Investigation into advice provided to the office of the Minister for Planning by the DPCD in relation to land development at Phillip Island

 

VICTORIAN

Investigation into advice provided to the office

of the Minister for Planning by the Department of Ombudsman Act 1973 Planning and Community Development in relation

to land development at Phillip Island March 2014

Ordered to be printed Victorian government printer Session 2010 - 14

P.P. No. 315

 

www.ombudsman.vic.gov.au

Letter to the Legislative Council and the Legislative Assembly

To

The Honourable the President of the Legislative Council and

The Honourable the Speaker of the Legislative Assembly

Pursuant to sections 25 and 25AA of the Ombudsman Act 1973, I present to Parliament my report into an Investigation into advice provided to the office of the Minister for Planning by the Department of Planning and Community Development in relation to land development at Phillip Island.

G E Brouwer

OMBUDSMAN

26 March 2014

letter to the legislative council and the legislative assembly

 

1

 

 

 

 

 

www.ombudsman.vic.gov.au

Contents

Page

Background

 

3

The complaint

 

3

Investigation methodology

 

4

Section 25A(3) Ombudsman Act 1973

 

4

Documents not provided on the basis of privilege

 

5

The property

 

6

Relevant planning history (Amendments C46 and C88)

 

7

Amendment C125

 

8

Investigation scope

 

10

Jurisdiction to investigate actions of ministers and

 

 

ministerial staff

 

10

The briefings

 

12

The first briefing

 

12

The email

 

13

The second briefing

 

15

The appropriateness of the recommendations in the second briefing

18

Partiality

 

18

Relevant legislation, policy and guidance

 

18

The department’s views on intervention at the time of the

 

second briefing

 

19

Requests to revise ministerial briefings

 

21

The template and use of the term ‘recommendations’

 

23

Changes to the department’s briefing template

 

24

Interpretation of the second briefing by the Minister’s office

25

Other evidence considered by the Minister’s office

 

27

Conflict of interest risk identified

 

30

Advice provided by Officer X

 

31

Conclusions

 

32

Recommendations

 

39

Appendix 1

 

41

Appendix 2

 

45

Appendix 3

 

46

Appendix 4

 

48

2 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

Background

The complaint

1.In a letter dated 27 September 2013, the Shadow Minister for Planning, Mr Brian Tee, lodged a complaint with my office regarding the involvement of the Department of Transport, Planning and Local Infrastructure1

(the department) in Bass Coast Planning Scheme Amendment C1252. Amendment C125, which related to a piece of land at Phillip Island, became the subject of much publicity and debate after it was approved by the Minister for Planning, Mr Matthew Guy (the Minister) in 2011, but never brought into effect.

2.Mr Tee’s complaint specifically related to advice provided by the department to the Minister in relation to the approval of Amendment C125. He alleged that the department:

I.In a briefing dated 25 July 20113, inappropriately recommended that the Minister approve Amendment C125 and use section 20(4) of the Planning and Environment Act 1987, contrary to the:

-recommendations set out in an earlier briefing it had prepared for the Minister, dated 16 May 20114

-legal advice it had obtained5

-requirements of the Planning and Environment Act

-views of the local community and local council

-recommendations made by two independent panels.

II.Inappropriately relied on an email dated 3 June 20116 sent by a Ministerial Advisor, Mr Marc Boxer, in relation to Amendment C125, as being representative of the views of the Minister.

III.Potentially acted with partiality in giving the advice in the briefing dated 25 July 2011, having been influenced by the email it received from Mr Boxer.

3.In correspondence dated 9 October 2013, I notified the Minister for Planning, the Secretary of the department and the complainant of my intention to conduct an investigation into this matter pursuant to section 15B of the Ombudsman Act 1973.

1At the time the events under investigation occurred, the department was called the Department of Planning and Community Development. Following machinery of government changes in 2013, it is now the Department of Transport, Planning and Local Infrastructure.

2A planning scheme sets out policies and requirements for the use, development and protection of land. There is a planning scheme for every municipality in Victoria. Changes to planning schemes are known as ‘amendments’.

Amendments are governed by the Planning and Environment Act 1987 and can be prepared by any planning authority as specified by the Act. A planning authority is any Minister or agency that has been authorised by the Minister for Planning to prepare amendments. In most cases, the initiating planning authority would be a local council, but it may be a Minister. All amendments to council planning schemes are numbered chronologically and prefaced with the letter ‘C’.

3See Appendix 4.

4See Appendix 1.

5See Appendix 3.

6See Appendix 2.

background 3

 

www.ombudsman.vic.gov.au

Investigation methodology

4.In investigating this matter my officers:

reviewed publically available material regarding the planning history of the property and Amendment C125

examined documentation obtained from the department, the council and various witnesses

reviewed relevant legislation and policy

examined email records

conducted 15 interviews with witnesses from the department, the council, the affected community and the Minister’s office, including the Minister for Planning. No witnesses were summonsed to attend. All witnesses from the department and the Minister’s office chose to be legally represented at interview.

Section 25A(3) Ombudsman Act 1973

5.My report includes adverse comments about:

Mr David Hodge, former Executive Director State Planning Services and Urban Development, Department of Planning and Community Development

Mr Marc Boxer, Advisor to the Minister for Planning

Mr Daniel Parsons, Advisor to the Minister for Planning

Ms Meg Bartel, former Chief of Staff to the Minister for Planning

the Senior Planner

the Manager

the Assistant Director

the Director; and

Officer X.

