Our Current Overworked, Under-resourced Ombudsman Tasmania

Sven Wiener
A final conclusion has been arrived at by Ombudsman Tasmania. They are unwilling to investigate the standoff over the West Tamar Pulp Mill Public Meeting Petition where West Tamar Council is refusing to hold a second petition-instigated public meeting regarding the pulp mill. Ombudsman Tasmania claim that because the council is obviously in breach of the Local Government Act 1993, there is no need for the Ombudsman to investigate the matter beyond the “preliminary enquiries” they have now currently conducted. Ombudsman Tasmania says investigation of this should be done by the Local Government Office within Department of Premier and Cabinet.

Ombudsman Tasmania further says that unless they do fully investigate the matter, they cannot recommend to the council that the public meeting be held (as Ombudsman Tasmania is empowered to be able to do under section 28 of the Ombudsman Act 1978).

Ombudsman Tasmania has recently been in the media calling for more resources:

http://www.abc.net.au/news/stories/2008/11/21/2425795.htm

I hope others are more successful with coercing this slippery, wriggly worm we currently have in Tasmania for adjudicating fairness in the face of excesses of state and local government. Hopefully the yet to be decided style of ICAC will eventually make a difference for matters such as this.

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Letter From Ombudsman Tasmania To Sven Wiener:

Contact Officer Richard Connock

2 December 2008

Mr S Wiener

Dear Mr Wiener

Complaint: West Tamar Council

I refer to your emails of 20 and 23 November 2008 and advise that your file has been referred to me.

I have reconsidered your complaint, and advise that I agree with Mr McCully’s assessment of the matter as conveyed to you in his letters of 10 and 18 November 2008. The single issue raised by your complaint was whether or not Council was required to hold a public meeting after it had determined that the petition proposed by you complied with sections 57 and 59 of the Local Government Act 1993. According to the provisions of section 59(2) of the Act, Council was clearly required to hold the meeting, and Mr McCully advised you accordingly.

Your complaint and subsequent correspondence contains much argument as to why you think such a meeting should have been held, unrelated to Council’s obligations under the Act, but the issue raised which attracted the Ombudsman’s jurisdiction was whether Council had met those obligations. Whatever advice Council might have received from Mr McElwaine is not relevant to the Ombudsman’s finding that Council failed to comply with the provisions of the Local Government Act 1993.

I appreciate that matters related to Gunns’ proposed pulp mill are of interest and importance to you, but the Ombudsman cannot compel Council to hold the further public meeting you want. I note the reference in your email of 20 November 2008 to section 28 of the Ombudsman Act 1978 and the Ombudsman’s power to make recommendations, but advise that this power can only be exercised at the conclusion of an investigation. Your complaint, however, was not the subject of investigation; as he said in his letter to you of 8 September 2008, Mr McCully was making preliminary enquiries in relation to your complaint in order to determine whether or not it should be investigated, and given the clear non-compliance of Council with its legislative obligations, determined that an investigation was not necessary.

In those circumstances, no recommendations can be made. As Mr McCully suggested, the appropriate forum for your complaint is the Local Government Office. I note your advices that the Director of Local Government is aware of the matter and has been instructed by the Minister for Local Government to investigate it. Despite your reservations, it would be appropriate to now allow that process to run its course.

In the circumstances, I agree with Mr McCully that it is not necessary to investigate your complaint and the file will remain closed.

Yours sincerely

Richard Connock

Principal Officer

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Background:

From: Sven Wiener [mailto:svea@picknowl.com.au]
Sent: Sunday, 23 November 2008 10:02 AM
To: ‘ombudsman@justice.tas.gov.au’
Cc: ‘West Tamar Council General Manager’; ‘West Tamar Mayor’
Subject: ATTN Terry McCully re: 700-0809004 (West Tamar Council Public Meeting Petition)

Dear Mr McCully,

Further to my email of 20 November, it has since been made public that counter to West Tamar Council General Manager, Ian Pearce’s claims (see copy of his letter to the State Ombudsman dated 6 Oct – red fonting was applied to part of that letter’s text by me) that West Tamar “Council has no authority/legal standing in relation to the approvals etc required for the proposed pulp mill” are in the opinion of the Tasmanian Solicitor General, wrong. See The Mercury newspaper online news article, “New blow to pulp mill” dated 22 November:

http://www.themercury.com.au/article/2008/11/22/40001_tasmania-news.html

Ian Pearce at the time of writing of that letter had been relying for his understanding of the matter, on the advice of Gunns’ lawyer, Mr Shaun McElwaine, who also has done work for West Tamar Council on matters relating to Gunns Ltd, e.g. advice on how to deal with this public meeting petition and also providing advice that the council cannot withhold consent for pulp mill pipeline access.

