsultation mechanism to allow theWDVCAS Network to raise systemicmatters with us.During these discussions we oftenmake suggestions to stakeholdersabout how best to approach resolvingany concerns they may have with theNSWPF at a local and/or corporatelevel. We also participated in a focusgroup run by the Education CentreAgainst Violence about intersectoraldomestic violence training needs.This year we also maintained stronglinks with frontline domestic violenceworkers by partnering with Women’sLegal Service (WLS) to providedomestic violence advocacy trainingto workers in the community, healthand legal sectors as part of Reachingout for Rights, a project developedby WLS to provide workers withthe skills needed to assist womenexperiencing family violence tosuccessfully navigate the justicesystem. These training sessions wereconducted across the state and gaveus the opportunity to gather usefulinformation to inform our domesticviolence complaints audit. For furtherdetails see page 43 in Communityeducation and training.Recognising35 years ofoversight82 NSW Ombudsman Annual Report | 2009–2010 35 years of making a difference

Future directionsTo be truly effective, good complaintsystems need to fulfil four major functions.They need to provide:››Accountability and a mechanism forcitizens to have government agenciesreview their actions and decisions whenthey are thought to be wrong, unfair orunreasonable.››An internal quality control mechanismfor agencies to check that the individualconduct and decisions of theiremployees are proper and correct.››A mechanism for redress and correctiveaction when things have actually gonewrong.››Data that can shed light on theeffectiveness of an organisation’spolicies and programs and leadto system and organisationalimprovements.In our view, the police complaintsystem achieves the first twofunctions well. However, giventhe time and resources allocatedto investigating and reportingon the more serious matters,inadequate attention is currentlygiven to providing feedback andredress to the complainantsand victims of incidents thatgenerate complaints. The systemprimarily focuses on finding faultwith individual officers. Littleattention is paid to underlyingcauses of misconduct andthe patterns and trends ofcomplaints, or the implicationsthese have for identifying usefulchanges or improvementsthat could be made to existingpolicies, procedures, training,communication or managementpractices at individual policecommands.NSWPF statistics for about28,000 management actionstaken in 2008-2009 arising fromover 5,300 complaints showedthat only 2% of all actions wereabout customer negotiationand resolution and only 3% ofactions related to organisationalimprovements. In a presentationat the Police Academy in April2010, Deputy Ombudsman GregAndrews urged ProfessionalStandards Duty Officers to paymore attention to providing fairredress for affected parties andidentifying how complaints caninform service and processimprovements.In the coming year, we will befocusing on how well policeare resolving complaintsand how they are deliveringand measuring complainantsatisfaction.Working with policeto improve thecomplaint systemThis year the Professional StandardsCommand commenced animportant initiative called ‘ProjectLancaster’. It has involved a reviewof the disciplinary process withinthe NSWPF that aims, among otherthings, to improve the proceduralfairness provided to police officerswho are the subject of complaintinvestigations. The review examinedthe provision of information tothese officers and the timeliness ofdisciplinary or reviewable actionstaken under Part 9 of the Police Act.A review was done of appeals bypolice officers to the IndustrialRelations Commission (IRC) relatingto decisions made under Part 9 of theAct to dismiss them or impose otherpenalties reviewable at the IRC – suchas reducing their rank or seniority ordeferring a salary increment.As a result of the review, the NSWPFhas indicated an intention to makegreater use of non-reviewablemanagement actions to deal withofficer conduct that falls short ofprofessional standards. This is in linewith the principles in the 1997 reportof the Royal Commission into the NewSouth Wales Police Service whichprovided the framework for the currentcomplaint system. In particular,Justice Wood said that:››A presumption should exist thatall members of the [NSWPF] areinherently capable of performingto the standard required, andthat individual shortcomings canbe addressed by counselling,monitoring and learning frommistakes.›› Mistakes and conduct falling shortof the standard should be dealt withopenly and fairly, not only from thestandpoint of the police officer whois the subject of the inquiry, but alsofrom the point of view of any personwho brought the problem to notice.We believe that these changes havethe potential to deliver a range ofpositive benefits to the NSWPF,particularly if they encourage policeto be more open in admitting wrongdoing and making appropriateamends. Rather than having officerson suspension, they may be returnedto work more quickly after appropriatetraining or counselling. If officersengage in further misconduct, thereis a stronger case for dismissal orreviewable action if the matter isappealed to the IRC.At the same time, the proposedchanges bring new risks that seriousmisconduct may be treated too lightlyand stronger disciplinary actionavoided when it is clearly warranted.We will be monitoring the progressand implementation of this projectand will continue to closely overseethe proposed management actiontaken on individual cases.Reviewing theimplementation oflegislationSince 1998, the NSW Parliament hasrequired the Ombudsman to keepunder scrutiny the powers conferredon police in over 25 new laws. Weundertake an independent andimpartial analysis of the exercise ofthese powers – taking into accountthe perspectives of police officers,agencies and the people upon whomthe power is used.Appendix B lists our legislative reviewactivities in 2009–2010.Terrorism powersWe have been tracking theimplementation of recommendationswe made in our review report onParts 2A and 3 of the Terrorism(Police Powers) Act 2002. UnderPart 2A a person can be detainedby a court order for up to 14 daysto prevent, or preserve evidenceof, a terrorist act. Part 3 allowspolice and Crime Commission staffto obtain covert search warrantsif this would help them preventor respond to a terrorist act.Police and CompliancePolicing83

Police and ComplianceOut of the 20 recommendationswe made for the NSWPF, 17 areawaiting implementation – including13 recommendations about changesto the standard operating procedures(SOPs) for preventative detention, andtwo about developing a memorandumof understanding with CorrectionsNSW and Juvenile Justice. At the timeof writing, the preventative detentionSOPs were in draft form.The Department of Justice andAttorney-General finalised a statutoryreview of the Act and provided a copyto us in late June 2010. The review isfully or partially supportive of 33 of the37 recommendations in our report.The government introduced a Bill intoParliament on 24 June 2010, whichimplemented many of the legislativeamendments we suggested. TheBill also proposed extending theOmbudsman’s monitoring function ofboth the use of covert search warrantsand preventative detention.We are required to report further onthe powers conferred on police underthis Act as soon as practicable afterDecember 2010.Criminal organisationsThe Crimes (Criminal OrganisationsControl) Act 2009 came intooperation on 3 April 2009. We arerequired to keep under scrutiny andreport on the exercise of powersby police under the Act for thefirst two years of its operation.This Act provides police with powersto apply to an eligible judge for anorganisation to be declared a criminalorganisation. It also allows police toapply to the Supreme Court for controlorders on members of declaredcriminal organisations. The Actcreates a range of offences – suchas association between controlledmembers, recruiting people to joindeclared organisations, and failureto disclose identity upon request bypolice who are trying to serve controlorders or suspect an associationoffence is being committed.Controlled members can also beprevented from engaging in a rangeof prescribed activities. These includeworking in the security industry,carrying on a business buying,selling or repairing motor vehicles,possessing firearms licences andlicences to sell liquor, operating acasino, operating a tow truck anda range of activities in the racingindustries.During the year we monitored theNSWPF’s preparations to implementthe new law, including observingmeetings of the implementationcommittee. The first application tohave an organisation declared wasnot made until July 2010.Delays in tabling our reportsAt the end of our reviews, we haveto provide a report to the relevantMinister and the Attorney-Generaldetailing our findings about theway the powers have been used.The legislation usually requires theAttorney-General to table our reportin Parliament ‘as soon as practicable’after we complete it.In nine of the 17 legislative reviewreports we have finalised since2005, it took six months or morefor the Minister to table the reportin Parliament (see Appendix B). Weacknowledge that Ministers havecompeting priorities, but we areconcerned that delays in tablingcreate a risk that the data may loserelevance and important ‘publicinterest’ issues may not be raised. Forexample, the criminal infringementnotices (CINs) legislation requiresour report to be tabled in Parliamentas soon as practicable after receipt.However, the report we completed inAugust 2009 on the impact of CINson Aboriginal communities was nottabled until July 2010.Although it is ultimately a matter forParliament, we consider that theindependent review of new policepowers could be more effective if wewere given the responsibility to tablethe report in Parliament directly – aswe do with our reports under theOmbudsman Act.A better approachfor implementing ourrecommendationsOur report on police powers toconduct personal searches onarrest and in custody, establishcrime scenes and require theproduction of documents – underthe Law Enforcement (Powers andResponsibilities) Act 2002 – wastabled in Parliament in May 2009.We made 77 recommendations,many about improvements to policeprocedures and providing officerswith sufficient training about thenew powers. The NSWPF and theDepartment of Justice and Attorney-General are now undertaking a policyreview, required by the Act, to checkthat the Act continues to meet theobjectives Parliament intended.Although it is now over a year sinceour report was tabled, we cannotreport on the implementation ofour recommendations. Police havedeclined to provide any informationpending the finalisation of thepolicy review. We understand thatthe findings and discussions in ourreport may inform that policy review,but it is not clear why that processshould delay implementing therecommendations primarily focusedon operational issues – particularlygiven the powers are so regularlyused by police.Under the Ombudsman Act, we canrequire agencies to notify us of anyaction taken or proposed followingour investigative reports. However, wehave no general statutory power torequire information about action takenin relation to legislative review reports.It is up to Parliament to decide whatpowers it wants us to review and theway new powers are exercised. Webelieve we could do our role moreeffectively if we were able to requireinformation about the implementationof our recommendations. This wouldalso make the review process morerigorous and transparent.WitnessprotectionThe witness protection programwas established under the WitnessProtection Act 1995. It aims toprotect the safety and welfareof Crown witnesses and otherswho have given information topolice about criminal activities.The Ombudsman is responsiblefor handling complaints frompeople in the program andhearing appeals about theexercise of certain powers.AppealsThe NSW Commissioner of Policehas the power to refuse someoneentry to the witness protectionprogram or remove them from theprogram. A person directly affectedby such a decision can appeal to theOmbudsman. The Ombudsman mustdetermine an appeal within sevendays of receiving it and our decisionoverrides the Commissioner’sdecision. This year we received noappeals under the Act.84 NSW Ombudsman Annual Report | 2009–2010 35 years of making a difference

ComplaintsEvery person taken onto the witnessprotection program has to sign amemorandum of understanding withthe Commissioner of Police. Thismemorandum sets out the basicobligations of the participant andincludes provisions such as:››prohibitions from engaging inspecified activities››arrangements for familymaintenance, taxation, welfareor other social and domesticobligations or relationships››matters relating to their identity››the consequences of notcomplying with the provisions ofthe memorandum.Witnesses must also be informedthey have a right to complain to theOmbudsman about the conductof police in relation to any matterscovered in the memorandum.Historically, we have received onlya few complaints from participantsin the witness protection program.When complaints have raisedsystemic issues, the police haveresponded positively and resolvedthose issues. This has contributedto the noticeable improvement inthe management of the programand a related decrease in thenumber of complaints we receive.This year we received only onecomplaint from a participant.Agency complianceUnder the Telecommunications(Interception and Access) (New SouthWales) Act 1987 and the SurveillanceDevices Act 2007, they can intercepttelephone conversations and plantdevices to listen to and photographor video conversations and trackpositions of objects. They can alsocarry out controlled or ‘undercover’operations under the LawEnforcement (Controlled Operations)Act 1997 that would otherwiseinvolve committing breaches of thelaw – such as being in possessionof illicit drugs. The Australian CrimeCommission, the Australian FederalPolice and the Australian Customsand Border Protection Service arealso authorised to conduct controlledoperations under the NSW legislation.To date, only the Australian CrimeCommission has used their powersunder the NSW Act. All of thesepowers are aimed at gatheringevidence of criminal or corruptionoffences and disrupting the activitiesof criminal organisations.As these kinds of operationsinvolve significant intrusions intopeople’s private lives, the agenciesmay only use these powers if theyfollow the approval procedures andaccountability provisions set out inthe relevant legislation. An importantfunction of the Ombudsman is toreview the compliance of theseagencies with these requirements.We are required to inspect the recordsof each agency at least once every 12months to ensure they are complyingwith the requirements of the Act.We also have the power to inspectagency records at any time – andmake a special report to Parliamentif we have concerns that should bebrought to the attention of the public.During 2009–2010, we inspected therecords of 342 controlled operations.We report in detail on our monitoringwork under the Law Enforcement(Controlled Operations) Act 1997in a separate annual report that isavailable on our website. As well asreporting on compliance with the Act,the report includes details about thetype of criminal conduct targetedin the operations and the numberof people who were authorised toundertake controlled activities. It alsoprovides some basic informationabout the results of those operations.TelecommunicationsinterceptionsThe Ombudsman has been involvedin monitoring compliance with thelegislation for telecommunicationsinterception since 1987.A judicial officer or member of theAdministrative Appeals Tribunal grantsa warrant for a telephone interception,so, unlike controlled operations, wedo not scrutinise compliance with theactual approval process.We make sure that the agencycarrying out the telecommunicationinterception complies with allthe necessary record-keepingrequirements. These records mustdocument the issue of warrantsand how the information gatheredwas used. Some records have tobe given to the Attorney-Generaland all intercepted material must bedestroyed once specified conditionsno longer apply. All telephoneintercept records have to be keptunder secure conditions by theagency.Police and ComplianceCovertoperationsThe NSW Police Force, theNSW Crime Commission, theIndependent Commission AgainstCorruption and the Police IntegrityCommission have the power todo a range of things – as partof a covert operation – thatwould otherwise be illegal.We are responsible for scrutinisingthe compliance of theseagencies with accountabilityrequirements relating to theuse of telecommunicationsintercepts and surveillancedevices, undercover operations,and covert and criminalorganisation search warrants.ControlledoperationsControlled operations are animportant investigation tool. Theyallow law enforcement agencies toinfiltrate criminal groups – particularlythose engaged in drug trafficking andorganised crime – to obtain evidenceto prosecute perpetrators of criminaloffences or expose corrupt conduct.The chief executive officer of thelaw enforcement agency givesapproval for controlled operationswithout reference to any externalauthority. To ensure accountability,the Ombudsman monitors the actualapproval process.Agencies must notify us within 21days if an authority to conduct anoperation has been granted or varied,or if a report has been received by theagency’s chief executive officer on thecompletion of the operation.We have to inspect each agency’srecords at least twice a year, and alsohave a discretionary power to inspecttheir records for compliance at anytime. We report the results of ourinspections to the Attorney-General.The Telecommunications (Interceptionand Access) (NSW) Act 1987 preventsus from providing any furtherinformation about what we do underthat Act in this annual report – or inany other public report we prepare.Policing | Witness protection | Covert operations85

Police and ComplianceSurveillance devicesThe Surveillance Devices Act 2007came into operation on 1 August2008 and repealed the ListeningDevices Act. It includes the listeningdevices covered by the repealedAct, but has a much broaderapplication. The new Act covers theinstallation, use and maintenance oflistening, optical, tracking and datasurveillance devices and restricts thecommunication and publication ofprivate conversations, surveillanceactivities and information obtainedfrom their use. It empowers specificNSW law enforcement agencies touse surveillance devices to investigatecrime and corrupt conduct and usethe evidence obtained to identify,locate or prosecute offenders.Under the Act, applications aremade to:››eligible judges for warrantsto authorise the use of mostsurveillance devices››eligible magistrates for trackingdevices or retrieval warrants fortracking devices.The Act imposes a number ofrecord-keeping, reporting, useand security responsibilities on thelaw enforcement officers granteda warrant. It also requires theOmbudsman to inspect the recordsof each agency from time to time tocheck the extent of compliance withthe Act by the agency and its lawenforcement officers, and report tothe Attorney-General at six monthlyintervals on the results of thoseinspections.We have carried out four inspectionsunder the Surveillance DevicesAct 2007. On 21 October 2009, wepresented our report to the Attorney-General on our inspections ofsurveillance device records up to30 June 2009. On 31 March 2010,we presented our report to theAttorney-General on our inspectionsof surveillance device records up to31 December 2009. Both reports areavailable on our website.Inspecting recordsof search warrantsCovert search warrantsOn 7 April 2009, the NSWGovernment introduced new covertsearch warrant powers to combatorganised crime. Supreme Courtjudges may now issue searchwarrants that enable police andother law enforcement officers tocovertly enter and search premises toinvestigate serious criminal offences.If necessary, the warrants alsoauthorise entry to propertiesadjoining or providing access tothe subject premises. They alsoauthorise the executing officerto impersonate another personto execute the warrant and doanything else that is reasonableto conceal the covert entry.The Law Enforcement (Powers andResponsibility) Amendment (SearchPowers) Act 2009 provides for theOmbudsman to inspect the covertsearch warrant records of the NSWPolice Force (NSWPF), the NSWCrime Commission and the PoliceIntegrity Commission every 12 monthsto check that the requirements of theAct are being complied with.The Police Integrity Commission hadnot applied for any covert searchwarrants during the first year of theAct’s operation. We have carried outthree inspections of the records ofthe NSWPF and one of the warrantrecords of the Crime Commissionunder the Act and reviewed 48 files.Our first annual report was issued tothe Attorney-General and Minister forPolice in July this year. It is availableon our website.Criminal organisation searchwarrantsThe Criminal Organisations LegislationAmendment Act 2009, which wasassented to on 19 May 2009, enablesan eligible judge to issue a newform of search warrant – a criminalorganisation search warrant. Thesewarrants allow police to search in oron premises for things connectedwith an organised criminal offence.These are serious indictable offencesarising from, or occurring as a resultof, organised criminal activity. Thismeans any activity that is carriedout to advance the objectives ofcommitting serious violence offencesor gaining material benefit fromsuch conduct. The activity needsto be carried out on more than oneoccasion and involve more than oneparticipant. This new type of searchwarrant was part of a package of newlaws made in response to concernsabout criminal conduct associatedwith outlaw motorcycle gangs.The powers conferred in thesewarrants are the same as for existingsearch warrants, except theyoperate for seven days instead of 72hours and have a lower evidentiarythreshold. ‘Reasonable suspicion’applies to these warrants, comparedto ‘reasonable belief’ for ordinarysearch warrants. Applications to theSupreme Court must be approvedby a police officer of the rank ofsuperintendent or above.Under the legislation, we have toinspect the records of the NSWPFevery two years and report on theresults of that inspection to ensurethat the requirements of the Act arebeing complied with.86 NSW Ombudsman Annual Report | 2009–2010 35 years of making a difference

Highlights››Nearly 80% of the suggestions to departments wereadopted, including giving apologies, changing orreviewing a policy and implementing training. SEEPAGE 88››Investigated a range of issues around managingasbestos in NSW, including agency responseswhen asbestos is identified, confusion aboutresponsibilities, and the information about asbestosavailable on council websites. SEE PAGE 92››Spent 160 person days visiting 48 correctionalcentres around NSW, meeting with inmates and staffand observing conditions, routines and programs.SEE PAGE 96››Made 24 recommendations to Manly Council toimprove their administrative practices, supervisionof staff, decision-making, and the way they handlecomplaints. SEE PAGE 101››Released a discussion paper to the localgovernment sector and stakeholders about the roleof Internal Ombudsman positions in councils. SEEPAGE 104››Established ties with the new Office of theInformation Commissioner including signing aninformation sharing agreement. SEE PAGE 1044PublicAdministrationOur public administration divisiondeals with complaints from membersof the public who consider theyhave been treated unfairly orunreasonably by government.This section reports on our work withNSW departments and authorities,the adult correctional system, localcouncils, freedom of information andprotected disclosures.Public AdministrationDepartments and authorities 88Corrections 93Local government 99Freedom of information 104››Protected disclosures 109chapter info87

Public AdministrationDepartmentsandauthoritiesOne of the traditional functionsof Ombudsman acrossthe world is dealing withcomplaints from members ofthe public who consider theyhave been treated unfairly orunreasonably by government.Decisions by governmentdepartments and local councilscan have a significant impacton both individuals and thecommunity. Our work in this areais an essential part of keepingNSW government agenciesaccountable and improving thestandard of public administration.The broad range of issues wehave dealt with this year is areflection of the large number ofNSW government agencies andtheir diverse roles and functions.We concentrate our resourceson dealing with complaints aboutissues that affect a large number ofpeople, as well as those that havea serious impact on individuals.Figure 43: Formal complaintsfinalisedPreliminary or informal investigation 646 (46%)Assessment only 649 (46%)Conduct outside our jurisdiction 114 (8%)Formal investigation 5 (0%)Current investigationsat 30 June 2010No.Under preliminary or informalinvestigation 86Under formal investigation 3Total 89Figure 44: Formal and informal matters received and finalisedMatters 05/06 06/07 07/08 08/09 09/10Formal received 1,329 1,158 1,348 1,349 1,438Formal finalised 1,317 1,167 1,354 1,310 1,414Informal dealt with 3,625 3,465 3,962 3,949 3,777Data does not include complaints about public sector agencies that fall into thecategories of local councils, the correctional system, police, community services,freedom of information and protected disclosures.Complaint trends and outcomesOverall complaint numbers have remained constant this year. We received 1,438complaints in writing (which we call ‘formal complaints’) and 3,777 complaintsover the telephone or in person (which we call ‘informal complaints’, see figure44). Compared to last year, this is an increase of 6% in formal complaints and adecrease of 4% in informal complaints.After improvements to our website and online complaint form, we received fewercomplaints this year about conduct we cannot look at because it is outside ourjurisdiction. Providing more detailed information on our website about alternativesources of help for these types of problems has helped save people time andprevent some of the frustration people feel when they are referred to differentagencies.This year, we conducted 646 preliminary or informal investigations and fiveformal investigations that involved using the Ombudsman’s coercive investigationpowers (see figure 43). See figure 45 for the issues people complained about.Nearly 80% of the suggestions we made to departments and authorities wereadopted – including apologising, changing or introducing a policy, implementingtraining, and reviewing and changing decisions.A full list of the agencies we received complaints about this year and how wedealt with those complaints is in Appendix G.Figure 45: What people complained aboutThis figure shows the complaints we received in 2009–2010 about NSW publicsector agencies other than those complaints concerning police, communityservices, councils, corrections and freedom of information, broken down by theprimary issue in each complainant. Please note that while each complaint maycontain more than one issue, this table only shows the primary issue.Issue Formal Informal TotalApprovals 57 350 407Charges/fees 149 396 545Child abuse-related 1 1 2Complaint-handling 206 346 552Contractual issues 111 319 430Correspondence 9 21 30Charges/fees 4 12 16Customer service 218 556 774Enforcement 126 316 442Information 80 163 243Management 55 60 115Misconduct 33 66 99Natural justice 18 32 50Issue outside our jurisdiction 88 342 430Object to decision 199 453 652Officer misconduct 0 1 1Other administrative issue 28 169 197Policy/law 56 167 223Records 0 7 7Total 1,438 3,777 5,21588NSW Ombudsman Annual Report | 2009–201035 years of making a difference

How we bringabout changeResolving problemsWhenever possible, we workcooperatively with agenciesto resolve problems. When wereceive a complaint we generallytelephone an agency to find outtheir side of the story. We askthem to provide us with evidenceof the action they have taken and,if an error has been made, weexpect the agency to recognisethis. We then discuss what needsto be done to fix the problem –both for the individual complainantand to stop it happening tosomeone else. We resolve manycomplaints in this way, resultingin some significant improvements(see case studies 37 to 40).CS 37: Invoices finally paidA contractor provided temporarybus shelters for RailCorp inearly 2007, but was unable toremove them at short notice dueto restricted access to the site.The contractor claimed that,although the accounts departmentwere willing to pay him, the staffmember he was dealing with atRailCorp was refusing to approvethe payment. He contactedRailCorp several times but thematter remained unresolved. Wecontacted RailCorp and found thatfull payment was not being madebecause some invoices weremissing. The contractor agreed toprovide copies of these missinginvoices and RailCorp agreed thatthe contractor would be paid. Aftertrying to resolve the problem forover three years, the contractorwas very happy with this outcome.Performance indicators2009–2010 criteria Target Result5.5weeksPercentage of complaints assessed within two days 90 93Average time taken to finalise complaints(not including complaints about FOI)Complaints resolved by providing advice or throughCS 38: Inspectors, dealers and faulty carsThe owner of a new car believed that it was faulty and took the matter to the Consumer,Trader and Tenancy Tribunal or CTTT. The CTTT asked the Office of Fair Trading (OFT)to provide a report on the car. In an attempt to resolve the complaint, the OFT inspectormet with the car dealer and the owner at the dealership – but had met in private with thecar dealer before the meeting. This and other actions caused the car owner to believethe inspector was biased and had a previous relationship with the car dealer.He wrote to the OFT complaining about the inspector and making allegations of biasand corruption. He received a very brief response that dismissed his allegations. Hecomplained to us that the response was inadequate. On contacting OFT we were givenmore information about how the matter had been investigated. Our inquiries establishedthat the allegations of corruption were not reported as required, the internal complainthandlingsystem was not followed, there was limited analysis of complaints, and theprocedures manual used to guide inspectors was out of date. Although we did notagree with the car owner that there was any evidence of wrong conduct on the part ofthe inspector, we agreed that OFT’s response was inadequate.We suggested to OFT that they send an apology letter to the car owner for the way hiscomplaint was handled, review their complaint-handling system, provide complaintsdata to managers, update their procedures manual, and produce a fact sheet to explainthe role of inspectors in matters referred by the CTTT. We were particularly concernedthat regional offices should report complaints as a way of monitoring potential risksand encouraging accountability. We were pleased that OFT accepted our suggestionswhich should result in a more effective and transparent complaint-handling system.CS 39: Helping customers with a disabilityOur inquiries about a complaint from a disability advocacy service established that aRTA motor registry had refused to provide a customer with an Auslan interpreter to helpher complete a transfer of registration for her vehicle. As a result of our suggestions, theRTA agreed to provide disability awareness training for staff at all motor registries anddevelop a disability policy, as part of their Disability Action Plan, to help staff provideassistance to customers with special needs. The RTA also passed on their apologies tothe customer and assured her that action was being taken to ensure that the difficultiesshe had experienced would not be encountered by other customers.CS 40: Driving licence unfairly cancelledAn advocate complained that an asylum seeker had his driving licence cancelled onthe basis that it was obtained fraudulently. He had arrived in Australia on a passportin a false name due to concerns about his safety in his country of origin. His originalresidency application was lodged in his real name nine years ago and it was notknown when it might be finalised. Although the Department of Immigration had recentlyaccepted his real name, the RTA refused to issue another licence until he was grantedpermanent residence. As a result of our intervention, the RTA reviewed their originaldecision and issued the man with a new driving licence at no extra cost.7 weeksconstructive action by the public sector agency (%) 65 67Formal investigation reports recommending or suggestingchanges to law, policy or procedures (%) 90 100Recommendations made in investigation reports that wereimplemented by public sector agency/authorities (%) 80 96HousingIn last year’s annual report wenoted the continuing expansionof the community housing sectorand changes to how the sector isregulated, including the appointmentof a Registrar of Community Housing.NSW is still in the early stages of a10-year plan to more than doublethe number of homes in the sector,by supplying new housing and bytransferring public housing propertiesto community housing providers.These providers are generally nongovernmentorganisations.Significantly, public housing tenantswho transfer to community housingare also moving outside of ourjurisdiction. This means we are unableto investigate complaints about acommunity housing provider.Public AdministrationDepartments and authorities89

Public AdministrationIn December 2009 we met withthe Registrar and CommunityHousing Division (CHD) of HousingNSW to discuss the handling ofcomplaints about communityhousing providers under thenew regulatory framework. Wesought and received clarificationabout the respective roles of theRegistrar and CHD in relation to thereceipt, referral and investigationof complaints. We also establisheda regular liaison arrangement withthe Registrar and CHD.Helping people with amental illness access andsustain social housingIn November 2009 we tabled aspecial report to Parliament aboutthe findings and recommendationsof our investigation into theimplementation of the JointGuarantee of Service for peoplewith mental health problems anddisorders living in Aboriginal,community and public housing(JGOS). As we reported last year,the investigation found that theoverall implementation of the JGOShas been ineffective and has failedto achieve systemic improvements.Our report detailed the reasons forthis failure and outlines three keyareas where reform is needed:››discharge planning for mentallyill people leaving hospital››the ability of governmentand non-government serviceproviders to exchangeinformation about clients whentheir safety, welfare or wellbeingis at risk››the availability of supportedaccommodation for peoplewith a mental illness and othercomplex needs.As part of monitoring theimplementation of ourrecommendations, we have soughtadvice from Housing NSW aboutthe development of a new Housingand Mental Health Agreement –an outcome of our investigation– as well as a range of otherissues including the adequacyof guidance provided to housingworkers about factors that shouldbe considered prior to takingaction against tenants before theConsumer, Trader and TenancyTribunal, and the circumstancesin which a tenant’s personalinformation can be shared withother agencies.Resolving complaints from public housing tenantsIn relation to tenants who remain in public housing, this year we finalised 223 formalcomplaints and conducted preliminary or informal investigations into 129 (or 58%)of these matters. We dealt with a broad range of issues including tenants’ concernsabout delays in the provision of maintenance or repairs, debt recovery andenforcement issues and objections to decisions. We have also received complaintsabout poor communication by NSW Housing, inadequate provision of informationand deficient complaint-handling.In many cases, we deal with complaints initially by referring tenants to NSW Housinglocal offices to resolve matters. However, if a complaint or a series of complaintsindicates that there may be a systemic issue, we may respond by making our owninquiries or meeting with senior agency managers (see case study 41).CS 41: Debt recovery practicesThis year we received complaints from individual tenants and from advocacy andlegal services concerning a debt recovery program that NSW Housing initiated.These complaints were about letters NSW Housing sent to more than eight thousandtenants about repaying outstanding rent, water charges and miscellaneous debts.The correspondence did not provide any particulars of the debts, including themeaning of ‘miscellaneous’ debts. In some cases, complainants said they werebeing directed to repay debts that were more than six years old and thus beyond thetime period for legally recoverable debt.Further, when the tenants or their advocates asked NSW Housing to clarify itsdemands, they claimed that they got no response, other than (in some cases) followup letters requiring tenants to make immediate arrangements to pay back the debts.Some complainants believed that they would be in danger of eviction unless theysettled the matter. Given the number and scope of these complaints, we met withNSW Housing to discuss the issues involved. We will report on the results of ourapproach next year.Submissions to inquiriesWe also use information from complaints to inform submissions we make toinquiries and reviews to bring about more systemic change. This year we providedinformation to parliamentary inquiries into the taxi industry, education for studentswith a disability, and substitute decision-making for people lacking capacity.In our submission about substitute ››incur multiple fines that are thendecision-making, we drew attention to dealt with by the State Debtthe problems faced by some clients Recovery Office.of the NSW Trustee and Guardian(NSWTG) who, for example:››pay significant bank fees becausethey inadvertently overdraw theiraccounts and make withdrawalsfrom the ATMs of other banksCS 42: Saving bank feesThe NSW Trustee and Guardianmanages the financial affairs of peoplewho are unable to make their ownfinancial decisions. Many clients areon Centrelink benefits and some canpay hundreds of dollars in bank fees.As a result of our inquiries about anumber of complaints we had received,we learned that the NSWTG does notalways know this is happening becausebank statements often go directly to theclient. In some cases, they will ask thebank to refund the fees, but there is nosystematic way of doing this. The finescan cause significant hardship and maynot leave enough money for individualsto buy food and other basic necessities.As a result of our submission, theseproblems were raised at the publichearings of the Inquiry and the NSWTGmade a commitment to resolve them.For more details, see case study 42.We asked the NSWTG to look at thisissue in a ‘bigger picture’ way to try toprevent fees from being incurred in thefirst place. They did an audit of clientfiles and, as a result, have establishedcontacts at each of the major banks toresolve issues of clients unnecessarilyincurring fees and charges. They arealso going to:››include information in theirnewsletters about low fee accountsand monthly account fee exemptionsand reductions››introduce a new category in theirclient payment system to identify andtrack clients who incur bank fees,and run monthly reports to identifysuch problems and any action thatneeds to be taken.90NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Investigating public interest issuesWe also investigate issues – such as ongoing problems with school heaters –on our own initiative if we identify a matter of signifi cant public interest. Therehas been considerable community debate about the appropriateness ofusing unfl ued gas heaters in schools. Our concerns about heating in schoolsdate back to 1989 when we conducted a formal investigation into the issue.That investigation established that the Department of Education and Training(DET) had been aware of health concerns about unfl ued gas heaters since1988, after a study of a number of schools was completed by AGL.Levels of nitrogen dioxide found in sample schools had ranged fromacceptable to unusually high. A three phase study was conducted as aconsequence of these results. The department advised us at that time that, inresponse to the reports, they were spending $4 million on a program of leakdetection and inspecting every unfl ued gas heater in state schools. Subodourleaks were eliminated and heaters beyond economical repair weredisconnected and replaced with newly designed low NOx burners. Low NOxheaters were installed in schools in very cold climates.Our fi nal investigation report identifi ed the need to set a safe indoor upperlimit for nitrogen dioxide. Although the National Health and Medical ResearchCouncil was considering the issue at that time, they had not set a standard– but had identifi ed this as a priority area for further research. Such researchapparently did not take place and further action to establish a safe indoorlimit does not appear to have been taken until early 2009, when DET andNSW Health agreed to jointly sponsor an application to the research council.We have made the department aware of our concern that some twenty yearsafter they fi rst became aware of the signifi cance of this issue, they have yet todevelop a long-term evidence-based strategy for heating in schools. We willbe closely monitoring their response to the recent research results with theexpectation that a considered and robust strategy is developed to make sureheating in schools is both appropriate and safe.Promoting better communicationClear and accurate communication with members of the public is essential.For agencies with complex responsibilities, it is particularly important thatthey are able to explain complicated requirements in simple terms. Forexample, inquiries to us suggest that many people fi nd correspondencefrom the RTA hard to understand and its website diffi cult to navigate. Wehave given this feedback to the RTA, along with some specifi c examples ofproblems that people have experienced (see case study 43).CS 43: Confusion about registering vehiclesWe received several complaints from pensioners and other concessionholders – who do not have to pay registration fees – saying that RTAinformation about registering their vehicles was confusing and misleading.The information on the registration renewal papers gave concession holdersthe impression that their vehicles were registered after they had completedonline payments for green and pink slips. However, they later found outthey had been driving unregistered cars as they had failed to complete anecessary validation step. In one instance, the concession holder droveunregistered for fi ve months until she was stopped by the police. Herinsurance was also invalid because her car was unregistered, despite the factshe had paid for green slip third party liability insurance.We found that the information on the registration labels was indeed confusingand open to misunderstanding. The labels contained advice that pensionersclaiming a concession must ensure they receive a receipt number from theRTA for the Certifi cate of Registration. However the label also stated that noreceipt was required when registration was renewed online.The RTA has modifi ed the message on the labels to state in bigger font thatpensioners must obtain a receipt number. However, as the message is stillpotentially unclear, we have suggested a number of ways in which furtherclarifi cation could be given to concession holders about what they need to doto register their vehicles. The RTA has agreed to consider these suggestions.Websites are a useful and important wayfor agencies to provide easily accessibleand up-to-date information. However, it isimportant that the same rigour is applied tothe quality and accuracy of this informationas any other government communication.Unfortunately, this is not always the case(see case study 44).CS 44: Inappropriate websitecontentWe found that the Game Council hadpublished inappropriate material on theirwebsite, including a paper that misquotedand misrepresented the work of aconservation advocacy group.We wrote to the Director General of theDepartment of Industry and Investment,the super department responsible for theGame Council, about our concerns that:› the Game Council had not corrected thequote voluntarily when asked to do so› the content and tone of other articleson the website was inappropriate for astatutory authority› the advocacy role played by the GameCouncil might potentially confl ict withtheir regulatory function of administeringthe licensing system for game hunters› the Game Council’s complaint-handlingpolicy was inadequate.The Director General expressed hisdisappointment that the Game Councilhad not voluntarily amended the quote andagreed some of the media releases ontheir website appeared to be inconsistentwith what would normally be associatedwith a government department. He saidhe believed the Game Council couldundertake an advocacy role as well as aregulatory function, but advised that in thefuture the super department’s media unitwill check all material before it goes on theGame Council’s website. Game Councilstaff will also be given clear informationabout the super department’s policies andprocedures, including those to do withcomplaint-handling.Highlighting35 yearsIn the last 35 years, there havebeen five Ombudsman:1975 – Mr Ken Smithers1981 – Mr George Masterman QC1988 – Mr David Landa1995 – Ms Irene Moss AO2000 – Mr Bruce BarbourPublic AdministrationDepartments and authorities91