6.Each person listed above was provided with the opportunity to respond to the adverse comments made about them. The Director, the Manager, the Senior Planner, Officer X and Mr Parsons chose not to reply with any specific comments. The responses provided by the other persons are fairly set out in this report.

7.In accordance with section 25A(3) of the Ombudsman Act, I advise that any other persons who are identifiable, or may be identifiable from the information in this report are not the subject of any adverse comment or opinion and:

I am satisfied that it is necessary or desirable in the public interest that the information that identifies or may identify those persons be included in this report; and

4 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

I am satisfied that identifying those persons will not cause unreasonable damage to those persons’ reputations, safety or wellbeing.

Documents not provided on the basis of privilege

8.My investigation obtained a range of documents from the department relating to Amendment C125. However, both the department and the Minister’s office refused to provide a number of specific documents which referred to the ministerial briefings under investigation on the basis of privilege. Legal representatives for the Minister advised that the documents contained information prepared for the conduct of litigation, file notes of conferences with Counsel and advice received from Counsel.

9.There is nothing in the Act which prevents a person holding a privilege in relation to a document from providing that document to my office voluntarily. Indeed, both the Minister and the department provided many documents to my investigation which ‘contained information prepared for the conduct of litigation, file notes of conferences with Counsel and advice received from Counsel’. However, the Minister chose to rely on section 18(5) of the Ombudsman Act and a claim of legal professional privilege as the basis for declining to provide six specific documents requested by my office.

10.Section 18(4) of the Ombudsman Act provides that ‘the Crown’ is not entitled to any privilege in respect of the production of documents in an investigation of this type. The Minister’s legal representatives provided legal advice arguing that the Minister was not ‘the Crown’ and that he was thus entitled to claim privilege over the documents/as an individual. While I accept that it was reasonable for the Minister to rely on this advice in the circumstances, I do not agree with the interpretation of the legislation the advice presented.

11.As noted in my December 2012 report, Proposed integrity system – impact on the functions of the Ombudsman, the purpose of Ombudsman investigations is to ascertain what happened. For this reason, extensive evidence-gathering powers have been provided to my office. However, section 18(5) is an example of provisions in the Ombudsman Act which limit my power to gather evidence and create an impediment to my investigations. In this case, it is difficult for me to be satisfied that all avenues of enquiry have been thoroughly investigated.

12.In response to my draft report, the Minister said:

I must emphasise that at all times, I freely assisted your investigators including by voluntarily attending for an interview, providing full responses under oath, considering without delay your request for review of privileged material and ultimately waiving privilege over a number of documents.

...

In maintaining my claim for privilege in respect of the six documents … I have acted in accordance with the legal advice received by me. I am of the view that that advice was correct.

background 5

 

www.ombudsman.vic.gov.au

I feel it necessary to highlight that, when it was subsequently pointed out to me that your office held a different view concerning my right to claim legal professional privilege in respect of certain documents, I caused further advice to be sought from independent, and eminent, Queen’s Counsel, a copy of which was provided to you. That advice was impartial, clear and definitive. In those circumstances, I was surprised that you said, without elaboration, that you “do not agree

with the advice”, particularly in circumstances where this issue has not been judicially determined. The approach you have adopted could be interpreted to suggest that my claim of privilege was not open to me or that I was in some way being uncooperative.

In particular the last sentence in paragraph [11] of your draft report is in my view inappropriate, where my claim of privilege reflects what my legal representatives have advised me is a valid constraint upon your investigative powers, as imposed by Parliament.

The property

13.The property at the centre of this matter (the property)7, consists of approximately 24 hectares of undeveloped land located on the south side of Ventnor, a small beachside town on Phillip Island. Under the Bass Coast Planning Scheme (the planning scheme), the property is zoned part Farming, part Residential Zone 1 and sits just outside the settlement boundary8 for Ventnor. The property is owned by Mr John Cadogan and Ms Pauline Morton (the property owners).

Figure 1: Arial view of the property

14.The potential residential development of the property has been a matter of contention for some time. In order to residentially develop the property, a number of changes to the planning scheme would be required. These include, moving the property within the town boundary and rezoning the entire property to Residential Zone 1.

734 Bingley Crescent Ventnor, VIC, 3922 (Lot C on Plan of subdivision 639909E Volume 11242 Folio 406).

8A settlement boundary, sometimes referred to as a ‘town boundary’ or ‘township boundary’ is a planning scheme mechanism used to fix an outer boundary for urban development of a settlement/town. It represents the future growth expectations for the settlement/town.

6 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

Relevant planning history (Amendments C46 and C88)

15.Since 2007, the property owners have sought to have the property considered for inclusion within the Ventnor town boundary on at least two occasions. The property owners did this by making submissions to two independent planning panels convened to examine proposed amendments to the planning scheme affecting Ventnor.

16.The first panel was appointed in 2007 to consider submissions on Amendment C46, an amendment which sought to apply strategic framework plans and new local planning policies to various towns within the Bass Coast Shire, including Ventnor. The C46 panel report shows that a consultant representing the property owners made submissions to the panel, seeking that the property be included in the town boundary. The consultant argued that there was demand for additional residential land in Ventnor which could be satisfied by development of the property9.