I request that the State Ombudsman reverse its decision to not investigate the matter. I believe there is justification for an investigation to take place so that the State Ombudsman can then decide whether to recommend to West Tamar Council that the public meeting be held. In view of my past experiences with the Local Government Office within Department of Premier and Cabinet, and also recent allegations in testimony to the ongoing Legislative Council Inquiry of inappropriate senior public service appointments and government interference in the assessment of the pulp mill, I have no confidence in the Director of Local Government to conduct an independent and objective investigation of the matter.

Sincerely,

Sven Wiener

From: Ian Pearce, West Tamar Council General Manager
To: Terry McCully, Senior Investigation Officer, Ombudsman Tasmania
Dated: 06 Oct 2008
REGARDING: West Tamar Council’s SECOND right-of-reply letter for Sven Wiener’s complaint to the Ombudsman

Dear Mr McCully,

Re: Complaint Mr Sven Wiener

Thank you for the opportunity to comment on behalf of council.

It is my understanding that council is of the view that it has already taken action in relation to the issues in the petition received on 19 June 2008 as evidenced by minute numbers 115/07 and 99/08 (Added by SW: see WTC website for these minutes in Aug 2007 and Aug 2008 meetings’ minutes files, respectively). Council also questions whether it is reasonable for council to take any further action when no remedial action, in addition to what has already has been taken, can be taken by council. Council has no authority/legal standing in relation to the approvals etc required for the proposed pulp mill. The pulp mill is not being constructed in our municipal area and has State legislation to comply with therefore we, West Tamar Council, has no say in the construction of the pulp mill at Long Reach. It must be questioned as to whether West Tamar Council is being used as a political football in regard to this issue.

Legal advice received by council indicated that Mr Wiener has other legal avenues to pursue council in regard to its not holding a public meeting.

Yours sincerely

Ian Pearce
General Manager

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From: Sven Wiener [mailto:svea@picknowl.com.au]
Sent: Thursday, 20 November 2008 2:11 PM
To: ‘ombudsman@justice.tas.gov.au’
Subject: ATTN Terry McCully re: 700-0809004 (West Tamar Council Public Meeting Petition)

Dear Mr McCully,

Thank you for your letter of 18 November 2008.

Your immediately preceding letter of 10 November 2008 states that “there is no power under the Ombudsman Act 1978 to achieve the outcome that you want … namely to “have the public meeting held by the council”. However it has since been brought to my attention that “the Ombudsman has the power under s 28(2) of the Ombudsman Act 1978 to make a recommendation to the principal officer of the public authority where a decision was not in accordance with law”. West Tamar Council is a local government authority and if the Ombudsman is willing to investigate the matters raised by my complaint, it might come to the conclusion that such recommendation to West Tamar Council, namely to have the public meeting held by council, should be made.

Your letter of 10 November 2008 also stated that I should refer the matter as a complaint to the Director of Local Government. Alistair Scott has had full knowledge of the matter since late August and has not undertaken any action that I’m aware of, to investigate the matter nor to compel West Tamar Council to hold the public meeting. I also lodged a complaint in early October 2008 with Local Government Minister Jim Cox. However he replied in early November to say that he would instruct Alistair Scott to investigate the points raised in my complaint. As far as I’m aware Alistair Scott had done nothing regarding the matter since advising West Tamar Council in August that “under the Local Government Act 1993 council was required to hold the public meeting”.

Your letter of 18 November 2008 states that the Local Government Office advised West Tamar Council that council was required to hold a public meeting. However I would like to further qualify that since what the Local Government Office actually advised council, as can be seen from council minute 99/08, was more specifically that

“under the Local Government Act 1993 council was required to hold a public meeting”.

