CAIN Update – 14 May 2015

Items of interest for the Complaints, Accountability, Integrity Network

Ethics and misconduct

Independent Commission Against Corruption v Cunneen [2015] HCA 14
Statutory bodies – Investigating commission – Powers – Independent Commission Against Corruption Act (NSW) defines "corrupt conduct" as conduct that could "adversely affect" exercise of official function by public official – Whether conduct that could adversely affect efficacy, but not probity, of exercise of official function by public official "corrupt conduct".
The Court did not accept such a broad interpretation. It held that such an interpretation "would result in the inclusion in "corrupt conduct" of a broad array of criminal offences and other unlawful conduct having nothing to do with the ordinary understanding of corruption in public administration or the principal objects of the ICAC Act. It would also enable the ICAC to exercise its extraordinary coercive powers (with consequent abrogation of fundamental rights and privileges) in areas ranging well beyond the ordinary understanding of corruption in public administration and the principal objects of the ICAC Act.
High Court of Australia, 15 April 2015

Report on Misconduct Risk in Local Government Procurement
The report sets out six case studies relating to Commission investigations, a post investigation review of financial governance at the City of Stirling, and the findings of procurement audits in five metropolitan local governments.
Corruption and Crime Commission, Western Australia, February 2015

Report on the Misconduct Intelligence Assessment of the Western Australian Public Sector
"The dynamic nature of the public sector ... inevitably gives rise to new corruption risks and misconduct threats requiring attention and makes the management of traditional threats more complicated. Th[e] report is not intended as a critique of Government policy or the structure of the public sector in WA. The analysis describes the existing pressures in the public sector for the sole purpose of identifying misconduct risk. It is misconduct risk that informs the role of the Commission ... in improving continuously the integrity of, and reducing the incidence of misconduct in, the WA public sector. For the WA Government and public sector agencies to continue to effectively combat corruption and misconduct, better information is needed about the changing public sector environment and the range of current and emerging risks and vulnerabilities that exist within it."
Corruption and Crime Commission, WA, March 2015

Natural justice

Vega Vega v Hoyle & Ors [2015] QSC 111
A specialist urologist conducting a long and complex operation removed the wrong kidney. The conduct of the specialist was investigated. The specialist challenged the actions and decisions of various investigators and decision-makers, alleging bias, failure to disclose material information, lack of procedural fairness and failure to take into account relevant considerations. The Court found that decisions that prevented the applicant from having access to information and documents relied on by the health service investigators and clinical reviewers and presentation of a report without having given the specialist access to the information and documents, amounted to breaches of natural justice.
Queensland Supreme Court, May 2015


Investigation of decision to expel a high school student with Aspergers
The NZ Ombudsman found that a College Board acted unreasonably in the following respects:
• it did not keep adequate records of the decision making process;
• staff at the College failed to take opportunities for earlier intervention and to adopt alternative handling strategies before the incident in the staff room; and
• the decision-makers did not give adequate consideration to relevant factors, specifically: - the manner in which the sequence of triggering events was handled; the alternatives to expulsion; an MoU signed in 2009; and the effects of Aspergers on the student's behaviour.
Ombudsman New Zealand, December 2014

Aged care

Investigation into Department of Health oversight of Mentone Gardens, a Supported Residential Service
A number of residents of a Supported Residential Service lost the 'bonds' that secured their accommodation and care (totalling more than $4.5M), when Mentone Gardens went into liquidation. The residents had believed their bonds were held in trust. The Ombudsman investigated the oversight of the Service by the Victorian Government and found a "litany of failings". The Ombudsman recommended that the Victorian Government make ex gratia payments to the former residents.
Ombudsman Victoria, April 2015

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