17.In response to this, a number of local residents and community groups made submissions to the panel opposing the property’s inclusion. The C46 panel report, which was published in August 2007, ultimately did not support inclusion of the property within the town boundary10.

18.This issue was again considered in 2008 in relation to Amendment C88, which proposed implementation of a structure plan for Ventnor and other nearby towns. Amendment C88 proceeded to an independent planning panel, which reported in December 2009.

19.Similarly to the C46 panel report, the C88 panel report identifies that the property owners supported inclusion of the property within the town boundary and that a number of local residents and community groups made opposing submissions. The report also describes submissions made by the Bass Coast Shire Council (the council) opposing the inclusion. The report states that the council submitted:

They (settlement boundaries) are intended to serve as longer term statements of planning intent upon which all parties to the land development and conservation process can rely.

...

No where [sic] is the evidence of detrimental impact of urban settlement along the coastline as clear as at Ventnor. Ventnor typifies strip development, remote from services in a sensitive coastal environment. Any further additions of developable land in this location only compound the criticism of poor access to services and incremental intrusion into rural /coastal landscapes.

20.Like the C46 panel report, the C88 panel report recommended that the property should not be included in the Ventnor town boundary. It

referred to concerns about the impact the proposed development would have on a nearby bird colony and stated:

We believe the [the property] is not the most appropriate land for the spatial growth of Ventnor and that there is more appropriate land in Ventnor East.

9‘Bass Coast Planning Scheme Amendment C46 Parts 2 and 4: Panel Report’, August 2007, page 39.

10‘Bass Coast Planning Scheme Amendment C46 Parts 2 and 4: Panel Report’, August 2007, pages 39-40.

background 7

 

www.ombudsman.vic.gov.au

21.The report also noted that while Amendment C88 considered inclusion of the property within the settlement boundary, it did not consider the issue of re-zoning, which was a further prerequisite for residential

development. The report said that ‘[a]ll parties accepted this would be a future, separate and more detailed process’.

22.The council voted unanimously to adopt all the recommendations made by the C88 panel report on 17 February 2010.

Amendment C125

23.On 28 March 2011, approximately one year after the council’s decision to adopt the C88 panel’s recommendations, a consultant acting on behalf of the property owners (the consultant), wrote to the Minister requesting that he intervene to facilitate residential development of the property.

24.On 11 May 2011 the property owners received a conditional offer to purchase the property from a potential developer (the developer). The documents obtained by my investigation indicate that at this point, the property owners assigned their interest in the ministerial intervention request to the developer. From then on, it appears that the consultant continued to pursue the request for intervention on the developer’s behalf.

25.The property owners accepted the developer’s offer to purchase the property for $2,650,000 on 19 May 2011, by signing a conditional contract of sale. The contract allowed the developer to make the contract unconditional no later than 8 September 2011, up to which time the developer could withdraw from the contract by forfeiting a nominal deposit.

26.On 8 September 2011, the day the contract was due to be finalised, the Minister signed documentation to approve Amendment C125 (see Appendix 4), which:

rezoned the property to Residential Zone 1

included the property within settlement boundary for Ventnor

made a number of other changes to the planning overlays applying to the property.

27.The Minister used his power under section 20(4) of the Planning and Environment Act in relation to the amendment. Section 20(4) of the Planning and Environment Act is one of a number of provisions in Victoria’s planning and heritage law commonly referred to as ‘Ministerial intervention powers’. Section 20(4) provides the Minister the discretion to exempt himself from complying with provisions11 which require notice to be given to certain parties when making an amendment to a planning scheme.

28.The parties ordinarily required to be notified and provided with the opportunity to make submissions on a proposed amendment include relevant Ministers; public authorities; municipal councils and landowners. The notice provisions also require that the proposed amendment be made available for public inspection until it is approved, or it lapses.

11 Sections 17, 18 and 19 of the Planning and Environment Act and regulations.

8 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

29.In order for the Minister to exercise the power to exempt himself from notice requirements using section 20(4), at least one of the following conditions must be met:

The Minister considers that compliance with any notice requirements is not warranted.

The Minister considers that the interests of Victoria or any part of Victoria make such an exemption appropriate.

30.In the case of Amendment C125, the Minister exempted himself from all the allowable notice requirements and relied on the criterion that compliance with the notice requirements was ‘not warranted’. The reasons12 provided by the Minister were:

I am satisfied that compliance with any of [the notice requirements] is not warranted, because the issues that arise and the views of parties are reasonably known through the consultation process for other

amendments dealing with the future settlement patterns for Phillip Island.

Any specific subdivision and development of the land will be subject to a separate plan and permit approval process.

31.In letters dated 8 September 2011, the Minister informed the consultant and the Mayor of the council of his decision to approve Amendment C125.

32.Pursuant to section 37 of the Planning and Environment Act, a planning scheme amendment does not come into operation until notice of approval of the amendment is published in the Government Gazette. Upon becoming aware of Amendment C125, the Mayor of the council and a number of local community groups and property owners contacted the Minister’s office to express dissatisfaction with the Minister’s approval of the amendment and request that it not be gazetted. At this point, Amendment C125 began to receive attention in both mainstream and social media.

33.On 22 September 2011, the Minister issued a press release titled ‘Government listens to community concerns at Ventnor’, which said that the Minister had spoken with the Mayor of the council that morning and agreed to expedite another Bass Coast Planning Scheme Amendment13, ‘while excluding the land at Ventnor’. The press release stated:

Our commitment to listen is genuine, and the government has heard the community and the Council’s concerns on the proposed rezoning in Ventnor and will not pursue land supply in this area.