As your letter of 18 November 2008 points out, the issue squarely raised by my complaint concerns whether West Tamar Council was legally required to hold a public meeting. The Local Government Act 1993 seems not to have provided the sole consideration for councillors in making their decision on whether the public meeting was legally required to be held. The same paragraph of council minute 99/08 as contains the statement of advice received from the Local Government Office, also refers to the confidential legal advice received from West Tamar Council’s solicitor (who also represents Gunns Ltd to which the petition subject matter directly relates) and passed on to councillors immediately prior to their unanimous decision in August 2008 to not hold the public meeting. Before you close the file on this matter, I am seeking from you acknowledgement that you have not so much as commented to me regarding the contents of this confidential advice given to West Tamar Council by Gunns’ lawyer but rather that you have obtained a copy of it from West Tamar Council, read it and taken it into consideration before concluding whether or not the Ombudsman should investigate the matters raised by my complaint, in turn perhaps then deciding under section 28(2) whether to recommend to West Tamar Council that council hold the public meeting.

As far as I’ve been able to ascertain from copies of correspondence received by the Ombudsman from West Tamar Council, council has not as yet provided the Ombudsman with a copy of that confidential legal advice received from Gunns’ lawyer upon which councillors seem to have based their decision to not hold the public meeting. Furthermore, I have seen nothing to indicate that the Ombudsman has as yet written to West Tamar Council recommending that the council hold the public meeting.

I look forward to hearing from you regarding the above and hope that the Ombudsman will investigate the matters raised by my complaint.

Sincerely,

Sven Wiener

From: Terry McCully, State Ombudsman Office
Sent: 18 November 2008
To: Sven Wiener
Subject: Complaint: West Tamar Council

18 November 2008

Dear Mr Wiener

I acknowledge receipt of your email sent 12 November 2008.

I understand the matters raised in your email concerning legal advice which you believe was obtained by the Council and about which I will make no comment. In my view, it is not necessary to obtain any such legal advice for the purpose of ascertaining if your complaint should be investigated by the Ombudsman. The issue squarely raised by your complaint concerns whether West Tamar Council was required to hold a public meeting. The minutes received from the Council (copies of which have been forwarded to you) clearly state that the Council received advice from the Local Government Office that it was required to hold a public meeting.

I now propose to close the file.

Yours sincerely,

Terry McCully

Senior Investigation Officer

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From: Ombudsman Tasmania Date: 10 November 2008
Dear Mr Wiener
Complaint: West Tamar Council

I attach for your consideration a copy of letters dated 10 September (and the minutes attached), 6 October and 8 October 2008 received by this office from West Tamar Council in relation to the complaint you lodged dated 29 August 2008.

Council’s minute 99/08 states:

“The petition was tabled at the 15 July 2008 council meeting and since that time has been checked to ensure that it complies with the requirements of section 57 and 59 of the Local Government Act 1993…. The proposer of the petition Mr Sven Wiener has been advised that the petition complies with the Local Government Act 1993 and also that at its 19 August 2008 meeting council will consider what action is to be taken.”.

Section 59(2) of the Local Government Act 1993 (the LG Act) provides:

A council must hold a public meeting if the petition complies with section 57 and it is signed by whichever is the lesser of the following:

(a) 5% of the electors in the municipal area;

(b) 1 000 of those electors.

The provisions of s 59 (2) of the LG Act are mandatory and, in my view there is no doubt that West Tamar Council was required to hold a public meeting.

There is no power under the Ombudsman Act 1978 to achieve the outcome that you want by making the complaint, namely to “have the public meeting held by the council”. I note that the complaint raises the same issue that was considered by this office in relation to another complaint you lodged against George Town Council. In that matter it was recommended that you should make a complaint to the Director of Local Government who has the power under s 339E of the LG Act to deal with matters concerning a council, councillors or a general manager being non-compliant with the law.

In my view a complaint to the Director of Local Government is also the appropriate action that should be taken in this matter.

I wish to give you the opportunity of commenting on the above matters before the decision not to further investigate the complaint becomes a final decision. I invite you to provide further submissions to the Ombudsman in writing, giving reasons why the complaint should be investigated by this office by 5 December 2008.

Yours sincerely

Terry McCully
Senior Investigation Officer

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Attached letters referred to in letter above by Ombudsman Tasmania, are online at

http://adam.com.au/wtc_to_ombudsman_6oct2008.html

http://adam.com.au/wtc_to_ombudsman_8oct2008.html

http://adam.com.au/wtc2ombudsman_10sep2008.html

Council minutes referred to in letter above by Ombudsman, are online at

http://adam.com.au/11507_minute.html

http://adam.com.au/9908_minute.html

or alternatively see www.wtc.tas.gov.au in the Agenda/Minutes section within the council’s rather large PDF documents.