Communication between agencies is also important. A failureby agencies with common clients, or dealing with a relatedissue, to discuss policy and practice issues with each othercan have significant consequences (see case study 45).CS 45: Information hard to getThe NSW Trustee and Guardian does not always haveinformation to hand that families and relatives expect.A complainant told us he was having difficulties gettinginformation about his mother’s housing situation. He wastold by Housing NSW that they were only authorised to giveinformation to the NSWTG. This was a source of conflictbetween the son and both the NSWTG and Housing NSW.It became apparent that the complaint was more about whowas able to get information, rather than how the estate wasbeing managed. We contacted Housing NSW and askedif there was any problem with supplying information to theclient’s son if NSWTG agreed to this. Housing NSW washappy to note this on their system for future reference, andthe NSWTG agreed – on condition that the client’s son couldaccess the information but did not have authority to makedecisions on his mother’s behalf.NSWTG also said that there were times when they neededto speak with Housing NSW, as many NSWTG clients live inpublic housing, but were unsure about how to do this. Wesuggested a memorandum of understanding (MOU) withHousing NSW to ensure good and ongoing communication –and this suggestion has been adopted by both agencies.Improving enforcementMany government agencies play an important role inenforcing legislative or administrative requirementsthat have a significant impact on people’s lives. Lastyear we reported on two major investigations we wereconducting. One was into WorkCover’s handling ofan asbestos exposure incident and the other wasinto the adequacy of the then Department of Waterand Energy’s action on complaints about the illegaldamming of a river. We are now able to report on thechanges brought about by those investigations, as wellas further work we are doing to examine the adequacyof asbestos management procedures in NSW.Key compliance changes being implementedLast year we investigated a complaint about the thenDepartment of Water and Energy (now the Office ofWater) and found that they had failed to take adequateenforcement action against illegal damming of a river.We are pleased to report the department has beengradually complying with our recommendations.They have formally apologised and paid an ex-gratiapayment to the complainant and are taking action toimplement key changes. These changes include:››implementing a new case management system andreviewing compliance branch documentation and filemanagement practicesPublic AdministrationManagingasbestos in NSWAs a result of our investigationlast year into the management ofan asbestos incident, WorkCoveragreed to implement some ofour recommendations. Theywill also be taking many of theissues we raised to SafeworkAustralia – to be considered aspart of ongoing consultationsabout the standardisation ofnational occupational healthand safety legislation.After the release of ourinvestigation report, the CEO ofWorkCover set up an AsbestosCo-regulators Working Group– made up of representativesof all government agencies thathave responsibilities for asbestosissues – to look at how eachagency deals with asbestosand how they interact. We werepleased to be invited to participateas an observer at the workinggroup meetings and we lookforward to seeing their report,which is due to be released inMarch 2011.We are also investigating theresponse of various agencies to theidentification of friable and bondedasbestos at the Wallaga LakeAboriginal community. In November2007, the Eurobodalla Shire Counciland the Department of Environment,Climate Change and Water wereadvised of the presence of friableasbestos at an unofficial tip some500m from the nearest residence.Bonded asbestos was identifiedat residences in April 2009. Afterintense media coverage, attemptsto process applications and obtaingovernment funding to remove theasbestos finally bore fruit.Although some work had been donebefore this to clean up the tip site, theactual cleanup by licensed asbestosremovalists did not start untilNovember 2009. We inspected thesite before and after the clean up andwere concerned about the adequacyof the work done. Broken bondedasbestos was still scattered aroundresidences, in driveways and inneighbouring bush land. Consultantsprovided a report to the council andthe community stating there wasno danger to the residents from theremaining bonded asbestos.This advice was given despite mostauthorities, including the WorldHealth Organisation, stating there isno safe level of exposure to asbestos.We have also looked at how councilsthroughout NSW deal with asbestosand, in particular, how members ofthe public can access information onasbestos through council websites.We found that many council websitescontained out-of-date or inaccurateinformation on asbestos or noinformation at all. We wrote to allcouncils suggesting they review theirwebsites and local policies – and wewere pleased to see that the majorityof councils responded favourably.We remain concerned about howasbestos incidents at workplacesand in residential settings arecoordinated by governmentagencies. In November 2009, westarted our own investigation intohow NSW Government agenciesdeal with asbestos. Our work to datehas raised issues about coordinationbetween the various agenciesinvolved, gaps in legislation andconfusion about responsibilities. Wehope to report on the outcome of thisinvestigation before the end of 2010.92NSW Ombudsman Annual Report | 2009–201035 years of making a difference

››preparing templates for commonly-used complianceactions and a reasons for decision document››developing a training module on custody of evidenceand document managementfinalising a complaint management policy››developing a certification system to ensure recordsmanagement practices are adequate, a compliancebranch corruption prevention plan, guidelines onproviding legal advice on compliance matters,and a compliance business plan to match existingresources with priority areas.Our investigation found that the department’sfailure to deal appropriately with the complaintshad been due to significant under-resourcingof their compliance function. We are pleasedto note that the Office of Water has recentlysubmitted a case for increased complianceresources as part of the IPART pricing review.Good record-keepingGood record-keeping helps improve accountabilityand transparent decision-making. Poor record-keepingpractices are often associated with poor complainthandling.If records of conversations are not made,reasons for decisions are not recorded, and emailsand letters are not placed on files, it can be difficultfor complaints to be properly investigated (see casestudies 46 and 47).CS 46: No record of conversationsThe son-in-law of a Housing NSW tenant complainedto us about the way Housing NSW had dealt withhis complaints and not responded to his emails andphone calls. Our inquiries established that the Housingofficer had not made any record of the conversationshe claimed to have had with the complainant. We haveidentified poor record-keeping as an issue in othercomplaints about Housing NSW, so we asked them todevelop a record-keeping policy – pointing out that thisis also a requirement of the State Records Act. Theyhave responded positively to this suggestion.CS 47: Lack of policies rectifiedA complainant wrote to us about the Department ofPremier and Cabinet’s apparent lack of a complainthandlingpolicy and records management program. Inaddition to failing to comply with Premier’s memorandaon complaint-handling and breaching the StateRecords Act, the complainant said he had personalexperience of how the lack of these policies was havinga detrimental impact on the ability of the departmentto deal efficiently and effectively with complaints andtrack correspondence. Our inquiries showed that thecomplainant was correct and the department didnot have these policies. The department respondedpromptly – they have developed appropriate policiesand put their new complaint-handling policy ontheir website. In our closing correspondence to thedepartment, we strongly suggested that they reviewtheir existing policies and procedures to make surethey are complying with other statutory obligations andpolicy directives – and set a good practice example toother agencies.CorrectionsIn our corrections work, we try to see as manymatters as possible resolved – either by giving peopleinformation about who they can approach for helpor assisting to actually resolve their problems.We find people in the correctional system are verylikely to know about the Ombudsman and what wedo. Inmates, correctional staff and management, andpeople who have family or friends who are imprisonedgenerally understand that – if they believe somethingis not going right and they cannot fix it themselves– they can ask for help from the Ombudsman.Working to resolve issuesMost matters about corrections are raised with us by phone.Inmates can call us on a freecall number from the phonesin their centre, and the call is not monitored by correctionalstaff. Inmate calls to the Ombudsman are limited to 10minutes – so our staff must quickly assess whether the issueis something we can help with, or if we can provide adviceabout what else they could do to fix their problem.Complaints often arise from a lack of communicationbetween inmates and centre management, so weput significant resources into providing information toinmates (and other complainants) that they should havebeen given by Corrective Services NSW, GEO (whichoperates Junee and Parklea Correctional Centres) orJustice Health in the first place. However, relationships ina correctional system are different from those in societygenerally. There is distrust and fear on both sides, anda significant power imbalance between inmates andstaff – often increased by the lack of information sharedbetween the two groups. In these circumstances, weare often a necessary circuit breaker and can help workout ways for important information to be shared.Communication can sometimes also be a problem forus when we try to resolve complaints with CorrectiveServices NSW. While the quality of the response we receiveon some issues can be very good, on other occasionsthe quality of information given to us is poor, and ofteninvolves us having to repeat the same questions. Thisin turn also causes delays – which at times can be quitelengthy – and ultimately affect the usefulness of ourinquiries. We remain committed to liaising with CorrectiveServices at all levels, including between the Commissionerand the Ombudsman, as a way of communicatingand achieving good results as quickly as possible.Inmates with special needsA large number of inmates have a mental illness and find thecorrectional system frightening and confusing. Frequently,they do not understand what they have been told or whatthey are supposed to do. Sometimes they need to be toldthe same thing many times because they cannot retain theinformation. In many instances these people present as‘challenging’ to correctional staff, particularly those who arenot in designated mental health areas.Inmates with a mental illness are particularly vulnerable andwill often contact us for information or reassurance aboutsomething they have been told. Sometimes they make quiteserious allegations of abuse – and assessing the validity oftheir complaints is an increasing challenge for us.Public AdministrationDepartments and authorities | Corrections93

Public AdministrationWe have trained our staff in mentalhealth awareness, including thingswe can do to help understand andassess the concerns of complainantswho have a mental illness. Withoutsignificant changes to the outsideenvironment that continues tobring mentally ill people into thecustodial correctional system,this is an area that will continueto provide challenges for bothus and Corrective Services.Figure 46: Formal complaintsfinalisedPreliminary or informal investigation 573 (79%)Assessment only 135 (19%)Conduct outside our jurisdiction 13 (2%)Formal investigation 1 (0%)Current investigationsat 30 June 2010No.Under preliminary or informalinvestigation 102Under formal investigation 1Total 103Giving reasons for decisionsOver several years we have stressedto the Commissioner the importanceof giving inmates reasons fordecisions made about them. Barringany potential harm to the securityof the correctional system or thesafety of the community, peopleshould be told why decisions havebeen made, especially if thosedecisions are detrimental to them –such as removing privileges otherinmates enjoy. In times when thecorrectional system holds manyserious offenders, including thoseconvicted of terrorist-related activities,it is important we do not lose sightof the importance of reasonable,fair and humane treatment.The role of the Ombudsman is tohelp those who run the correctionalsystem to do so in a way that isfair, reasonable, accountable andtransparent. Helping people to resolvetheir complaints is one way we dothis. We also investigate systemicproblems and make suggestionsand recommendations to theCommissioner about a range ofmatters. Achieving positive outcomessometimes takes considerable time.Wall mounted restraintsIn last year’s report, we explained ourconcerns about wall mounted ringsthat are used to attach inmates bytheir handcuffs in interview roomsand beside phones in the segregationunit of some correctional centres.We believed the metal rings were anunauthorised instrument of restraint.As a result of our inquiries, theCommissioner firstly directed thatthese restraints were not to beused unless they were specificallyauthorised by him. He asked forinformation from relevant centresabout their restraints and theprocedures that could be adoptedfor their use. No restraints weresubsequently authorised by him.However when our staff visitedJohn Morony Correctional Centrein March 2010, they were surprisedwhen an inmate they interviewedwas attached by his handcuffs to thewall mounted ring in the segregationunit’s interview room. As a directresult of further inquiries with theCommissioner, the general managerof each centre where the restraintswere in place was called by theirrelevant Assistant Commissionerand directed to remove them fromthe walls and phones immediately.Extra bunks in cellsOver the past two years we havebeen making ongoing inquiries withCorrective Services, Justice Healthand NSW Health about extra bunksbeing put into cells in correctionalcentres which had only recently beenbuilt. Specifically, we questioned theexemptions that had been given bythe Minister for Health when the extrabunks in cells at centres such asWellington contravened the minimumspace allowed under the PublicHealth Regulation.We have also identified additionalbunks at the Mid North CoastCorrectional Centre as potentiallybreaching the regulation, as well asplans for even further changes atWellington requiring attention by NSWHealth. Wellington Correctional Centrewas inspected by Justice Health andwe are still waiting for further adviceabout the outcome of the exemptionapplication made by CorrectiveServices as a result of that inspection.Trends and issuesIn 2009–2010 we were contactedon approximately 4,000 occasionsabout matters relating to thecorrectional system. This is a similarnumber of contacts to the previousyear, probably because the inmatepopulation in NSW finally remainedrelatively stable at just under 10,500over the 12 month period.The issues that were raised with us,and the frequency with which theywere raised, has also been relativelysimilar from year to year. For example,over the past three years we havereceived around 350 complaints eachyear about inmate property issuesand around 250 complaints a yearabout visits.Figure 47: Formal and informal matters received about correctionalcentres and Justice Health05/06 06/07 07/08 08/09 09/10FormalCorrectional centres, CSNSW and GEO 772 566 779 686 671Justice Health* 80 69 61 64 53Sub-total 852 635 840 750 724InformalCorrectional centres, CSNSW and GEO 3,242 3,010 2,902 2,825 3,096Justice Health* 218 266 241 237 303Sub-total 3,460 3,276 3,143 3,062 3,399Total 4,312 3,911 3,983 3,812 4,123* Justice Health provides services in correctional centres. For simplicity, allJustice Health matters are reported in this figure.94NSW Ombudsman Annual Report | 2009–201035 years of making a difference

When we begin to see changes overa period of time, such as allegationsof unfair discipline – which haveincreased from 118 three years ago,to 137 last year and up to 165 thisyear – we begin to consider causesand look at conducting our ownmotion inquiries. Some other areaswhere we have received increasednumbers of complaints are moreeasily attributed to a specific reason.For example, this year’s increase inthe daily routine category is probablydue to the overall changes madeby Corrective Services to the waycorrectional centres operate.Investigating the useof forceThis year we decided to investigateissues around the use of force oninmates as we had received manycomplaints about this over the pastthree years.It is often necessary for force to beused on inmates who will not complywith lawful directions of custodial staff– such as to move out of their cell, tosubmit to a search or to stop fighting.It is important that correctional staffare properly trained in how to useforce and how to report when it hasbeen used. All uses of force must alsobe reviewed by more senior officers toensure that policies and proceduresare being complied with.We worked collaboratively withCorrective Services to increase boththe efficiency of the process and theeffectiveness of the recommendationsmade.The primary concerns we wanted toaddress included:››The adequacy of investigations intouses of force – including those thatwere complained about and thoseidentified through internal review asneeding further assessment.››The level of guidance provided tosenior staff who are responsiblefor assessing the adequacy andappropriateness of all uses of forcewithin a correctional centre or atother departmental locations.››The systems for monitoring andscrutinising the use of force.››The training provided by CorrectiveServices for staff in the use of force.››How Corrective Services mightbest use complaints about uses offorce for risk assessment and riskmanagement purposes.Figure 48: What people complained aboutThis figure shows the complaints we received in 2009–2010 about correctionalcentre concerns, broken down by the primary issue in each complaint. Pleasenote that each complaint may contain more than one issue, but this table onlyshows the primary issue.Issue Formal Informal TotalBuy-ups 14 112 126Day/other leave/works release 8 42 50Classification 29 146 175Daily routine 88 574 662Legal problems 9 31 40Officer misconduct 62 205 267Probation/parole 13 91 104Records/administration 47 154 201Visits 48 213 261Other administrative issue 19 161 180Fail to ensure safety 23 41 64Unfair discipline 32 133 165Medical 15 169 184Case management 26 101 127Food and diet 14 45 59Segregation 20 72 92Property 83 263 346Transfers 29 243 272Mail 20 60 80Periodic/home detention 7 13 20Work and education 18 102 120Issue outside our jurisdiction 7 12 19Court cells 1 2 3Community programs 0 2 2Security 19 70 89Information 20 39 59Total 671 3,096 3,767Our investigation methodologyincluded reviewing policy andprocedural documents, auditinga variety of use of force reports,and talking to key people withinCorrective Services aboutoperational aspects of using,recording, monitoring andscrutinising force being used.The investigation identified whereimprovements could be made ineach of the areas we investigated.As a result, we formulated aseries of recommendations – inconsultation with CorrectiveServices. The recommendationscovered areas such as:››An overall review of the policyand procedures for using forceon inmates.››Guidance to staff who review each useof force.››Refresher training for all generalcustodial staff and a training needsanalysis for some specialist groups ofstaff.››Data collection and analysis about theuse of force in the correctional system.››Investigation of uses of force which donot comply with policy and procedures.››Approving arrangements at privatelymanaged correctional centres.Corrective Services have adoptedan action plan to implement therecommendations over the comingmonths and we will continue to receiveregular advice about this implementationprocess as it progresses.Recognising35 years ofgood conductPublic AdministrationCorrections95

Public AdministrationVisiting correctionalcentresProviding access to Ombudsmanstaff who can assist with inquiries orcomplaints is just one of the focalpoints of our visits to correctionalcentres. These visits originally startedto assist inmates with low literacylevels, who were unable to make aformal written complaint, to be able tolodge their grievances.Despite the increased accessinmates now have to telephones tocall us to discuss their issues, the 10minute time limit is sometimes notenough to provide all the relevantinformation. Often inmates who havedifficulty outlining their complaintover the phone are at a similar lossif we ask them to write it down andsend it to us. Many inmates also stillhave a lingering distrust about theconfidentiality of phone calls andletters to our office and want to talkdirectly to us.We have significant experience indealing with Corrective Servicesand recognise the importance ofworking with correctional staff toachieve outcomes and change. Thisexperience, in part, comes from ourlong history of visiting correctionalcentres. During our visits we also takethe opportunity to understand theoperations of individual centres andbecome acquainted with managersand frontline staff.This knowledge informs our workwith corrections generally. Forexample, if there is a change to localprocedures or policies that impactson a complaint we may be inquiringabout by phone, it can often beeasily explained to us because of thegeneral picture we already have aboutthat centre.At other times, we use our visits toresolve complaints we have alreadyreceived over the phone or by letter,or to assess the implementation ofactions already agreed upon. Forexample, during our visits this yearwe assessed the level of compliancewith a direction the Commissionerof Corrective Services issued for alloperational staff to wear a badge witheither their name or some identifyingnumber on. If inmates can’t properlyidentify staff it makes it impossible forthem to raise, and for us to pursue,complaints about staff conduct.After the instruction was issued, we notedon our visits a lack of badges being wornby staff – especially at some centres. Wehave asked the Commissioner to follow upon this and provide us with further adviceabout how he intends to address the lackof compliance with his instruction.We also find on our visits that inmatesare more likely to raise systemic issues,conditions or procedures with us thatthey feel are generally unreasonable – butwould find it hard to convey the impactof these by phone or in writing. In somecases, it is only after you see the fourth orfifth inmate in a row who complains aboutsomething that has happened that the realimpact is understood.After some of our visits we have alsowritten to the Commissioner of CorrectiveServices directly, raising with him ourconcerns about the physical conditionsprovided for some inmates. During the pastyear we found it necessary to do this forthe Mid North Coast Correctional Centre.Inmates with an A2 (maximum security)classification were sharing cells withinmates holding a medium or minimumsecurity classification. This caused anxietyto both classes of inmates.CS 48: Returned to senderSeveral inmates at the Mid North Coast Correctional Centre complained thatproperty sent in by their friends and families – that the management had deemedwas unsuitable to be handed to the inmate – was being returned to the sender atthe inmate’s expense. This included things like books and magazines, so postagecosts were sometimes quite high. After we raised this with the general manager,he introduced a new process – the inmate would be told about any unsuitablemail items and could then decide to have them returned at their cost, destroyed ordonated to an appropriate place such as the library.CS 49: Charging inmates for damaged propertyAt Glen Innes Correctional Centre, all of the inmates in one of the units werereimbursed $5 they had each been charged for replacing a damaged fireextinguisher. Although such damage is not condoned, Corrective Services isnot legally entitled to take compensation from any inmate unless they have firstbeen found guilty of a correctional offence. In this case the culprit could not beidentified, so no one had been charged for the damage. We also reminded theinmates the fire extinguisher would only be a life saver in an emergency if it was ingood working condition.CS 50: A more positive focusLower security inmates, especiallythose serving short sentences,will live and act very differently toa maximum security inmate whomay still have many years of asentence to serve. We also raisedour concerns about:››The poor condition, especiallythe lack of privacy, for inmateswho have to sleep in dormitorystyle accommodation in theminimum security area of theGrafton Correctional Centreknown as ‘the units’.››The inability of CorrectiveServices to provide each inmatewith a cell they can occupy bythemselves, unless they needto share due to medical or othersufficient reason – as is requiredunder clause 33 (1) and (2) ofthe Crimes (Administration ofSentences) Regulation 2008.After several months we are stillwaiting for the Commissioner’sresponse to these importantissues.When our staff visited Kariong Juvenile Correctional Centre, a number of the younginmates complained they only ever got ‘bad’ case notes. Staff at Kariong use thecase notes written about the inmates as part of the process for deciding if theycan earn additional privileges. We felt it was particularly important that case notesshould reflect the overall behaviour of these young inmates and not just focus onany negatives. We took the issue to management who agreed they would remindstaff about the need to include positive case notes in the inmate’s case files so amore complete picture was available to the people making decisions about them.96NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Better information and communicationA lot of information is needed to make sure a correctional system operates in asecure manner and provides fair and reasonable treatment. This information mustbe communicated to all staff – as well as generally to inmates.Many times a complaint is appropriately resolved when correctional managementagree to remind staff of information which is already recorded in CorrectiveServices policies and procedures. Occasionally problems are caused becausethere was some misunderstanding about how the policy or procedure shouldhave applied. At other times, our inquiries point to the need for new policies or forexisting ones to be reviewed.CS 51: Frightened of other inmatesWhen an inmate was told he would be transferred from the Metropolitan SpecialPrograms Centre (MSPC) to Parklea Correctional Centre he spoke to staff aboutfears he had for his safety, advising them he had previously been assaulted byother inmates at Parklea. He said he had told correctional staff which inmateshe did not want to associate with in future because of the assault. MSPC staffchecked the OIMS computer system but could find no record of the associationalert. The inmate then called us because he was fearful of being returned toParklea. When we made inquiries, MSPC staff checked again and found theinmate had been assaulted at Parklea, and arranged for the relevant associationalerts to be entered onto the OIMS system. The inmate’s transfer to Parklea wascancelled and he was transferred to a more appropriate centre.CS 52: Procedures for drug testsUrinalysis – the testing of urine samples for the presence of drugs – isconducted on inmates either randomly, as part of a program, or targetedbecause of a concern they may be using prohibited substances. Before theinmate is asked to provide the urine sample, they are strip searched by officersto make sure they do not have a container of ‘clean’ urine in their possessionor any other form of contraband. When one inmate was strip searched atDawn de Loas Correctional Centre, he was not allowed to put his clothesback on before being required to provide the sample. He complained to usand we found out that a manager, who had since left Corrective Services, hadincorrectly told staff this was the procedure for urine testing. The managerwe spoke to ensured that all staff were instead informed about the correctway to conduct both the strip search and the urinalysis collection.We also find there can be communication problems between Corrective Servicesand other agencies that have an impact on inmates and lead to complaints toour office. One of the major areas where we see this is between correctionsand the health system, mainly via Justice Health. Communication betweenthese two agencies is integral to inmates getting timely and proper access tomedical services.CS 53: Providing safe transportJustice Health recommended that an inmate with an advanced chronic cardiacillness should be transported in a car or a van – instead of the large trucks usedby Corrective Services to move inmates – to minimise the risk of aggravating hismedical condition. However, he was continuously moved between correctionalcentres and courts in a truck and on one occasion needed hospitalisation as aresult. Our initial inquiries led to the Commissioner introducing new proceduresfor inmates who need this type of special transport. Unfortunately, the inmatecontinued to be moved by truck.Our next inquiries were with both Corrective Services and Justice Health, and wefound two causes for the problem. Justice Health’s recommendations for specialtransport, even for chronic conditions, had to be reviewed every two months bya doctor – but it can sometimes take several months to be seen by a doctor forall but emergency needs. There was also a problem with the way the correctiveservices and health databases communicated about the need for specialtransport.As a result of our investigation, Corrective Services have developed a new alert forappropriate cases where special medical transport will not need to be continuallyreviewed by a doctor. Justice Health and Corrective Services are also upgradingtheir databases to allow proper communication and maintenance of informationabout these types of alerts.CS 54: Unfair drug test resultsWhen inmates have a positive urinetest come back from the laboratory,correctional staff check with JusticeHealth about any prescribedmedications the inmate may betaking that could account for theresult. If the test shows the presenceof an unprescribed or illicit drug, theinmate is charged and punished. Aninmate who contacted us when hewas charged for a positive test wasadamant he had been prescribedthe drug by Justice Health, despitetheir note on his result sheet sayingit was ‘unprescribed’. He had tried tohave this reviewed, but the generalmanager had already advised him thecharge would stand.When we called the general managerhe asked Justice Health to reviewthe inmate’s prescribed medications.They then advised their initialinformation had been incorrect. Thisappeared to be a ‘one-off’ oversight.The inmate’s charge was dismissedand he was no longer bannedfrom receiving visits for 42 days.When people first come into custodybecause they are refused bail theyare often held in a police or court cellcomplex. This is sometimes for veryshort periods, but occasionally can befor up to a week. These complexes,which are operated by CorrectiveServices, are usually basic and cannotprovide offenders with the same levelof facilities or services they would havein a correctional centre.CS 55: Giving clear informationabout facilitiesOne woman who spent several daysin two different police/court cellcomplexes complained about hertreatment while she was there and thegeneral lack of facilities, especially forwomen – such as access to showersand feminine hygiene products. Whenthere are large numbers of offenders inthe cell complexes, the lack of facilitiescan make it difficult to provide regular,private access to showers and wewere told offenders are given verbaladvice about this when they arrive.We thought it might be difficultto provide clear and consistentinformation to offenders when thesecomplexes were especially busy,so suggested notices providinginformation about medical, legal, visitsand personal hygiene matters wouldbe useful. Corrective Services agreedand sent us a copy of the notice thatwas made available.Public AdministrationCorrections97

Public AdministrationInmate disciplineOften the complaints we receive about inmate discipline processes are alsoabout communication and providing information. This is a two way process – incorrections problems can arise when information is not willingly received, asmuch as when it is not provided. An inmate may complain to us because theyfeel they were not given the opportunity to provide all of the relevant informationabout an alleged correctional offence before a decision is made about theirguilt. If the adjudicating officer does not have all the relevant information to hand,then the result may be an unsafe decision. Another area of complaint about thedisciplinary process is when there is a question about the reasonableness of thedecision or the punishment. Case studies 56 and 57 illustrate these points.CS 56: An unfair punishmentFor sound security reasons, inmates can only make telephone calls to specificnumbers and can only use telephones for personal calls that can be recorded andmonitored. Emergency calls can be made in the interests of an inmate’s welfare,but again these are carefully controlled. A woman from the Silverwater Women’sCorrectional Centre had been punished for allegedly using the welfare stafftelephone account to access the inmate telephone system and running up a bill for$90. The woman claimed she was being unfairly punished as she had not madethe calls.Our inquiries prompted a review of her case and it was found that the evidenceused against her in the misconduct hearing was incorrect and the calls wereactually made by someone else. The charges were dismissed and punishmentremoved.CS 57: Returning confiscated clothingThree different inmates called us from Junee Correctional Centre alleging theirclothes had been taken as part of their punishment for correctional offences.They were not disputing the disciplinary action, but were upset about the clothesas they were items they had bought themselves on the inmate ‘buy-up’.When we spoke with managers at Junee we were told they were a‘withdrawable privilege’ as they were personal property. Technically thisis correct, but Junee later agreed the reference to ‘private property’ wasusually taken to be recreational type items – not clothing purchased tosupplement the very basic inmate clothing entitlement. They reversedthe decisions and returned the items of clothing to the inmates.Segregation and separationEach year we receive complaints from inmates who believe they are unfairlysegregated and those who claim they are kept in conditions equivalent tosegregation but are not subject to a lawful segregation direction. The Crimes(Administration of Sentences) Act 1999 provides for the Commissioner or hisdelegate to remove an inmate from association with all inmates, or from specificinmates, for reasons of good order and security or the personal safety of anyperson. This is known as administrative segregation and is not a punishment fora correctional offence. When an inmate is segregated under these provisions,various reports have to be made. The longer they remain segregated, the morereports have to go to more senior managers in the correctional system. Aftersix months the reports must go to the Commissioner, who must then advise theMinister in writing.Most importantly, the legislation allowing segregation also provides for anindependent review of the segregated custody direction by the Serious OffendersReview Council (SORC) once the inmate has been segregated for more than14 days. After application by the inmate, SORC reviews the reasons for theongoing need for segregation and may retain, revoke or vary the conditions of thesegregation order.This year we have made various inquiries with the Commissioner about hisstaff’s understanding of their responsibilities for the levels of reporting requiredfor segregated inmates. We have also raised concerns about the adequacy ofthe department’s policies and procedures to support their staff in complyingwith legislative requirements. We expect to receive further advice from theCommissioner about this in the near future.With large numbers of offenderscoming into custody who areassociated with various gangs,including ‘bikies’, we have alsoseen Corrective Services using theseparation powers introduced during2009 into the Crimes (Administrationof Sentences) Act. This retrospectivelygave the Commissioner the ability toseparate inmates without the use of asegregation direction.Unfortunately separation, as opposedto segregation, was hurriedlyintroduced by the Parliament inresponse to a decision of the courtthat would have found that the thenHigh Risk Management Unit was ineffect a segregation unit. When theCommissioner was given the ability toseparate inmates, Parliament did notinclude any procedures for ensuringthey were fairly treated or provide anyright of review – such as there is forthose who are segregated.Offenders who are separated fromthe mainstream inmate populationare usually managed on restrictedregimes that previously may haveconstituted segregated custody. Inrelation to the ‘bikies’, CorrectiveServices have advised this was donein response to the need to protectthese inmates from others and variousgroups of inmates from other groups.When we received complaints fromthese separated groups, we tried toensure the inmates were not isolatedfrom all other inmates wherever thiswas possible, that they were still ableto associate with at least one otherinmate, exercise out of their cell, havevisits and in-cell property. Because ofthe legislative amendments there waslittle other action we could take.Justice HealthJustice Health provides healthservices within the correctionalsystem, including having nursingstaff available in some court cellcomplexes to deal with the immediateneeds of offenders when they firstcome into custody.Health services provided by JusticeHealth (which is part of the widerNSW Health system) are generallyequivalent to those received in thepublic health system. However,Justice Health must also work withinthe daily regimes and securityrequirements of a correctional centreand this can make delivering theservices difficult.98NSW Ombudsman Annual Report | 2009–201035 years of making a difference

In regional areas there is also sometimes difficulty in acquiringsufficient professional services – such as dentists, optometrists etc –to regularly go into the centres and provide treatment. Many inmatesare brought out into the community for medical services. Thisrequires a high level of coordination with Corrective Services staff toprovide security escorts for the inmates. Some of the case studiesin this chapter have illustrated how communication between the twoagencies sometimes breaks down and the effect it can have on theprovision of medical services.We regularly receive calls from inmates who believe they shouldbe going to an outside medical appointment – but do not know ifit has been booked, when it might happen, or if they have missedit because they are not told the date of the appointment for soundsecurity reasons. Often we will contact Justice Health to find out ifan appointment has been made, and they will tell us when it will takeplace. Although we also cannot tell the inmate when the appointmentwill be, they are mostly satisfied to know there actually is somethingbooked for them.Working proactivelyFrom a combination of our complaint work, visits and generalinteraction with various people and agencies associated with thecriminal justice system we are in a unique position to observethe NSW correctional system. Often this leads us to make formalinquiries using the Ombudsman’s own motion powers. We are alsoable to make suggestions for improving how the correctional systemis managed.This year we have identified several issues that we have raised bothdirectly and indirectly with Corrective Services. We will also monitorthem in the coming year to check they are addressed. Those issuesinclude the following:››There needs to be a transparent classification and casemanagement system for serious offenders, including providingreasons for decisions made about inmates. Both the efficiencyand transparency of the current system could be improved bythe Serious Offenders Review Council (SORC) being the actualdecision-maker about the classification and case managementof serious offenders. Under existing legislative provisions, SORCassesses serious offenders and makes recommendations to theCommissioner of Corrective Services.The Commissioner is not required to accept thoserecommendations, nor give reasons for his decision. As SORCis headed by a judicial officer, they would be able to properlymanage and consider any confidential information and intelligenceabout serious offenders that is currently made available by lawenforcement agencies to the Commissioner. The SORC could alsoconsult with the Commissioner on appropriate placement andprograms. In our view the current arrangements do not provideadequate independence and transparency in the decision-makingabout these offenders.››The different needs of Aboriginal inmates are well documented dueto the impact of past government policies on Aboriginal people.The correctional system needs to support its staff to understandsome of the specific challenges facing Aboriginal inmates to helpthem better address their needs in a culturally appropriate way.While this often occurs, this is not always the case. Aboriginalinmates at Goulburn have raised a number of issues with us,including that:––they are not permitted to have an inmate from among their ownunit take on the role of unit domestic worker (or sweeper),––their cells have additional security grills to those in other wingswhich reduces airflow,––they also have lesser access to education and work than otherinmates at Goulburn who are also deemed high risk.Responses to our repeated inquiries haveindicated the management of Aboriginalinmates was in response to union concernsand objections. Originally, there were soundreasons for Aboriginal inmates at Goulburnbeing managed in this way – the centrewas the scene of a very serious incidentin 2002 when Aboriginal inmates attackedstaff resulting in serious injuries to severalstaff members. Many of the staff involvedstill work in the centre, however, most ofthe inmates who are now in Goulburn werenot there at the time of the incident. Eightyears after the incident, action to ensureequal and fair treatment of Aboriginalinmates at Goulburn would be more likelyto reduce any residual tension betweeninmates and staff, instead of fostering itas the current regime appears to do.››The inmate disciplinary system does notseem to provide an appropriate/reasonablesafe level of procedural fairness. The currentinformal system is not governed by clearand sufficient rules and procedures toensure inmates charged with correctionaloffences receive a ‘fair trial’. Compared withother jurisdictions, this hampers any laterexamination of the procedures followed or thereasonableness of the outcome.››Young offenders at Kariong JuvenileCorrectional Centre are managed on abehavioural program largely modelled onthe program operated at the High RiskManagement Correctional Centre – the state’smost restricted regime for adult inmates. Weare concerned that inmates who are under 21(and sometimes under 18) can spend severalmonths in segregated conditions while theystrive to move beyond the basic programlevel. A fundamental component of theprogram should be to ensure it recognises thelack of maturity, impulse control and generaldevelopment of these offenders and seeks tomanage them in a positive manner.Local governmentFor most of us, our local council providesmany of the community services andamenities that we enjoy. They also play amajor role in administering a range of lawsthat regulate our daily lives. Often, peopleturn to the council when things in theirneighbourhood go wrong. Over the manyyears we have dealt with council complaints,we have maintained a primary focus oneffective, consistent, transparent andaccountable regulation.Effective complaint-handling and properregulation fit well together, as it is oftenthrough complaints that councils learn aboutproblems that need a regulatory solution.Our interventions in these two processesenable us to help improve standards ofadministration in local government.Public AdministrationCorrections | Local government99