34.In correspondence dated 10 October 2011, the Minister informed the consultant that he had decided not to proceed with Amendment C125. This decision prompted the developer to commence proceedings against the Minister and the State of Victoria in the Supreme Court of Victoria (the court).

12The practice note, ‘Ministerial Powers of Intervention in Planning and Heritage Matters’, provides that in using his power of intervention the Minister must, ‘make publicly available written reasons for each decision’. These reasons are taken from the ‘Reasons for decision to exercise power of intervention’ document prepared in relation to Amendment C125. Ultimately, this document was never made public.

13Amendment C93 of the Bass Coast Planning Scheme.

background 9

 

www.ombudsman.vic.gov.au

35.Subsequently, in a defence submission to the court in these proceedings, the State of Victoria and the Minister pleaded that the Minister’s use of section 20(4) and the approval of Amendment C125 on 8 September 2011 were ‘invalid and of no lawful effect’ because:

There ’was no evidence upon which the Minister could be satisfied that compliance with the requirements of the [Planning and Environment] Act was not warranted’; or

The Minister ‘misconstrued or misunderstood’ the meaning of ‘not warranted’ in section 20(4).

36.These proceedings were ultimately settled in August 2013, with a payment being made by the government for an undisclosed amount, prior to a public hearing commencing.

Investigation scope

37.The scope of my investigation was determined by the terms of the complaint I received from the Shadow Minister for Planning and my jurisdiction under the Ombudsman Act 1973 (the Act). My investigation explored the appropriateness of the advice and recommendations provided by the department in its briefing to the Minister dated 25 July 2011, in light of the issues raised in the complaint. It also looked at the impact any recommendations or advice in that briefing may have had on the Minister’s decision-making capacity in relation to Amendment C125.

38.The events surrounding the approval of Amendment C125, its reversal by the Minister and subsequent court proceedings have been the subject of much controversy and public comment.

39.Following references to my investigation in Parliament, a number of witnesses and interested parties approached my office seeking to provide evidence to my investigation. While the views of these

persons and other witnesses on whether Amendment C125 should have proceeded differed, a common theme emerged. This was - dissatisfaction with the government’s level of transparency in relation to the events surrounding Amendment C125. Witnesses considered that there were questions which had not been answered publically with respect to why the amendment was approved and not brought into effect.

40.Due to limitations in my jurisdiction, this report addresses some, but by no means all of those concerns. The actions taken by the department in relation to Amendment C125 are only part of the story. Many of

the actions and decisions with respect to Amendment C125 were the responsibility of the Minister and his staff. Their actions do not fall within my jurisdiction under the Act in an investigation such as this one.

Jurisdiction to investigate actions of ministers and ministerial staff

41.At present, the only situation in which I am able to investigate the actions of both a minister and his/her staff when they are personally subject of an investigation is where a matter is referred to me by Parliament for investigation pursuant to section 16 of the Act.

10 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

42.The only other circumstance in which I can investigate the actions of a Member of Parliament is where a complaint has been referred to me by the Independent Broad-based Anti-corruption Commission (IBAC). However, such a referral would still not allow me to investigate the actions of a ministerial advisor, due to ministerial advisors not being classified as ‘protected disclosure entities’ under the Act. Further, IBAC only has jurisdiction to investigate the actions of a ministerial advisor if the allegations against them amount to ‘serious corrupt conduct’. It cannot investigate conduct or issues of the kind raised in

this investigation, which I consider do not meet that threshold. Thus the conduct of ministerial advisors in Victoria is largely beyond independent scrutiny.

43.Investigations such as this one, which touch on the actions of ministerial advisors, highlight this anomaly in the new integrity body framework for Victoria, which gives ministerial advisors a greater level of immunity from integrity body review than the ministers they serve and much greater immunity than public servants. There does not appear to be any public benefit or justification for the greater level of immunity afforded, particularly given the important role ministerial advisors play in government today. I have recently raised my concerns about this anomaly with the Premier.

background 11

 

www.ombudsman.vic.gov.au

The briefings

44.The department provided two formal written briefings to the Minister’s office in relation to the Amendment C125 proposal. The first was dated 16 May 2011 (the first briefing) and the second was dated 25 July 2011 (the second briefing). While the first briefing recommended that the Minister decline to intervene in the matter, the second briefing recommended that he intervene and exercise his power under section 20(4) of the Planning and Environment Act to bypass the usual notice requirements.

45.In order to address the complaint made to my office, my investigation examined the two briefings and the events surrounding their drafting and provision to the Minister’s office.

The first briefing

46.On 29 March 2011, via email, both the Minister’s office and the department received a copy of the letter to the Minister requesting intervention from the property owners’ consultant.

47.Having received this request, a department officer sent an email to an advisor to the Minister for Planning, Mr Marc Boxer, asking:

Can you please advise how you would like us to proceed with this one.

48.Upon seeing this email, Mr David Hodge, Executive Director State Planning Services and Urban Development (the department officer responsible for signing briefings to the Minister on proposals such as this), sent the following response to the department officer:

Don’t talk to marc we decide what the brief say [sic]

Consultants can’t simply contact the minister’s office and have matters called in

The minister needs to be advised

49.The consultant’s request was then passed to the Acting Senior Regional Planner (the Senior Planner) at the department’s Traralgon office, to enable him to prepare a briefing for the Minister on the proposal.

