King v State of South Australia No. Eqopt-96-41 Judgment No. D3682

[1997] SADC 3682

KING V STATE OF SOUTH AUSTRALIA

Equal Opportunity Tribunal
Judge Lee, Members Bell & Cross

On 3 November 1995, the complainant wrote to the Commissioner for Equal Opportunity alleging that he had been victimised by the Ombudsman in relation to disclosures of "public interest information" under the provisions of the Whistleblowers Protection Act 1993. Section 9(2) of the Act provides that an act of victimisation may be dealt with under the Equal Opportunity Act 1984. In exercise of powers and rights under section 95 of the Equal Opportunity Act, the Commissioner declined to recognise the complaint as one upon which action should be taken, and the complainant gave notice requiring that the complaint be referred to the Tribunal for hearing and determination.

On 2 December 1996, in Sutton & King v State of South Australia (unreported, S5920), Debelle J upheld the complainant’s appeal against an earlier ruling of the Tribunal that it has no jurisdiction to hear a complaint of victimisation against the Ombudsman.

The complainant’s case in a nutshell is that he made disclosures to the Ombudsman of illegal activity and maladministration by public officers, and that he suffered a detriment in consequence of the Ombudsman’s refusal to conduct a full and proper investigation.  We should say at once that we accept that the complainant has suffered, and continues to suffer, a significant degree of frustration and distress in relation to his disclosures.

To the extent that is material, section 9(1) of the Whistleblowers Protection Act provides:-

"(1)    A person who causes detriment to another on the ground, or substantially on the ground, that the other person or a third person has made or intends to make an appropriate disclosure of public interest information commits an act of victimisation.
         ....

(4)  In this section -

"detriment" includes -

(a)     injury, damage or loss; or
         (b)     intimidation or harassment; or
(c)     discrimination, disadvantage or adverse treatment in relation to a person’s employment or
(d)     threats of reprisal."

The disclosures made by the complainant to the Ombudsman and the Ombudsman’s principal responses can be summarised briefly in this way:-

1. On 15 April 1994, the complainant wrote to the Ombudsman forwarding a letter dated 24 January 1994 to the Senate Select Committee on Public Interest Whistleblowing.  The letter made general submissions on the need for more effective whistleblower legislation, and then alleged that the complainant had suffered discrimination and victimisation during his employment as a chemical engineer in the public service.  The allegations covered the period from 1987 to the complainant’s retirement from the Public Service in October 1993. 

1. On 7 June 1994, the Ombudsman and a legally qualified member of his staff, Megan Philpot, interviewed the complainant in connection with his letter.

1. On 14 July 1994, the complainant wrote again to the Ombudsman calling upon him to establish whether his allegations were true, to take or recommend disciplinary action against the public officers concerned, and to publicise investigations and disciplinary action taken to deter others from similar behaviour.

1. On 8 May 1995, the Ombudsman wrote to the complainant declining to further pursue his allegations.  We quote the relevant paragraph:-

"I have conducted, in accordance with the provisions of the Ombudsman Act, a lengthy preliminary enquiry into the various areas of your concern, and I advise that I have now decided to decline to further pursue my investigation. My decision is based on the substantial lapse of time, the generality of your complaint, the fact that the majority of witnesses are no longer in the positions which were held at the relevant time, the real and appreciable limits of investigative resources within my Office, your pursuit of some of your grievances through other more appropriate avenues, and the apparent lack of any tangible and practical remedies under the Ombudsman Act in respect of your grievances. I note in your correspondence to me of 14 July 1994, you request that my Office establish "the truth" of your allegations, initiate disciplinary action against some public servants, and publicise the matter in order to deter others. In response to this, I advise that my Office is not a general arbiter of fact, without due regard for the practical remedial objectives of the Ombudsman Act. Nor should I, as may only a Court of competent jurisdiction proceed in the manner of a "determination" of the truth by testing of competing hypotheses presented in an adversary way which maintains the essential design of protecting and determining the rights of opposing parties and thus would conclude in what only the Court may achieve, a declaratory order as to the exercise of those rights. The abstract notion of truth lacks any practical sense in the absence of a juridical base, but may also only gain any practical sense with the process of the Ombudsman when due regard is had to the express nature and purpose of the Ombudsman Act and its ostensibly remedial objectives. Furthermore, it is not my statutory role to act as a disciplinary body for the purposes of punishing wrongdoers. As to publishing my reports, I am enjoined by the provisions of section 26 of the Ombudsman Act to have regard to the balance of the interests of the public an any agency which is the subject of any investigation".

It will be apparent from the above summary that relevant dealings between the complainant and the Ombudsman began with the complainant’s letter of 15 April 1994 and ended with the Ombudsman’s letter of 8 May 1995.  The complainant’s matter was delegated by the Ombudsman to Ms Philpot.  She was called as a witness by the complainant, and it will be appropriate now to summarise the relevant parts of her evidence.