Public AdministrationComplaint trends and outcomesWe received 20% more formal complaints this year than last year (see figure 49)and there was a small rise of 2.5% in overall complaints. It was pleasing to see17% fewer complaints about community services and corporate and customerservice issues in councils and a 9% decrease in complaints about misconduct.This outcome was, however, offset by some concerning increases in complaintsabout rates, charges and fees (54%), development (43%), enforcement (42%),environmental services (32%) and engineering services (19%).Figure 49: Formal and informal matters received and finalisedMatters 05/06 06/07 07/08 08/09 09/10Formal received 744 841 768 702 843Formal finalised 720 837 788 672 875Informal dealt with 1,891 1,992 1,965 1,795 1,720Figure 50: What people complained aboutThis figure shows the complaints we received in 2009–2010 about localgovernment, broken down by the primary issue in each complaint. Please notethat each complaint may contain more than one issue, but this table only showsthe primary issue.Issue Formal Informal TotalCommunity services 19 12 31Corporate/customer service 231 283 514Development 93 290 383Enforcement 132 240 372Engineering services 74 179 253Environmental services 54 194 248Management 4 16 20Misconduct 40 64 104Issue outside our jurisdiction 27 32 59Objection to decision 78 100 178Rates, charges and fees 79 209 288Strategic planning 10 33 43Uncategorised 1 68 69Wrong procedure 1 0 1Total 843 1,720 2,563The past year saw a threefoldincrease in peopleobjecting to the decisionsmade by councils. Seefigure 50 for the issuespeople complained about.Our reduced resources,combined with a 20%increase in formal complaints,impacted on our capacity tohelp as many members ofthe public with their problemswith councils as we wouldhave liked. We have howevercompleted three formalinvestigations and have fiveformal investigations stillunderway. We completed302 preliminary investigations(see figure 51) which is37 less than last year.In 2008–2009 we conducted preliminaryinvestigations into a little over 50% ofcomplaints, whereas this year we were onlyable to conduct preliminary investigationsinto 35% of complaints. This is because wehave less staff available to deal with localgovernment complaints.We were able to obtain 143 positiveoutcomes in the matters we formallyinvestigated or made inquiries into during2009–2010. These positive outcomesincluded councils:changing policies and proceduresmaking an apologyproviding further informationproviding reasons for decisions››mitigating the consequences of theiractions or decisionschanging their decisions››implementing a variety of specific remediesfor problems brought to our attention.Towards better regulationThe Regulations that councilsadminister can be a burden anda blessing, depending on whereyou stand. They aim to create aharmonious community – whetherthrough planning controls or theprevention of harm. Complaintsabout the exercise of regulatorypowers make up more than athird of all the local governmentmatters raised with us.Failing to deal adequately withthese complaints can seriouslyundermine a council’s credibilityin the eyes of their community.Not all complaints require regulatoryaction, and it is important forcouncils to manage the expectationsof complainants and explain thereasons for their decisions. Whenwe review complaints we look at thecouncil’s processes for complainthandling,how they assess relevantissues and materials, investigateand gather evidence, keep recordsand supervise staff, as well astheir internal communications andthe written guidance they provideto assist decision-making.Having good complaint-handling andenforcement policies and proceduresis an important way for a councilto ensure they competently, fairlyand consistently enforce the law.Figure 51: Formal complaintsfinalisedPreliminary or informal investigation 302 (35%)Assessment only 537 (61%)Conduct outside our jurisdiction 33 (4%)Formal investigation 3 (0%)Current investigationsat 30 June 2010No.Under preliminary or informalinvestigation 30Under formal investigation 5Total 35100NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Over the past year, we have investigated where councils:››Inconsistently and ineffectively applied planning controlswhen processing development applications.››Failed to properly investigate and keep appropriaterecords of decisions.››Advised people to mediate when council had aresponsibility as a regulator to make an appropriatedecision.››Acted without proper authority.››Took enforcement action on the basis of personal›confirm their own views.›perceptions about complainants and property owners.Gave contradictory and incorrect advice to complainants.› Shopped around for or ignored legal advice that did not› Had no written policies, procedures or guidelines toassist staff exercise regulatory powers.Pages 101–104 illustrate how our intervention made adifference.Failure to takeappropriateenforcementactionManly Council’s pooradministrative practices anddecision-making were keyissues in a major investigationinto two complaints.Three couples lodgeddevelopment applications aroundthe same time for very similarnew homes on adjacent blocksof land. One of the couplescomplained to us that theircouncil planner assessed theirapplication inflexibly and offeredthem little assistance. However,at the same time, a differentplanner smoothed the way forboth their neighbours’ homesto be built quickly. The couplesaid they had further problemsduring construction as the councilpursued them for allegedlybreaching consent. When theycomplained about the conduct ofthe regulatory manager, councildismissed their complaints with awarning not to defame their staff.Shortly after we receivedthis complaint, the ownercorporation of an apartmentblock complained that whenthey contacted Manly Councilabout illegal works being builton the roof of an adjacentbuilding, council failed to properlyinvestigate their concerns.They told us council had assuredthem the developer could notconstruct the items on the roof,but were then unable to preventthe work proceeding. They wereconcerned because council’srecords were inadequate and didnot provide any certainty aboutapprovals for the site.We investigated council’s complaint-handling and record-keeping, and theirpolicies and processes for assessing development applications, investigatingnon-compliance with consent, and dealing with code of conduct complaints.We found that planning staff were inadequately supervised and – in theabsence of any adopted guidelines – were left to interpret developmentcontrols according to their own views about particular developments.Information provided by applicants was not thoroughly checked, planningreports and consents were poorly drafted, and an inconsistent format andapproach was used to assess the requirements of planning instruments.Routine failures to check details before determinations were issued, or tosecurely store copies of approved plans, hampered council’s ability to dealcompetently with any later compliance issues that arose.The problems that both complainants raised were not isolated incidents. Eventhough the general manager made changes to DA processing in 2003, bymid-2005 the Department of Local Government’s Promoting Better PracticeReview still saw the need for improvement in DA processing.An external consultant’s comprehensive review of DA processing in late 2006also identified community dissatisfaction with council’s systems and theneed for a significant overhaul. There were no written procedures to guideassessment decisions, and no business rules for ensuring DA informationwas correctly entered into council’s systems or obligations under the StateRecords Act were met.Council’s investigation of alleged breaches of consent reflected similardeficiencies in administration. Compliance staff, like planning staff, wereinadequately supervised and there were no policies and procedures to guideenforcement action.After our intervention, an enforcement policy and a revised complaintsmanagement policy were drafted – but, in our opinion, both documents wereinadequate for ensuring effective, consistent, transparent and accountabledecision-making.We also found examples where staff had ignored advice from council’s legaladvisers and incurred significant legal costs with little or no regard for thepublic interest, council’s budget, or their obligations under council’s code ofconduct and the Local Government Act 1993.Of further concern, was council’s management of allegations that theregulatory manager involved in both these matters had fraudulently made anaffidavit to the court that he had legal qualifications, had presented evidenceto the court that had been withdrawn when it was claimed the signature wasfalse, and had withheld email documents required by notice of the court.Council did not conduct a proper investigation of these complaints andhad no procedures to guide the handling of complaints about breachesof council’s code of conduct. After our intervention, council required theregulatory manager to produce his legal qualifications. However when hewas unable to do so, he was allowed to resign from council and given goodreferences that helped him obtain a position as a compliance officer in twoother councils.We made 24 recommendations. We issued our report under section 26 of theOmbudsman Act in early September and will include information about thefinal outcome of the investigation in the next annual report.Public AdministrationLocal government101

Public AdministrationOpportunities for properenforcement missedA resident complained to Sutherland Shire Councilabout a structure that was being built in his neighbour’sback yard. The neighbour had lodged a complyingdevelopment application for two retaining walls, butsubsequently built a third wall. He also fi lled andturfed the area between the walls which increased theground level of the backyard to within approximately40 cm of the top of the boundary standard heightfence. This also gave the neighbour extraordinaryvisual access into the resident’s property. Theresident questioned the structural adequacy of theretaining wall along the boundary fence and theredirection of stormwater runoff onto his property.We became involved because it appeared to usthat council had not taken appropriate action toresolve the matter. We identifi ed inadequacies incouncil’s processing of complying developmentapplications, complaint-handling, record-keeping,and investigative practices and decision-making.The complying development certifi cate should not havebeen issued because the neighbour’s application wasincorrect and incomplete. When the retaining walls werebeing built, council did not conduct the mandatorycritical stage inspections that would have detected theproblems early on. After the resident complained aboutthe structure, council’s advice that it could not take anyaction was based on an inadequate investigation andmisinterpretation of internal legal advice which indicatedthe illegal wall did not comply with planning controls.Council’s Internal Ombudsman’s offi ce intervenedas a result of our inquiries. We discovered that theInternal Ombudsman had expressed concern thatwe had correctly identifi ed problems and if councilresponded to us they could not successfully explaintheir inconsistent decision-making. The InternalOmbudsman ‘took over’ the complaint and toldus council would arrange mediation between theresident and neighbour and, if that failed, considerordering the illegal structure to be demolished.The resident and the neighbour reached an agreementat the mediation, but serious issues for the resident wereunable to be resolved. The engineering opinion suppliedby the neighbour inadequately dealt with the soundnessof the structure and the drainage problems, a surveyreport revealed the retaining wall encroached onto theresident’s property and the suggested privacy screenthat was to be built was ultimately rejected by council.The resident continued to complain to the council and tous. When the inadequacy of the mediated outcome wasraised, council made undertakings about enforcementaction but they failed to carry this through. When councilfi nally did a proper assessment and obtained externallegal advice, they were told they could not successfullytake enforcement action – the opportunity to properlyenforce planning controls had been missed. If councilhad done a timely and competent investigation when theresident fi rst complained, the complying developmentcertifi cate could have been invalidated and the illegalwork rectifi ed.In response to our proposed recommendations, councilagreed to apologise to the resident for their poorhandling of the matter, write to the neighbour aboutmandatory inspections of the structure, and require theneighbour to plant trees to reduce visual access to theresident’s property. Council also agreed to:› train all compliance staff in the statutory requirementsfor complying development› review all their procedures for processing complyingdevelopment applications› prepare guidelines for using mediation in compliancematters› develop a record-keeping policy to help staff complywith the State Records Act› revise their customer response policy to improve theircomplaint-handling processes.On this basis we decided to discontinue ourinvestigation. Following the fi nalisation of ourinvestigation council issued a building certifi catefor the property, despite having declined to do soin 2008 because the retaining wall encroachedonto the neighbouring property and the engineer’sopinion was inadequate. The encroachment isclearly disclosed in a survey report that is identifi edin the building certifi cate. The grounds upon whichcouncil has now decided to issue the buildingcertifi cate for the structure are not clear.A signifi cant issue for us arising in this investigation wasthe role played by council’s Internal Ombudsman Offi cein the handling of the resident’s complaints.We have long-held concerns about Internal Ombudsmanpositions in councils being promoted as impartial andindependent. Because of our belief that Sutherland ShireCouncil’s Internal Ombudsman’s Offi ce was acting toprotect the council during our inquiries, we released adiscussion paper on the role of Internal Ombudsmanseeking comments from local government and otherinterested bodies about this issue. See page 104 in thischapter for more details about our discussion paper.In 1975, we received 2,381 formalwritten complaints and 3,600telephone inquiries. This year wereceived 8,712 formal complaintsand notifications and 23,797 informalcomplaints and inquiries to our office.Highlighting35 years102NSW Ombudsman Annual Report | 2009–201035 years of making a difference

CS 58: Conflicting advice and lack of coordinated actionA man complained about Canterbury City Council’s handling of his complaints.His mother owned a cliff top house and a portion of a 20 metre high cliff face thathad been formed by quarry excavations at the turn of the 20th century. The cliffface required stabilisation after a series of rock falls, but council denied liability asthe cliff was private land. Owners of another portion of the cliff took legal actionagainst the man’s mother in the Supreme Court, where liability for the stabilisationwork was apportioned between the land owners.The man wrote numerous times to council about the large debt his mother hadacquired, the safety risks from the rock falls, and the need for council to takeresponsibility for the stabilisation. He claimed staff had not properly informedcouncil of important facts about unacceptable risk to people and property inthe geotechnical reports prepared for the court. He said council lost the fileon the matter for nearly six months and did not keep records of meetings andinspections. After the court decision, council told his mother it was going toissue an order to rectify drainage issues discussed by the judge, but the ordernever arrived and council did not explain why. Although some staff had advisedthe complainant’s family the cliff stabilisation works required a developmentapplication, other staff later told them it was not required and would hold up thework. When the man complained of illegal works on his mother’s neighbour’sproperty on the cliff top and how his mother was being treated, council respondedin such a way as to discredit his concerns.We made extensive inquiries about the handling of the man’s complaints. Councilwas unable to explain their inaction on the matter for nearly six months or theactions taken after the other family members contacted senior management aboutthe rock falls from the cliff face. There were few records of phone calls and norecords of meetings, site visits or inspections.Directions were issued by senior managers for an investigation and legal advice,but cross-divisional referrals were not acted on and senior managers failed tofollow up on their own directions. No one took a coordinating role to ensure therequired actions were completed and explanations given to the complainant.Even though the complainant raised the issue of an illegal retaining wall and fill ona neighbour’s land that might have been affecting the stability of the cliff face, itwas not investigated. Council told the complainant that a building certificate wasissued for the wall which we discovered was not true. Although the geotechnicalreports were sent to council after the rock falls, the safety issues were notassessed.When the Supreme Court reviewed the geotechnical reports they identified theneed for stormwater drainage issues at the cliff top to be addressed within twoyears. After three years, council had still not finalised their technical assessmentsof the drainage matter, even though their own legal adviser had urged them toexpedite this task not long after the court case.Council responded positively to the deficiencies we identified. They apologised tothe man and his family for the poor handling of their complaints and wrote to themafter investigating the illegal work on the neighbour’s property, the drainage issuesat the cliff top, and the legal status of the stabilisation work. They also agreed to:››review the workload of the regulatory manager to ensure statutory and otherobligations could be metaudit their records management processes››review their policies and internal procedures for conducting inspections and forbetter managing cross-divisional complaints››provide training for staff to improve investigation work and properly implementcouncil’s enforcement and prosecutions policy and complaint managementpolicy››remind staff of their obligations under council’s code of conduct and the StateRecords Act.CS 59: Unauthorised sprayingdestroys treesCastlereagh-Macquarie CountyCouncil employed a contractor tospray a residential mining lease aspart of a Hudson pear eradicationprogram. In the process, most of theplants on the property – including a50 year-old Kurrajong tree and manyvaluable cacti – were destroyed. Theresident complained to us after councilrefused to clean up the unsightly messleft at his property and denied theircontractor was even on the resident’sland at the time.Before using their regulatory powers,council did not inspect the property tofind out if Hudson pear was present– and then did not know if any ofthe noxious weed had in fact beeneradicated by spraying the property.Although they advertised in the localmedia that they would be spraying,council had not notified private landowners or occupiers of their intentionto spray their property – this wascontrary to the requirements of thelegislation. In addition, they did notkeep records of who carried outspraying and lent spraying equipmentto individuals who were not licensedto use the chemicals. The contractor’sdenial that he had been on theresident’s land was a hand writtennote in his diary.We established that council’scontractor had in fact sprayed theresident’s property, even thoughcouncil was not authorised to sprayland that was not under it’s control.We also discovered that the contractorhad received a previous caution fromthe Environment Protection Authorityabout his failure to keep adequaterecords, as required by law.Council responded positively toour intervention – they paid for theresident’s land to be cleaned up andfor 20 Kurrajong trees to be planted.They sought legal advice about theirobligations when spraying land notcontrolled by council and sent twostaff for training on implementing theNoxious Weeds Act and the PesticideAct. They also agreed to review theirpesticide notification plan.Public AdministrationLocal government103

Public AdministrationCS 60: Mediation not the best optionResidents in a rural residential area complained numerous times to LakeMacquarie City Council about noise from six to eight German shepherds and theuse of kennels on a property for breeding. Initially, council raised the expectationsof the residents by issuing a notice of intention to impose a nuisance dog orderand advising they would take action on the kennels being used for breeding. Whenthe residents complained that they had not heard anything further from council,they were told to mediate with the owner of the dogs.We advised council that asking complainants and dog owners to mediatein circumstances where there was ongoing nuisance barking and strainedrelationships was not appropriate. These matters required council to make aninformed decision about the use of their regulatory powers. Public sector agenciesand their staff should be prepared to make decisions even when the matter iscontentious – not just tell complainants to try and sort it out themselves.After our intervention, council investigated the issues raised again. In the endthey decided not to exercise their regulatory powers, but they did inform thecomplainants of the reasons for their decision.CS 61: Unfair fine waivedA resident complained that Pittwater Council had unfairly issued a fine and orderfor the rectification of unauthorised earthworks on a driveway without having anycommunication with her about the matter. The resident, who was a former councilemployee, claimed that the staff involved chose that course of action because ofprevious problems in the workplace and dismissed her complaints without properexplanation.After we intervened, council admitted there were workplace relationship issuesthat were being addressed and that staff had not discussed the matter with theresident before issuing the fine and order as would normally be the case. Theyalso had no complaint-handling policy, enforcement policy or written investigationprocedures to assist staff.Because the complaint involved different sections of council, no one had takenresponsibility for coordinating a comprehensive response to the resident. Councilreviewed the way they had handled the complaint and waived the fine. Theyapologised to the resident and provided a more detailed explanation as a result oftheir review. They also adopted a compliance and enforcement orders policy,a new investigations procedure and new complaint-handling proceduresand guidelines.The role of councils’ Internal Ombudsman OfficeThrough our handling of complaints about councils, we have observed a numberof issues about the role and functioning of councils’ Internal Ombudsman Offices.Although they can be an important source of redress for people with grievancesagainst council, there are a number of obstacles – both in terms of perceptionand reality – to their proper functioning.Over the years, there have been a number of questions raised about whether anInternal Ombudsman can ever operate independently – given that council InternalOmbudsman report to the general manager, have no protection from dismissalby council, and have no formal protections against breaches of confidence,defamation law, privacy law or freedom of information legislation.This year we decided to publish an issues paper discussing the role of InternalOmbudsman, which we circulated to councils in NSW and other interestedbodies. In the paper we suggested that legislative backing for the role couldbe one means of assuring it operates independently. If there was no supportfor amending this legislative backing, we recommended that the office have adifferent title – such as a ‘Complaints Commissioner’.We received submissions from 14 councils as well as individual submissions fromthe Division of Local Government and the ICAC. The seven Internal Ombudsmanchose to submit a joint submission. There was little support for providinglegislative backing for the role – except from Internal Ombudsman themselves– and some strong views were expressed by councils about the independenceof their Internal Ombudsman. There was, however, recognition that such officescan strengthen internal complaint-handling and other governance mechanisms incouncils. We will publish a final paper with our recommendations later in the year.Freedom ofinformationEnd of an eraThis year marked the 21stanniversary of the Freedom ofInformation Act 1989 and also itslast year of operation. On 1 Julythe Government Information (PublicAccess) Act 2009 (the GIPA Act)commenced. Earlier in the year,the NSW Government appointedan Information Commissionerwhose role is to ensure compliancewith the new regime for accessinggovernment held information.Our long standing role in dealingwith freedom of information (FOI)complaints and reviews has come toan end, although we will continue toreceive FOI complaints in the comingmonths – under the transitionalprovisions of the GIPA Act – aboutapplications that were lodged beforethe start of GIPA.The GIPA Act brings some majorchanges in how government heldinformation can be accessed. It givespeople the right to obtain access toinformation held by NSW governmentauthorities, Ministers, councils andother public agencies unless there isan overriding public interest againstits release.The GIPA Act also requiresgovernment agencies to make certaininformation easily available to thepublic, without an application havingto be made. This is known as openaccess information and includes:››an agency’s current publicationguide››information about the agency in anydocument tabled in Parliament byor on behalf of the agency››policy documents››disclosure logs of all the informationreleased in response to applications››a register of government contracts.Agencies must also make a recordof a decision not to make any openaccess information publicly available.This requirement for proactiverelease of information is one of themajor reforms of the GIPA Act. Wewelcome the appointment of the newInformation Commissioner and havestarted building strong ties betweenour two offices.104NSW Ombudsman Annual Report | 2009–201035 years of making a difference

We have signed information sharing agreements that will enable us to refer complaintsto the Information Commissioner and also receive complaint referrals from them. In ourFOI review role, we have traditionally been able to review complaints with ‘two hats’ –also identifying any possible broader administrative issues revealed in the documentsthat are the subject of the FOI application.We are confident that the provision in the GIPA Act authorising liaison between theOmbudsman and the Information Commissioner, the information sharing agreementwith the Information Commissioner’s Office, as well as regular liaison meetingsbetween our staff, will enable us to continue to deal with any broader administrativematters that may arise out of access to information complaints.FOI ComplaintsThis year we received 145 formalcomplaints about the handlingof FOI applications by agenciesand local councils (see figure 52).This compares to 186 complaintsreceived last year and 225 theyear before. The downward trendin FOI complaints continues.As predicted last year, we think thistrend can be attributed to greateropenness by agencies followingmemoranda by the Premierencouraging proactive releaseof information by governmentagencies. Another reason isthe consistent decrease incomplaints about the NSW PoliceForce (NSWPF) due to it havingsubstantially reduced its backlogin processing FOI applications.As is usual, the majority of complaintswere about refusal of access todocuments. We also receivedcomplaints about wrong procedures,failure to make a determination,delays, excessive charges as wellas failure to identify documents thesubject of applications (see figure 53).Figure 53: What people complained aboutFigure 54: Significant outcomes achieved in relation to complaintsabout FOI finalised in 2009–2010OutcomePolicy/procedure change 3Training implemented 2Authority pays compensation 1Authority makes apology 5Other remedy 1Authority reviews case 8Further information provided 14Authority admitted and corrected errors 4Authority reviewed and changed decision 6Authority provides reasons 5Agreement reached through informal means 1FOI documents released 23FOI refund/remission of fees 1FOI search made and documents found 4Total 78Figure 52: Formal and informal matters received and finalisedMatters 05/06 06/07 07/08 08/09 09/10Formal received 188 208 225 186 145Formal finalised 198 205 197 224 136Informal dealt with 294 316 422 407 263This figure shows the complaints we received in 2009–2010 about freedom ofinformation, broken down by the primary issue in each complaint. Please notethat each complaint may contain more than one issue, but this table only showsthe primary issue.Issue Formal Informal TotalAccess refused 90 36 126Agency inquiry 0 33 33Amendments 3 5 8Charges 2 6 8Documents not held 10 11 21Documents concealed 0 2 2Documents destroyed 0 0 0General FOI inquiry 0 63 63Information 1 1 2Issue outside our jurisdiction 1 6 7Other 0 1 1Pre-application inquiry 0 35 35Pre-internal review inquiry 0 47 47Third party objection 8 7 15Wrong procedure 30 10 40Total 145 263 408No.We finalised 136 complaints achieving78 positive outcomes (see figure 54).The reduction in our overall fundingin the last few years has had a veryreal impact on the work we can do. Inorder to use our decreasing resourcesmore efficiently, this year werestructured the public administrationdivision, where our staff who deal withFOI complaints are located.The division has been organised intoan assessment and resolution streamand an investigation stream. Whilethe restructure has improved theoverall efficiency of the division, it hascontinued the unfortunate trend overmany years of fewer resources beingavailable to deal with FOI complaints.For this reason we have finalised lesscomplaints than in previous years.Public AdministrationLocal government | Freedom of information105

Public AdministrationAs a result of our involvement, agencies released many documentspreviously held exempt and in some cases carried out further searchesresulting in more documents being found. We also caused policy andprocedure changes, provision of training to staff and in some casespersuaded agencies to apologise to complainants for errors. We formallyinvestigated three complaints. All other complaints were dealt with throughpreliminary inquiries and making informal suggestions under the FOI Act.University executives’ pay andperformanceLast year we reported that, following an investigation, we hadrecommended that the Department of Premier and Cabinet (DPC)consider amending the annual reporting regulations to require disclosureof the pay and performance information of senior university executives.In July 2010, the Director General of DPC advised us that the annualreporting regulation is due to be repealed on 1 September 2010. When theregulation is re-drafted the Government proposes to include provisionsthat will give effect to our recommendation.CS 62: Caught in a ‘catch 22’ situationA member of the public complained about Blacktown City Council’shandling of his request for information about the owner of a dog that hadattacked his dog. The complainant attempted to report the dog attack toboth council and the police. However, council advised him that he couldnot lodge a formal complaint unless it was about a specific individual. Asthe complainant did not know the name of the dog’s owner but wanted totake civil action against him, he followed council’s advice and made an FOIapplication to obtain the owner’s name and address.Council in turn refused to provide any information due to privacyconsiderations under the Companion Animals Act 1998 which treats certaininformation relating to the administration of the Act as confidential. The Actallows the disclosure of the name of the owner of a companion animal toa person to bring legal proceedings if the animal’s behaviour had beenreported to a police officer or a council. However council said that thename could not be disclosed as no official complaint had been receivedby either the pound or the police. Quite obviously, the complainant foundhimself in an impossible situation.It appeared the complainant had made a verbal complaint to council but,in a ‘catch 22’ type situation, couldn’t lodge a formal complaint because hedid not have the name of the dog’s owner. However, there was no reasonwhy council staff could not treat the complainant’s attendance at council toreport the attack as a formal complaint for the purposes of the CompanionAnimals Act and give him access to the dog owner’s name under thatAct. We wrote to council and suggested that the complainant should havebeen given access to the information free of charge under the CompanionAnimals Act. As a result of our suggestion, council decided that all futurereports about alleged dog attacks, including verbal ones, would beformally recorded by council. The names of the owners will be given topeople who ask for the information in writing, without resort to the FOI Act.Council also agreed to refund the FOI application fee in this case.FOI and other ways of accessinginformationFOI is not always the only way to provide information to a member ofthe public. It is sometimes inappropriate to make people submit FOIapplications for information that could be provided informally or throughother means. This is now an important element of the new GIPA Act.In case study 63, we found that it wasinappropriate to refuse to process anapplication under the FOI Act and directpeople to a more costly access toinformation scheme instead.CS 63: Incident reports tooexpensiveA Legal Aid solicitor complained that theNSWPF had declined to process his client’sapplication for access to an incident reportunder the FOI Act. The FOI Unit advisedhis client to redirect the application to thePolice Insurance Services Unit. The costof obtaining the relevant document fromthe Insurance Services Unit was $73,substantially higher than the cost under theFOI Act. This would have been only $15 asthe client was a pensioner. This frustratesthe objects of the FOI Act as it means lesspeople, particularly those suffering financialhardship, would be able to afford the costof accessing documents held by the police.We suggested that the Insurance ServicesUnit should process applications fromindividuals using the same fee structure asthe FOI Act. We felt that people who couldotherwise have obtained the informationunder the FOI Act should be charged$30 for applications for their personalinformation. They should also be eligible fora discount if they could demonstrate thatthey were suffering financial hardship.The NSWPF refused to comply with thissuggestion. They said that the InsuranceServices Unit fee structure reflected thecost recovery and user charges guidelinesestablished by the NSW Treasury, andadopting the FOI Act fee structurewould not adequately recover the costsassociated with processing applications.It would also affect the NSWPF’s capacityto maintain the service. They advised usthat they recognise that applicants maybe suffering financial hardship and so theInsurance Services Unit does not chargefor applications received from Legal Aid.We have significant concerns about thisresponse from the NSWPF and will beactively pursuing this issue.FOI and businessAgencies are usually reluctant to releasedocuments that contain information abouta private business, regardless of whetherthey are legitimately exempt under the FOIAct. Case studies 63 to 67 show that a fearof offending business customers may existamong several government agencies.106NSW Ombudsman Annual Report | 2009–201035 years of making a difference

CS 64: Is information about water usage confidential?A journalist applied to Sydney Water under the FOI Act for documents about theamount of water used by the top 50 commercial users in past financial years.Sydney Water released information about aggregate data, but maintainedthat the documents disclosing the names of the companies were exempt asthey concerned the business affairs of the companies and were thereforeconfidential.Sydney Water argued that its customer contract obliged it to keep confidentialinformation about the water use of its commercial customers, and – althoughinformation about water usage was not confidential in itself – in combination withthe names of the users it ‘could provide an opportunity to other competitors.’They did not consult the affected businesses before makingthis decision.Although the release of the documents may provide a ‘window of information’to competitors, the fact that information is disclosed is not sufficient to makethe documents exempt from release. The release of the documents must havean adverse effect on the business affairs of the company involved or lead to adiminution in the commercial value of information. Many of the companies listedin the documents regularly publish information about their water use on theirwebsites and in their annual corporate social responsibility or environmentalreports, as well as in Sydney Water’s own publication, The Conserver. It isunlikely that any of these businesses would have published this information ifit could have alerted competitors to operational factors that might give them asubstantial competitive advantage. Our review of the Customer Contract alsoshowed that it contained no undertakings of confidentiality to Sydney Watercustomers regarding information about water usage.In recent years, private water consumers have been subjected to increasingrestrictions on their water usage and have been encouraged to undertake watersavinginitiatives. The water consumption of businesses and any initiatives thatbusinesses are taking to reduce their water consumption are therefore mattersof public interest. In our view, members of the public have a right to know whichbusinesses are consuming the most water in NSW and whether or not thosebusinesses are taking action to reduce their water consumption.We suggested to Sydney Water that the release of the documents was in thepublic interest. They declined to take up our suggestion so we started a formalinvestigation into their conduct. After an initial meeting, the CEO advised usthat Sydney Water was now consulting with some of its top 50 customers andseeking their views about our arguments in favour of releasing the information.We received submissions from a law firm representing one of the commercialwater users and several organisations representing the interests of businesses inNSW. The submission did not, in our view, establish that the documents soughtby the journalist were exempt. We subsequently recommended that SydneyWater release the documents.CS 65: The right to know about council contractsA former Greens councillor from Shellharbour City Council complainedabout council’s handling of her FOI application for documents about a largedevelopment known as the Shell Cove Marina. Council signed a developmentcontract with the Australand Corporation in 1993. The development, which isto be completed by 2016, includes a large marina, golf course and ashopping centre.Council gave the former councillor access to some information about thedevelopment, but refused access to reports that had been created in the lastseven years because they contained sensitive business information aboutnegotiations with Australand.At an initial meeting with council, they told us that they were prepared to releasemonthly and annual reports about the marina that had been created more thanthree years ago but nothing more recent. We disagreed and pointed council tosection 15A of the FOI Act, which sets out information that needs to be madepublic in contracts between government agencies and the private sector.We also referred to the public interest in the release of the information in thereports, particularly as council receives revenue from the development and willreceive half the profits made once it is complete. Council agreed to review theiroriginal decision and release further documents to the complainant.CS 66: Rally conditions notreleasedWe received a complaint from anenvironmental organisation about adecision by the Department of Industryand Investment to refuse access toa document containing conditionsimposed on the holding of the WorldRally Championship North Coast Event.The department argued that the rallyorganiser had provided the informationin the notice of conditions in confidentialcircumstances. They also argued thatthe conditions of the event were theproprietary information of the rallyorganiser, so their release would havean unreasonable adverse effect on theirbusiness affairs.We considered there was nothing in thenotice of conditions that indicated it wasa confidential document. It merely set outthe conditions under which the rally wasto be held and did not contain proprietaryinformation of the rally organiseras claimed by the department. Thedepartment agreed with our suggestionto release the document.CS 67: Claims for exemption notsubstantiatedIn November 2006, the NSW Governmentannounced a decision to build TillegraDam in the Hunter Valley. In late 2008the No Tillegra Dam Group, which wasopposed to the construction of the dam,applied for documents about decisionsrelating to its construction. The HunterWater Corporation claimed that alldocuments were exempt because theywere either internal working documentsor cabinet documents. It was unclear howmany documents had been identified asHunter Water did not prepare a scheduleof documents.In response to our investigation, HunterWater provided a certificate from theDepartment of Premier and Cabinet thatshowed only five of the documents werein fact cabinet documents.They claimed 23 other documentsshould also remain exempt becausethey contained sensitive business orconfidential information or their releasewould undermine Hunter Water’s financialor property interests.We could see no good reason for anyof the documents to be exempt as theywere created in late 2006 and manywere from before the NSW Governmentdecided to build Tillegra Dam.After considering our suggestion toredetermine the application, HunterWater agreed to release virtually all theinformation in the 23 documents.Public AdministrationFreedom of information107

Public AdministrationWhen should information becollated?Agencies occasionally receive applications, typically fromjournalists, that require them to collate information that theydo not normally collate in order to satisfy the inquiry. If theinformation is easily put together, agencies are normallyhappy to oblige.However, from time to time, agencies argue that it wouldtake an unreasonable amount of resources to collate theinformation requested. The challenge for us in those casesis to gain an understanding of the agency’s systems so wecan test the veracity of their claim, and then decide whetherthe information requested is in the public interest and shouldtherefore be collated by the agency. Case studies 68 and 69illustrate this dilemma.CS 68: Data unreliable so not releasedA journalist complained about the Roads and TrafficAuthority’s (RTA) determination of his FOI application fordocuments about the top ten locations of vehicle collisionsor incidents with pedestrians. The journalist wanted theinformation to identify and publish a list of black spots inNSW. The RTA advised him that it did not hold documentsdisclosing such information although, according to thejournalist, they had published similar lists in the past.Through our inquiries, we found that the RTA does notcompile crash statistics listing locations with the greatestnumber of crashes because this information of itself is nothelpful in determining the areas that need the most attention.In most cases, the total number of crashes simply signifiesthat an area is busy and has high traffic volumes. Accordingto the RTA, the crashes may be relatively minor and so wouldnot indicate that there is a ‘black spot’.The RTA also told us that the information they had provided tothe media in the past (up until 1997) was an annual listing ofblack spot intersections in NSW, ranked on the total numberof crashes over the most recent two year period and then by aseverity index. The severity index included various weightingsfor fatal, serious injury, minor injury and non-casualty crashes– but only for the most recent year of crash data. This waspossible in the past as a distinction was able to be madebetween serious and minor injuries.However the recording of data on injury severity was found tobe unreliable and attempts to distinguish between serious andminor injuries were abandoned in the mid 1990s. Accordingto the RTA, the list of black spot intersections became defunctonce the severity of the crashes could no longer be analysed.We wrote to the journalist advising him that we were satisfiedthat the RTA did not hold the documents he had requested.After we concluded our inquiries the Daily Telegraphpublished a list of the state’s top ten accident ‘hotspots’. It hadobtained the information from a list showing where the RTAhad determined to place its new mobile speed cameras. Wemade further inquiries with the RTA as this appeared to be alist of ‘black spot’ locations.The RTA advised us that the analysis performed in order todetermine the appropriate locations of the mobile speedcameras was not based upon ‘black spots’ but rather onlocations that had been previously used by the NSW PoliceForce for their own mobile speed cameras. The RTA had usedthis as a starting point in assessing the suitability of the sites.The RTA confirmed that it did not hold data regarding ‘blackspot’ locations in NSW.CS 69: Collating hoax calls too hard to doA journalist made an FOI application to the NSWAmbulance Service for copies of examples of hoax callsmade to the triple-0 line. The service had refused theapplication on the basis that processing it would be anunreasonable diversion of its resources.After making detailed inquiries and viewing the systemsused for tracking calls made to the triple-0 line, includingthe computer-assisted dispatch system used to locateand respond to calls from members of the public, we weresatisfied that collating information on hoax calls would bean unreasonable diversion of resources.The service explained to us that they generally cannotidentify if a call is a hoax call until the ambulance hasbeen dispatched to the site. If the attending paramedicsattend the site of the call and are able to determine thatthe call was a hoax, they will enter an ‘unable to locate’outcome on their mobile unit. It is worth noting that this‘unable to locate’ outcome does not necessarily mean thecall was a hoax.For example, a passer-by may call an ambulance for anindividual who appears to be injured by the side of theroad but by the time the ambulance arrives the personmay have recovered and moved on. The paramedics willrecord any details of a hoax on the paper patient record,but no specific details about the hoax are required to becaptured in the electronic system.FOI and legal professionalprivilegeEvery year we receive complaints that appear to usto involve an unreasonable refusal to allow access todocuments based on legal professional privilege.Alternatively, in cases where privilege canappropriately be claimed, there appears to often bean unreasonable reluctance to exercise discretionto release documents. Case studies 70 and 71show examples of the inappropriate use of legalprivilege to prevent access to information.CS 70: Photo of car released, but witha provisoA man who received a parking fine from the Hills ShireCouncil applied under FOI for a copy of the photo of thecar taken by the council ranger as proof of the offence.Council refused access on the basis that the documentwas exempt because it ‘contained matter that would beprivileged from production in legal proceedings on theground of legal professional privilege’.In fact, the photograph was not exempt. If the man choseto challenge the fine in court it would have formed part ofthe brief of evidence and would have had to be shown tothe defendant. We also noted that the Roads and TrafficAuthority and many councils provide photographs ofvehicles on request for a small fee.Following our inquiries, council’s general manager wroteto the complainant releasing the photograph. Howeverhe noted that he was not convinced the photograph wasanything but an exempt document.108NSW Ombudsman Annual Report | 2009–201035 years of making a difference