50.The Senior Planner drafted a briefing which recommended the Minister sign a letter to the consultant declining to intervene and suggesting that the property owners pursue support for development of the property through the council. The briefing states:

There is no basis to conclude that the [C88] Panel erred in its recommendation to exclude [the property] from the Ventnor township boundary that would justify Ministerial Intervention to have the land included.

If there is a genuine basis on which to address the issues raised by the Panel, this should be taken up with the Bass Coast Shire Council so that a comprehensive approach to any future development can be prepared.

51.A copy of the first briefing and the attached letter are provided at Appendix 1.

12 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

52.The cover sheet of the first briefing indicates that after being drafted by the Senior Planner, it was reviewed by the Manager Planning and Development (the Manager); the Acting Assistant Director, State Planning Services (the Assistant Director); the Director, State Planning Services (the Director); and then approved and signed by Mr Hodge.

Evidence from witnesses suggests that no substantial amendments were made to the briefing during this review and approval process.

53.The first briefing, dated 16 May 2011, was then provided in hardcopy to the office of the Minister for Planning on 20 May 2011. My investigation could not locate a signed copy of the first briefing provided to the Minister’s office, however the department has indicated that the document at Appendix 1 is the version which was provided.

54.In a defence submission filed with the Supreme Court of Victoria by legal representatives of the government14 on 28 September 2012, the government submitted that:

The Minister did not see the First Briefing, but it was received in his office and seen, and read, by his Chief of Staff Meg Bartel and advisers Daniel Parsons and Marc Boxer.

Mr Boxer and Mr Parsons formed the view that despite the Amendment C88 Panel’s recommendation against inclusion of [the property] within the settlement boundary, the proposed rezoning of [the property] to allow for residential development was an opportunity to promote and facilitate the availability of new residential land, which was a key policy for the Victorian government.

On a date between 16 May 2011 and 3 June 2011, Mr Parsons asked the Minister whether he was interested in a rezoning of land at Ventnor which would increase land supply, to which the Minister replied, after asking where Ventnor was, that he was interested to see more land brought to the market and that Parsons should let him see something to that effect.

55.At interview on 17 January 2014, under oath, the Minister for Planning stated that he did not see the first briefing at any time prior to his approval of Amendment C125 on 8 September 2011. The Minister also confirmed that the discussion with Mr Parsons had occurred and gave evidence that during that conversation, he could not recall Mr Parsons mentioning that the department had provided a briefing or any other advice on the proposed amendment to the Minister’s office.

The email

56.On 3 June 2011, Mr Boxer sent an email to the Manager, the Senior Planner and the Assistant Director at the department. The email was headed ‘Land at Ventnor- Phillip Island URGENT’. It said:

14The defence was filed in response to the proceedings commenced against the government and the Minister by the developer following the reversal of the Minster’s decision to approve Amendment C125.

the briefings

 

13

 

 

 

 

 

www.ombudsman.vic.gov.au

[The Manager]

We have a briefing currently here – CMIN028572 ... ([the department Liaison Officer] will send back to you electronically)

The Minister is supportive of a rezoning of this land in accordance with the request from [the property owners’] planning consultant.

We are aware of the matters raised by the previous planning panel and are of the view that the issues can be overcome with a suitable development plan overlay plus residential zone. Please progress this matter for Ministerial consideration under section 20(4) of the Act and make contact with the relevant planning consultant to prepare the appropriate planning scheme documentation.

Timing – the provision of land for residential puurposes [sic] is a ket [sic] tenet of the government and therefore the expectation is for something in the near future for the Minister to consider

Please call me to discuss, Thanks, Marc

57.The email was also forwarded to the Director and Mr Hodge by the Assistant Director that day. A copy of the email is at Appendix 2.

58.In response to my draft report, Mr Boxer’s legal representative drew attention to the fact that the Liberal government’s planning policy from when it came into office in late 2010 was focussed on increasing land supply. He stated that this policy had influenced the content of the above email.

59.At interview, the Minister stated that Mr Boxer did not discuss the email with him prior to sending it and said that he was not made aware of the existence of the email until approximately October 2011.

60.As proposed in the email, the briefing was returned to the Manager electronically by the Department Liaison Officer through MiBS,

the electronic database used by the department to draft and track Ministerial briefings and correspondence. The message attached to the briefing said ‘As per Marc’s email, I am sending this back to you for revision’.

61.The briefing was then returned to the Senior Planner to revise.

62.The recommendation section on the coversheet for the first briefing provides a space for the Minister to sign and date the briefing and the following options for the Minister to tick:

[ ] Approved

[ ] Not Approved

[ ] Noted

[ ] Please Discuss

63.There is no evidence that the department sought to have the hardcopy of the first briefing returned with the Minister’s tick and signature prior to actioning the email from Mr Boxer.

14 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

64.Department witnesses were asked whether they would normally rely on an email such as Mr Boxer’s as being representative of the views of the Minister. They said that they generally would. In particular, Mr Hodge said:

I would expect the Minister’s office to have communicated with the Minister, before committing to these sort of issues.

I would have expected them to have understood what the Minister’s view was - that’s their job. They represent the Minister, the Minister’s office, and their job is to advise us as to the Minister’s position.