When the complainant’s letter of 15 April 1994 arrived, Ms Philpot retrieved and reviewed files relating to similar complaints made by the complainant in 1989 and 1991.  The complainant provided a considerable quantity of additional material.  The interview on 7 June 1994 lasted about two to two and a half hours, and the Ombudsman was present for more than half an hour.  At that interview, the complainant supplied a copy of a letter with attachments that he had written to a journalist with The Australian Newspaper.  In early July, Ms Philpot rang the complainant for further documentation in relation to court proceedings.  As on other occasions, she voiced her concern that his complaints were in a generalised form.  The complainant’s letter of 14 July 1994 was his response to that telephone call.  In a telephone conversation on 25 July 1994, the complainant asked for the return of three appeal books.  At this point of her evidence, Ms Philpot referred to the complainant’s allegations against a psychologist and the South Australian Psychological Board, and said that she regarded those allegations as clear and deserving of investigation.  During a telephone discussion with the complainant on about 28 November 1994, she undertook to contact the Registrar of the Board.  She did so, and later obtained various documents and files which she examined.  She also obtained files from the Commissioner for Public Employment in relation to the complainant’s employment until 1992.  On 3 March 1995, she spoke with the psychologist in question.  Later, after further discussions with the Registrar, she secured the agreement of the Board to reopen an earlier enquiry.  She telephoned a member of the Office of the Commissioner for Public Employment. She interviewed a former member of that Office.  Finally, she drafted the letter which was signed by the Ombudsman and sent on 8 May 1995.  Her contact with the complainant thereafter was mainly with respect to the psychologist and the Psychological Board. 

Ms Philpot impressed us as a truthful and dispassionate witness. We accept her evidence. We are satisfied that she handled the complainant’s matter in good faith, without bias conscious or unconscious, and with due consultation with the Ombudsman. Save for her admission that she would prefer to have taken less time, we consider that her responses to the complainant were reasonable and appropriate in the circumstances. We are satisfied that she treated him no differently from the way she would have treated any other complainant. We hold that she did not commit an act of victimisation against the complainant in terms of section 9 of the Whistleblowers Protection Act.

Before concluding, we make a number of incidental observations. 

The complainant argued that the Ombudsman should have submitted his allegations to a full and proper investigation, using the power given to him by the Ombudsman Act 1972 of a Royal Commission. It is true that section 19 of the Act clearly authorises the Ombudsman to conduct a full and proper investigation if he thinks fit to proceed in that way. But, equally clearly, the Ombudsman has a discretion under sections 17 and 18 to make a preliminary investigation and then to decline to proceed any further. Some of the considerations which could guide his discretion did so in this case, as is apparent from his letter of 8 May 1995. We refer to the lapse of time, the generality of the complaints, the fact that the majority of witnesses were no longer in the positions held at the relevant time, the limits on the resources of the Ombudsman’s office, the pursuit by the complainant of grievances through more appropriate avenues, and the lack of practical remedies. Moreover, the question for us in the end is not merely whether the Ombudsman should have conducted a full and proper investigation, nor merely whether his refusal to do so caused detriment to the complainant, but rather whether, to echo the words of the relevant section, he caused detriment to the complainant on the ground, or substantially on the ground, of the complainant’s disclosures.

Counsel for the respondent contended that most of the complainant’s complaints in 1994 had been made the subject of prior complaints, including complaints to the Ombudsman in 1990 and to the Senate Committee in January 1991. Those prior complaints, counsel said, removed the quality or character of disclosure from the complaints in 1994. Although we need not express any final view, neither the policy nor the words of the Whistleblowers Protection Act would seem to us to remove the protection of the Act from subsequent disclosures.

Counsel for the respondent contended that the complainant’s frustration and distress at the Ombudsman’s refusal to conduct a full and proper investigation was not a "detriment" for the purposes of the Whistleblowers Protection Act. Although again we need not express any final view, we suggest that a liberal interpretation of "detriment" would be consistent with the policy of the Act, with the definition of the word in section 9(4), and with the provisions of section 22 of the Acts Interpretation Act 1915 (Acts to be deemed remedial).

The complainant attached considerable significance to a letter of 30 November 1995 from the Ombudsman enclosing a "Guarantee of Service", and to a telephone call by Ms Philpot on 4 December 1995 informing him that the letter was sent in error.  The complainant’s interpretation was that the Ombudsman did not intend that he should receive the guarantee of service that all other complainants received.  Ms Philpot’s evidence was that the letter was generated automatically by the office computer upon the opening of a file in relation to the Psychological Board and upon the mistaken assumption of the operator that the complaint was a new one.  Indeed, this was explained to the complainant in a letter to him of 8 December 1995.  We reject any suggestion that the earlier letter and telephone call represented an act of discrimination against the complainant.

It will be recalled that our summary of the evidence of Ms Philpot earlier in these reasons included the steps which she took with respect to the complainant’s allegation against a psychologist and the Psychological Board.  Although those allegations are the subject of separate proceedings before the Tribunal, they are relevant in these proceedings to the extent that they show how some of Ms Philpot’s time was occupied in the relevant period, and they tend to contradict any suggestion that Ms Philpot was dismissive of the complainant and his concerns.

Many of the complainant’s allegations concern the way in which he was treated in his previous employment in the Public Service. Section 17(1) of the Ombudsman Act states that the Ombudsman must not proceed with an investigation if the complainant is an employee and the complaint relates to an administrative act of his employer. Ms Philpot said that the Office was in possession of conflicting opinions from the Crown Solicitor’s Office on whether the section continues to operate after the termination of the employment relationship. Earlier she had said:-

"I had expressed the concern to Mr King from pretty early on that the Ombudsman, I felt, wasn’t empowered to investigate complaints within an employment relationship, even though I appreciated, of course, that Mr King had left his employment with the public sector.  But the construction of s17 in the Act, which refers to the employment relationship, was not clear to me, and nor was it to the Ombudsman.  But I did not feel that it was appropriate for the Ombudsman to conduct an enquiry about employment related matters, particularly as Mr King had pursued his grievances about his employer through many avenues during the course of his employment."

It only remains to repeat our finding that there was no victimisation in any relevant sense, and to order that the complaint be dismissed.