CS 71: Using legal professional privilege as an excuseA serving police officer applied for documents from two legal files concerning litigationhe had been involved in with the NSWPF. The NSWPF claimed legal professionalprivilege over the entire contents of the files, arguing that all the documents were eithercopied or gathered for legal proceedings or providing legal advice.Some of the documents claimed as privileged were not even copies ofdocuments supplied to legal advisers to obtain advice or use in litigation. Invoices,correspondence with Treasury Managed Fund, transcripts of judgments, publiclyavailable documents as well as documents created by the applicant and his advisorswere found to be in this category.For a number of other documents, we considered that – even if it could be shownthat they were copied for a privileged purpose – it was difficult to see what the publicinterest in maintaining such privilege was. Both cases had been finalised and thereappeared to be no indication of further pending litigation, the matter related to theaffairs of the applicant, and the information in the documents was largely innocuousand otherwise able to be accessed from other files within the same agency. In thecircumstances, we considered the NSWPF should have used their discretion torelease the documents even if privilege could be argued.We were also concerned that the exemption had been applied in what appeared tobe a wholesale approach to several files of documents, simply because they werelocated in legal files and without regard to the content and purpose of each individualdocument. This approach has the potential to be seen as frustrating the objects ofthe FOI Act. Access to documents should not be prevented by placing copies of thedocuments in a ‘legal file’ and then claiming privilege. Although access to the originaldocuments was still possible, the agency did not provide a schedule of documents tothe applicant – so he could not make an informed decision about whether and how torequest access to non-privileged original documents. Following our investigation, theNSWPF agreed to review their determination.FOI and law enforcementThis year the NSWPF’s decision to arm all frontline police officers with tasers or stunguns has continued to receive public and media attention. Case study 72 shows thatdespite the heightened public interest in this issue, the NSWPF appears reluctant torelease information about the use of these weapons.CS 72: Releasing videos of taser useA journalist applied to the NSWPF for copies of five videos of police officers usingtasers to subdue offenders. Every taser has a built-in video that films its use. TheNSWPF identified five videos and then determined that all five were exempt becausetheir release would be an unreasonable disclosure of the personal affairs of the peoplewho were filmed. They also claimed that release of the taser videos may lead to anunfair trial for any of the people charged as a result of the incident for which they hadbeen tasered.We wrote to the NSWPF asking for copies of the videos. For several weeks theyrefused to provide the videos, even though we regularly review and access taservideos as part of our policing oversight role. Regrettably, it was only after advising thatwe could compel the NSWPF to produce the videos by using our Royal Commissionpowers, they sent them to us.After reviewing the videos we considered they could and should be released aslong as the identity of the people who were tasered could be obscured. The NSWPFrefused to comply with our suggestion because they feared that it would result in thembeing inundated with applications for videos of taser use. The NSWPF then wrote tothe journalist with a two line letter saying it refused to agree to our suggestion. Theletter set out no reasons at all to support its decision. They claimed to us they did nothave the resources needed to obscure the images of the people appearing in videos.Because the release of taser videos could well have implications for applicationsmade for the videos under the new GIPA Act, we discussed this case with theInformation Commissioner, who will review any future complaints about thedetermination of GIPA applications made for taser videos. We determined that itwas in the public interest for the videos in this case to be released and thereforecommenced a formal investigation into the NSWPF’s handling of this matter. Werecommended that the NSWPF release the taser videos to the journalist and in doingso, obscure the faces of the people who were tasered.ProtecteddisclosuresThe Protected DisclosuresAct 1994 (the PD Act) aimsto encourage the disclosureof corrupt conduct,maladministration and seriousand substantial waste in thepublic sector. Our office is oneof the investigating authorities,along with the IndependentCommission Against Corruption(ICAC), the Auditor-General andthe Police Integrity Commission,to which a public official canmake a protected disclosure.We also provide advice tothose thinking about making adisclosure, as well as helpingpublic authorities to implementthe PD Act effectively and fairly.We provide practical training,in partnership with the ICAC,to staff from public authoritiesacross the NSW.Parliamentaryreview ofwhistleblowerlegislationSince its enactment in 1994, theProtected Disclosures Act 1994(PD Act) has been reviewed bya parliamentary committee fourtimes. The latest review wasconducted by the committee onthe Independent CommissionAgainst Corruption in 2008-2009and their report was published inNovember 2009. As we reportedin last year’s annual report, wemade written submissions tothe committee and the DeputyOmbudsman gave evidence at apublic hearing.One of the centralrecommendations in thecommittee’s final report wasthe need for greater ownershipof the protected disclosureslegislation by a central agency.In recognition of the active rolethat we have taken since theAct came into operation – forexample, producing guidelinesand providing advice to publicsector staff and agencies aboutprotected disclosures – thecommittee recommended thatwe should be funded to providemonitoring, auditing, educationand advisory functions in this area.Public AdministrationFreedom of information | Protected disclosures109

Public AdministrationOn our estimation, the resourceswe would need to do this would besimilar to those recently providedto the Information Commissionerto perform similar functions inrelation to the new access togovernment information scheme.The committee’s intentions were togive one agency the responsibilityfor ensuring that the scheme wasachieving its central purpose – thatis, giving the public sector moreopportunities to identify and fixproblems by encouraging publicsector staff to report wrongdoingwithout fear of reprisal. At present,nobody is in a position to know if thatpurpose is being effectively achieved.As previous committees havedone, this committee alsorecommended that stricter legalrequirements be placed onagencies to properly deal withprotected disclosures and provideadequate protection to those whocome forward. Currently agenciesare under no such obligation.We are hopeful that the NSWGovernment will seriously considerthe committee’s report as a templatefor reform in this area. In December2008, they indicated to us thatthey were open to consideringcomprehensive reform of the currentAct. We have therefore delayedupdating the 6th edition of ourProtected Disclosures Guidelinesuntil we know what, if any, reformsmay be made to the current system.These guidelines continue to be inhigh demand, being downloaded over16,000 times this year, an average of1,380 times per month.Super departmentsOne of the pitfalls for public sectorstaff wanting to make a disclosureis the possibility of making it to thewrong person. Under the PD Act,protections will only apply if certainconditions are met. These conditionsinclude making the disclosure to oneof the people specifically authorisedby the Act to receive them – suchas the ‘principal officer of a publicauthority’.In July 2009, the NSW Governmentrestructured the public service andplaced all existing governmentdepartments under the umbrellaof 12 super departments. Somehave remained largely separateagencies with an extra level ofmanagement (the Director-Generalof the super department), whileothers have been substantiallymerged into other entities.This year we answered an inquiry froman agency that is part of the superdepartment called the Departmentof Human Services NSW. There areseven separate agencies within thatsuper department, each with theirown Chief Executive.Before the creation of superdepartments, it seemed clear that the‘principal officer of a public authority’was the person who headed thatorganisation – whatever their officialtitle. The question now is whetherthis ‘principal officer’ is the Director-General of the super departmentto which an agency belongs or theagency’s own Chief Executive.As the actual legal position is notentirely clear, our advice to agenciesis that they should ensure that theirinternal reporting policies provide thatboth the Director-General and theChief Executive may receive protecteddisclosures, and make it clear thateach policy is effectively a policy ofthe super department. That way, amember of staff wanting to reportwrongdoing will not unintentionallymiss out on the protections of the Actbecause they made the disclosure tothe wrong ‘boss’.We are concerned that people whowork in agencies without such aninternal reporting policy may missout on the protections of the Actthrough no fault of their own. We hopethat some clarity can be brought tothis issue if the Act is reformed asrecommended by the ParliamentaryCommittee. We have written to theDepartment of Premier and Cabinet tobring their attention to this issue.Changes made by theGovernment (InformationAccess) Act 2009The Government Information (PublicAccess) Act 2009 (GIPA Act) madechanges to the PD Act to providethat a public official may makea disclosure to the InformationCommissioner about a ‘failureto exercise functions properly’ inaccordance with the GIPA Act.Unfortunately, the Act did notmake a number of consequentialamendments to the PD Act thatwould provide protection for adisclosure about this issue madeinternally to an agency (as is thecase with other categories ofconduct covered by the Act).We are concerned that anyone whotries to bring to light a failure bytheir agency to exercise their GIPAfunctions properly, by reporting theproblem internally, will not receiveprotection.Together with the InformationCommissioner, we have suggestedthat the Department of Premierand Cabinet make the appropriatelegislative changes or encourageagencies to adopt or amend theirexisting internal reporting policies toensure that they advise their staff toreport these kinds of concerns directlyto the Information Commissioner – ortake steps to properly manage thesedisclosures and provide protectionfrom reprisals.Training workshopsThis year the Deputy Ombudsmancontinued his work in providingtraining to management and staffin agencies who handle protecteddisclosures. In conjunction with theICAC, he presented six workshops inSydney and regional centres such asOrange.These workshops also provide uswith an opportunity to gauge thecurrent issues facing practitionersin this area. One continuingarea of confusion concerns theimplementation of confidentialityin relation to whistleblowing. For anumber of years, we have challengedthe traditional view that keepingthe identity of the whistleblowersecret always provides the bestoutcome. Our experience hasbeen that, often despite the bestefforts of agencies, these kinds ofsecrets are in practice badly kept.We therefore advocate a riskmanagement approach. The aim is toensure that people feel safe comingforward and that when they do reportwrongdoing they will remain safeand genuine problems will be fixed.We have found that the bestpractical outcomes resultwhen agencies assess thecircumstances of each particularcase. They then need to decide:››If confidentiality can be maintained,given the nature of the allegationsand the practical steps that wouldbe required to investigate them.For example, there may be a wayof investigating the allegations –such as a routine audit –withoutdisclosing that a complaint is thereason for the investigation.110NSW Ombudsman Annual Report | 2009–201035 years of making a difference

› If not, whether with a moreopen approach – that wouldsend a clear message to staffthat retribution against thewhistleblower will not be tolerated– that retribution is less likely.The agency can then take realisticand practical measures to ensurethe person is supported andprotected. For more details, seeour information sheet called‘Confi dentiality – Practical alternativesfor the protection of whistleblowers’.ComplaintsThis year the number of complaintsand inquiries we received aboutprotected disclosure issues hasdropped compared to the last tworeporting years. As highlighted inthe latest review of the Act, there iscurrently no database of informationthat would allow us to explainfl uctuations in our complaint numbers.If we were given the responsibilityfor monitoring the implementationof the PD system, we would be ina better position to understandtrends in both complaint numbersand the outcomes of complaints.It is important that agencies areresponsive to those who complain tothem. When those complainants arealso employees, clear and regularcommunication becomes absolutelycritical. This year we attempted toresolve a long-standing disputebetween an academic and theuniversity where he worked. Thisdispute had been partly caused bythe University’s failure to recognisethat the academic had made anoffi cial complaint and properlyprocess and communicate withhim about the outcome. This ledto a perception that the Universitywas actively taking detrimentalaction against the academic forhaving made the complaint in thefi rst place (see case study 73).CS 73: Complaints about plagiarism poorly handledAn academic at a university complained to us that the university had mishandleda situation of systemic plagiarism by international students studying a Masterscourse. The academic fi rst brought his concerns to the attention of the University’sVice-Chancellor in November 2006, but almost three years later he continued tobe dissatisfi ed with their response and claimed that he had suffered detrimentalaction for coming forward.After making informal inquiries, it appeared to us that the university had treatedthe plagiarism allegations very seriously. They had convened a panel of senioruniversity administrators, including two former Vice-Chancellors, to look into thematter and make recommendations. In addition to considering complicated issues– such as what to do with Masters degrees that had already been conferred onpast students who had submitted plagiarised work – the panel recommended awider investigation into the course and those responsible for running it. Over thethree years, the course was dismantled and certain staff were the subject of formaldisciplinary investigations and misconduct processes.Unfortunately, it also appeared that the university had not processed theacademic’s complaint in accordance with any formal complaints policy. Noassessment was made about whether or not it was technically a ‘protecteddisclosure’ so no process was put in place to ensure that he was advised of theprogress or the outcome of his complaint. The result was that for two years theonly correspondence the academic received was a letter advising that he was tobe the subject of an investigation. Someone had made allegations that he failedto report the plagiarism as soon as he became aware of it. The academic saw thisas retribution and became increasingly frustrated and disillusioned. He felt that theuniversity had deliberately dragged its heels rather than deal with the plagiarismissue promptly, allowing further cohorts of students to complete their degrees withpossibly plagiarised work.By 2009, he had made further complaints – essentially about his 2006 complaintbeing ignored by the university. The university’s response was, in part, toargue about whether or not his original complaint was technically a ‘protecteddisclosure’. By July 2009, the academic was fed up and shared his frustrationswith a national newspaper. The university clarifi ed that he did this under that part ofthe PD Act that provides protection for whistleblowers who disclose to the media.The Vice-Chancellor fi nally met with the academic late in 2009 but was unableto address his concerns. After our involvement, and with the appointment ofa new Vice-Chancellor, the university acknowledged that the 2006 complaintshould have been handled better. They agreed to apologise to the academic andcommunicate to him that he had done the right thing in bringing the plagiarismto light. The university also agreed to review its policies relating to protecteddisclosures and disseminate a communication from the Vice-Chancellor aboutthe importance of protected disclosures and ensuring those who make them areprotected from retribution.Figure 55: Protected disclosures receivedMatters 05/06 06/07 07/08 08/09 09/10Informal 68 42 53 47 43Formal 52 34 43 42 35Total 120 76 96 89 78Public AdministrationHighlighting35 yearsIn our first year, we receivedcomplaints about 138 differentpublic authorities. This year, wedealt with complaints about almost1,000 agencies and organisations. These included bothpublic and private sector bodies, providing a broad rangeof services. This number may well increase with futurechanges to our jurisdiction.Protected disclosures111

Removing nine wordsIn June, the Ombudsman tabled a special report to Parliament entitled: Removing Nine Words:Legal Professional Privilege and the NSW Ombudsman. The New South Wales Ombudsman Actis the only Parliamentary Ombudsman Act in Australia that permits agencies to refuse to provideus with information on the grounds of a claim of legal professional privilege. In NSW, the PoliceIntegrity Commission and the Independent Commission Against Corruption do not operate undersuch a restriction. Former Commonwealth Ombudsman John McMillan commented that:We have found that information of this kind, especiallyrequests for legal advice and the advice itself is a sourceof high quality investigation information. It commonlyprovides, in a considered and researched way, a reliablestatement of an agency’s understanding of a matter.The report outlined the basic amendment needed. Nine words,‘other than a claim based on legal professional privilege’,which are repeated twice in the Ombudsman Act, would needto be removed. This would bring the Act into line with otherOmbudsman Acts and watchdog legislation in NSW.The report also documented the Ombudsman’s attempts to getthis amendment made to the Act over the last two years. Theissue has been raised repeatedly in correspondence from theOmbudsman and our Parliamentary Committee to the Premier.The Ombudsman noted in the report that it was ‘unclear whythere is such reluctance to put forward this simple but importantamendment.’After the report was tabled, the Independent Member for PortMacquarie, Mr Peter Besseling, introduced a private member’sbill making the necessary amendment to the OmbudsmanAct. The Bill passed the Legislative Assembly on 2 September.At the time of writing, the Bill was yet to be considered by theLegislative Council.Removing nine wordsLegal professional privilege andthe NSW OmbudsmanA special report to Parliament under section 31of the Ombudsman Act 1974.June 2010Public AdministrationThe need for a strongintegrity frameworkOn 9 September this year, the Ombudsman delivered one of the keynote addresses at the annualCorruption Prevention Network Conference. In his speech, entitled Keeping up the Standards,the Ombudsman outlined the importance of ethics and integrity, supported by a strong integrityframework for the public sector.The Ombudsman explained why maintaining strong ethical standards is important:As public servants, we have a unique relationship with the community. We provide themwith most of the essential services they need to go about their lives. We get them to andfrom work, we treat them when they are sick, we protect them from crime, we educatetheir kids, we provide some with housing, and so on. Our actions and decisions have areal impact on people’s everyday lives.These relationships have in common the fact that they are built around trust. If that trustis eroded, it leads to cynicism, and suspicion.He stressed the need for such an integrity framework to be built around ethical leadership, a clearpublic sector wide code of conduct, supported by public sector ethics legislation, and strong,independent watchdog bodies.112NSW Ombudsman Annual Report | 2009–201035 years of making a difference

FinancialmanagementHighlights››Received an unqualified audit report from the NSWAudit Office for our financial records and systems.See page 118››Established an audit and risk committee that willstrengthen our governance framework and provideadditional assurance to the Ombudsman on ourfinancial processes. See page 114››Generated $436,000 in revenue, mostly through ourtraining courses such as managing unreasonablecomplainant conduct, and used this revenue tosupport our complaint-handling and other corework. See page 114››Paid 100% of our accounts on time, an improvementon 2008–2009. See page 115››We used our capital funding to replace our desktopsand to upgrade our case management system. seepage 114››We continued to proactively manage our leaveliabilities, reducing the value of untaken recreationleave. see page 115Our financials 114››Audited financial statements 116The financial statements provide anoverview of our financial activitiesduring 2009–2010. These statements,our supporting documentation, andour systems and processes have allbeen reviewed by our own auditorsand the NSW Audit Office. Wereceived an unqualified audit report.This year we established an auditand risk committee to supportour governance systems. Thiscommittee, which is requiredunder the NSW Treasury policy oninternal audit and risk management,provides an independent review ofour financial and business activities.The committee will oversight thedevelopment of an internal auditplan as well as our review of our riskmanagement program.We focused on generating morerevenue from sources other than thegovernment, receiving $436,000. Wewill continue to identify opportunitiesto generate revenue from trainingand publications sales to support ourcore work.Financial managementManaging our books113

Financial managementOur financialsThe cumulative effect of ongoingefficiency dividends – cuts to publicsector agency budgets of 1% eachyear – as well as a further roundof public sector pay increases, ofwhich 1.5% per year for three yearsis unfunded, is having a significantimpact on us.During the year we implemented acomprehensive structural change,with the major imperative being to cutcosts. As over 80% of our expensesare employee-related, our cost cuttingwill inevitably mean a reduction instaffing levels – and this will have animpact on the services we can provideto the community. The Ombudsmanhas raised the ongoing funding issuewith the government, Members ofParliament, the Parliamentary JointCommittee on the Ombudsman andPolice Integrity Commission and withNSW Treasury.As mentioned last year, we hadreviewed our internal budgetingand reporting to make sure thatthe information that we provide toour managers was comprehensive,relevant and timely. Our reviewlooked at staffing projections,leave management and capturingcommitments as well as the formatof our expenditure reports. Wealso considered training and otherongoing professional developmentfor managers on interpreting financialinformation, acknowledging theimportance of our senior staff beingable to use financial information in theirbusiness planning and for decisionmaking.During the year we refinedthese changes and included financialmanagement training in our executiveleadership training program.During the year we established anaudit and risk committee, as requiredunder the NSW Treasury policy forinternal audit and risk managementin the public sector. This committee,through our internal audit program,will strengthen our governancesystems and provide some furtherassurance to the Ombudsman thatour financial processes comply withlegislative and office requirements.See corporate governance on page 13for more details on our audit and riskcommittee.The Ombudsman receives fundingfrom the NSW Government. Althoughwe account for these funds on anoffice-wide basis, as reflected in ourfinancials, internally we allocate thembetween our three business branchesand our corporate team.For NSW state budget purposes, we also report against service groups. As wedo not budget internally this way, the figures reported for service groups areestimates only and can vary depending on workload, priorities and staffing levels.Figure 56 shows the net cost of services by service group for the last five years.Following a review of our service groups by NSW Treasury, the Ombudsman willonly be reporting on one service group – which will be called ‘Complaint Advice,Referral, Resolution or Investigation’ – from the 2010–2011 financial year.Figure 56: Net cost of services by service groupService groups05/06$’00006/07$’00007/08$’00008/09$’00009/10$’000Complaint advice, referral, resolutionor investigation 8,675 9,263 9,755 10,405 9,447Oversight of agency investigation ofcomplaints 3,863 4,124 4,344 4,633 4,206Scrutiny of complaint-handlingsystems 5,873 6,272 6,604 7,043 6,814Review of the implementation oflegislation 613 1,194 1,087 273 233Total 19,024 20,853 21,790 22,354 20,700RevenueMost of our revenue comes fromthe government in the form of aconsolidated fund appropriation.This is used to meet bothrecurrent and capital expenditure.Consolidated funds areaccounted for on the statementof comprehensive income,after the net cost of serviceis calculated to allow for themovement in accumulated fundsto be determined for the year. Thegovernment also makes provisionfor certain employee entitlementssuch as long service leave.Our initial 2009–2010 recurrentconsolidated fund allocationwas $19.827 million and our finalallocation was $19.833 million.Included in the Ombudsman’sallocation is funding for ourreview of the implementation ofnew police powers. Details ofthese reviews can be found inthe Policing chapter. Figure 57shows the amount provided forthe legislative reviews over the lastfive years. $233,000 was providedfor our legislative review work in2009–2010, which represents1.17% of the Ombudsman’s totalrecurrent allocation.Figure 57: LegislativereviewsYearRevenue$’00009/10 23308/09 27307/08 1,08506/07 1,07305/06 63304/05 433In 2009–2010 we budgeted that theCrown Entity would accept $860,000 ofemployee benefits and other entitlements.However, the actual acceptance was about$948,000. This variance is primarily dueto adjustments to our long service leaveliability after actuarial advice in June 2010.We were allocated $785,000 for ourcapital program but spent $34,000 lessthan the allocation. Our capital programincluded replacing our desktops andlaptops, upgrading hardware, purchasingnew office equipment, and updating andimproving our fit-out.We generated $436,000 through salesof our publications, bank interest, feefor-servicetraining courses and ourconsultancy services we provide to otherOmbudsman’s offices through AusAidprograms (see figure 58). Figure 59provides a breakdown of our revenue,including capital funding and acceptanceof employee entitlements.Figure 58: Other revenue sourcesRevenue from other sourcesRevenue$’000Workshops and publication sales 317Bank interest 50Other revenue 69Total 436Figure 59: Total revenue 2009–2010GovernmentRevenue’000Recurrent appropriation 19,833Capital appropriation 751Acceptance of certain employeeentitlements 948Total government 21,532From other sources 436Total 21,968114NSW Ombudsman Annual Report | 2009–201035 years of making a difference

ExpensesMost of our revenue is spent on employee-related expenses such assalaries, superannuation entitlements, long service leave and payroll tax. Ourstatement of comprehensive income shows that this year we spent more than$16.9 million, or 80.42% of our total expenses, on employee-related items.Salary payments to staff were 3.8% less than the previous year. As a result,our superannuation expenses also decreased as did our payroll tax-relateditems. Our long service leave expenses decreased by $365,000 – this waspartly due to adjustments requested after an actuarial review. After a higherthan anticipated adjustment in 2008-2009, our workers compensation costswere back to a reasonable level of $80,000.The day-to-day running of our office costs us over $3.8 million a year. Oursignificant operating items are rent ($1.8 million), fees such as contractorcosts ($654,000), travel ($415,000), maintenance ($173,000) and stores($113,000). There were no consultants engaged during 2009–2010.The financial statements show that $330,000 was expensed for depreciationand amortisation. As we spent $751,000 on our capital program, we had anincrease in our non-current asset base.Although capital funding is shown on the statement of comprehensiveincome, capital expenditure is not treated as an expense – it is reflected onthe statement of financial position.We have an accounts payable policy that requires us to pay accountspromptly and within the terms specified on the invoice. However, there aresome instances where this may not be possible – for example, if we disputean invoice or don’t receive it with enough time to pay within the specifiedtimeframe. We therefore aim to pay all our accounts within the specifiedtimeframe 98% of the time. During 2009–2010 we paid 100% of our accountson time. This exceeded our target and is a slight improvement in ourperformance from last year. We have not had to pay any penalty interest onoutstanding accounts.Figure 60: Total expenses 2009–2010Expenses categoryTotal$’000Employee-related 16,997Depreciation and amortisation 330Other operating expenses 3,808Total 21,135Performance indicator: Accountspaid on timeQuarterPaid$’000Paid ontime$’000Target%Result%Sep 2009 1,573 1,573 98 100Dec 2009 1,740 1,740 98 100Mar 2010 2,154 2,154 98 100Jun 2010 2,637 2,637 98 100Total 8,104 8,104 98 100Note: this table does not include directsalary payments to staff, but includessome Employee-related payments such aspayments to superannuation funds.AssetsOur statement of financial position showsthat we had $3.363 million in assets at 30June 2010. The value of our current assetsincreased by $1,083,000 from the previousyear, while the value of our non-currentasset base increased by $418,000.Just over 50% of our assets are currentassets, which are categorised as cashor receivables. Receivables are amountsowing to us and include bank interestthat has accrued but not been received,fees for services that we have providedon a cost recovery basis, and GST to berecovered from the Australian TaxationOffice. Also included in receivables areamounts that we have prepaid. We had$427,000 in prepayments at 30 June 2010.The most significant prepayments werefor rent and maintenance renewals for ouroffice equipment and software support.Our cash balance includes a $43,000advance payment from the NewZealand, Commonwealth and other stateOmbudsman to cover costs for developingguidelines and training Ombudsman staffin dealing with unreasonable complainantconduct. We also had a liability to theconsolidated fund of $519,000. We cannotuse these funds for any other purpose so itis classified as a ‘restricted asset’.Our non-current assets, which are valued at $1.651 million, arecategorised as:››plant and equipment – this includes our network infrastructure,computers and laptops, fit-out and office equipment››intangible assets – these include our network operating and casemanagement software.We were allocated $785,000 in 2009–2010 for asset purchases andspent $751,000. This is reflected in our capital consolidated fundappropriation. We used this money to buy new desktops and laptops,other computer hardware and office equipment as well as undertakingsome fit-out modifications. We also upgraded our case managementsystem Resolve, as well as starting a project to enhance its functionality,which will be completed in early 2010–2011.We also piloted desktop virtualisation to streamline IT processes andreduce IT costs. The pilot was successful and we are now implementinga virtual desktop environment. We upgraded our internal intranet, makingit more user friendly, and also continued our project to redesign ourwebsite. We will receive $314,000 capital funding in 2010–2011.LiabilitiesOur total liabilities at 30 June 2010 are $2.675 million, an increaseof $669,000 over the previous year. Over 55% of this amount is theprovision that we make for employee benefits and related on-costs,including accounting for untaken recreation (annual) leave which isvalued at $836,000. The Crown Entity accepts the liability for long serviceleave. We also had a liability to the consolidated fund of $519,000. Thisliability is due to funds being drawn down against the appropriation butnot needed.Financial managementOur financials115

We owe about $291,000 for goods or services that we have received but have notyet been invoiced. The value of accounts on hand at 30 June 2010 was $93,195.Please see figure 61. We monitor the amounts that we owe on a regular basis tomake sure that we are paying accounts within terms.Figure 61: Analysis of accounts on hand at the end of each quarterSep 2009$Dec 2009$Mar 2010$Jun 2010$Current (ie within due date) 157,281 23,685 95,524 93,195Less than 30 days overdue – 3,976 – –Between 30 days and 60 days overdue – – – –Between 60 days and 90 days overdue – – – –More than 90 days overdue – – – –Total accounts on hand 157,281 27,661 95,524 93,195AuditedfinancialstatementsOur financial statements areprepared in accordance withlegislative provisions andaccounting standards. They areaudited by the NSW Auditor-General (or delegate), who isrequired to express an opinion asto whether the statements fairlyrepresent the financial position ofour office. The audit report as wellas the financial statements follow.Financial management116NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Financial managementOur financials | Audited financial statements117

16 September 2010Level 24 580 George StreetSydney NSW 2000Phone 02 9286 1000Fax 02 9283 2911Tollfree 1800 451 524TTY 02 9264 8050Web www.ombo.nsw.gov.auABN 76 325 886 267Statement by the OmbudsmanPursuant to section 45F of the Public Finance and Audit Act 1983 and to the best of my knowledgeand belief I state that:(a) the accompanying financial statements have been prepared in accordance with the provisionsof the Australian Accounting Standards (which include Australian Accounting Interpretations), thePublic Finance and Audit Act 1983, the Financial Reporting Code for Budget Dependent GeneralGovernment Sector Agencies, the applicable clauses of the Public Finance and Audit Regulation2010 and the Treasurer’s Directions;(b) the statements exhibit a true and fair view of the financial position of the Ombudsman’s Office asat 30 June 2010, and transactions for the year then ended; and(c) there are no circumstances which would render any particulars included in the financialstatements to be misleading or inaccurate.Bruce BarbourOmbudsmanFinancial management118NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Start of the audited financial statementsOmbudsman’s OfficeStatement of comprehensive income for the year ended 30 June 2010NotesActual2010$’000Budget2010$’000Actual2009$’000Expenses excluding lossesOperating expensesEmployee-related 2(a) 16,997 17,661 18,020Other operating expenses 2(b) 3,808 3,656 4,079Depreciation and amortisation 2(c) 330 364 506Total expenses excluding losses 21,135 21,681 22,605RevenueSale of goods and services 3(a) 317 82 162Investment revenue 3(b) 50 9 27Grants and contributions 3(c) – – 54Other revenue 3(d) 69 40 8Total revenue 436 131 251(Gain)/loss on disposal 4 1 – –Net cost of services 17 20,700 21,550 22,354Government contributionsRecurrent appropriation 5(a) 19,833 19,827 19,969Capital appropriation 5(b) 751 785 543Acceptance by the Crown Entity of employee benefits andother liabilities 6 948 860 1,333Total government contributions 21,532 21,472 21,845Surplus/(deficit) for the year 832 (78) (509)Other comprehensive incomeOther comprehensive income for the year – – –Total comprehensive income for the year 832 (78) (509)Statement of changes in equity for the year ended 30 June 2010NotesAccumulatedfunds$’000Assetrevaluationsurplus$’000Otherreserves$’000Total$’000Balance at 1 July 2009 (144) – – (144)Surplus/(deficit) for the year 832 – – 832Other comprehensive incomeTotal other comprehensive income – – – –Total comprehensive income for the year 832 – – 832Balance at 30 June 2010 688 – – 688Balance at 1 July 2008 365 – – 365Surplus/(deficit) for the year (509) – – (509)Other comprehensive incomeTotal other comprehensive income – – – –Total comprehensive income for the year (509) – – (509)Balance at 30 June 2009 (144) – – (144)Financial managementThe accompanying notes form part of these financial statements.Audited financial statements119

Ombudsman’s OfficeStatement of financial position as at 30 June 2010Actual2010$’000Budget2010$’000Actual2009$’000NotesAssetsCurrent assetsCash and cash equivalents 8 1,084 185 194Receivables 10 628 241 435Total current assets 1,712 426 629Non-current assetsPlant and equipment 11 1,173 1,338 873Intangible assets 12 478 316 360Total non-current assets 1,651 1,654 1,233Total assets 3,363 2,080 1,862LiabilitiesCurrent liabilitiesPayables 13 585 716 457Provisions 14 1,482 1,529 1,468Other 15 590 36 63Total current liabilities 2,657 2,281 1,988Non-current liabilitiesProvisions 14 18 26 18Other – (5) –Total non-current liabilities 18 21 18Total liabilities 2,675 2,302 2,006Net assets/(net liabilities) 688 (222) (144)EquityAccumulated funds 688 (222) (144)Total equity 688 (222) (144)Financial managementThe accompanying notes form part of these financial statements.120NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Ombudsman’s OfficeStatement of cash flows for the year ended 30 June 2010Actual2010$’000Budget2010$’000Actual2009$’000NotesCash flows from operating activitiesPaymentsEmployee-related (15,950) (16,635) (16,525)Other (4,368) (3,396) (4,728)Total payments (20,318) (20,031) (21,253)ReceiptsSale of goods and services 358 82 177Interest received 23 18 56Other 475 95 543Total receipts 856 195 776Cash flows from GovernmentRecurrent appropriation 20,352 19,827 19,969Capital appropriation (excluding equity appropriations) 751 785 543Net cash flows from Government 17 21,103 20,612 20,512Net cash flows from operating activities 1,641 776 35Cash flows from investing activitiesPurchases of leasehold improvements, plant and equipment andinfrastructure systems (751) (785) (548)Net cash flows from investing activities (751) (785) (548)Net increase/(decrease) in cash 890 (9) (513)Opening cash and cash equivalents 194 194 707Closing cash and cash equivalents 8 1,084 185 194Financial managementThe accompanying notes form part of these financial statements.Audited financial statements121

Financial managementOmbudsman’s OfficeSupplementary financial statements – Service group statements for the year ended 30 June 2010Service group 1* Service group 2* Service group 3* Service group 4* Not attributable* Total2010$’0002009$’0002010$’000Agency’s expenses and revenuesExpenses excluding lossesOperating expensesEmployee-related 7,727 8,363 3,440 3,723 5,600 5,661 230 273 – – 16,997 18,020Other operating expenses 1,770 1,922 788 856 1,247 1,301 3 – – – 3,808 4,079Depreciation and amortisation 155 239 69 106 106 161 – – – – 330 506Total expenses excluding losses 9,652 10,524 4,297 4,685 6,953 7,123 233 273 – – 21,135 22,6052009$’0002010$’0002009$’0002010$’0002009$’0002010$’0002009$’0002010$’0002009$’000RevenueSale of goods and services (149) (76) (67) (34) (101) (52) – – – – (317) (162)Investment revenue (24) (13) (10) (5) (16) (9) – – – – (50) (27)Grants and contributions – (26) – (11) – (17) – – – – – (54)Other revenue (33) (4) (14) (2) (22) (2) – – – – (69) (8)Total revenue (206) (119) (91) (52) (139) (80) – – – – (436) (251)Loss on disposal 1 1 –Net cost of services 9,447 10,405 4,206 4,633 6,814 7,043 233 273 – – 20,700 22,354Government contributions** – – – – – – – – (21,532) (21,845) (21,532) (21,845)(Surplus)/deficit for the year 9,447 10,405 4,206 4,633 6,814 7,043 233 273 (21,532) (21,845) (832) 509Total comprehensive income 9,447 10,405 4,206 4,633 6,814 7,043 233 273 (21,532) (21,845) (832) 509122NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Ombudsman’s OfficeSupplementary financial statements – Service group statements cont’d.Service group 1* Service group 2* Service group 3* Service group 4* Not attributable* Total2010$’0002009$’0002010$’000Agency’s assets & liabilitiesCurrent assetsCash and cash equivalents 511 91 227 41 346 62 – – – – 1,084 194Receivables 296 205 132 91 200 139 – – – – 628 4352009$’0002010$’0002009$’0002010$’0002009$’0002010$’0002009$’0002010$’0002009$’000Total current assets 807 296 359 132 546 201 – – – – 1,712 629Non-current assetsPlant and equipment 553 412 246 183 374 278 – – – – 1,173 873Intangibles 226 170 100 75 152 115 – – – – 478 360Total non-current assets 779 582 346 258 526 393 – – – – 1,651 1,233Total assets 1,586 878 705 390 1,072 594 – – – – 3,363 1,862Current liabilitiesPayables 276 215 123 96 186 146 – – – – 585 457Provisions 698 692 311 308 473 468 – – – – 1,482 1,468Other 278 30 124 13 188 20 – – – – 590 63Total current liabilities 1,252 937 558 417 847 634 – – – – 2,657 1,988Non-current liabilitiesProvisions 8 8 4 4 6 6 – – – – 18 18Total non-current liabilities 8 8 4 4 6 6 – – – – 18 18Total liabilities 1,260 945 562 421 853 640 – – – – 2,675 2,006Net assets/(liabilities) 326 (67) 143 (31) 219 (46) – – – – 688 (144)* The names and purposes of each service group are summarised in Note 7.** Appropriations are made on an agency basis and not to individual service groups. Consequently, government contributions must be included in the ‘Not attributable’ column. The office does notbudget internally around service groups, so the figure reported are estimates only and can vary depending on work load, priorities and staffing levels.Financial managementAudited financial statements123