The second briefing

65.At interview, the Senior Planner said that a couple of days after receiving Mr Boxer’s email he telephoned Mr Boxer ‘basically to confirm that

they understood that there was no support for [the amendment]’. He said, ‘I just wanted to make sure that [Mr Boxer] understood…what was happening, that well, council were not supportive of it’. The Senior

Planner said that Mr Boxer responded by saying that they were aware of what was in the brief and that ‘they understood the situation’.

66.The Senior Planner commenced working on the second briefing in MiBS under the same document number as the first briefing, CMIN028572. The evidence provided by witnesses at interview indicates that these revisions overrode the electronic version of the first briefing in MiBS which had been provided to the Minister’s office.

67.As instructed by Mr Boxer, on 10 June 2011, the Senior Planner contacted the consultant, to request that she prepare a draft Development Plan Overlay for the property. On 21 June 2011, the Senior Planner received this draft from the consultant, along with other supporting documentation regarding the proposed amendment.

68.Between 28 June and 6 July 2011, the MiBS system indicates that the Senior Planner submitted a number of drafts of the second briefing to the Manager for review and that the Manager suggested a number of changes.

69.Email evidence shows that at some point during this period the Senior Planner and the Manager sought legal advice from the department’s internal legal unit. On 7 July 2011, a department lawyer provided written advice on Amendment C125 via email to the Senior Planner, the Assistant Director and the Manager. The advice did not support Ministerial intervention to facilitate Amendment C125. It stated:

…we think it will be difficult for the amendment to meet either of the tests for exemption under s 20(4) on the information to hand and do not recommend the power be exercised.

70.The advice went on to explain why the lawyer did not consider the amendment met either of the tests15. A copy of this advice, which I have redacted to omit some personal details, is attached at Appendix 3.

15The two tests under section 20(4) of the Planning and Environment Act are:

The Minister considers that compliance with any notice requirements is not warranted.

The Minister considers that the interests of Victoria or any part of Victoria make such an exemption appropriate.

the briefings

 

15

 

 

 

 

 

www.ombudsman.vic.gov.au

71.The Senior Planner incorporated a summary of the legal advice into the briefing and it was forwarded to the Assistant Director for review on 11 July 2011. At interview, the Manager gave evidence that when the second briefing left the regional office16, it recommended against ministerial intervention. However, this was not supported by email evidence obtained during my investigation, which showed that on 6 July 2011, prior to the second briefing leaving the regional office, it already had a cover sheet attached to it which recommended intervention. The Assistant Director also stated that he believed that the version of the second briefing which was provided to him for review by the regional office recommended intervention.

72.The second briefing was then reviewed by the Assistant Director and the Director and was subsequently signed by Mr Hodge on 29 July 2011. MiBS records indicate that it was then passed to the Minister’s office in hardcopy on or around 1 August 2011.

73.The second briefing, dated 25 July 2011, recommended that the Minister sign a series of documents to approve amendment C125, exempt himself from all available notice requirements under the Act using section 20(4) and notify the consultant and the Mayor of the council of the decision.

A copy of the second briefing, which I have redacted to omit some personal details, is attached at Appendix 4.

74.A comparison of the two briefings provided to the Minister’s office shows that much of the background information contained in them is identical. This includes the descriptions of the opposition to development of the property expressed by the council and various community groups at the C88 planning panel hearing and the recommendation made by the panel not to include the property within the town boundary.

75.However, the second briefing includes additional information which was not made available in the first briefing, some of which supports the ministerial intervention and some of which does not. Of specific relevance to the issues under investigation are the following additional points, which warn of risks to intervention which had become evident since the first briefing was prepared:

The council had a strategy in place to consolidate future urban development within the defined settlement boundaries to protect the environmental, aesthetic and landscape values of Phillip Island (paragraph 23).

The department had obtained legal advice that it would be difficult for the Minister to demonstrate that either of the necessary criteria for him to exercise his power under section 20(4) were present in this case and that there was a risk in exercising the power, should the decision become subject to review (paragraphs 31-33).

16The Senior Planner and the Manager were located in the department’s regional office in Traralgon, whereas the other staff involved in reviewing and approving the briefings, the Assistant Director, the Director and Mr Hodge, were located in the Melbourne office.

16 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

The broader public would not have been aware of the proposal to include the property within the town boundary, unless they were present at the Amendment C88 Panel hearing (paragraph 24).

There was no immediate shortage of land supply on Phillip Island (paragraph 21).

76.Beyond this, the most significant difference between the first and second briefings is that the recommendation in the second briefing is for intervention, in direct opposition to the recommendation made in the first briefing and despite the risks identified.

the briefings

 

17

 

 

 

 

 

www.ombudsman.vic.gov.au

The appropriateness of the recommendations in the second briefing

77.The complaint suggested that the recommendations in the second briefing were inappropriate for the following reasons:

they were inconsistent with :

a.the recommendation in the first briefing

b.legal advice the department had obtained

c.the requirements of the Act

d.the views of the local community and local council

e.recommendations made by two independent panels.

they were partial, having been influenced by the email from Mr Boxer dated 3 June 2011 advising that the Minister was supportive of rezoning land in accordance with the request from the consultant.