Financial managementOmbudsman’s OfficeSummary of compliance with financial directives for the year ended 30 June 2010Recurrentapp’n$’000Expenditure/net claim onconsolidatedfund$’0002010 2009Capitalapp’n$’000Expenditure/net claim onconsolidatedfund$’000Recurrentapp’n$’000Expenditure/net claim onconsolidatedfund$’000Capitalapp’n$’000Expenditure/net claim onconsolidatedfund$’000Original budget appropriation/expenditureAppropriation Act 19,827 19,827 785 751 19,986 19,969 559 543Additional appropriations – – – – – – – –Section 21a pf&aa – special appropriation – – – – – – – –››Section 24 Pf&aa – transfers of functionsbetween departments – – – – – – – –››Section 26 Pf&aa – Commonwealth specificpurpose payments – – – – – – – –19,827 19,827 785 751 19,986 19,969 559 543Other appropriations/expenditureTreasurer’s advance 763 525 – – – – – –››Section 22 – expenditure for certain works andservices – – – – – – – –››Transfers to/from another agency(s.31 of the Appropriation Act) – – – – 2 – – –››Other (payroll tax adjustments) (19)763 525 – – (17) – – –Total appropriations/expenditure/net claim onconsolidated fund 20,590 19,833 785 751 19,969 19,969 559 543Amount drawn down against appropriation 20,352 751 19,969 543Liability to consolidated fund* 519 – – –The Summary of compliance is based on the assumption that Consolidated fund monies are spent first (except where otherwise identified or prescribed).* If there is a ‘Liability to consolidated fund’, this represents the difference between the ‘Amount drawn down against appropriation’ and the ‘Total expenditure/net claim on consolidated fund’.124NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Ombudsman’s OfficeNotes to the financial statements for the year ended 30 June 20101 Summary of significant accounting policies(a) Reporting entityThe Ombudsman’s Office is a NSW Government Department. Our role is to make sure that public and private sector agenciesand employees within our jurisdiction fulfill their functions properly. We help agencies to be aware of their responsibilities to thepublic, to act reasonably and to comply with the law and best practice in administration.The office is a not-for-profit entity (as profit is not its principal objective) and we have no cash generating units. The reportingentity is consolidated as part of the NSW Total State Sector Accounts.The financial statements for the year ended 30 June 2010 has been authorised for issue by the NSW Ombudsman on16 September 2010.(b) Basis of preparationOur financial statement is a general purpose financial report, which has been prepared in accordance with:applicable Australian Accounting Standards (which include Australian Accounting Interpretations);the requirements of the Public Finance and Audit Act 1983 and Regulations; and››the Financial Reporting Directions published in the Financial Reporting Code for Budget Dependent General GovernmentSector Agencies or issued by the Treasurer.The financial statements have been prepared in accordance with the historical cost convention.Judgments, key assumptions and estimations made are disclosed in the relevant notes to the financial statements.All amounts are rounded to the nearest one thousand dollars and are expressed in Australian currency.The accrual basis of accounting and applicable accounting standards have been adopted.(c) Statement of complianceThe financial statements and notes comply with Australian Accounting Standards, which include Australian AccountingInterpretations.(d) InsuranceOur insurance activities are conducted through the NSW Treasury Managed Fund Scheme of self insurance for Governmentagencies. The expense (premium) is determined by the Fund Manager, and is calculated by our past claims experience, overallpublic sector experience and ongoing actuarial advice.(e) Accounting for the Goods and Services Tax (GST)Incomes, expenses and assets are recognised net of GST, except that:››the amount of GST incurred by us as a purchaser that is not recoverable from the Australian Taxation Office is recognised aspart of the acquisition of an asset or as part of an item of expense, and››receivables and payables are stated with GST included.Cash flows are included in the statement of cash flows on a gross basis. However, the GST components of cash flows arisingfrom investing and financing activities which is recoverable from, or payable to, the Australian Taxation Office are classified asoperating cash flows.(f) Income recognitionIncome is measured at the fair value of the consideration or contribution received or receivable. Additional comments regardingthe accounting policies for the recognition of income are discussed below.(i) Parliamentary appropriations and contributionsParliamentary appropriations and contributions from other bodies (including grants) are generally recognised as income whenwe obtain control over the assets comprising the appropriations/contributions. Control over appropriations and contributions isnormally obtained upon the receipt of cash.An exception to this is when appropriations remain unspent at year end. In this case, the authority to spend the money lapsesand generally the unspent amount must be repaid to the Consolidated Fund in the following financial year. As a result, unspentappropriations are accounted for as liabilities rather than revenue. The liability is disclosed in Note 15 as part of ‘Other currentliabilities’.(ii) Sale of goodsRevenue from the sale of goods such as publications are recognised as revenue when we transfer the significant risks andrewards of ownership of the assets.(iii) Rendering of servicesRevenue from the rendering of services such as conducting training programs, is recognised when the service is provided or byreference to the stage of completion, for instance based on labour hours incurred to date.(iv) Investment revenueInterest revenue is recognised using the effective interest method as set out in AASB 139 Financial Instruments: Recognition andMeasurement.Financial managementAudited financial statements125

Ombudsman’s OfficeNotes to the financial statements for the year ended 30 June 2010(g) AssetsFinancial management(i) Acquisitions of assetsThe cost method of accounting is used for the initial recording of all acquisitions of assets controlled by us.Cost is the amount of cash or cash equivalents paid or the fair value of the other consideration given to acquire the asset at thetime of its acquisition or, where applicable, the amount attributed to that asset when initially recognised in accordance with therequirements of other Australian Accounting Standards.Fair value is the amount for which an asset could be exchanged between knowledgeable, willing parties in an arm’s lengthtransaction.(ii) Capitalisation thresholdsIndividual plant and equipment and intangible assets costing $5,000 and above are capitalised. For those items that form partof our IT network, the threshold is $1,000 individually.(iii) Revaluation of plant and equipmentPhysical non-current assets are valued in accordance with the ‘Valuation of Physical Non-Current Assets at Fair Value’ Policyand Guidelines Paper (TPP 07-1). This policy adopts fair value in accordance with AASB 116 Property, Plant and Equipment.Plant and equipment is measured on an existing use basis, where there are no feasible alternative uses in the existing natural,legal, financial and socio-political environment. However, in the limited circumstances where there are feasible alternative uses,assets are valued at their highest and best use.Fair value of plant and equipment is determined based on the best available market evidence, including current market sellingprices for the same or similar assets. Where there is no available market evidence, the asset’s fair value is measured at itsmarket buying price, the best indicator of which is depreciated replacement cost.Non-specialised assets with short useful lives are measured at depreciated historical cost, as a surrogate for fair value.When revaluating non-current assets by reference to current prices for assets newer than those being revalued (adjusted toreflect the present condition of the assets), the gross amount and the related accumulated depreciation are separately restated.For other assets, any balances of accumulated depreciation at the revaluation date in respect of those assets are credited to theasset accounts to which they relate. The net asset accounts are then increased or decreased by the revaluation increments ordecrements.Revaluation increments are credited directly to the asset revaluation reserve, except that, to the extent that an incrementreverses a revaluation decrement in respect of that class of asset previously recognised as an expense in the surplus/deficit, theincrement is recognised immediately as revenue in the surplus/deficit.Revaluation decrements are recognised immediately as expenses in the surplus/deficit, except that, to the extent that a creditbalance exists in the asset revaluation reserve in respect of the same class of assets, they are debited directly to the assetrevaluation reserve.As a not-for-profit entity, revaluation increments and decrements are offset against each other within a class of non-currentassets, but not otherwise.Where an asset that has previously been revalued is disposed of, any balance remaining in the asset revaluation reserve inrespect of that asset is transferred to accumulated funds.Our assets are short-lived and their costs approximate their fair values.(iv) Impairment of plant and equipmentAs a not-for-profit entity with no cash generating units, we are effectively exempted from AASB 136 Impairment of Assets andimpairment testing. This is because AASB 136 modifies the recoverable amount test to the higher of fair value less costs to selland depreciated replacement cost. This means that, for an asset already measured at fair value, impairment can only arise ifselling costs are material. Selling costs are regarded as immaterial.(v) Depreciation of plant and equipmentDepreciation is provided for on a straight-line basis for all depreciable assets so as to write off the depreciable amount of eachasset as it is consumed over its useful life.All material separately identifiable components of assets are depreciated over their shorter useful lives.Depreciation rates used:Computer hardware 25%Office equipment 20%››Furniture & fittings 10%Amortisation rates used:››Leasehold improvements Useful life of 10 years (or to the end of the lease, if shorter).(vi) Restoration costsWhenever applicable, the estimated cost of dismantling and removing an asset and restoring the site is included in the cost ofan asset, to the extent it is recognised as a liability.(vii) MaintenanceThe costs of day-to-day servicing or maintenance are charged as expenses as incurred, except where they relate to thereplacement of a part or component of an asset, in which case the costs are capitalised and depreciated.126NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Ombudsman’s OfficeNotes to the financial statements for the year ended 30 June 2010(viii) Leased assetsA distinction is made between finance leases which effectively transfer from the lessor to the lessee substantially all the risksand benefits incidental to ownership of the leased assets, and operating leases under which the lessor effectively retains allsuch risks and benefits.Operating lease payments are charged to the statement of comprehensive income in the periods in which they are incurred.Lease incentives received on entering non-cancellable operating leases are recognised as a lease liability. This liability isreduced on a straight line basis over the lease term.(ix) Intangible assetsWe recognise intangible assets only if it is probable that future economic benefits will flow to the office and the cost of the assetcan be measured reliably. Intangible assets are measured initially at cost. Where an asset is acquired at no or nominal cost, thecost is its fair value as at the date of acquisition.The useful lives of intangible assets are assessed to be finite.Intangible assets are subsequently measured at fair value only if there is an active market. As there is no active market for ourintangible assets, they are carried at cost less any accumulated amortisation.Our intangible assets are amortised using the straight-line method over a period of 5 years.The amortisation rates used are:››Computer software 20%.Intangible assets are tested for impairment where an indicator of impairment exists. If the recoverable amount is less than itscarrying amount the carrying amount is reduced to recoverable amount and the reduction is recognised as an impairment loss.However, as a not-for-profit entity, the office is effectively exempted from impairment testing (refer to Note 1(g)(iv)).(x) ReceivablesReceivables are non-derivative financial assets with fixed or determinable payments that are not quoted in an active market.These financial assets are recognised initially at fair value, usually based on the transaction cost or face value.Subsequent measurement is at amortised cost using the effective interest method, less an allowance for any impairment ofreceivables. Any changes are recognised in the surplus/(deficit) for the year when impaired, derecognised or through theamortisation process.Short-term receivables with no stated interest rate are measured at the original invoice amount where the effect of discounting isimmaterial.(h) Liabilities(i) PayablesThese amounts represent liabilities for goods and services provided to us as well as other amounts. Payables are recognisedinitially at fair value, usually based on the transaction cost or face value. Subsequent measurement is at amortised cost usingthe effective interest method. Short-term payables with no stated interest rate are measured at the original invoice amount wherethe effect of discounting is immaterial.(ii) Employee benefits and other provisions(a) Salaries and wages, annual leave, sick leave and on-costsLiabilities for salaries and wages (including non-monetary benefits), and annual leave that fall due wholly within 12 months ofthe reporting date are recognised and measured in respect of employees’ services up to the reporting date at undiscountedamounts based on the amounts expected to be paid when the liabilities are settled.Long-term annual leave that is not expected to be taken within 12 months is measured at the present value in accordance withAASB119 Employee Benefits. Market yields on government bonds rates of 5.095% are used to discount long-term annual leave.Unused non-vesting sick leave does not give rise to a liability as it is not considered probable that sick leave taken in the futurewill be greater than the benefits accrued in the future.The outstanding amounts of payroll tax, workers’ compensation, insurance premiums and fringe benefits tax, which areconsequential to employment, are recognised as liabilities and expenses where the employee benefits to which they relate havebeen recognised.(b) Long service leave and superannuationOur liabilities for long service leave and defined benefit superannuation are assumed by the Crown Entity. We account for theliability as having been extinguished, resulting in the amount assumed being shown as part of the non-monetary revenue itemdescribed as ‘Acceptance by the Crown Entity of employee benefits and other liabilities’.Long service leave is measured at present value in accordance with AASB 119 Employee Benefits. This is based on theapplication of certain factors (specified in NSWTC 09/04) to employees with five or more years of service, using current rates ofpay. These factors were determined based on an actuarial review to approximate present value.The superannuation expense for the financial year is determined by using the formulae specified in the Treasurer’s Directions.The expense for defined contribution superannuation schemes (Basic Benefit and First State Super) is calculated as apercentage of the employees’ salary. For defined benefit superannuation schemes (State Superannuation Scheme and StateAuthorities Superannuation Scheme), the expense is calculated as a multiple of the employees’ superannuation contributions.Financial managementAudited financial statements127

Ombudsman’s OfficeNotes to the financial statements for the year ended 30 June 2010(i) Equity(i) Accumulated FundsThe category accumulated funds includes all current and prior period retained funds.(ii) Separate reserve accounts are recognised in the financial statements only if such accounts are required by specificlegislation or Australian Accounting Standards (asset revaluation reserve and foreign currency translation reserve).(j) Budgeted amountsThe budgeted amounts are drawn from the budgets formulated at the beginning of the financial year with any adjustments forthe effects of additional appropriations approved under s.21A, s.24 and s.26 of the Public Finance and Audit Act 1983.The budgeted amounts in the statement of comprehensive income and statement of cash flow are generally based on theamounts disclosed in the NSW Budget Papers (as adjusted above). However, in the statement of financial position, the amountsvary from the Budget Papers, as the opening balances of the budgeted amounts are based on carried forward actual amounts;that is per audited financial report (rather than carried forward estimates).(k) Comparative informationExcept when an Accounting Standard permits or requires otherwise, comparative information is disclosed in respect of theprevious period for all amounts reported in the financial statements.(l) New Australian Accounting Standards issued but not effectiveAt the reporting date, the following new Accounting Standards (which include Australian Accounting Interpretations) have notbeen applied and are not yet effective as per Treasury mandate:AASB 7 Financial Instruments: Disclosure – February 2010;AASB 139 Financial instruments: Recognition and measurement October 2009;››Interpretation 14 AASB 119 – The limit on a Defined Benefit Asset, minimum funding requirements and their interactionJune 2009;››Interpretation 19 Extinguished financial liabilities with Equity Instruments December 2009;››Withdrawal of AAS 29 Financial Reporting by Government Departments – AASB undertook a short-term review of theAustralian-specific standards, including AAS 29 and decided to relocate the requirement (where necessary) substantivelyunamended (with some exceptions), into topic-based statements.The office had adopted AASB 2009–6 amendments to Australian Accounting Standards which make changes to financialstatements terminology to better align with IFRS requirements. Our primary financial statements have been replaced with‘statement of comprehensive income’, ‘statement of financial position’ and ‘statement of changes in equity’.(m) Going concernThe Ombudsman’s Office is a ‘going concern’ public sector agency. We will receive Parliamentary appropriation as outlined inthe NSW Budget Papers for 2010–2011 in fortnightly instalments from the Crown Entity.As at 30 June 2010 our total assets exceeded our total liabilities, although our current liabilities were more than our currentassets.Current liabilities include provision for leave of $1.4 million of which $1,112,000 is expected to be payable within the next12 months.Also refer to Note 14.Financial management2010$’0002009$’0002 Expenses excluding losses(a) Employee-related expensesSalaries and wages (including recreation leave) 13,961 14,512Maintenance – Employee-related* 82 76Superannuation – defined benefit plans 425 445Superannuation – defined contribution plans 1,042 1,031Long service leave 500 865Workers’ compensation insurance 80 128Payroll tax and fringe benefit tax 798 846Payroll tax on superannuation 80 82Payroll tax on long service leave 29 3516,997 18,020* Reconciliation – Total maintenance128NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Ombudsman’s OfficeNotes to the financial statements for the year ended 30 June 20102010$’0002009$’000(b) Other operating expenses include the following:Auditor’s remuneration – audit of the financial statements 25 25Operating lease rental expense – minimum lease payments 1,873 1,824Insurance 12 12Fees 654 812Telephones 97 142Stores 113 104Training 101 125Printing 107 135Travel 415 412Books, periodicals & subscriptions 49 56Advertising 3 20Energy 53 52Motor vehicle 25 30Postal and courier 26 31Maintenance – non-Employee-related* 173 206Other 82 93* Reconciliation – Total maintenance3,808 4,079Maintenance expenses – contracted labour and other 173 206Employee-related maintenance expense included in Note 2(a) 82 76Total maintenance expenses included in Notes 2(a) and 2(b) 255 282(c) Depreciation and amortisation expenseDepreciationPlant, equipment and leasehold improvements 209 320Total depreciation expense 209 320AmortisationIntangible assets 121 186Total amortisation expense 121 186Total depreciation and amortisation expenses 330 5063 Revenue(a) Sale of goods and servicesSale of publications 1 1Rendering of services 316 161317 162(b) Investment revenueInterest 50 2750 27(c) Grants and contributionsUnreasonable Complainants Conduct Project – 19Young People and Internet Project – 35– 54(d) Other revenueMiscellaneous 69 869 8Financial managementAudited financial statements129

Ombudsman’s OfficeNotes to the financial statements for the year ended 30 June 20102010$’0002009$’0004 Gain/(loss) on disposalLoss on disposal 1 –The office incurred a $2,000 loss when a laptop was lost during transit.A gain of $770 was made on the disposal of a photocopier.1 –5 Appropriations(a) Recurrent appropriationTotal recurrent draw-downs from Treasury (per Summary of compliance) 20,352 19,969Less: Liability to Consolidated Fund (per Summary of compliance) 519 –19,833 19,969Comprising: Recurrent appropriations (per Statement of comprehensive income) 19,833 19,96919,833 19,969(b) Capital appropriationTotal capital draw-downs from Treasury (per Summary of compliance) 751 543751 543Comprising: Capital appropriations (per Statement of comprehensive income) 751 543751 5436 Acceptance by the Crown Entity of employee benefits andother liabilitiesThe following liabilities and/or expenses have been assumed by the Crown Entity or othergovernment agencies:Superannuation – defined benefit 425 445Long service leave 500 865››Payroll tax on superannuation 23 23948 1,3337 Service groups of the agency(a) Service group 1: complaint advice, referral, resolution or investigationObjectives: This service group covers providing independent complaint advice and referral, handling complaints and dealingwith protected disclosures. It also includes hearing witness protection appeals and conducting information and educationprograms for agencies and the community.(b) Service group 2: oversight of agency investigation of complaintsObjectives: This service group covers oversight of the NSW Police Force’s handling of complaints about police and oversightof agency handling of allegations of child abuse.Financial management(c) Service group 3: scrutiny of complaint-handling and other systemsObjectives: This service group covers scrutiny of systems to prevent child abuse, dealing with police complaints and certainsystems in the community services sector. It also includes review of the situation of vulnerable people, review of compliancewith certain legislation and coordination of the official community visitor program.(d) Service group 4: review of implementation of legislationObjectives: This service group reviews implementation of legislation that expands the powers of NSW Police Force.130NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Ombudsman’s OfficeNotes to the financial statements for the year ended 30 June 20102010$’0002009$’0008 Current assets – cash and cash equivalentsCash at bank and on hand 1,084 1941,084 194For the purposes of the statement of cash flows, cash and cash equivalents include cash atbank and on hand.Cash and cash equivalent assets recognised in the statement of financial position are reconciledat the end of the year to the statement of cash flows as follows:Cash and cash equivalents (per statement of financial position) 1,084 194››Closing cash and cash equivalents (per statement of cash flows). 1,084 194Refer Note 19 for details regarding credit risk, liquidity risk and market risk arising from financialinstruments.9 Restricted assets – cashUnreasonable Complainants Conduct Project 43 43Liability to Consolidated Fund 519 –562 43As discussed in previous years, the Ombudsman received funding from the Commonwealth andother State Ombudsman offices as well as the New Zealand Ombudsman for the UnreasonableComplainant Conduct project. This project has now commenced phase 2. Amounts notexpensed at 30 June 2010 are treated as a restricted asset for use in future year.10 Current assets – receivablesTransfer of leave – 3Workshops 34 7Bank interest 34 7GST receivable 97 82Legal fees 36 36Prepayments 427 300628 435We consider all amounts to be collectible and as such, no allowance for impairment wasestablished.Details regarding credit risk, liquidity risk and market risk, including financial assets that areeither past due or impaired, are disclosed in Note 19.PrepaymentsSalaries and wages 18 5Maintenance 96 103Prepaid rent 157 162Worker’s compensation insurance 81 –Subscription/membership 12 14Training 19 –Motor vehicle 1 2Employee assistance program 6 6Insurance 16 –Cleaning 8 –Travel 3 –Other 10 8427 300Financial managementAudited financial statements131

Ombudsman’s OfficeNotes to the financial statements for the year ended 30 June 201011 Non-current assets – plant and equipment Plant andequipment$’000Leaseholdimprovement$’000Furnitureand fitting$’000Total$’000At 1 July 2009 – fair valueGross carrying amount 1,572 1,285 554 3,411Accumulated depreciation (1,339) (881) (318) (2,538)Net carrying amount 233 404 236 873At 30 June 2010 – fair valueGross carrying amount 1,781 1,356 737 3,874Accumulated depreciation (1,401) (928) (372) (2,701)Net carrying amount 380 428 365 1,173ReconciliationA reconciliation of the carrying amount of each class of assets at the beginning of and end of financial years is set out below:Year ended 30 June 2010Net carrying amount at start of year 233 404 236 873Additions 258 71 183 512Disposals (49) – – (49)Depreciation write back on disposal 46 – – 46Depreciation expense (108) (47) (54) (209)Net carrying amount at end of year 380 428 365 1,173We disposed of nine printers, two laptops and other office equipment at an original cost of $48,552 but which had a writtendown values of $2,222 at the time of disposal.At 1 July 2008 – fair valueGross carrying amount 1,605 1,092 512 3,209Accumulated depreciation (1,280) (809) (270) (2,359)Net carrying amount 325 283 242 850At 30 June 2009 – fair valueGross carrying amount 1,572 1,285 554 3,411Accumulated depreciation (1,339) (881) (318) (2,538)Net carrying amount 233 404 236 873ReconciliationA reconciliation of the carrying amount of each class of assets at the beginning of and end of financial years is set out below:Financial managementYear ended 30 June 2009Net carrying amount at start of year 325 283 242 850Additions 108 193 42 343Disposals (141) – – (141)Depreciation write back on disposal 141 – – 141Depreciation expense (200) (72) (48) (320)Net carrying amount at end of year 233 404 236 87312 Non-current assets – intangible assets 1 July2009$’000Software1 July2008$’00030 June2010$’00030 June2009$’000Gross carrying amount 3,080 2,875 3,116 3,080Accumulated amortisation (2,720) (2,534) (2,638) (2,720)Net carrying amount 360 341 478 360132NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Ombudsman’s OfficeNotes to the financial statements for the year ended 30 June 2010Reconciliation2010$’0002009$’000A reconciliation of the carrying amount of software at the beginning of and end of financial yearsis set out below:Net carrying amount at start of year 360 341Disposals (203) –Depreciation write back on disposal 203 –Additions 239 205Amortisation expense (121) (186)Net carrying amount at end of year 478 360In June, we disposed of obsolete software after a consultation with our IT department, the originalcosts of the software was $202,635, but had a nil written down value at the time of disposal.13 Current liabilities – payablesAccrued salaries, wages and on-costs 294 211Creditors 291 246585 45714 Current/non-current liabilities – provisionsCurrent employee benefits and related on-costsRecreation leave 836 899Annual leave loading 170 167Payroll tax on recreation leave 47 49Workers’ compensation and superannuation on recreation leave 69 11Payroll tax on long service leave 180 171Other on-costs on long service leave 180 1711,482 1,468Non-current employee benefits and related on-costsPayroll tax on long service leave 9 9Other on-costs on long service leave 9 918 18Aggregate employee benefits and related on-costsProvisions – current 1,482 1,468Provisions – non-current 18 18Accrued salaries, wages and on-costs (Note 13) 294 2111,794 1,697The value of annual leave and associated on-costs expected to be taken within 12 months is $1,072,000. The office has aproactive annual leave management program, whereby all staff are encouraged to take their full entitlement each year.The value of long service leave on-costs expected to be settled within 12 months is $40,000 and $338,000 after 12 months.15 Current/non-current liabilities – otherCurrentUnreasonable Complainants Conduct Project 43 43Prepaid income 28 11Liability to Consolidated Fund 519 –Lease incentive – 9590 6316 Commitments for expenditure(a) Operating lease commitmentsFuture non-cancellable operating lease rentals not provided for and payable:Not later than one year 2,636 2,011Later than one year and not later than five years 8,812 2,014Total (including GST) 11,448 4,025Financial managementThe leasing arrangements are generally for leasing of property, which is a non-cancellable operating lease with rent payablemonthly in advance. During the year, we exercised our option to extend our accommodation lease for a further five-year term.The total operating lease commitments include GST input tax credits of $1,040,789 (2009: $365,894) which are expected tobe recoverable from the Australian Taxation Office.Audited financial statements133

Ombudsman’s OfficeNotes to the financial statements for the year ended 30 June 20102010$’0002009$’00016 Commitments for expenditure cont’d.(b) Commitments for Other ExpenditureFuture expenses not provided for and payable:Not later than one year 82 12Total (including GST) 82 12We have purchase commitments of $82,000 included GST input tax credits of $6,941 (2009: $1,067) which are expected tobe recoverable from the Australian Taxation Office.17 Reconciliation of cash flows from operating activities to net cost of servicesNet cash from operating activities 1,641 35Cash flows from Government/Appropriations (21,103) (20,512)Acceptance by the Crown Entity of employee benefits and other liabilities (948) (1,333)Depreciation and amortisation (330) (506)Decrease/(increase) in provisions (15) (87)Increase/(decrease) in prepayments 127 148Increase in payables (128) (100)Increase/(decrease) in receivables 66 (73)Decrease/(increase) in other liabilities (8) 74Net gain/(loss) on sale of plant and equipment (2) –Net cost of services (20,700) (22,354)18 Budget reviewNet Cost of ServicesThe actual net cost of services is lower than budget by $850,000 due to a number of factors. We took a proactive approachto revenue generation during the year, particularly by increasing our external training programs. This resulted in a $305,000increase in our revenue, over budget. The benefits of our office restructure also contributed to the lower Net Cost of Service,as did the impact of the public sector recruitment freeze. Our overall Employee-related expenses were $664,000 less thanbudget. Our other operating expenses increased by $152,000 when compared to our budget mainly due to the increases inour rental and associated expenses. The office also received $525,000 additional funding from NSW Treasury for three newfunctions.Assets and LiabilitiesCurrent assets are higher than budget by $1,286,000 which significantly improved our cash flow this year. Our total liabilitieswere $373,000 higher than budget due to a combination of lower leave liabilities and unspent appropriation needing to bereturned to the Crown Entity.Cash flowsNet cash flows from operating activities were higher than budget by $865,000. Total payments were higher than budget by$287,000 and total receipts by $661,000. Government contributions were higher than budget by $491,000, due to additionalfunding being provided for three new functions.Financial management19 Financial instrumentsThe office’s principal financial instruments which are outlined below, arise directly from our operations. We do not enter intoor trade financial instruments for speculative purposes. We do not use financial derivatives.(a) Financial instrument categoriesCarrying AmountClass Note Category2010$’0002009$’000Financial assetsCash and cash equivalents 8 N/A 1,084 194Receivables 1 10 Receivables (at amortised cost) 104 53Financial liabilitiesPayables 2 13 Financial liabilities measured at amortised cost 585 457Notes1Excludes statutory receivables and prepayments (not within scope of AASB 7).2Excludes statutory payables and unearned revenue (not within scope of AASB 7).134NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Ombudsman’s OfficeNotes to the financial statements for the year ended 30 June 2010(b) Credit riskCredit risk arises when there is the possibility of the Ombudsman’s debtors defaulting on their contractual obligations,resulting in a financial loss to the Ombudsman’s Office. The maximum exposure to credit risk is generally represented by thecarrying amount of the financial assets (net of any allowance for impairment). Credit risk arises from the financial assets of theOmbudsman’s Office, including cash, receivables and authority deposits. No collateral is held by the Ombudsman’s Officeand the office has not granted any financial guarantees.CashCash comprises cash on hand and bank balances within the Treasury Banking System. Interest is earned on daily bankbalances at the monthly average NSW Treasury Corporation (TCorp) 11am unofficial cash rate, adjusted for a managementfee to Treasury.Receivables – trade debtorsAll trade debtors are recognised as amounts receivable at balance date. Collectability of trade debtors is reviewed on anongoing basis. Debts which are known to be uncollectible are written off. An allowance for impairment is raised when thereis objective evidence that we will not be able to collect all amounts due. The credit risk is the carrying amount (net of anyallowance for impairment, if there is any). No interest is earned on trade debtors. The carrying amount approximates fairvalue. Sales are made on 14-day terms.Other assetsAll other assets are current and are mainly prepaid rent and maintenance agreements. The credit risk is the carrying amount.There is no interest earned on prepayments.Total*$’000Past due but not impaired*$’000Considered impaired*$’0002010< 3 months overdue 26 26 –3 months – 6 months overdue – – –> 6 months overdue 36 36 –2009< 3 months overdue 5 5 –3 months – 6 months overdue 33 33 –> 6 months overdue 3 3 –* Each column in the table reports ‘gross receivables’. The ageing analysis excludes statutory receivables, as these are notwithin the scope of AASB 7 and excludes receivables that are not past due and not impaired. Therefore, the ‘total’ will notreconcile to the receivables total recognised in the statement of financial position.(c) Liquidity riskLiquidity risk is the risk that the Ombudsman’s Office will be unable to meet its payment obligations when they fall due. Theoffice continuously manages risk through monitoring future cash flows planning to ensure adequate holding of high qualityliquid assets.Bank overdraftThe office does not have any bank overdraft facility. During the current and prior years, there were no defaults or breaches onany loans payable. No assets have been pledged as collateral. The office exposure to liquidity risk is deemed insignificantbased on prior periods data and current assessment of risk.Trade creditors and accrualsThe liabilities are recognised for amounts due to be paid in the future for goods and services received, whether or notinvoiced. Amounts owing to suppliers (which are unsecured) are settled in accordance with the policy set out in Treasurer’sDirection 219.01. If trade terms are not specified, payment is made no later than the end of the month following the month inwhich an invoice or a statement is received. Treasurer’s Direction 219.01 allows the Minister to award interest for late payment.We did not pay any penalty interest during the year. The table below summarises the maturity profile of the Ombudsman’sOffice financial liabilities.Weightedaverage effectiveinterest rateNominalamount #$’000Interest rate exposureMaturity datesFixed Variable Non-interest < 1 1–5 5Payablesinterest rate interest rate bearing yr yrs yrs2010Accrued salaries, wages and on-costs – 294 – – 294 294 – –Creditors – 291 – – 291 291 – –– 585 – – 585 585 – –2009Accrued salaries, wages and on-costs – 211 – – 211 211 – –Creditors – 246 – – 246 246 – –– 457 – – 457 457 – –#The amounts disclosed are the contractual undiscounted cash flows of each class of financial liabilities based on the earlierdate on which the office can be required to pay.Financial managementAudited financial statements135

Ombudsman’s OfficeNotes to the financial statements for the year ended 30 June 201019 Financial instruments cont’d.(d) Market riskMarket risk is the risk that the fair value or future cash flows of a financial instrument will fluctuate because of changes inmarket prices. The Ombudsman’s Office exposure to market risk are primarily through interest rate risk. The Ombudsman’sOffice has no exposure to foreign currency risk and does not enter into commodity contracts.The effect on the result and equity due to a reasonably possible change in risk variable is outlined in the information below forinterest rate risk. A reasonably possible change in risk variable has been determined after taking into account the economicenvironment in which the Ombudsman’s Office operates and the timeframe for the assessment (until the end of the nextannual reporting period). The sensitivity analysis is based on risk exposures in existence at the statement of financial positiondate. The analysis is performed on the same basis for 2009. The analysis assumes that all other variables remain constant.Carryingamount$’000Results$’000–1% +1%Equity$’000Results$’000Equity$’0002010Financial assetsCash and cash equivalents 1,084 (11) (11) 11 11Receivables 104 N/A N/A N/A N/AFinancial liabilitiesPayables 585 N/A N/A N/A N/A2009Financial assetsCash and cash equivalents 194 (2) (2) 2 2Receivables 53 N/A N/A N/A N/AFinancial liabilitiesPayables 457 N/A N/A N/A N/A(e) Fair valueFinancial instruments are carried at cost. The fair value of all financial instruments approximates their carrying value.Carryingamount$’0002010 2009Fairvalue$’000Carryingamount$’000Fairvalue$’000Financial assetsCash 1,084 1,084 194 194Account receivables 104 104 53 53Financial liabilitiesAccount payables 585 585 457 45720Contingent liabilitiesThere are no contingent assets or liabilities for the period ended 30 June 2010 (2009: nil).Financial management21After balance date eventsThere were no after balance date events (2009: nil).End of the audited financial statements136NSW Ombudsman Annual Report | 2009–201035 years of making a difference

AppendicesContentsAppendixPageA Profile of notifiable police complaints 138B Status of legislative reviews 141C Child and family services 142D Disability services 143E Other community services 144F Public sector agencies 146G Departments and authorities 147H Local government 150I Corrections 153J Freedom of information 155K Report on police use of emergencypowers to prevent or controlpublic disorder 157L Committees 159M Compliance annual reportingrequirements 161N Legislation and legal matters 162O Freedom of Information report 163P Environmental program 163Q Access and equity programs 164R Publications list 169Glossary 170Index 171The following appendices provideadditional information on ouractivities and compliance reporting,complaint profiles, action takenon formal complaints, updates onlegislative reviews and other resourceinformation.Appendiceschapter info137

Appendix AProfile of notifiable police complaintsFigure 62: Action taken on finalised notifiable complaints about police officers in 2009–2010CategoryAllegationsdeclinedAllegationssubject ofinvestigationAllegationsconciliatedor informallyresolvedTotalArrestImproper failure to arrest 1 0 1 2Unlawful arrest 34 26 10 70Unnecessary use of arrest 25 25 12 62Total 60 51 23 134Complaint-handlingDeficient complaint investigation 5 9 0 14Fail to report misconduct 3 69 11 83Fail to take a complaint 4 8 3 15Inadequacies in informal resolution 0 1 0 1Provide false information in complaint investigation 2 87 9 98Total 14 174 23 211Corruption/misuse of officeExplicit threats involving use of authority 4 9 2 15Improper association 28 72 14 114Misuse authority for personal benefit or benefit of an associate 40 64 20 124Offer or receipt of bribe/corrupt payment 10 14 0 24Protection of person(s) involved in criminal activity (other) 1 0 0 1Total 83 159 36 278Custody/detentionDeath/serious injury in custody 1 0 1 2Detained in excess of authorised time 1 5 2 8Escape from custody 0 10 1 11Fail to allow communication 4 2 4 10Fail to caution/give information 2 2 3 7Fail to meet requirements for vulnerable persons 5 7 6 18Improper refusal to grant bail 0 0 0 0Improper treatment 16 35 17 68Inadequate monitoring of persons in custody 0 0 3 3Unauthorised detention 9 11 6 26Total 38 72 43 153Driving-related offences/misconductBreach pursuit guidelines 1 15 2 18Dangerous driving causing grievous bodily harm/death 1 0 0 1Drink driving offence 6 26 3 35Fail to conduct breath test/analysis 1 0 0 1Negligent/dangerous driving 6 19 7 32Unnecessary speeding 4 13 3 20Total 19 73 15 107Drug-related offences/misconductCultivate/manufacture prohibited drug 1 2 0 3Drinking/under the influence on duty 0 8 2 10Protection of person(s) involved in drug activity 31 18 7 56Supply prohibited drug 15 32 5 52Use/possess restricted substance 1 4 1 6Use/possession of prohibited drug 10 35 6 51Total 58 99 21 178Appendices138NSW Ombudsman Annual Report | 2009–201035 years of making a difference

CategoryAllegationsdeclinedAllegationssubject ofinvestigationAllegationsconciliatedor informallyresolvedTotalExcessive use of forceAssault 238 303 142 683Firearm discharged 2 2 1 5Firearm drawn 3 10 3 16Improper use of handcuffs 6 6 7 19Total 249 321 153 723InformationFail to create/maintain records 10 61 19 90Falsify official records 14 65 6 85Misuse email/internet 2 25 10 37Provide incorrect or misleading information 24 58 12 94Unauthorised access/disclosure/alteration of information/data 1 9 2 12Unreasonable refusal to provide information 1 2 0 3Unauthorised access to information/data 12 136 16 164Unauthorised alteration to information/data 0 3 0 3Unauthorised disclosure of information/data 47 102 41 190Total 111 461 106 678Inadequate/improper investigationDelay in investigation 13 18 12 43Fail to advise outcome of investigation 5 0 2 7Fail to advise progress of investigation 8 3 4 15Fail to investigate (customer service) 153 84 57 294Improper/unauthorised forensic procedure 0 0 1 1Improperly fail to investigate offence committed by another officer 3 1 0 4Improperly interfere in investigation by another police officer 5 26 5 36Inadequate investigation 117 98 62 277Total 304 230 143 677MisconductAllow unauthorised use of weapon 1 1 0 2Conflict of interest 9 43 11 63Detrimental action against a whistleblower 1 1 1 3Dishonesty in recruitment/promotion 2 5 0 7Disobey reasonable direction 0 83 8 91Fail performance/conduct plan 0 1 0 1Failure to comply with code of conduct (other) 58 282 88 428Failure to comply with statutory obligation/procedure (other) 22 223 48 293False claiming for duties/allowances 2 19 2 23Inadequate management/maladministration 14 79 18 111Inadequate security of weapon/appointments 2 34 6 42Inappropriate intervention in civil dispute 0 4 0 4Minor workplace-related misconduct 3 40 7 50Other improper use of discretion 7 7 4 18Unauthorised secondary employment 2 41 4 47Unauthorised use of vehicle/facilities/equipment 7 48 12 67Workplace harassment/victimisation/discrimination 54 97 13 164Total 184 1,008 222 1,414Other criminal conductConspiracy to commit offence 2 1 0 3Fraud 4 7 1 12Murder/manslaughter 1 1 0 2Officer in breach of domestic violence order 2 1 0 3Officer perpetrator of domestic violence 5 13 2 20Officer subject of application for domestic violence order 4 26 3 33Other indictable offence 54 68 3 125Other summary offence 16 132 10 158Sexual assault/indecent assault 14 26 2 42Total 102 275 21 398AppendicesAppendix A139

CategoryAllegationsdeclinedAllegationssubject ofinvestigationAllegationsconciliatedor informallyresolvedTotalProperty/exhibits/theftDamage to 5 9 11 25Failure or delay in returning to owner 20 6 9 35Loss of 4 21 16 41Theft 16 29 7 52Unauthorised removal/destruction/use of 5 28 14 47Total 50 93 57 200Prosecution-related inadequacies/misconductAdverse comment by Court/costs awarded 3 12 7 22Fail to attend Court 2 17 14 33Fail to check brief/inadequate preparation of brief 1 16 20 37Fail to notify witness 5 7 12 24Fail to serve brief of evidence 2 16 10 28Failure to charge/prosecute 14 2 13 29Failure to use Young Offenders Act 0 1 0 1Improper prosecution 35 12 9 56Mislead the Court 9 6 3 18PIN/TIN inappropriately/wrongly issued 16 0 1 17Total 87 89 89 265Public justice offencesFabrication of evidence (other than perjury) 17 13 1 31Involuntary confession by accused 1 2 0 3Make false statement 21 19 6 46Other pervert the course of justice 20 30 6 56Perjury 7 2 4 13Withholding or suppression of evidence 8 7 3 18Total 74 73 20 167Search/entryFailure to conduct search 0 3 4 7Property missing after search 1 1 1 3Unlawful entry 9 7 0 16Unlawful search 23 31 32 86Unreasonable/inappropriate conditions/damage 11 11 10 32Wrongful seizure of property during search 2 1 2 5Total 46 54 49 149Service deliveryBreach domestic violence SOPs 9 14 0 23Fail to provide victim support 16 14 16 46Fail/delay attendance to incident/’000’ 13 5 8 26Harassment/intimidation 138 42 84 264Improper failure to WIPE 11 12 15 38Improper use of move on powers 2 2 1 5Neglect of duty (not specified elsewhere) 16 40 21 77Other (customer service) 192 67 73 332Rudeness/verbal abuse 86 71 78 235Threats 35 38 29 102Total 518 305 325 1,148Total summary of allegations 1,997 3,537 1,346 6,880The number of allegations is larger than the number of complaints received because a complaint may contain more than oneallegation about a single incident or involve a series of incidents.Appendices140NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Appendix BStatus of legislative reviews – as at 30 June 2010Review reportDate provided toresponsible MinisterDate tabledTime takento tableReview of the Police Powers (Vehicles) Amendment Act2001Review of the Police Powers (Drug Detection in BorderAreas Trial) Act 2003September 2003 November 2005 26 monthsJanuary 2005 November 2006 22 monthsPolice Powers (Drug Premises) Act 2001 January 2005 September 2005 8 monthsOn the Spot Justice? The Trial of Criminal InfringementNotices by NSW PoliceApril 2005 November 2005 7 monthsReview of the Child Protection Register May 2005 November 2005 6 monthsReview of the Police Powers (Internally Concealed Drugs)Act 2001Review of the Children (Criminal Proceedings) Amendment(Adult Detainees) Act 2001Review of the Crimes (Administration of Sentences)Amendment Act 2002Firearm and Explosive Detection Dogs – a review of theFirearms Amendment (Public Safety) Act 2002July 2005 May 2007 22 monthsNovember 2005 October 2006 11 monthsDecember 2005 February 2006 2 monthsApril 2006 October 2006 6 monthsPolice Powers (Drug Detection Dogs) Act 2001 June 2006 September 2006 3 monthsDNA sampling and other forensic procedures conductedon suspects and volunteers under the Crimes (ForensicProcedures) Act 2000Review of the Justice Legislation Amendment(Non-association and Place Restriction) Act 2001Review of emergency powers to prevent or control publicdisorderOctober 2006 January 2007 3 monthsDecember 2006 December 2008 24 monthsSeptember 2007 November 2007 2 monthsPolice Powers (Drug Detection Trial) Act 2003 June 2008 August 2008 2 monthsReview of Parts 2A and 3 of the Terrorism (Police Powers)Act 2002Review of certain functions conferred under the LawEnforcement (Powers and Responsibilities) Act 2002Review of the impact of Criminal Infringement Notices onAboriginal CommunitiesSeptember 2008 October 2008 1 monthFebruary 2009 May 2009 3 monthsAugust 2009 July 2010 11 monthsCurrent legislative reviewsLegislationTerrorism (Police Powers) Act 2002 – Part 2ALaw Enforcement Legislation Amendment (Public Safety)Act 2005Crimes (Criminal Organisations Control) Act 2009Brief descriptionAllows police to hold people suspected of involvement interrorist-related activities in preventive detention.Additional powers for police to prevent or control large-scalepublic disorder. We have an ongoing role to review any useof this legislation. The police are required to report to usevery six months about the use of the powers.Allows the Commissioner of Police to seek a declarationfrom a Supreme Court judge that a criminal gang ororganisation is a declared criminal organisation, and thenapply for control orders against members of the declaredorganisation.AppendicesAppendix A | Appendix B141

Appendix CChild and family servicesFigure 63: Complaints issues for child and family services received in 2009–2010Figure 63 shows the issues that were complained about in 2009–2010 in relation to child and family services. Please notethat each complaint we received may have more than one issue.Program areaChildprotectionOut-of-homecareChildren’sservicesFamilysupport AdoptionIssue Formal Informal Formal Informal Formal Informal Formal Informal Formal Informal TotalCasework 97 79 110 144 0 1 0 4 0 0 435Meeting individual needs 29 26 134 142 4 3 2 2 0 0 342Object to decision 35 43 25 104 1 1 0 2 0 1 212Case management 19 17 66 70 5 5 2 2 0 0 186Customer service 13 21 37 36 2 6 0 3 1 0 119Complaints 21 28 31 36 6 3 0 1 0 0 126Information 22 20 29 41 4 4 2 0 0 0 122Assault/abuse in care 15 22 27 26 1 3 0 1 0 0 95Investigation 11 16 3 2 1 2 0 1 0 0 36Professional conduct 19 31 17 17 5 5 3 5 0 0 102Allowances/fees 7 6 26 27 5 6 2 1 0 0 80Clients rights/choice/participation 4 1 4 7 1 2 0 0 0 0 19Policy/procedure/law 2 6 6 5 5 4 0 1 0 0 29Legal problems 9 15 2 5 0 0 0 1 0 0 32Service management 2 1 2 2 2 2 0 0 0 0 11Access to service 4 5 1 0 5 4 1 3 0 0 23File/record management 0 4 4 2 1 0 1 0 0 0 12Safety 2 0 1 5 1 3 0 0 0 0 12Client finances and property 1 0 1 2 1 0 0 0 0 0 5Service funding/licensing/monitoring 0 0 0 1 2 5 2 0 0 0 10Outside our jurisdiction 10 30 3 11 3 7 0 0 0 0 64Not applicable 1 10 1 18 0 9 0 1 0 0 40Total 323 381 530 703 55 75 15 28 1 1 2,112Figure 64: Formal complaints finalised for child and family services in 2009–2010Figure 64 shows the outcomes of formal complaints finalised about child and family services this year.Program area A B C D E F G TotalChild protection services 56 72 53 8 0 1 14 204Out-of-home care 68 82 123 3 1 2 4 283Children’s services 6 14 10 0 0 0 4 34Family support services 1 3 4 0 0 0 1 9Adoption 0 0 0 0 0 0 0 0Total 131 171 190 11 1 3 23 530DescriptionAppendicesABCDEFGComplaint declined at outsetComplaint declined after inquiriesComplaint resolved after inquiries, including local resolution by the agency concernedService improvement comments or suggestions to agencyReferred to agency concerned or other body for investigationDirect investigationComplaint outside jurisdiction142NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Appendix DDisability servicesFigure 65: Complaints issues for disability services received in 2009–2010Figure 65 shows the issues that were complained about in 2009–2010 in relation to disability services. Please note that eachcomplaint we received may have more than one issue.Program areaDisabilityaccommodationDisabilitysupportIssue Formal Informal Formal Informal TotalMeeting individual needs 79 37 22 13 151Case management 42 15 15 0 72Assault/abuse in care 31 18 3 6 58Service management 12 4 1 3 20Customer service 4 6 4 13 27Professional conduct 21 7 6 4 38Access to service 4 3 7 14 28Complaints 17 6 6 7 36Client rights/choice/participation 5 5 3 3 16Object to decision 7 6 1 8 22Safety 8 2 0 0 10Casework 6 1 5 5 17Information 8 7 4 4 23Investigation 1 0 1 1 3Service funding/licensing/monitoring 5 3 2 2 12Client finances and property 4 0 1 1 6Policy/procedure/law 5 1 2 3 11File/record management 2 1 2 1 6Allowances/fees 0 2 2 2 6Legal problems 0 1 0 0 1Outside our jurisdication 3 5 1 8 17Not applicable 0 7 0 5 12Total 264 137 88 103 592Figure 66: Formal complaints finalised for disability services in 2009–2010Figure 66 shows the outcomes of formal complaints we received about disability services this year.Program area A B C D E F G TotalDisability accommodation services 8 31 46 3 4 0 2 94Disability support services 2 19 26 1 0 0 1 49Total 10 50 72 4 4 0 3 143DescriptionABCDEFGComplaint declined at outsetComplaint declined after inquiriesComplaint resolved after inquiries, including local resolution by the agency concernedService improvement comments or suggestions to agencyReferred to agency concerned or other body for investigationDirect investigationComplaint outside jurisdictionAppendicesAppendix C | Appendix D143

Appendix EOther community servicesFigure 67: Number of formal and informal matters about other community services receivedin 2009–2010Some complaints about supported accommodation and general community services may involve complaints about childand family and disability services.Agency category Formal Informal Total››Community ServicesSupported accommodation and assistance program services 4 1 5General community services 0 1 1Aged services 0 0 0Disaster welfare services 0 0 0Other 5 19 24Sub-total 9 21 30››ADHCSupported accommodation and assistance program services 0 0 0General community services 0 1 1Aged services 8 22 30Disaster welfare services 0 0 0Other 2 6 8Sub-total 10 29 39››Other government agenciesSupported accommodation and assistance program services 1 0 1General community services 0 0 0Aged services 0 2 2Other 0 2 2Disaster welfare services 0 0 0Sub-total 1 4 5››Non-government funded or licensed servicesSupported accommodation and assistance program services 16 14 30General community services 2 3 5Aged services 4 10 14Other 1 4 5Disaster welfare services 0 0 0Sub-total 23 31 54Other (general inquiries) 0 7 7Agency unknown 0 22 22Outside our jurisdiction 12 12 24Sub-total 12 41 53Total 55 126 181Some complaints about supported accommodation and general community services may involve complaints about childand family and disability services.Appendices144NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Figure 68: Complaints issues for other community services received in 2009–2010Figure 68 shows the issues that were complained about in 2009–2010 in relation to general community services. Please notethat each complaint we received may have more than one issue.Program areaOther community servicesIssue Formal Informal TotalAccess to service 11 12 23Customer service 7 10 17Professional conduct 2 8 10Complaints 3 5 8Meeting individual needs 12 10 22Object to decision 3 7 10Allowances/fees 5 4 9Information 2 1 3Clients rights/choice/participation 1 1 2Case management 2 0 2Service funding/licensing/monitoring 0 4 4Files/record management 1 1 2Assault/abuse in care 1 1 2Casework 5 3 8Service management 6 6 12Policy/procedure/law 4 1 5Investigation 1 1 2Safety 1 0 1Legal problems 1 1 2Client finances and property 1 1 2Outside our jurisdiction 7 17 24Not applicable 0 12 12Total 76 106 182Figure 69: Formal complaints finalised for other community services in 2009–2010Figure 69 shows the outcomes of formal complaints finalised about general community services this year.Program area A B C D E F G TotalSupported accommodation and assistance program services 6 7 2 2 0 0 0 17General community services 0 0 1 0 0 0 0 1Aged services 3 3 7 0 0 0 1 14Other 5 1 1 0 0 0 8 15Total 14 11 11 2 0 0 9 47DescriptionABCDEFGComplaint declined at outsetComplaint declined after inquiriesComplaint resolved after inquiries, including local resolution by the agency concernedService improvement comments or suggestions to agencyReferred to agency concerned or other body for investigationDirect investigationComplaint outside jurisdictionAppendicesAppendix E145

Appendix FPublic sector agenciesFigure 70: Action taken on formal complaints about public sector agencies finalised in 2009–2010Figure 70 shows the action we took on each of the written complaints that we finalised this year about public sector agencies(except the NSW Police Force, CS and ADHC and those relating to child protection notifications), broken down into agencygroups. See Appendices G, H, I and J for a further breakdown into specific agencies in those groups.Complaint aboutAssessmentonlyPreliminary or informalinvestigationFormalinvestigationA B C D E F G H I J K L M TotalBodies outside jurisdiction 276 0 0 0 0 0 0 0 0 0 0 0 0 276Departments and authorities 763 16 318 20 218 35 34 2 3 0 3 1 1 1,414Freedom of information 33 1 13 0 73 4 6 0 0 3 2 0 1 136Local government 570 3 183 3 71 26 15 1 0 1 1 0 1 875Corrections and Justice Health 148 10 284 10 199 43 19 8 0 0 0 0 1 722Total 1,790 30 798 33 561 108 74 11 3 4 6 1 4 3,423DescriptionABCDEFGHIJKLMDecline after assessment only, including:Conduct outside jurisdiction, trivial, remote, insufficient interest, commercial matter, right of appeal or redress, substantiveexplanation or advice provided, premature – referred to agency, concurrent representation, investigation declined onresource/priority groundsPreliminary or informal investigation:Substantive advice, information provided without formal finding of wrong conductAdvice/explanation provided where no or insufficient evidence of wrong conductFurther investigation declined on grounds of resource/priorityResolved to Ombudsman’s satisfactionResolved by agency prior to our interventionSuggestions/comment madeConsolidated into other complaintConciliated/mediatedFormal investigation:Resolved during investigationInvestigation discontinuedNo adverse findingAdverse findingRecognising35 years ofaccountabilityAppendices146NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Appendix GDepartments and authoritiesFigure 71: Action taken on formal complaints about departments and authorities finalised in 2009–2010AgencyAssessmentonlyPreliminary or informalinvestigationFormalinvestigationA B C D E F G H I J K L M TotalAboriginal Housing Office 0 0 0 0 0 0 0 0 1 0 0 0 0 1Administrative Decisions Tribunal 4 0 0 0 0 0 0 0 0 0 0 0 0 4Amaroo Local Aboriginal Land Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Ambulance Service of NSW 6 0 6 0 0 0 0 0 0 0 0 0 0 12Anti-Discrimination Board 3 0 2 0 0 0 0 0 0 0 0 0 0 5Arts, Sport and Recreation 5 0 1 0 1 0 0 0 0 0 0 0 0 7Board of Studies NSW 4 0 1 0 0 0 0 0 0 0 0 0 0 5Board of Surveying and Spatial Information 0 0 0 0 1 0 0 0 0 0 0 0 0 1Bureau of Crime Statistics and Research 0 0 0 0 1 0 0 0 0 0 0 0 0 1Casino, Liquor and Gaming Control Authority 1 0 0 0 0 0 0 0 0 0 0 0 0 1Charles Sturt University 0 0 1 1 0 0 0 0 0 0 0 0 0 2Consumer, Trader & Tenancy Tribunal 22 0 0 0 0 0 0 0 0 0 0 0 0 22Country Energy 2 0 0 0 0 0 0 0 0 0 0 0 0 2Court officer/jury/judge 1 0 0 0 0 0 0 0 0 0 0 0 0 1Crown Solicitor’s Office 1 0 0 0 0 0 0 0 0 0 0 0 0 1Dental Board of New South Wales 1 0 1 0 0 0 1 0 0 0 0 0 0 3Department of Education and Training 59 2 30 2 12 1 4 1 0 0 0 0 0 111Department of Environment, Climate Changeand Water 10 1 10 1 3 2 3 1 0 0 0 0 0 31Department of Health 14 0 2 1 0 0 0 0 0 0 0 0 0 17Department of Justice and Attorney-General 4 0 0 0 4 0 1 0 0 0 0 0 0 9Department of Planning 7 0 2 0 1 0 0 0 0 0 0 0 0 10Department of Premier and Cabinet 0 1 2 0 0 0 0 0 0 0 0 0 0 3Department of Services, Technology andAdministration 18 1 13 1 4 2 1 0 0 0 0 0 0 40District Court of NSW 1 0 0 0 0 0 0 0 0 0 0 0 0 1Electoral Commission NSW 1 0 0 0 0 0 0 0 0 0 0 0 0 1Energy Australia 8 0 0 0 0 0 0 0 0 0 0 0 0 8First State Superannuation TrusteeCorporation 3 0 0 0 0 0 0 0 0 0 0 0 0 3Game Council of NSW 2 0 0 0 1 0 0 0 0 0 0 0 0 3Greater Southern Area Health Service 5 0 0 0 0 0 0 0 0 0 0 0 0 5Greater Western Area Health Service 2 0 0 0 0 0 0 0 0 0 0 0 0 2Guardianship Tribunal 7 0 0 0 0 0 0 0 0 0 0 0 0 7Heritage Branch 1 0 0 0 0 0 0 0 0 0 0 0 0 1Housing Appeals Committee 0 0 1 0 0 0 0 0 0 0 0 0 0 1Housing NSW 94 1 36 3 72 11 4 0 2 0 0 0 0 223Hunter and New England Area HealthService 3 0 1 0 2 0 0 0 0 0 0 0 0 6Hunter Water Corporation 1 0 0 0 2 0 0 0 0 0 0 0 0 3Independent Pricing and Regulatory Tribunal 1 0 0 0 0 0 0 0 0 0 0 0 0 1Integral Energy 2 0 0 0 0 0 0 0 0 0 0 0 0 2Land and Property Management Authority 17 2 6 0 4 0 0 0 0 0 0 0 0 29Landcom 1 0 0 0 0 0 0 0 0 0 0 0 0 1Lands Board 0 0 0 0 3 0 0 0 0 0 0 0 0 3Legal Aid Commission of NSW 19 0 1 0 0 0 0 0 0 0 0 0 0 20AppendicesAppendix F | Appendix G147

AppendicesAgencyAssessmentonlyPreliminary or informalinvestigationFormalinvestigationA B C D E F G H I J K L M TotalLivestock Health and Pest Authorities 1 0 4 0 1 0 0 0 0 0 0 0 0 6Local Government Boundaries Commission 0 0 1 0 0 0 0 0 0 0 0 0 0 1Local Government Division 2 0 1 0 1 0 0 0 0 0 0 0 0 4Long Service Payments Corporation 2 0 1 0 0 0 0 0 0 0 0 0 0 3Macquarie University 6 0 1 5 0 0 1 0 0 0 0 0 0 13Marine Parks Authority 1 0 0 0 0 0 0 0 0 0 0 0 0 1Mental Health Review Tribunal (andPsychosurgery Review Board) 1 0 0 0 0 0 0 0 0 0 0 0 0 1MidCoast Water 0 0 1 0 0 0 0 0 0 0 0 0 0 1Mine Subsidence Board 1 0 0 0 0 0 0 0 0 0 0 0 0 1Motor Accidents Authority 0 0 1 0 0 0 0 0 0 0 0 0 0 1North Coast Area Health Service 2 0 0 0 0 0 0 0 0 0 0 0 0 2Northern Region Joint Regional PlanningPanel 1 0 0 0 0 0 0 0 0 0 0 0 0 1Northern Sydney Central Coast Area HealthService 3 1 1 0 0 0 0 0 0 0 0 0 0 5NSW Board of Vocational Education andTraining 1 0 2 0 0 0 0 0 0 0 0 0 0 3NSW Fire Brigades 2 0 1 0 0 0 0 0 0 0 0 0 0 3NSW Maritime 9 1 5 0 1 0 0 0 0 0 0 0 0 16NSW Medical Board 1 0 1 0 1 0 0 0 0 0 0 0 0 3NSW Office of Liquor, Gaming and Racing 3 0 3 0 0 0 0 0 0 0 0 0 0 6NSW Trustee and Guardian 24 1 17 1 20 2 5 0 0 0 0 0 0 70NSW Veterinary Practitioners Board 0 0 1 0 1 0 0 0 0 0 0 0 0 2Office of Energy 2 0 1 0 0 0 0 0 0 0 0 0 0 3Office of State Revenue 101 1 48 0 28 3 1 0 0 0 0 0 0 182Office of the Director of Public Prosecutions 5 0 0 0 0 0 0 0 0 0 0 0 0 5Office of the Health Care ComplaintsCommission 10 0 1 0 0 0 0 0 0 0 0 0 0 11Office of the Legal Services Commissioner 4 0 0 0 1 0 0 0 0 0 0 0 0 5Office of Water 1 0 2 0 1 0 0 0 0 0 0 0 0 4Parliament of New South Wales – LegislativeAssembly 1 0 0 0 0 0 0 0 0 0 0 0 0 1Pharmacy Board of NSW 0 0 1 0 1 0 0 0 0 0 0 0 0 2Pillar Administration 1 0 1 0 0 0 0 0 0 0 0 0 0 2Primary Industries 8 0 8 0 1 1 0 0 0 0 0 0 0 18Rail Corporation New South Wales 41 0 5 1 2 1 0 0 0 0 1 0 0 51Registry of Births, Deaths and Marriages 7 1 3 0 6 1 1 0 0 0 0 0 0 19Rental Bond Board 0 0 0 0 0 1 0 0 0 0 0 0 0 1Roads and Traffic Authority 93 0 42 1 28 6 7 0 0 0 0 0 0 177Rural Assistance Authority 2 0 1 1 1 0 0 0 0 0 0 0 0 5Rural Fire Service NSW 2 0 0 0 0 0 0 0 0 0 0 0 0 2Sheriff’s Office 1 0 1 0 0 0 0 0 0 0 0 0 0 2South Eastern Sydney and Illawarra AreaHealth Service 5 0 0 1 0 1 0 0 0 0 1 0 0 8Southern Cross University 1 0 1 0 0 0 0 0 0 0 0 0 0 2State and Regional Development andTourism 1 0 1 0 0 0 0 0 0 0 0 0 0 2State Authorities Superannuation TrusteeCorporation 2 0 0 0 0 0 0 0 0 0 0 0 0 2State Emergency Service 0 0 1 0 0 0 0 0 0 0 0 0 0 1State Transit Authority of New South Wales 6 0 0 0 3 1 0 0 0 0 0 0 0 10State Water 2 0 0 0 0 0 0 0 0 0 0 0 0 2148NSW Ombudsman Annual Report | 2009–201035 years of making a difference

AgencyAssessmentonlyPreliminary or informalinvestigationFormalinvestigationA B C D E F G H I J K L M TotalSydney Metro 0 0 2 0 0 0 0 0 0 0 1 0 0 3Sydney Olympic Park Authority 1 0 0 0 0 0 0 0 0 0 0 0 0 1Sydney South West Area Health Service 10 0 0 0 0 0 1 0 0 0 0 0 0 11Sydney Water Corporation 2 0 0 0 0 0 0 0 0 0 0 0 0 2Sydney West Area Health Service 4 1 0 0 1 0 1 0 0 0 0 0 0 7Teacher Housing Authority 0 0 0 0 1 0 0 0 0 0 0 0 0 1Transport NSW 14 0 3 0 1 2 0 0 0 0 0 0 0 20University of New England 3 0 2 0 0 0 1 0 0 0 0 0 0 6University of New South Wales 5 1 4 0 0 0 0 0 0 0 0 0 0 10University of Newcastle 8 0 3 0 2 0 0 0 0 0 0 0 0 13University of Sydney 2 0 6 0 0 0 0 0 0 0 0 0 0 8University of Technology 1 0 2 0 0 0 0 0 0 0 0 0 0 3University of Western Sydney 5 1 8 1 0 0 0 0 0 0 0 0 0 15University of Wollongong 4 0 4 0 0 0 0 0 0 0 0 1 0 9Unnamed agency 3 0 0 0 1 0 0 0 0 0 0 0 0 4Valuer General 4 0 0 0 0 0 0 0 0 0 0 0 0 4WorkCover Authority 10 0 10 0 4 0 2 0 0 0 0 0 1 27Total 763 16 318 20 218 35 34 2 3 0 3 1 1 1,414DescriptionABCDEFGHIJKLMDecline after assessment only, including:Conduct outside jurisdiction, trivial, remote, insufficient interest, commercial matter, right of appeal or redress, substantiveexplanation or advice provided, premature – referred to agency, concurrent representation, investigation declined onresource/priority groundsPreliminary or informal investigation:Substantive advice, information provided without formal finding of wrong conductAdvice/explanation provided where no or insufficient evidence of wrong conductFurther investigation declined on grounds of resource/priorityResolved to Ombudsman’s satisfactionResolved by agency prior to our interventionSuggestions/comment madeConsolidated into other complaintConciliated/mediatedFormal investigation:Resolved during investigationInvestigation discontinuedNo adverse findingAdverse findingAppendicesAppendix G149

Appendix HLocal governmentFigure 72: Action taken on formal complaints about local government finalised in 2009–2010Figure 72 shows the action we took on each of the written complaints finalised this year about individual councils.AppendicesCouncilAssessmentonlyPreliminary or informalinvestigationFormalinvestigationA B C D E F G H I J K L M TotalAccredited certifier 1 0 0 0 0 0 0 0 0 0 0 0 0 1Albury City Council 3 0 2 0 0 0 0 0 0 0 0 0 0 5Armidale Dumaresq Council 1 0 2 0 0 0 0 0 0 0 0 0 0 3Auburn Council 4 0 2 0 2 0 0 0 0 0 0 0 0 8Ballina Shire Council 5 0 1 0 0 0 0 0 0 0 0 0 0 6Bankstown City Council 6 0 1 0 0 1 0 0 0 0 0 0 0 8Bathurst Regional Council 3 0 0 0 0 0 0 0 0 0 0 0 0 3Bega Valley Shire Council 6 0 3 0 1 0 0 0 0 0 0 0 0 10Bellingen Shire Council 3 0 2 0 1 0 0 0 0 0 0 0 0 6Berrigan Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Blacktown City Council 4 0 5 0 0 0 1 0 0 0 0 0 0 10Blayney Shire Council 3 0 0 0 0 0 0 0 0 0 0 0 0 3Blue Mountains City Council 6 0 4 0 0 0 0 0 0 0 0 0 0 10Bogan Shire Council 0 0 1 0 0 0 0 0 0 0 0 0 0 1Boorowa Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Botany Bay City Council 5 0 5 0 1 0 0 0 0 0 0 0 0 11Byron Shire Council 10 0 1 0 2 0 0 0 0 0 0 0 0 13Cabonne Shire Council 2 0 0 0 0 0 0 0 0 0 0 0 0 2Campbelltown City Council 6 0 1 0 1 0 0 0 0 0 0 0 0 8Canterbury City Council 9 0 2 0 2 0 0 0 0 0 0 0 1 14Castlereagh-Macquarie County Council 0 0 0 0 0 0 1 0 0 0 0 0 0 1Central Darling Shire Council 1 0 1 0 0 0 0 0 0 0 0 0 0 2Cessnock City Council 1 0 2 0 1 2 0 0 0 0 0 0 0 6City of Canada Bay Council 4 0 2 0 1 0 1 0 0 0 0 0 0 8Clarence Valley Council 9 0 1 0 0 0 0 0 0 0 0 0 0 10Cobar Shire Council 0 0 1 0 0 0 0 0 0 0 0 0 0 1Coffs Harbour City Council 5 0 0 0 0 1 0 0 0 0 0 0 0 6Cooma-Monaro Shire Council 1 0 0 0 0 0 1 0 0 0 0 0 0 2Coonamble Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Cootamundra Shire Council 0 0 1 0 0 0 0 0 0 0 0 0 0 1Corowa Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Council not named 2 0 0 0 0 0 0 0 0 0 0 0 0 2Cowra Shire Council 2 0 2 0 2 0 0 0 0 0 0 0 0 6Dubbo City Council 1 0 0 0 1 0 0 0 0 0 0 0 0 2Dungog Shire Council 1 0 2 0 0 0 0 0 0 0 0 0 0 3Eurobodalla Shire Council 10 0 2 0 1 0 0 1 0 0 0 0 0 14Fairfield City Council 9 0 2 0 1 0 0 0 0 0 0 0 0 12Forbes Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Glen Innes Severn Shire Council 3 0 0 0 0 0 0 0 0 0 0 0 0 3Gloucester Shire Council 3 0 0 0 0 0 0 0 0 0 0 0 0 3Goldenfields Water County Council 1 0 1 0 0 0 0 0 0 0 0 0 0 2Gosford City Council 14 0 2 0 0 1 0 0 0 0 0 0 0 17Goulburn Mulwaree Shire Council 2 0 0 0 0 0 0 0 0 0 0 0 0 2Great Lakes Council 4 0 1 0 0 0 0 0 0 0 0 0 0 5Greater Hume Shire Council 0 0 0 0 1 0 0 0 0 0 0 0 0 1Greater Taree City Council 12 0 4 1 2 1 0 0 0 0 0 0 0 20Gunnedah Shire Council 2 0 0 0 0 0 0 0 0 0 0 0 0 2150NSW Ombudsman Annual Report | 2009–201035 years of making a difference

CouncilAssessmentonlyPreliminary or informalinvestigationFormalinvestigationA B C D E F G H I J K L M TotalGwydir Shire Council 2 0 1 0 0 1 0 0 0 0 0 0 0 4Hawkesbury City Council 7 0 4 0 0 0 0 0 0 0 0 0 0 11Hay Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Holroyd City Council 3 0 0 0 0 1 0 0 0 0 0 0 0 4Hornsby Shire Council 9 0 6 0 0 0 0 0 0 0 0 0 0 15Hunters Hill Municipal Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Hurstville City Council 4 0 0 0 2 0 1 0 0 0 0 0 0 7Inverell Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Jerilderie Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Kempsey Shire Council 8 0 2 0 2 0 0 0 0 0 0 0 0 12Kiama Municipal Council 0 0 0 0 0 1 0 0 0 0 0 0 0 1Kogarah Municipal Council 5 0 1 0 0 1 0 0 0 0 0 0 0 7Ku-ring-gai Municipal Council 10 1 3 0 0 0 0 0 0 0 0 0 0 14Ku-ring-gai Planning Panel 1 0 1 0 0 0 0 0 0 0 0 0 0 2Lake Macquarie City Council 5 0 0 0 0 0 1 0 0 0 0 0 0 6Lane Cove Municipal Council 2 0 1 0 0 0 0 0 0 0 0 0 0 3Leichhardt Municipal Council 3 0 1 0 1 0 0 0 0 0 0 0 0 5Lismore City Council 7 0 3 0 1 1 0 0 0 0 0 0 0 12Lithgow City Council 3 0 1 0 1 0 0 0 0 0 0 0 0 5Liverpool City Council 11 0 4 0 0 0 0 0 0 0 0 0 0 15Lockhart Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Maitland City Council 5 0 0 0 0 0 0 0 0 0 0 0 0 5Manly Council 2 0 1 0 0 0 0 0 0 0 0 0 0 3Marrickville Council 4 0 3 0 3 1 0 0 0 0 0 0 0 11Mid-Western Regional Council 3 0 0 0 1 0 0 0 0 0 0 0 0 4Mid Coast Water 4 0 0 1 1 0 0 0 0 0 0 0 0 6Moree Plains Shire Council 2 0 1 0 1 0 0 0 0 0 0 0 0 4Mosman Municipal Council 7 1 0 0 1 0 1 0 0 0 0 0 0 10Murray Shire Council 1 0 1 0 0 0 0 0 0 0 0 0 0 2Muswellbrook Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Nambucca Shire Council 0 0 3 0 0 0 0 0 0 0 0 0 0 3Narrabri Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Narrandera Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Narromine Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Newcastle City Council 13 0 3 0 2 2 0 0 0 0 0 0 0 20North Sydney Council 3 0 1 0 0 1 0 0 0 0 0 0 0 5Orange City Council 0 0 0 0 1 0 0 0 0 0 0 0 0 1Palerang Council 4 0 2 0 0 0 0 0 0 0 0 0 0 6Parkes Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Parramatta City Council 4 0 4 0 1 1 0 0 0 0 0 0 0 10Penrith City Council 6 0 2 0 0 0 0 0 0 0 0 0 0 8Pittwater Council 11 0 1 0 3 0 2 0 0 0 0 0 0 17Port Macquarie-Hastings Council 7 0 3 0 1 0 0 0 0 0 0 0 0 11Port Stephens Shire Council 14 0 3 0 1 0 0 0 0 0 0 0 0 18Queanbeyan City Council 1 0 1 1 0 0 0 0 0 0 0 0 0 3Randwick City Council 9 0 4 0 0 0 0 0 0 0 0 0 0 13Richmond Valley Council 4 0 1 0 0 0 0 0 0 0 0 0 0 5Riverina Water County Council 1 0 0 0 1 0 0 0 0 0 0 0 0 2Rockdale City Council 2 1 5 0 2 0 0 0 0 0 0 0 0 10Rous County Council 2 0 0 0 0 0 0 0 0 0 0 0 0 2Ryde City Council 6 0 1 0 0 0 1 0 0 0 0 0 0 8Shellharbour City Council 2 0 0 0 0 0 0 0 0 0 0 0 0 2Shoalhaven City Council 8 0 6 0 0 1 0 0 0 0 0 0 0 15Singleton Shire Council 1 0 0 0 1 0 0 0 0 0 0 0 0 2AppendicesAppendix H151