78.The inconsistencies referred to have been established and are largely reflected in the content of the second briefing17. As such, my

investigation examined why the department recommended intervention in the second briefing despite the significant risks and issues identified in the body of that briefing. This included an examination of whether the department had in fact changed its view about intervention when it drafted the second briefing and whether the recommendations or the content of the second briefing were influenced by Mr Boxer’s email.

Partiality

Relevant legislation, policy and guidance

79.Section 7 of the Public Administration Act 2004 details the public sector values to be upheld by Victorian public officers, one of which is ‘responsiveness’. Section 7(1)(a)(i) states:

responsiveness – public officials should demonstrate responsiveness by

providing frank, impartial and timely advice to the Government

80.Clause 2.1 of the Code of conduct for Victorian Public Service employees further elaborates on this value:

2.1 advising government

Public sector employees serve the Government of the day and provide the same high standard of advice regardless of the party in power. Advice is provided in a frank, impartial and timely manner, and with an understanding of its implications on the broader policy direction of the Government. Public sector employees do not withhold relevant information from the Government.

81.The complaint made to my office suggested that the second briefing may not have been frank and impartial in accordance with section 7(1)(a)

(i) of the Public Administration Act and clause 2.1 of the Code of conduct for Victorian Public Service employees.

17 The exceptions to this are a lack of reference in the second briefing to the first briefing and the C46 panel hearing.

18 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

The department’s views on intervention at the time of the second briefing

82.The coversheet of the second briefing has a handwritten note on it from Mr Hodge saying ‘Please discuss before finalising’. Mr Hodge confirmed that this note was directed at the Minister’s office and that he subsequently had the requested discussion with Ms Bartel and Mr Boxer. When asked what this conversation was about, Mr Hodge said:

Well you can see that clearly I had a different view of the world and the department had a different view of the world and I wanted to ensure that the Minister’s office understood fully what those issues were before it finalised the matter.

83.When asked what issues he was referring to, Mr Hodge said he wanted to make sure the Minister’s office was aware of the ‘chequered history’ of the site. Mr Hodge was then asked, ‘Are you saying…that you wanted to point out…that the department did not agree with this recommendation? Is that what you did with the Minister’s office?’. Mr Hodge replied, ‘It’s pretty clear, the answer is yes’.

84.In response to my draft report, Ms Bartel’s legal representative advised that Ms Bartel’s recollection of this meeting differed from the Mr Hodge’s. He advised that it was Ms Bartel’s recollection and belief that:

Mr Boxer was not present during this meeting.

During their conversation, Mr Hodge said words to the effect that the Minister ‘might cop a bit of flack’ but did not elaborate on this.

Mr Hodge did not communicate the property’s ‘chequered history’.

No employee of the department informed her of the department’s lack of support for intervention, the risks of intervention or that the department did not agree with the recommendations in the second briefing, prior to the amendment being approved.

85.Other departmental officers involved in preparing and reviewing the second briefing also provided evidence indicating that the department was not particularly supportive of intervention at the time it prepared the second briefing.

86.When asked about the recommendations in the two briefings, the Senior Planner said:

The [first] one, is clearly ‘no’. The second one is ‘yes’, is recommending ‘yes’, but I think it’s a very heavily qualified ‘yes’.

And you’ve got to take it in the context that the department’s already given advice saying it’s not a good idea. So the Minister is the Minister. He’s asked, we assume he’s asked for this, so … he’s asked for the ability to sign [the amendment] and that’s what the department provided.

Now whether you … say the department supported the recommendation, I think that’s stretching it. I don’t think the department did, in honesty, support the recommendation for signing it off. They gave him the ability to sign off and gave him some grounds, which I think were not strong, to support his decision and I think that was our role and I don’t believe we flip-flopped, if that’s what the implication is, on what we were telling the Minister, that its gone from being a bad idea to a good idea. It certainly wasn’t that.

appropriateness of the recommendations in the second briefing

 

19

 

 

 

 

 

www.ombudsman.vic.gov.au

I know [the second briefing has] got the recommendations there on the cover sheet, but I don’t believe that any reasonable person reading that would say that the department was saying ‘Great - this is good’.

87.The Manager said that he believed the recommendations in the second briefing were appropriate when they left his office, however, as noted previously, the evidence he gave was that when the briefing left his office, it recommended against intervention.

88.When the Assistant Director was asked at interview whether the department was supportive of intervention, he said:

No. The department had put forward its advice in the earlier briefing. The second briefing again repeats, you know, a lot of that information as to why it’s not a great idea and it adds in the advice from the legal people that they thought there were risks associated with it as well.

So the department, I thought, made it reasonably clear that it couldn’t see there was a very sound basis to do this.

I mean I have to say that I think that the briefing made it pretty clear that this was simply a recommendation coming forward because [the Minister’s] office had requested it. So it was simply providing him with the necessary documentation to allow him to make the decision we had been told he wanted to make and you know, the content of the briefing is very much saying, you know, there are issues with this that would suggest that this is not something that makes a lot of sense.

89.When asked whether the department supported Ministerial intervention at the time the second briefing was provided to the Minister’s office, the Director said:

I think that I could say we supported that, yes…it’s…not the case of not supporting it. It’s more it is a case of saying that ‘that’s open to you to do from a planning point of view and we’re recognising that there’s some other risks as well’.

It’s not necessarily saying that we were wildly excited about the prospect of it, but it’s just, we were prepared to make that recommendation because we can see some logic.

We’re not being wildly enthusiastic about him intervening. That’s as far as I can put it really.