CouncilAssessmentonlyPreliminary or informalinvestigationFormalinvestigationA B C D E F G H I J K L M TotalSnowy River Shire Council 2 0 1 0 1 0 0 0 0 0 0 0 0 4Strathfield Municipal Council 12 0 6 0 0 0 0 0 0 0 0 0 0 18Sutherland Shire Council 10 0 3 0 2 0 4 0 0 0 0 0 0 19Sydney City Council 27 0 4 0 3 2 0 0 0 0 0 0 0 36Tamworth City Council 2 0 0 0 0 0 0 0 0 0 0 0 0 2Tenterfield Shire Council 6 0 2 0 1 0 0 0 0 0 0 0 0 9The Hills Shire Council 6 0 0 0 1 2 0 0 0 0 0 0 0 9Tumut Shire Council 2 0 0 0 0 0 0 0 0 0 0 0 0 2Tweed Shire Council 14 0 3 0 0 0 0 0 0 0 0 0 0 17Upper Hunter Shire Council 2 0 0 0 0 0 0 0 0 0 0 0 0 2Upper Lachlan Shire Council 5 0 0 0 3 0 0 0 0 0 0 0 0 8Uralla Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Wagga Wagga City Council 6 0 1 0 0 1 0 0 0 0 0 0 0 8Wagga Wagga Interim Joint Planning Panel 1 0 0 0 0 0 0 0 0 0 0 0 0 1Wakool Shire Council 0 0 1 0 0 0 0 0 0 0 0 0 0 1Walcha Council 0 0 1 0 0 0 0 0 0 0 0 0 0 1Walgett Shire Council 4 0 2 0 0 0 0 0 0 0 0 0 0 6Warringah Council 10 0 2 0 1 0 0 0 0 0 0 0 0 13Warrumbungle Shire Council 0 0 0 0 1 0 0 0 0 0 0 0 0 1Waverley Council 11 0 2 0 1 1 0 0 0 0 0 0 0 15Wellington Council 2 0 1 0 1 1 0 0 0 0 1 0 0 6Willoughby City Council 5 0 2 0 0 1 0 0 0 0 0 0 0 8Wingecarribee Shire Council 6 0 4 0 1 1 0 0 0 1 0 0 0 13Wollondilly Shire Council 4 0 1 0 1 0 0 0 0 0 0 0 0 6Wollongong City Council 34 0 2 0 3 0 1 0 0 0 0 0 0 40Woollahra Municipal Council 5 0 7 0 0 0 0 0 0 0 0 0 0 12Wyong Shire Council 6 0 7 0 3 0 0 0 0 0 0 0 0 16Yass Valley Council 1 0 1 0 1 0 0 0 0 0 0 0 0 3Young Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Total 570 3 183 3 71 26 15 1 0 1 1 0 1 875DescriptionABCDEFGHIJKLMDecline after assessment only, including:Conduct outside jurisdiction, trivial, remote, insufficient interest, commercial matter, right of appeal or redress, substantiveexplanation or advice provided, premature – referred to agency, concurrent representation, investigation declined onresource/priority groundsPreliminary or informal investigation:Substantive advice, information provided without formal finding of wrong conductAdvice/explanation provided where no or insufficient evidence of wrong conductFurther investigation declined on grounds of resource/priorityResolved to Ombudsman’s satisfactionResolved by agency prior to our interventionSuggestions/comment madeConsolidated into other complaintConciliated/mediatedFormal investigation:Resolved during investigationInvestigation discontinuedNo adverse findingAdverse findingAppendices152NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Appendix ICorrectionsFigure 73: Action taken on formal complaints about people in custody finalised in 2009–2010Figure 73 shows the action we took on each of the formal complaints finalised this year concerning people in custody.AgencyAssessmentonlyPreliminary or informalinvestigationFormalinvestigationA B C D E F G H I J K L M TotalCorrective Services NSW 123 8 227 9 157 37 17 8 0 0 0 0 1 587GEO Australia 13 2 39 1 23 2 2 0 0 0 0 0 0 82Justice Health 10 0 18 0 19 4 0 0 0 0 0 0 0 51Serious Offenders Review Council 2 0 0 0 0 0 0 0 0 0 0 0 0 2Total 148 10 284 10 199 43 19 8 0 0 0 0 1 722DescriptionADecline after assessment only,including:Conduct outside jurisdiction,trivial, remote, insufficient interest,commercial matter, right ofappeal or redress, substantiveexplanation or advice provided,premature – referred to agency,concurrent representation,investigation declined onresource/priority groundsBCDEPreliminary or informalinvestigation:Substantive advice, informationprovided without formal finding ofwrong conductAdvice/explanation providedwhere no or insufficient evidenceof wrong conductFurther investigation declined ongrounds of resource/priorityResolved to Ombudsman’ssatisfactionFGHIJKLMResolved by agency prior to ourinterventionSuggestions/comment madeConsolidated into other complaintConciliated/mediatedFormal investigation:Resolved during investigationInvestigation discontinuedNo adverse findingAdverse findingFigure 74: Number of formal and informal complaints about correctional centres, DCS and GEOreceived in 2009–2010Institution Formal Informal TotalBathurst Correctional Centre 24 113 137Berrima Correctional Centre 1 16 17Broken Hill Correctional Centre 3 20 23Cessnock Correctional Centre 5 33 38Community Offender Services 15 42 57Cooma Correctional Centre 3 21 24Corrective Services NSW 116 255 371Court Escort/Security Unit 13 17 30Dawn De Loas Special Purpose Centre 13 66 79Dillwynia Correctional Centre 6 58 64Emu Plains Correctional Centre 6 55 61GEO Australia 3 0 3Glen Innes Correctional Centre 2 6 8Goulburn Correctional Centre 44 207 251Grafton Correctional Centre 1 36 37High Risk Management Correctional Centre 24 36 60John Morony Correctional Centre 6 42 48Junee Correctional Centre 63 293 356Kariong Juvenile Correctional Centre 25 97 122Kirkconnell Correctional Centre 11 42 53Lithgow Correctional Centre 18 69 87Long Bay Hospital 10 107 117Mannus Correctional Centre 2 5 7Metropolitan Remand Reception Centre 45 205 250Metropolitan Special Programs Centre 57 268 325Mid North Coast Correctional Centre 13 157 170Oberon Correctional Centre 0 3 3AppendicesAppendix H | Appendix I153

Institution Formal Informal TotalOuter Metropolitan Multi Purpose Centre 6 43 49Parklea Correctional Centre 35 190 225Parramatta Correctional Centre 6 58 64Periodic Detention Centres 6 8 14Silverwater Correctional Centre 12 89 101Silverwater Women’s Correctional Centre 18 93 111Special Purpose Prison Long Bay 6 27 33St Heliers Correctional Centre 4 25 29Tamworth Correctional Centre 4 20 24Wellington Correctional Centre 45 273 318Women’s Transitional Centres 0 1 1Total 671 3,096 3,767*Some complaints may involve more than one centre.Recognising35 years ofscrutinyAppendices154NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Appendix JFreedom of informationFigure 75: Action taken on formal complaints about FOI finalised in 2009–2010Figure 75 shows the action we took on each of the written complaints finalised this year about individual public sectoragencies relating to freedom of information.AgencyAssessmentonlyPreliminary or informalinvestigationFormalinvestigationA B C D E F G H I J K L M TotalAgeing, Disability and Home Care 0 0 1 0 0 0 0 0 0 0 0 0 0 1Ambulance Service of NSW 0 0 1 0 0 0 0 0 0 0 0 0 0 1Arts, Sport and Recreation 1 0 0 0 0 0 0 0 0 0 0 0 0 1Blacktown City Council 0 0 0 0 0 0 1 0 0 0 0 0 0 1Board of Studies NSW 0 0 0 0 2 0 0 0 0 0 0 0 1 3Cessnock City Council 0 0 0 0 2 0 0 0 0 0 0 0 0 2Coffs Harbour City Council 0 0 0 0 0 0 0 0 0 1 0 0 0 1Communities NSW 1 0 0 0 0 0 0 0 0 0 0 0 0 1Corowa Shire Council 0 0 1 0 0 0 0 0 0 0 0 0 0 1Corrective Services NSW 1 0 2 0 7 0 0 0 0 0 0 0 0 10Department of Education and Training 3 0 1 0 2 0 0 0 0 0 0 0 0 6Department of Environment, Climate Changeand Water 0 0 0 0 3 0 0 0 0 0 0 0 0 3Department of Health 0 0 0 0 3 0 0 0 0 0 0 0 0 3Department of Justice and Attorney-General 1 0 0 0 2 0 0 0 0 0 0 0 0 3Department of Planning 0 0 1 0 1 0 0 0 0 0 0 0 0 2Department of Premier and Cabinet 0 0 0 0 1 0 0 0 0 0 0 0 0 1Department of Services, Technology andAdministration 1 0 0 0 2 0 0 0 0 0 0 0 0 3District Court of NSW 0 0 0 0 1 0 0 0 0 0 0 0 0 1Gosford City Council 0 0 0 0 3 0 0 0 0 0 0 0 0 3Government and Related EmployeesAppeals Tribunal 1 0 0 0 0 0 0 0 0 0 0 0 0 1Greater Taree City Council 0 0 0 0 0 1 0 0 0 0 0 0 0 1Greater Western Area Health Service 0 0 0 0 1 0 0 0 0 0 0 0 0 1Greyhound and Harness Racing RegulatoryAuthority 0 0 0 0 1 0 0 0 0 0 0 0 0 1Griffith City Council 0 0 0 0 1 0 0 0 0 0 0 0 0 1Hunter and New England Area HealthService 0 0 0 0 1 0 0 0 0 0 0 0 0 1Hunter Water Corporation 0 0 0 0 0 0 0 0 0 1 0 0 0 1Junee Shire Council 0 0 0 0 1 0 0 0 0 0 0 0 0 1Justice Health 0 0 1 0 2 0 0 0 0 0 0 0 0 3Legal Aid Commission of NSW 1 0 0 0 1 0 0 0 0 0 0 0 0 2Lismore City Council 0 0 0 0 1 0 0 0 0 0 0 0 0 1Muswellbrook Shire Council 0 0 0 0 0 1 0 0 0 0 0 0 0 1Narrandera Shire Council 0 0 0 0 1 0 0 0 0 0 0 0 0 1North Coast Area Health Service 1 0 0 0 0 0 1 0 0 0 0 0 0 2Northern Sydney Central Coast Area HealthService 1 0 1 0 0 0 0 0 0 0 0 0 0 2NSW Maritime 0 0 0 0 2 1 0 0 0 0 0 0 0 3NSW Medical Board 1 0 0 0 0 0 0 0 0 0 0 0 0 1NSW Police Force 9 1 3 0 10 1 4 0 0 1 0 0 0 29NSW Treasury 0 0 0 0 1 0 0 0 0 0 0 0 0 1NSW Trustee and Guardian 0 0 0 0 1 0 0 0 0 0 0 0 0 1Office of Water 1 0 0 0 0 0 0 0 0 0 0 0 0 1AppendicesAppendix I | Appendix J155

AgencyAssessmentonlyPreliminary or informalinvestigationFormalinvestigationA B C D E F G H I J K L M TotalPenrith City Council 0 0 0 0 1 0 0 0 0 0 0 0 0 1Port Macquarie-Hastings Council 0 0 0 0 1 0 0 0 0 0 0 0 0 1Roads and Traffic Authority 0 0 0 0 2 0 0 0 0 0 0 0 0 2Rockdale City Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Shellharbour City Council 2 0 0 0 2 0 0 0 0 0 0 0 0 4South Eastern Sydney and Illawarra AreaHealth Service 0 0 0 0 1 0 0 0 0 0 0 0 0 1Southern Cross University 1 0 0 0 0 0 0 0 0 0 0 0 0 1State and Regional Development andTourism 0 0 0 0 1 0 0 0 0 0 0 0 0 1State Property Authority 1 0 0 0 0 0 0 0 0 0 0 0 0 1State Transit Authority of New South Wales 0 0 0 0 2 0 0 0 0 0 0 0 0 2Sydney City Council 0 0 0 0 0 0 0 0 0 0 1 0 0 1Sydney South West Area Health Service 1 0 0 0 3 0 0 0 0 0 0 0 0 4Sydney Water 1 0 0 0 0 0 0 0 0 0 0 0 0 1Sydney West Area Health Service 1 0 1 0 0 0 0 0 0 0 0 0 0 2The Hills Shire Council 0 0 0 0 2 0 0 0 0 0 0 0 0 2Transport NSW 0 0 0 0 0 0 0 0 0 0 1 0 0 1Unnamed agency 1 0 0 0 1 0 0 0 0 0 0 0 0 2Upper Lachlan Shire Council 0 0 0 0 1 0 0 0 0 0 0 0 0 1Uralla Shire Council 1 0 0 0 0 0 0 0 0 0 0 0 0 1Wagga Wagga City Council 0 0 0 0 1 0 0 0 0 0 0 0 0 1Willoughby City Council 0 0 0 0 1 0 0 0 0 0 0 0 0 1WorkCover Authority 0 0 0 0 1 0 0 0 0 0 0 0 0 1Total 33 1 13 0 73 4 6 0 0 3 2 0 1 136DescriptionABCDEFGHIJKLMDecline after assessment only, including:Conduct outside jurisdiction, trivial, remote, insufficient interest, commercial matter, right of appeal or redress, substantiveexplanation or advice provided, premature – referred to agency, concurrent representation, investigation declined onresource/priority groundsPreliminary or informal investigation:Substantive advice, information provided without formal finding of wrong conductAdvice/explanation provided where no or insufficient evidence of wrong conductFurther investigation declined on grounds of resource/priorityResolved to Ombudsman’s satisfactionResolved by agency prior to our interventionSuggestions/comment madeConsolidated into other complaintConciliated/mediatedFormal investigation:Resolved during investigationInvestigation discontinuedNo adverse findingAdverse findingAppendices156NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Appendix KReport on police use of emergency powers to prevent or controlpublic disorderThis report is provided in accordance with section 87O(5)of the Law Enforcement (Powers and Responsibilities) Act2002 (LEPRA). Under LEPRA, the Ombudsman must reportannually about the work we do to keep under scrutiny theexercise of powers conferred on police officers to preventor control public disorder. This report includes informationabout the:NSWPF’s use of the emergency powers in 2009–2010.››Implementation of recommendations from our 2007Report.››Implementation of recommendations from the New SouthWales Police Force’s (NSWPF’s) own review of their useof the emergency powers in July 2008.The NSWPF was given emergency powers to deal withactual or threatened large-scale public disorder. Thiswas against the background of unprecedented publicdisorder in the southern and eastern suburbs of Sydneyin December 2005. The powers were only temporary, andthe Ombudsman was required to keep under scrutiny theuse of these powers and report to Parliament as soon aspracticable after 18 months. The emergency powers wereused on only four occasions during the period of review,with some provisions not being used at all.In December 2007 the NSW Parliament decided to continuethe powers, known as Part 6A LEPRA, and also extend theOmbudsman’s role in keeping their use under scrutiny. Part6A provides police with extraordinary powers to establish acordon or roadblock on a road or around a target area, stopand search vehicles and pedestrians, require identificationdetails of people in a target area, seize and detain items –including mobile phones and vehicles – and direct groupsto disperse. The NSWPF can also impose emergencyalcohol free zones and prohibitions on the sale or supply ofliquor.Part 6A requires the Commissioner of Police to provide theOmbudsman with a report about any uses of the powerswithin three months. The Ombudsman may also requirethe Commissioner or any public authority to provideinformation about the exercise of those powers. Under amemorandum of understanding, the NSWPF has agreedto provide this office with biannual reports that cover alluses of the Part 6A powers, details of any instances wherepowers were seriously considered but not used, and adviceabout training undertaken and amendments to policies andprocedures .Police use of the powers in 2009–2010The NSWPF did not use the emergency powers at all duringthe 2009–2010 reporting period.They seriously considered using them on one occasion, butdecided not to. Protests were held over several evenings inJune 2009 by members of Sydney’s Indian community. TheNSWPF received information indicating that there could beclashes between the different groups during the protests,and were prepared to issue an authorisation to use theemergency powers if necessary.However, as events unfolded, no issues arose that theNSWPF considered would warrant using the emergencypowers. They used other strategies to address the situationand ultimately did not seek authorisation to use theemergency powers.In relation to this considered use of the powers, AssistantCommissioner Dennis Clifford said that Part 6A was:…a very important policing tool for the holistic strategicmanagement of the situation, had it escalated. It wouldhave enabled police to quickly and adequately addressany influx of people in the area, prevent build up of groupsand escalation of the situation that would allow them toengage in a public order incident. The ability to have thesepowers available for the management of Public Orderincidents is extremely important in regards to a strategicpolicing perspective.Implementing recommendations from our 2007reportOur report on the initial Part 6A emergency powerswas completed in September 2007. We made 14recommendations in that report, eight relating to theNSWPF and six recommending legislative amendments.Of the eight recommendations relating to NSWPFprocedures, six were implemented. Most related tothe guidance needed to ensure the powers are usedappropriately, including factors to consider whendetermining whether to invoke the emergency powers,the directions given to licensees when emergencyliquor restrictions are imposed, and the need for a clearstatement of reasons to support any authorisation to usethe powers and to regularly review whether and when theauthorisation should be revoked. Police also supportedour recommendations for more consistent recording of thepowers used, and a number of training measures.The remaining two NSWPF recommendations were partlyimplemented. These related to the emergency prohibitionon sale or supply of liquor and the procedures relating toseizure of things including vehicles and mobile phones.Closing licensed premisesIn our 2007 report we considered the emergency power toauthorise the closure of any licensed premises and prohibitthe sale or supply of liquor on any licensed premises. Thispower, set out at section 87B of LEPRA, was not usedby police during the review period, and it has not beenused since. However during the review period a numberof licensed premises voluntarily closed for short periodsat the request of police. Authorisations to close licensedpremises were drafted on a number of occasions, but werenot formally issued.An authorisation or successive authorisations to closelicensed premises or prohibit the sale or supply of liquormust not exceed 48 hours. The legislation does notindicate what happens if there is a need to extend a s.87Bauthorisation beyond that period.AppendicesAppendix J | Appendix K157

AppendicesWe recommended that directions prohibiting the saleand supply of liquor should be complemented by givinglicensees an avenue to have directions reviewed after acertain period. NSWPF indicated that the requirement forthe authorising officer to regularly review the authorisationsrendered this unnecessary.However police have now included guidance in theirprocedures about what should happen if a closure orderor some other restriction needs to be extended beyond 48hours. In those circumstances, police will apply to the LocalCourt for an extension under the Liquor Act 2007.Seizing vehicles and other itemsIn our 2007 report, we noted that our analysis of NSWPFrecords relating to vehicles and other items seizedduring the operations to prevent public disorder showedsignificant variations in the use of the seizure powers. Wealso raised some concerns about the impact of the seizureof vehicles or other items essential for people’s work orother responsibilities. Seizure and detention of items suchas cars, laptops, mobiles and tools of trade could lead tounjustifiable hardship in relation to work, study or familycommitments. The legislation provides that seized itemsmay be held by the NSWPF for seven days and policemay apply to the local court for unlimited further 14 dayextensions. There is no provision in the legislation for aperson to apply to the NSWPF to have their vehicle, phoneor other essential items returned before the seven-dayperiod ends.We recommended that the NSWPF amend Part 6Aprocedures to:››provide officers with factors to consider when decidingwhether to seize and detain a vehicle››require officers to record in the Computerised OperationalPolicing System (COPS) the reasons for the seizure anddetention of any items››provide for an avenue for review of any decision by policeto seize and detain items››facilitate the prompt return of items seized if the largescale public disorder is no longer occurring or threatened.These recommendations – apart from the third oneabout an avenue for review – were supported in the NSWGovernment response to our 2007 report. However, notall of the remaining parts have been implemented by theNSWPF. They have included provisions in their proceduresrequiring reasons for decisions to seize items to berecorded in COPS, but the other recommendations havenot been adopted. The NSWPF consider that sufficientguidance is already provided to officers to inform theirdecision to seize and detain items. They have set a timeframeof seven days for the return of seized items andbelieve this period provided by the legislation is shortenough to make a review unnecessary. We still believe thatproviding police officers with clear guidance on the kindsof factors that might support a decision to seize a vehicleor other item is warranted, and may ensure that there isa strong link between the decision to seize and the likelythreat of public disorder. In the absence of an internal reviewprocess, members of the community will have to dependon the complaints system to deal with any grievances aboutunreasonable seizure or unreasonable delay in returningtheir possessions.Recommendations for amending legislationThree of our recommendations for legislative amendmentswere not accepted or deemed unnecessary. Theserecommendations related to:››Including legislative safeguards in Part 6A to provide anassurance of the right to peaceful assembly.›› Amendments to ensure that police officers cannot refuseresidents or those who work in a target area permission toenter, unless it is reasonably necessary to do so to avoidrisk to public safety or the person’s own safety.››Requiring police to apply an appropriate ‘reasonablesuspicion’ test in relation to searches of people under thePart 6A powers.Although safeguards relating to the right to peacefulassembly have not been included in the legislation, theNSWPF have included some information in their proceduresabout the right to protest and outlined the legislativeprovisions relating to public assemblies and unlawfulassemblies.As to when police might refuse residents or workerspermission to enter a target area, the government decidedit was sufficient to amend the procedural guidelines forofficers making these decisions. In relation to whether areasonable suspicion test should apply, the governmentreasoned that changes intended to strengthen the decisionmakingprocesses about when emergency powers couldbe authorised should be enough to safeguard the interestsof individuals caught up in such emergencies.Implementing recommendations from theNSWPF’s own review of their use of emergencypowers in July 2008Last year we reported about the NSWPF’s use of thePart 6A powers to prevent an anticipated threat of largescalepublic disorder that they believed would occur atan environmental protest in Newcastle. After the incident,the NSWPF reviewed the exercise of the powers andrecommended that:››police officers should be given maps of the authorisedtarget areas››incidents relating to the use of Part 6A powers andgeneral operational information should be recorded onCOPS as soon as possible››records should be more stringently checked.We supported these recommendations.Police guidelines for using the Part 6A powers nowrecommend the target area should be marked on a mapor plan that can be annexed to any authorisation for use ofthe powers and distributed to police. The guidelines alsoremind police that details relating to the use of Part 6Apowers need to be recorded and verified in COPS wherepossible. However, police have advised us there may beoccasions where it would be ‘impossible to record detailsof every member of a large crowd of persons who are beingmoved out of an area or refused entry into an area, as thiswould delay the specific intention of moving the personsfrom the area’.Our 2007 report recognised that it may well be impractical,inappropriate or unnecessary for police to obtain the detailsof all persons subject to the emergency powers. For thatreason, we recommended that less formal records (egnotes on running sheets or police notebook entries) beconsidered in certain situations, particularly when membersof the public comply with police directions. This office willcontinue to monitor the way police record information aboutthe exercise of the emergency powers in order to ensureit is reasonable and appropriately documented in thecircumstances.158NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Appendix LCommitteesSignificant committeesOur staff members are members of the following inter-organisational committees:Staff memberOmbudsman››Bruce BarbourDeputy Ombudsman (Public Administration andStrategic Projects Branch)››Chris WheelerDeputy Ombudsman and Community and DisabilityServices Commissioner (Human Services Branch)››Steve KinmondDeputy Ombudsman (Police and Compliance Branch)››Greg AndrewsPrincipal Investigation Officer››Sue PhelanDirector, Strategic Projects Division››Julianna DemetriusManager, Aboriginal Unit››Laurel RussDivision Manager (Public Administration Division)››Anne RadfordInquiries and Resolution Team Manager››Vince BlatchSenior Investigation Officer››Maxwell BrittonDivision Manager (Strategic Projects Division)››Brendan DelahuntyCommittee nameDirector on the Board of the International Ombudsman Institute (part year),Regional Vice President for the Australasian and Pacific OmbudsmanRegional Group (part year), Board Member of Pacific OmbudsmanAlliance, Institute of Criminology Advisory Committee, ReviewableDisability Deaths Advisory Committee, and Reviewable Child DeathsAdvisory CommitteeProtected Disclosures Act Implementation Steering CommitteePolice Aboriginal Strategic Advisory Committee (PASAC), ReviewableDisability Deaths Advisory Committee, Reviewable Child Deaths AdvisoryCommitteeInternational Network for the Independent Oversight of Police, EarlyIntervention System Steering CommitteeChild Protection and Sex Crimes Squad Advisory CouncilPASAC, NSW Police Force Domestic Violence Steering CommitteePASACComplaint Handler’s Information Sharing and Liaison GroupComplaint Handler’s Information Sharing and Liaison GroupCorruption Prevention NetworkNetwork of Government Agencies: Gay, Lesbian, Bisexual andTransgender Issues, PASACReviewable Disability Deaths Advisory CommitteeMr Bruce BarbourMr Steve KinmondMs Margaret BailDr Helen BeangeMs Linda Goddard CourseAssociate Professor Alvin IngDr Cheryl McIntyreDr Ted O’LoughlinAssociate Professor Ernest SomervilleMs Anne SlaterAssociate Professor Julian TrollerDr Rosemary SheehyOmbudsman (Chair)Deputy Ombudsman/Community and Disability Services CommissionerHuman Services ConsultantClinical Professor, Faculty of Medicine, University of SydneyCoordinator, Bachelor of Nursing, Charles Sturt UniversitySenior Staff Specialist, Respiratory Medicine, Bankstown-Lidcombe Hospital andSenior Visiting Respiratory Physician, Concord HospitalGeneral practitioner (Inverell)Paediatric Gastroenterologist, The Children’s Hospital, WestmeadPrince of Wales Clinical School, NeurologyPhysiotherapist, Allowah Children’s HospitalChair, Intellectual Disability Mental Health, School of Psychiatry, University of NewSouth WalesGeriatrician/Endocrinologist, Central Sydney Area Health ServiceAppendicesAppendix K | Appendix L159

Reviewable Child Deaths Advisory CommitteeMr Bruce BarbourMr Steve KinmondDr Judy CashmoreDr Ian CameronDr Michael FairleyDr Jonathan GillisDr Bronwyn GouldMs Pam GreerDr Ferry GrunseitAssociate Professor Jude IrwinMs Toni SingleMs Tracy SheedyOmbudsman (Chair)Deputy Ombudsman/Community and Disability Services CommissionerAssociate Professor, Faculty of Law, University of Sydney; Honorary ResearchAssociate, Social Policy Research Centre, University of New South Wales; AdjunctProfessor, Arts, Southern Cross UniversityCEO, NSW Rural Doctors NetworkConsultant Psychiatrist, Department of Child and Adolescent Mental Health at Prince ofWales Hospital and Sydney Children’s HospitalState Medical Director, NSW Organ and Tissue Donation Service, former Senior StaffSpecialist in Intensive Care, Children’s Hospital at WestmeadChild protection consultant and medical practitionerCommunity worker, trainer and consultantConsultant paediatrician, former Chair of the NSW Child Protection Council and NSWChild AdvocateResigned September 2009Associate Professor, Faculty of Education and Social Work, University of SydneyClinical Psychologist, former Senior Clinical Psychologist, Child Protection Team,John Hunter Hospital, NewcastleManager, Children’s Court of NSWAppendices160NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Appendix MCompliance annual reporting requirementsUnder the Annual Reports (Departments) Act 1985, the Annual Reports (Departments) Regulation 2010 and various Treasurycirculars, our office is required to include in this report information on the following topics:TopicAccessComment/locationBack coverAims and objectives Pages 14–15CharterConsultantsConsumer response Pages 8–9Controlled entitiesCopy of any amendments madeto the code of conductCredit card certificationDepartures from SubordinateLegislation Act 1989Disability plansInside front cover and Appendix MWe used no consultants this yearWe have no controlled entitiesCode of conduct was reviewed and there were no substantial changes made andis available on our website at www.ombo.nsw.gov.auThe Ombudsman certifies that credit card use in the office has met best practiceguidelines in accordance with Premier’s memoranda and Treasury directions.This year we did not depart from the requirements of the SubordinateLegislation Act.Appendix QEconomic or other factors Pages 10–11 and 114–116Electronic service deliveryEnergy managementWe have an electronic service delivery program to meet the government’scommitment that all appropriate government services be available electronically.We provide an online complaints form, an online publications order form and arange of information brochures on our website.Page 11 and Appendix PEqual Employment Opportunity Pages 19–21Ethnic affairs priorities statement andany agreement with the CRCEvaluation of programs worth at least10% of expenses and the resultsAppendix QExecutive positions Page 18Financial statements and identification Pages 116–136Funds granted to non-governmentcommunity organisationsGuarantee of serviceWe reviewed our work processes and how we capture and report on data acrossall our programs.We did not grant any funds of this sortInside front coverHuman resources Pages 17–18Is the report available in non-printed formats?Is the report available on the internet?Legal changeLetter of submissionMajor works in progressManagement and activitiesManagement and structure: namesof principal officers, appropriatequalifications; organisational chartindicating functional responsibilitiesMust distinguish between complaints madedirectly to our office and those referred to usNSW Government Action Plan for WomenYesYes, at www.ombo.nsw.gov.auThis appendixInside front coverThere were no such worksThis report details our activities during the reporting period. Specific commentscan be found on pages 4–13 and 24–44.Pages 4–5There were six complaints referred to us from other agencies.Appendix QOccupational health and safety Page 21AppendicesAppendix L | Appendix M161

TopicParticulars of any matter arising since 1July 2009 that could have a significanteffect on our operations or a sectionof the community we serveParticulars of extensions of timeComment/locationNot applicablePayment of accounts Page 115Privacy management planNo extension applied forPromotion – overseas visits Pages 31–32Research and developmentWe have a privacy management plan as required by s.33(3) of the Privacy andPersonal Information Protection Act 1988. This also covers our obligations underthe Health Records and Information Privacy Act 2002. We had one request for aninternal review under part 5 of the Act this year, which was received in June 2010,and at the time of writing was not yet finalised.Pages 83–84, 114 and Appendix BRisk management and insurance activities Pages 12–13 and 21Statistical and other informationabout our compliance with theFreedom of Information ActAppendix OSummary review of operations Inside front cover and page 6Time for payment of accounts Page 116Total external costs incurred inthe production of the reportUnaudited financial informationto be distinguished by noteWaste$28,289 (including $14,595 to print 800 copies)Not applicableAppendix PAppendicesAppendix NLegislation and legal mattersLegislation relating to Ombudsman functionsOmbudsman Act 1974››Community Services (Complaints, Reviews andMonitoring) Act 1993Police Act 1990Freedom of Information Act 1989Government (Information Commissioner) Act 2009Government Information (Public Access) Act 2009Protected Disclosures Act 1994Witness Protection Act 1995Child Protection (Offenders Registration) Act 2000››Children and Young Persons (Care and Protection)Act 1998 enabling legislation for NSW universities asamended by the Universities Legislation Amendment(Financial and Other Powers) Act 2001Law Enforcement (Controlled Operations) Act 1997››Telecommunications (Interception and Access) (NewSouth Wales) Act 1987Surveillance Devices Act 2007Law Enforcement (Powers and Responsibilities) Act 2002Terrorism (Police Powers) Act 2002Criminal Procedure Act 1986››Crimes (Criminal Organisations Control) Act 2009Legal Changes››Public Sector Restructure (Miscellaneous ActsAmendments) Act 2009This Act amends the Ombudsman Act 1974 as aconsequence of departmental amalgamations underthe Public Sector Employment and Management(Departmental Amalgamations) Order 2009. In particular,the amendments enable the Ombudsman to determine,where more than one Minister is responsible for aDepartment, which Minister is the responsible Minister forthe purposes of consultation under the provisions of theOmbudsman Act. The amendments also enable parts ofa Department, rather than the entire Department, to beprescribed as a designated government agency for thepurposes of complying with child protection requirementsunder Part 3A of the Ombudsman Act. The amendmentswill commence on proclamation.››Independent Commission Against Corruption andOmbudsman Legislation Amendment Act 2009This Act amended the Community Services (Complaints,Reviews and Monitoring) Act 1993 to provide theNSW Ombudsman with the function of auditing theimplementation of the New South Wales InteragencyPlan to Tackle Child Sexual Assault in AboriginalCommunities 2006–2011. The Act inserted a new Part 6Ainto the Community Services (Complaints, Reviews andMonitoring) Act 1993 and gives the Ombudsman statutoryauthority to review the implementation of the InteragencyPlan by all responsible NSW public authorities, toidentify areas in which those public authorities need totake further action and make related recommendationsfor the more efficient and effective implementation ofthe Interagency Plan. The Act provides that the NSWOmbudsman must report on the audit by 31 December2012 to the Minister for Aboriginal Affairs, at which timethe NSW Ombudsman’s audit function will cease.162NSW Ombudsman Annual Report | 2009–201035 years of making a difference

››Children Legislation Amendment(Wood Inquiry Recommendation)Act 2009This amending Act gives effectto the recommendations of theSpecial Commission of Inquiry intoChild Protection Services in NSW(the Wood Inquiry). The amendmentto the NSW Ombudsman’speriodic reporting requirementunder Part 6 of the CommunityServices (Complaints, Reviews andMonitoring) Act 1993 commencedon 1 July 2009; the amendmentintroducing Chapter 16A to theChildren and Young Persons(Care and Protection) Act 1998,which provides for the exchangeof information and coordinationof services between prescribedbodies, which includes the NSWOmbudsman in the exercise ofcertain functions, commenced on30 October 2009; the amendmentintroducing s.8A to the CommunityServices (Complaints, Reviews andMonitoring) Act, which authorisesan official community visitor toprovide certain information to theChildren’s Guardian, commencedon 24 January 2010; theamendments providing for the NSWOmbudsman to convene the ChildDeath Review Team establishedunder the Commission for Childrenand Young People Act 1998 andtake responsibility for the team’ssecretariat and research functions,have not to date commenced.LitigationThis reporting year the Ombudsmanhas been a party to the following legalaction:››Rae v NSW Ombudsman –Administrative Decisions Tribunal(Equal Opportunity Division)– successful application byNSW Ombudsman for summarydismissal of complaint unders.102 of the Anti-Discrimination Act1977 as misconceived, withoutsubstance and bound to fail.External legal advice soughtMr A Robertson SC with Ms K Stern– advice regarding the scope of theobligation on the Commissioner ofPolice under s.151 of the Police Act1990.Appendix OFreedom of Information reportThe following information is provided in accordance with the Freedom ofInformation Act 1989 (FOI Act), the Freedom of Information Regulation 2005 andthe NSW Ombudsman’s FOI Manual. Due to the small number of FOI applicationsreceived no tables are provided this year.We received and processed two FOI applications during 2009–2010.Both applications requested only information related to the complaint-handlingfunctions of this office. They were both refused on the basis that this office isexempt from the operation of the FOI by virtue of Schedule 2 and section 9 of theFOI Act in relation to applications seeking access to documents that relate to ourcomplaint-handling, investigative and reporting functions.We received $30 as an application fee, which was refunded. The other applicationdid not include an application fee because the applicant believed the request wasexempt from the fee by virtue of section 43(2) of the Commission for Children andYoung People Act 1998.Both applications were determined within the statutory timeframe of 21 days. Bothapplications were processed within 10 hours.Appendix PEnvironmental programFor an overview of our environmental program, see page 11.Energy managementOur energy management strategies focus on improving our motor vehicle fleetperformance and reducing our electricity consumption.Fleet managementAlthough we only have a small fleet of three cars, there are a number of strategieswe use to improve our environmental performance. These include:reducing our petrol consumption (see performance indicator below)purchasing fuel efficient vehicles››exceeding the government fleet performance score – calculated by a tool fromthe Department of Environment and Climate Change.Electricity consumptionAlthough we have implemented various strategies to reduce our energy use, wehad a significant increase in consumption during 2009–2010 (see performanceindicator below). This increase in consumption was attributed to a supplementaryair conditioning unit which was used more frequently due to increased trainingcourses held in our in-house training room. We are investigating ways to reducethis consumption with various energy saving initiatives.Performance indicatorsPetrol consumption 05/06 06/07 07/08 08/09 09/10Petrol (l) 5,159 4,787 4,145 3,250 2,835Total (GJ) 176 162 142 111 96.96Distance travelled (km) 51,602 35,086 32,963 38,064 33,818Electricity consumption 05/06 06/07 07/08 08/09 09/10Electricity (kWh) 355,301 311,713 348,358 302,172 367,273Kilowatts converted to gigajoules 1,279 1,222 1,254 1,088 1,322Occupancy (people) 187 191 187 193 197Area (m 2 ) 3,133 3,133 3,133 3,133 3,133AppendicesAppendix M | Appendix N | Appendix O | Appendix P163

Waste reduction and purchasing programOur office has a range of strategies to reduce waste, increase recycling, and use more recycled content products.Reducing the generation of wasteWe are continually looking at ways to improve our waste management practices. We promote email as the preferred internalcommunication tool and encourage staff to print double-sided. We have an electronic record management system thatallows staff to access information such as policies, procedures and internal forms – reducing the need for paper copies. Ourpublications are available to download from our website, so we print smaller quantities than in the past.Resource recoveryWe have individual paper recycling bins at workstations and larger 240 litre bins throughout the office for secure paperdestruction. All office wastepaper, cardboard, glass, plastic and aluminium is collected for recycling. We are also a memberof Planet Ark Close the Loop resource recovery program.Using recycled materialWe use Australian 80% recycled paper containing waste fibre diverted from Australian landfills and 20% new fibre fromsustainably managed forests. Our stationery and publications are printed on either recycled, acid free or chlorine free paperwith vegetable inks. We only use printers that have a certified environmental management plan (ISO 14001). Where possibleand cost effective, we use Forest Stewardship Council (FSC) certified stock. The FSC is one of the few independent bodiescapable of accurately determining fibre origin by tracking it from forest to printer (see inside back cover for more information).Appendix QAccess and equity programsDisability action plan (DAP)Outcomes Strategies Progress reportIdentify and remove barriersto services for people withdisabilitiesIdentify barriers to services for peoplewith disabilities including physical,infrastructural, procedural and socialbarriers.Incorporate disability access issuesin the planning process to reflect theneeds of people with disabilities.Review our complaint-handlingpractices to remove barriers for peoplewith disabilities.Improve data and data collection inrelation to disability issues.Our DAP advisory committee participated in a focusgroup to identify barriers. We engaged a certifiedbuilding inspector to assess our tenancy for complianceto accessibility standards. We considered barriers thatmay exist in our general information and in accessing ourwebsite. Strategies to rectify/eliminate any barrier havebeen incorporated into our DAP.We established a disability action plan advisory committeemade up of representatives from all business areas.We ensured that strategies to address issues relating topeople with disabilities are linked to our corporate plan andrelevant business plans.We provided senior management with quarterly report onthe implementation of our DAP.We have started a review of our complaint-handlingpractices to identify any gaps in service provision forpeople with disabilities. We will promote the use of oralcomplaints where appropriate.The needs of people with disabilities have been raised withour office stakeholder engagement working party, and theyare currently developing an action plan for stakeholderengagement.AppendicesImprove disability awareness amongall staff.Disability awareness training forms part of compulsorytraining for all staff.We continued to support the Don’t Dis My Ability campaignand used the opportunity to raise awareness of disabilityissues and celebrate the achievements by people withdisabilities.We are developing an intranet page on issues relatingto people with disabilities where staff can find a range ofresources.164NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Outcomes Strategies Progress reportProvide information in arange of formats that areaccessible to people withdisabilitiesMake government buildingsand facilities physicallyaccessible to people withdisabilitiesAssist people withdisabilities to participate inpublic consultations andto apply for and participatein government advisoryboards and committeesIncrease employmentparticipation of peoplewith disabilities in the NSWpublic sectorImprove the accessibility of keyinformation about our services.Improve the overall usability andaccessibility of our website.Identify physical and infrastructuralbarriers to access for people withdisabilities.Develop and implement animprovement plan to reduce thebarriers identified.Incorporate consultation with peoplewith disabilities into the office widestakeholder engagement strategies.Encourage people with disabilities totake part in our consultative process.Ensure that our venues for publicconsultations are accessible to peoplewith disabilities.Ensure our recruitment practices forall positions are accessible and nondiscriminatory.Promote employment opportunities topeople with disabilities.Take all reasonable steps to increaseemployment participation for peoplewith disabilities.We have started a review of our accessible information(currently in large print, Braille, audio and accessible CDformats). We consulted with Vision Australia on effectiveways to provide key information to people with disabilities.We ensure that our website meets the minimumaccessibility standards set out in the Web ContentAccessibility Guidelines.We have developed an action plan to re-develop ourwebsite to improve its overall usability and accessibility.We had an office access audit conducted by professionalsagainst the Building Code of Australia and AustralianStandard.We upgraded the disabled toilet and reception area publicaccess door to improve accessibility by people withdisabilities.We are currently reviewing the office access audit reportand developing an improvement plan with a priority list.We regularly consult peak disability organisations throughour work in the community services area.In partnership with the Disability Council of NSW, we helda forum attended by close to 300 people including peoplewith disabilities, families, advocates and workers to discussthe provision of options and services for people withdisabilities leaving institutional care.We started consultations with families of children withdisabilities who live at home about the adequacy andsupport they receive. So far, we have consulted with morethan 300 people.We developed an outreach venue checklist and anaccessible venue register to assist staff in booking venuesfor outreach activities.We have started a review of our recruitment process toensure that our advertisements reach the widest number ofapplicants as possible.We have updated our job pack which includes informationfor applicants with disabilities.We have joined the Australian Employers Network onDisabilities and received training on issues relating to therecruitment of people with disabilities.We are committed to making reasonable adjustments onrequest.We have commenced a review of our ReasonableAdjustment Policy and are developing guidelines on theissue.AppendicesAppendix P | Appendix Q165

Multicultural action plan (MAP)Key Priority Area Planned outcome Strategies Progress reportPlanning andevaluationIntegrate multiculturalpolicy goals into ourcorporate and businessplanning and reviewmechanisms.Develop a Multicultural actionplan (MAP) which includesperformance measures, strategiesto assess progress and indicatorsfor improved performance.We developed an initial MAP with performancemeasures and assigned responsibilities,which was endorsed by the Ombudsman. Weare currently finalising this plan to include amonitoring and reporting mechanism.Ensure that strategies to addressissues relating to culturally andlinguistically diverse (CALD)people are reflected in or linkedto our corporate plan and relevantbusiness plans.Through the MAP advisory committee andsenior officers meetings we ensure that our MAPstrategies are reflected in our office planningprocess.Gather and analyse informationabout issues affecting CALDpeople and inform businessplanning processes.We are developing a stakeholder engagementstrategy that will provide the framework thatguides the way we consult and interact with thecommunity, including CALD people.Policy developmentand service deliveryis informed by ourexpertise, clientfeedback andcomplaints, andparticipation onadvisory boards,significant committeesand consultations.Establish a cross-office MAPadvisory committee to ensure thatall business areas participate inthe multicultural planning process.Ensure that the needs of CALDpeople are reflected in ourstakeholder engagement strategy.Consult regularly with keymulticultural groups to identifygaps in our awareness strategiesand service delivery and ensurethat issues identified are reflectedin our planning process.We have set up an advisory committee withrepresentatives from all business areas whichwill provide advice and guidance for developingand implementing our MAP.The needs of CALD people have been raisedwith our office stakeholder engagement workingparty, and they are currently developing anaction plan for stakeholder engagement.We regularly contacted key multicultural groups,including migrant resource centres and migrantworkers networks.Take all reasonable steps toencourage CALD people toparticipate in relevant committees,roundtable discussions and publicforums.We continued to consult with key CALDorganisations such as the Multicultural DisabilityAdvocacy Association on a range of issuesrelevant to CALD people.We held an inaugural Domestic ViolenceCommunity Stakeholders Forum to providestakeholders, including CALD representatives,with an opportunity to speak directly to us abouttheir views on the handling of domestic violencecomplaints by the NSW Police Force and otherlead government agencies.Capacity buildingand resourcingSenior managementactively promote andare accountable forthe implementationof the Principles ofMulticulturalism withinthe office and widercommunityMulticultural action plan (MAP)endorsed and promoted to staff byOmbudsman.Ensure that our MAP assignsclear responsibilities to key staffand division management forits implementation and reviewtheir performance agreements toensure accountabilities againstthe principles of multiculturalismclearly assigned.Our MAP was approved as office policy by theOmbudsman and made available to all staff.We appointed a lead officer for MAPdevelopment and implementation.Our MAP assigns clear responsibilities to allrelevant staff.When next reviewed, performance agreementsof key staff and where relevant, positiondescriptions will be amended by June 2011.Appendices166NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Key Priority Area Planned outcome Strategies Progress reportCapacity buildingand resourcingcont’dOur capacity isenhanced by theemployment andtraining of people withlinguistic and culturalexpertise.Review the linguistic andintercultural work skills neededby frontline staff and implementrecommendations to ensurethat business requirements areserviced by appropriate humanresources.Use the Community LanguageAllowance Scheme (CLAS),monitor its implementation, anddevelop a register of staff whohave bilingual skills and culturaland community knowledge toassist in our communications withclients.We will conduct a needs analysis to identify anygaps in the skills needed by frontline staff byDecember 2010, and develop and present animprovement plan to management.We aim to ensure that our frontline staff have anappropriate level of linguistic and interculturalskills to provide good service to CALD clients.We have actively promoted the CLAS within theoffice.We currently have three staff membersreceiving CLAS and they cover four communitylanguages.Develop and deliver cross culturalcompetence training sessions aspart of our compulsory internal skillbased training program.In consultation with the Hills Holroyd ParramattaMigrant Resource Centre, we are developinga series of cultural awareness sessions forour staff. The first session on the small andemerging refugee communities was very wellreceived by those attending.Program andservicesIdentify barriers toaccess to our servicesfor CALD communities,and develop programsand services to addressissues identified.Ensure that the needs ofCALD people are identifiedand addressed in our officestakeholder engagementstrategies.Review our guidelines on the useof interpreters and translators andprovide training to all staff.Ensure that our budget forinterpreter services and interpreteruse is monitored and reviewed.The needs of CALD people have been raisedwith our office stakeholder engagement workingparty which is currently developing an actionplan for ongoing stakeholder engagement.All our frontline staff are trained in the use ofinterpreters and translators.We have allocated funds for providinginterpreting and translation services, and havea register of services to inform our decisionmakingin developing community languageinformation.Use a range ofcommunication formatsand channels to informthe CALD communityabout our programs,services and activities.Review our information incommunity languages anddevelop accessible andappropriate information material ina range of formats (written, audio,online etc) to meet the specificneeds of CALD communitiesfollowing consultation with keycommunity organisations.Explore and recommend whereappropriate the use of a rangeof technology in targetedcommunity languages to facilitatecommunication with CALD peopleand improve access to ourservices.We have started a review of our currentcommunity language information.We are consulting with key migrant services onthe development of accessible and appropriateinformation material for CALD communities.The information needs of CALD communitieshave been raised as part of our website review,which will be completed by December 2010.We are planning to conduct research onthe appropriate use of technologies incommunicating with CALD communities by June2011.Develop initiatives to raiseawareness of, and celebrate thecontribution of, CALD people.We participated in various multicultural eventssuch as the Bankstown Lunar New Year Festival,Holroyd City Carnival, 2010 Youth HarmonyFestival, City of Ryde Community InformationExpo and the Werrington Festival.We also distributed information about our officein community languages (Vietnamese, Chinese,Indonesian, Nepali and Arabic) at the NationalMigrant Women Workers Forum.We participated in a community legal educationvideo project that targeted African communitiesin the Fairfield local government area.AppendicesAppendix Q167

Action plan for womenObjective Outcomes for 2009–2010Reduce violenceagainst womenPromote safe andequitable workplacesthat are responsive to allaspects of women’s livesMaximise theinterests of womenWe provided feedback to the NSW Police Force (NSWPF) on a draft version of their Domesticand Family Violence Code of Practice. We also accepted an invitation from the NSWPF to sit on acommittee convened to consider a proposal to introduce ‘on-the-spot’ AVOs.We hosted an inaugural Domestic Violence Stakeholders Forum in December 2009 attended by 60community workers. We also met with the Domestic Violence Coalition, Women’s Health NSW and theWomen’s Domestic Violence Court Advocacy Scheme to discuss a range of issues.We partnered with the Women’s Legal Service (WLS) to provide domestic violence advocacy trainingto workers in the community, health and legal sectors as part of Reaching out for Rights project.We promote flexible working conditions such as flexible working hours, part-time, job share, workingat home arrangements and leave for family responsibilities to help women to pursue their career whilecaring for their families.We reviewed and updated our ‘Good Working Relationships’ policy that sets out procedures for dealingwith workplace harassment and grievances.We distributed information about the role of the office and the complaint system to women at variousevents. In partnership with the Energy & Water Ombudsman, we held a stall at the InternationalWomen’s Day celebration at Martin Place and provided face to face advice to many women attendingthe function. We also included information about our office in community languages (Vietnamese,Chinese, Indonesian, Nepali and Arabic) in the information pack that was distributed at the NationalMigrant Women Workers Forum.Improve the access ofwomen to educationaland training opportunitiesWe implement government policies on EEO and select and promote staff on merit. We provide our staffwith equal educational and training opportunities to further their careers.Promote the positionof womenAs at 30 June 2010, we had 22 staff at the Grade 11/12 level or above including our SES officers.Of the 22, 12 or 54.5% were women.In addition to the Ombudsman we have three SES officers. None of our SES officers are women.Appendices168NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Appendix RPublications listWe produce a range of publications including general information for the public, guidelines for agencies and organisationswe oversight, discussion papers seeking information from the public, final reports at the conclusion of legislative reviews,annual reports outlining the work we have done during the financial year and special reports to Parliament about publicinterest issues.The following publications were issued during 2009–2010 and are available online (Acrobat PDF format) atwww.ombo.nsw.gov.au.Special reports to ParliamentThe need to better support children and young people in statutory care who have been victims of crimeRemoving nine words – Legal professional privilege and the NSW OmbudsmanThe death of Dean Shillingsworth: Critical challenges in the context of reforms to the child protection systemThe death of Ebony: The need for an effective interagency response to children at risk››The implementation of the Joint Guarantee of Service for People with Mental Health Problems and Disorders Living inAboriginal, Community and Public HousingAnnual reportsNSW Ombudsman Annual Report 2008–2009Law Enforcement (Controlled Operations) Act 1987 Annual Report 2008–2009››Official Community Visitors Annual Report 2008–2009Reports and submissionsReview of the impact of Criminal Infringement Notices on Aboriginal communities››Review by the Ombudsman of the planning and support provided by Community Services to a group of young peopleleaving statutory care››Submission to the Inquiry into the high level of involvement of Indigenous juveniles and young adults in the criminal justicesystemReport under Section 49(1) of the Surveillance Devices Act 2007 for the six months ending December 2009››Report under Section 49(1) of the Surveillance Devices Act 2007 for the six months ending June 2009Fact sheets and guidelinesChild protection fact sheet – Practice Update 1/2010: Making a findingThinking of blowing the whistle? (Agencies) (updated)Thinking of blowing the whistle? (Council) (updated)Protected disclosures fact sheet: Am I dealing with a protected disclosure? (updated)››The Rights Stuff – Tips for making complaints and solving problems (audio version)BrochuresTraining choicesComplaint-handling kit for community services (CS-CRAMA)››Have you got a problem with a NSW government agency? (poster)NewslettersOmboInfo Volume 3 Issue 1 (electronic only)››OmboInfo Volume 2 Issue 2 (electronic only)AppendicesAppendix Q | Appendix R169

GlossaryAcronymExplanationAcronymExplanationAATAdministrative Appeals TribunalJCCJoint Consultative CommitteeAbSecACSACSATACWPADHCADTAFPAHOAISAPFASDADVOCALDCCERCCTVCCYPCHDCINsCRCCS-CRAMACTTTCWUDAPDPCAboriginal Child, Family and Community CareState SecretariatAboriginal Consultation StrategyAboriginal Child Sexual Assault TaskforceAboriginal Community Working PartyAgeing, Disability and Home CareAdministrative Decisions TribunalAustralian Federal PoliceAboriginal Housing OfficeAssociation of Independent SchoolsAboriginal Policy FrameworkAboriginal Strategic DirectionApprehended domestic violence orderCulturally and linguistically diverseCatholic Commission for Employment RelationsClosed-circuit televisionCommission for Children and Young PeopleCommunity Housing DivisionCriminal infringement noticesCommunity Relations CommissionCommunity Services (Complaints, Reviews andMonitoring) Act 1993Consumer, Trader and Tenancy TribunalChild wellbeing unitsDisability Action PlanDepartment of Premier and CabinetDSA Disability Services Act 1993DVLODETEEOETUEWONFOIGIPA ActHACCICACICVDomestic violence liaison officerDepartment of Education and TrainingEqual employment opportunityEducation and Training UnitsEnergy & Water Ombudsman (NSW)Freedom of informationGovernment Information (Public Access) Act2009Home and community careIndependent Commission Against CorruptionIn-car videoJGOSJIRTLEPRAJoint Guarantee of Service for people withmental health problems and disorders living inAboriginal, community and public housingJoint Investigation Response TeamLaw Enforcement (Powers and Responsibilities)Act 2002LG Act Local Government Act 1993LWBMAPMSPCNSWALCNSWPFNSWTGOCVsOFTOH&SOOHCOPCOSRPADPPASACLife Without BarriersMulticultural action planMetropolitan Special Programs CentreNSW Aboriginal Land CouncilNSW Police ForceNSW Trustee and GuardianOfficial community visitorsOffice of Fair TradingOccupational health and safetyOut-of-home careOffice of the Protective CommissionerOffice of State RevenueProgram of appliances for disabled peoplePolice Aboriginal Strategic Advisory CommitteePD Act Protected Disclosures Act 1994PICPJCPOAPPIP ActPSAPSCRTASAAPSDROSORCPolice Integrity CommissionParliamentary Joint Committee on the Officeof the Ombudsman and the Police IntegrityCommissionPacific Ombudsman AlliancePrivacy and Personal Information Protection Act1998Public Service AssociationProfessional Standards CommandRoads and Traffic AuthoritySupported accommodation assistanceprogramState Debt Recovery OfficeSerious Offenders Review CouncilYACS Act Youth and Community Services Act 1973YLOWWCCYouth liaison officerWorking With Children CheckAppendices170NSW Ombudsman Annual Report | 2009–201035 years of making a difference

IndexAAboriginal Affairs NSW, 29, 33, 36-7, 39,40Aboriginal Child Placement Principle, 35Aboriginal communitieschild protection, 32-5, 52community engagement, 39, 40criminal infringement notices, 84detainees and inmates, 38-9out-of-home care, 35-6, 58people with disabilities, 36Aboriginal Consultation Strategy, 36, 39,40, 68Aboriginal cultural appreciation training,31, 37, 40, 42Aboriginal housing, 33, 36Aboriginal land councils, 33, 36Aboriginal Legal Service, 28, 38Aboriginal policy, 20, 36, 39, 40, 68Aboriginal Unit, 4, 26, 31-34, 39, 40, 42,44, 53AbSec, 35-6, 39, 40Access and equity, 12, 19-20, 164-8Accountability of agencies, 6Action plan for women, 168Administrative Appeals Tribunal, 85Administrative Decisions Tribunal, 36Ageing, Disability and Home Care, 4, 16,29, 36, 40, 62-70Annual reports, 12, 43, 85, 86, 161, 169compliance requirements, 161-2Anti-Discrimination Board, 12, 26, 40Area health services, 57, 67The art of negotiation, 41Asbestos, 92Attorney-General. see Department ofJustice and Attorney-GeneralAudit and Risk Committee, 10, 12-3, 113,114Auditor-General, 12, 61, 116Audits, 2, 10-1, 13, 15-7, 27-8, 33, 39, 49,57-8, 80-1AusAID, 58Australian Crime Commission, 6, 31, 39,85Australian Customs and BorderProtection Service, 85Australian Federal Police, 85authorities, complaints, 147-9BBail Assistance Line service, 52-3Banking Ombudsman, 26, 40, 90boarding houses, licensed, 68-9boarding schools, 57Bourke and Brewarrina AboriginalCommunity Working Party, 34-5Brighter Futures, 33-4CChild and family services, 50, 142Child care sector, 50, 60-1Child Death Review Team, 2, 31, 51, 163Child protection, 46-9. see employmentrelatedchild protection; SpecialCommission of Inquiry into ChildProtection ServicesChildren and young people. see childprotectioncarer probity checking, 49deaths reviewed, 48with disabilities, 65juvenile justice, review, 38, 52leaving care support, 51-2out-of-home care, 35-6, 50, 58, 60short term care orders, 52victim compensation, 51youth refuges, 49Children and Young Persons (Care andProtection) Act 1998, 55, 56, 59, 81,162, 163Children Legislation Amendment (WoodInquiry Recommendations) Act 2009,163Children’s Court, 34, 48, 49, 51, 52Children’s Guardian, 39, 50, 70, 163Code of Conduct, 12coercive powers, 8, 30Commission for Children and YoungPeople Act, 61, 80-1, 163Commission for Children and YoungPeople, 2, 15, 33, 51, 55, 61, 80Commissioner of Police, 6, 84, 85, 141,157, 163Commonwealth Ombudsman, 26, 31, 32,39, 40communication, promoting better, 91-2community consultation, 25-7, 29, 33, 39,65, 69community education and training, 4, 26,29, 41-4Community Services, 4, 6, 29, 42-3, 46-52, 55-6, 58-60, 62, 64, 65, 69, 70, 81,144-5Community Services (Complaint Reviewsand Monitoring) Act 1993, 8, 41, 42, 46,51, 58, 62, 162-3Companion Animals Act 1998, 106Complaint-handling, 7-8, 41-3, 83, 89Complaints and notificationsabout Ombudsman, 9formal, 6, 7, 26, 50, 53, 54, 63, 88, 90,94, 95, 100, 105, 111, 142-56how to make, 25informal, 6, 7, 26, 50, 53, 54, 63, 88, 90,94, 95, 100, 105, 111, 142-56investigations, 8performance indicators, 17review of decisions, 8-9, 12Compliments to Ombudsman, 9Consumers, training, 43Corporate branch, 2, 4, 11Corporate governance, 11-13Corrections, 25, 38, 39, 69, 93-9. seejuvenile justice centresCorrective Services NSW, 12, 44, 69,93-9, 153Councils, 101-8, 150-2Covert operations, 85-6Crimes (Administration of Sentences)Regulation 2008, 96Crimes Amendment (Police Pursuits) Act2010, 80Crimes (Criminal Organisations Control)Act 2009, 84, 141, 162Criminal organisations, 84-6Criminal Organisations LegislationAmendment Act 2009, 86Crown Employees (Public ServiceConditions of Employment) Award2009, 17culturally and linguistically diverse (CALD)communities, 7, 43, 166, 167Ddeathschildren and young people, 48, 51people with disabilities, 67The Death of Dean Shillingsworth, 48The Death of Ebony, 48Department of Community Services. seeCommunity ServicesDepartment of Education and Training,30, 35, 38, 46, 52, 54-5, 57, 65, 91Department of Environment and ClimateChange, 163Department of Industry and Investment,107Department of Justice and AttorneyGeneral, 84Department of Premier and Cabinet, 3,17, 19, 93, 106-7, 110Department of Water and Energy. seeOffice of WaterDevolution forum, 28, 66disabilities, people withAboriginal, 36, 68aged, 65-6children and young people, 65death reviews, 67-8in detention/prison, 69in hospital, 67intellectual disabilities, 69Disability action plan, 20, 164-5Disability Council of NSW, 28, 66disability services, 20, 43, 63-4, 66, 68-9,71, 143division managers group, 11, 12Division of Local Government, 15, 30-1,104domestic violence, 16, 28-9, 30, 44, 81-2advocacy training, 43stakeholders forum, 166, 168Domestic violence: improving policepractice, 28, 81Domestic Violence Coalition, 28, 30, 82,168Ee-recruitment system, 18, 21education and training, 4, 26, 29, 41-4EEO program, 19-21Effective complaint management, 42-3employee assistance program, 21employment-related child protection, 4, 7-9, 15, 42, 46, 54-62. see non-workplaceconductcomplaints and notifications, 54-5criminal allegations, 58inquiries, 54, 57monitoring agencies, 54, 57police response, 58-9, 61probity checking, 61-2sexual abuse by school employees, 44,46, 58-61Energy and Water Ombudsman, 26, 40energy management, 163environmental program, 11, 163-4equal employment opportunity (EEO),19, 20executive, 5, 10, 12, 18, 22, 114expert advisory committees, 31, 67, 159,160FFamily Referral Services, 33, 46Finances, 3, 4, 10-12, 17, 113-6statements, 116-36Financial Ombudsman Service, 25Foster care. see children and youngpeople - out-of-home careFeedom of information, 3, 104-9, 163. seeOffice of the Information CommissionerFunctions, 31, 44, 64, 81, 88GGame Council, 91Gordon Report, 2002, 34Government (Information Commissioner)Act 2009, 162Government Information (Public Access)Act 2009, 3, 12, 104-6, 109, 110AppendicesGlossary | Index171

AppendicesHHealth Care Complaints Commission,25-6, 40Home and Community Care, 64Housing, 4, 24, 29, 30, 36, 89-90, 92-3Housing and Mental Health Agreement,90human resources, 17-18Human Services Branch, 2, 4, 46-72Hunter Water Corporation, 107IIndependent Commission AgainstCorruption, 3, 12, 30-1, 36, 41, 85,104, 109-10, 162Industrial relations, 20, 83Information Commissioner. see Office ofthe Information CommissionerInquiries, 4, 24-5Inter-organisational committees, 159-60Internal Audit and Risk ManagementStatement, 13International partners, 31-2Interpreting and translation services, 7,25, 167JJoint Consultative Committee, 17-20Joint Guarantee of Service for peoplewith mental health problems anddisorders living in Aboriginal,community and public housing, 44, 90Joint Investigation Response Team, 44,48, 56, 58, 81jurisdiction, 3, 4-7Justice Health, 25, 93, 94, 97-9Juvenile Justice, 4, 29, 30, 38, 45, 54-5,62, 84juvenile justice centres, 6-8, 10, 26, 39,53-5, 96, 99KKeep Them Safe, 2, 32-3, 35, 40, 44,46-7, 52Lland councils, complaints, 36Law Enforcement (Controlled Operations)Act 1997, 85, 162Law Enforcement Legislation Amendment(Public Safety) Act 2005, 141Law Enforcement (Powers &Responsibilities) Act 2002, 77-8, 84,157, 162Law Enforcement (Powers andResponsibility) Amendment (SearchPowers) Act 2009, 86Legal professional privilege, 3, 12, 14,108, 112Legislation administered, 162Legislative reviews, 83-4, 141Litigation, 163local government, 99-104, 150-2MMental illness, people with, 93-4, 90Motor vehicle registration, 89, 91Multicultural action plan, 166-7Multicultural policies and servicesprogram, 19NNational Juvenile Justice Seminar, 22Non-workplace conduct, 59NSW Crime Commission, 6, 83, 85-6NSW Health, 4, 15, 30, 35, 37, 58, 62,67-8, 91, 94, 98NSW Interagency Plan to TackleChild Sexual Assault in AboriginalCommunities, 2, 27, 31-4, 37, 162NSW Police Force. see police; Policeand Compliance BranchNSW Treasury, 12-3, 21, 106, 109,113-14NSW Trustee and Guardian, 24, 90, 92OOccupational health and safety, 21Office management, 11-12Office of Fair Trading, 26, 40, 89Office of the Director of PublicProsecutions, 33Office of the Information Commissioner,3, 12, 104-5, 109, 110Office of Water, 92-3Official community visitors, 64, 69-71Ombudsman Act 1974, 3, 8, 30, 36, 42,46, 55, 58, 78, 84, 101, 162Organisational chart, 4Overseas visits, 31-2, 41Oversight agencies, 31PPacific Ombudsman Alliance, 16, 31Parliamentary Joint Committee on theOffice of the Ombudsman and thePolice Integrity Commission, 10, 12,17, 114performance indicators, 19, 36, 58, 79,89, 163performance statement, 14-17Police, 8, 34, 38, 74, 75-85, 137-40,162-3Aboriginal communities, 34, 37-8, 39child protection, 34, 58-9, 80-1emergency powers report, 157-8powers (terrorism), 83-4Project Lancaster, 83safe driving, 77, 78-9taser weapons, 78-9, 109Police and Community Youth Clubs, 33Police and Compliance Branch, 2, 4, 8,32, 44, 59, 73-86Police Integrity Commission, 3, 6, 10, 12,74, 79, 85-6, 109, 114Policies, 12Prisons. see correctionsPrivacy and Personal InformationProtection Act 1988, 162Privacy Commissioner, 12Probity, 29, 37, 49, 61-2Procedures, 12Progress report, 16Protected disclosures, 41-2, 109-11, 162Public Administration and StrategicProjects, 2, 4, 14, 87-112Public Finance and Audit Act 1983, 13,118Public Guardian, 64-5Public sector agencies, complaints, 146Public Sector Employment andManagement (DepartmentalAmalgamations) Order 2009, 162Public Sector Executive DevelopmentPrograms, 22Public Sector Management andEmployment Act 2002, 17Public Sector Restructure (MiscellaneousActs Amendments) Act 2009, 162Public Service Association, 17-8Publications, 169RRailcorp, 89Registrar of Community Housing, 89Registrar of the Aboriginal Land RightsAct, 36Restructure, 4, 10Reviewable Child Death AdvisoryCommittee, 31, 160Reviewable Disability Death AdvisoryCommittee, 31, 67, 159Risk management, 12-13, 21, 54, 113Roads and Traffic Authority, 89, 91, 108Royal Commission into the New SouthWales Police Service, 47, 83Royal Commission powers, 109Sschools,57, 91search warrants, 6, 83-4, 86Senior Officers Group, 11Serious Offenders Review Council, 98-9Sexual assault and misconduct, 31-3,37, 59-61Special Commission of Inquiry into ChildProtection Services in NSW, 2, 32-3,44, 46, 82, 163Staff, 17-22EEO, 19-21employee assistance program, 21flexible work arrangements, 20harassment prevention, 19numbers, 17, 20remuneration, 18training and education, 22Stakeholders, 25, 27-32, 28, 62, 81-2.see international partners; oversightagenciesworking relationships, 30-1, 39-40State Debt Recovery Office, 24, 90State Records, 12, 78, 93, 101-2Statement of Corporate Purpose, 1,11-2, 17, 22Statutory and Other Offices RemunerationAct 1975, 18strategic leadership group, 11-2strategic projects division, 4, 11, 23-44,82, 90submissions to inquiries, 90supervisors, 20, 22, 38, 42, 79Supported Accommodation AssistanceProgram, 49, 64Supporting the carers of Aboriginalchildren 2008, 35Surveillance devices, 86, 162Sydney Water, 107Systemic work, 10, 24, 26, 67-8TTelecommunication interceptions, 85,162Telephone Typewriter services, 7, 25Terrorism powers, 83, 141, 162UUndercover operations. see covertoperationsUniversities, 106, 111Unlawful arrest, 76-7WWaste reduction, 164Whistleblowing. see protecteddisclosuresWirringah Women’s group in LightningRidge, 35Witness protection, 84-5,162Women’s Domestic Violence CourtAdvocacy Service Network, 30, 82Women’s Legal Services NSW, 28, 43,82Wood, Justice, 47, 83Wood Inquiry. see Special Commissionof Inquiry into Child ProtectionServices in NSWWorkCover, 92Workers compensation, 21YYoung Offenders Act 1997, 38Youth, 4, 26, 44, 68-9. see children andyoung people172NSW Ombudsman Annual Report | 2009–201035 years of making a difference

Complaining to the OmbudsmanAnyone can make a complaint tothe Ombudsman. If you do notwant to complain yourself, you canask anyone – a relative, a friend,advocate, lawyer, your local Memberof Parliament – to complain for you.How do I make acomplaint?Start by complaining to theorganisation involved. Contactus if you need advice about this.If you are unhappy with the wayan organisation has handled yourcomplaint, you can complain to us,preferably in writing. Your complaintcan be in any language. If you havediffi culty writing a letter, we can help.We can also arrange for translations,interpreters and other services.Our online complaints form alsomakes it easier for people to lodge acomplaint with our offi ce.What should Iinclude with mycomplaint?Briefl y explain your concerns inyour own words. Include enoughinformation for us to assess yourcomplaint and decide what we willdo. For example, describe whathappened, who was involved, whenand where the events took place.Remember to tell us what actionyou have already taken and whatyou would like to see happen.Include copies of all relevantcorrespondence between you andthe organisation concerned.What happens to mycomplaint?A senior investigator will assessyour complaint. We may phone theorganisation concerned to makeinquiries. Many complaints areresolved at this stage. If we are notsatisfi ed with the organisation’sresponse, we may investigate.We do not have the resources toinvestigate every complaint, sopriority is given to serious matters,especially if it is an issue that is likelyto affect other people. If we cannottake up your complaint we will tellyou why.If your complaint is about a policeoffi cer, we will refer your complaintto the NSW Police Force forresolution or investigation. Theywill contact you about any actionthey have taken as a result of yourcomplaint. We will oversee how theydeal with your complaint.What happens in aninvestigation?First we ask the organisation tocomment on your complaint andexplain their actions. Generally, wewill tell you what the organisationhas said and what we think abouttheir response. Some mattersare resolved at this stage and theinvestigation is discontinued.If the investigation continues, it cantake several months until a formalreport is issued. We will tell you whatis likely to happen.If we fi nd your complaint is justifi ed,the fi ndings are reported to theorganisation concerned and therelevant minister. You will be toldabout our fi ndings. The Ombudsmanmay make recommendations in theinvestigation report. We cannot forcean organisation to comply with ourrecommendation; however, mostusually do. If the organisation doesnot comply, the Ombudsman canmake a special report to Parliament.What if I amunhappy with theOmbudsman’sactions?If you are unhappy with our decisionyou can ask for your complaint tobe reviewed. However, a decisionwill only be reviewed once. A seniorstaff member who did not originallywork on your complaint will conductthe review. To request a review,telephone or write to us.If you are unhappy with any of ourprocedures write to:Clerk to the CommitteeCommittee on the Office of theOmbudsman and the PoliceIntegrity CommissionParliament House,Macquarie StreetSYDNEY NSW 2000.The committee monitors and reviewsour functions. It cannot reviewour decisions about individualcomplaints.Printed on Harvest SilkCover 250gsmText 100gsmAcknowledgementsOur annual report is a public record of our work and through it we are accountableto the people of NSW. Our report is prepared against criteria set out by NSWTreasury and the Annual Report Awards. It is available from our offi ce or our websiteat www.ombo.nsw.gov.au.Many thanks to everyone who contributed to this year’s annual report, but particularlyour statutory offi cers, Anita Whittaker and the staff involved in coordinating theirdivision’s contribution: Helen Ford, Gareth Robinson, Judith Grant, Justine Simpkinsand Tom Millett.project Team Project manager & editor: Julianna Demetrius; Project offi cer: CathyCiano; Design: Inhouse studio.external consultants Editor: Janice McLeod; Proofi ng & indexing: indexat;Photography: Robert Edwards Photographer (p.2, 5); Printing: Green & Gold printing.ISBN: 978-1-921132-72-8, ISSN 1321 2044

impartially…service…scrutiny…leadership…accountability…investigation…organisation…administration…operaence…oversight…education…fair decision…quality… operation…commitment…good operation…commitment…good conduct…resolution…training…progress…awareness…protection…developmen