If [the Minister] said, ‘I really want to do this’, we can’t say, ‘Well we’re not going to give you the paperwork for this so, you know, tough’. So at the end of the day, he is the decision-maker…it is he that is the statutory

approver. If he says he wants to do it, we can only show him the risks, give him the planning context and provide him with the necessary paperwork.

90.Despite providing evidence which indicated that the department did not support intervention, when asked at interview, all the officers involved in drafting, reviewing and approving the briefing said they considered the recommendations in the second briefing to be frank and impartial.

20 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

91.The Assistant Director said:

Well, I think it is [frank and impartial]. I mean I think it’s got to be seen in the context of the earlier version of it. The purpose of it, makes it clear, ‘to provide you with the necessary information to consider, as requested by your office’.

It then sets out why, in a planning sense, there are difficulties in making that decision, why in a legal sense there are difficulties. So I think, you know, to that extent, it’s as frank as we can be about it. The department thinks this is a, you know, inappropriate decision, but you know, there it is. You’ve indicated you wanted to make that decision.

92.The Director said:

Yes I do [consider the recommendations were frank and impartial] … Well in the context of the brief I would take that to be the case, but I think, I think the expression could have been better and we would do that in future.

Requests to revise ministerial briefings

93.The Australian Public Service Commission states the following in relation to the revision of briefings by Commonwealth departments at the request of Ministers’ offices:

In general, briefing advice should not be changed or opinions omitted if the agency remains of the belief that particular arguments should be considered by the Minister. Where any changes to advice are involved, the brief should record the nature of the changes and the source of the request.18

94.This guidance reflects the duty to provide frank and impartial advice to government, which is also imposed on Commonwealth public servants.

95.In an article titled, ‘Dealing with ministerial advisers: a practical guide for public servants’19, the Secretary of the department at the time both the first and second briefings were drafted, wrote:

[U]nder no circumstances should a secretary allow a ministerial adviser to request the department re-write a recommendation from the department on a particular matter.

Of course there should be opportunities for discussion between the department and the minister’s office about the substance of advice. However, at the end of the day the minister is entitled to receive the department’s best advice and the department is obliged to provide it. If someone in the minister’s office disagrees with that advice, they are always able to write a covering note to say so directly to the minister.

96.Department officers were asked at interview whether the department regularly received communications similar to the email from Mr Boxer from the Minister’s office. They advised that emails of this kind were unusual but, as one officer put it, ‘not unheard of’ and that the Minister’s office rejected ‘a handful’ of briefings per year.

18Australian Public Service Commission, Supporting Ministers, Upholding the Values: a good practice guide, Canberra, 2006, page 55.

19Dealing with ministerial advisers: a practical guide for public servants’, The Conversation, 14 October 2012 < http:// theconversation.com/dealing-with-ministerial-advisers-a-practical-guide-for-public-servants-10031> accessed

7 February 2014.

appropriateness of the recommendations in the second briefing

 

21

 

 

 

 

 

www.ombudsman.vic.gov.au

97.When Mr Hodge was asked whether he had sought further explanation about the meaning of the email from the Minister’s office, the following exchange took place:

Interviewer: Did you have to seek any clarification around this, as to what was required, or were you quite clear what was required once you got this … email?

Mr Hodge: Ah no, it’s pretty clear what’s required.

Interviewer: Okay and that would be through what, your experience within the department and communications with the Minister’s office?

Mr Hodge: I know exactly what that means.

Interviewer: Can you tell me exactly what it means please?

Mr Hodge: It means the Minister wants to do what the consultant said, as requested.

98.In relation to this, Mr Hodge said, ‘It happens. The Minister is the Minister and … he has the right to do that … The Minister can issue instructions regardless of briefings’.

99.However, when asked to clarify, the following exchange to place:

Interviewer: So, just to clarify, did you consider [the email] to be an instruction from the Minister?

Mr Hodge: No, it’s an instruction from the Minister’s office. Interviewer: Okay. But an instruction?

Mr Hodge: It’s pretty clear.

Interviewer: So you’ve said this is an instruction ... Did you consider that it was an instruction to change the recommendations that had been provided in the previous briefing?

Mr Hodge: It’s pretty clear what it’s asking. It’s asking for a brief to approve the amendment.

Interviewer: And in order to have a brief that would allow the Minister to approve the amendment, would it be necessary to change the recommendations that had been made in the previous briefing.

Mr Hodge: Of course it is. You can see that.

The Minister has the right to issue instructions as to what his expectations are and what he wants to do under his powers. I don’t have to agree with it at all. I don’t have to agree with any of it. I have to provide the necessary documentation to allow the Minister to do it.

100.When asked whether he considered the email to be a direction to change the recommendations, the Assistant Director said:

Ah, yeah, pretty much I think. Well it was a clear indication that the Minister hadn’t accepted that advice and that he wanted to take a different course.

22 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

101.When Mr Boxer was asked at interview about how he would characterise his email to the department, the following exchange took place:

Interviewer: In sending this email, were you directing the department to change the recommendations that it had made in [the first] briefing?

Mr Boxer: I think the language is quite careful in the way I put it. I said ‘the Minister is supportive’, okay. So I used that language. So, in terms of a direction to the government I would, in the way it’s worded, I’ve indicated that I would like to see more work done in relation to this

request, to seek further advice, and then to put up a brief to the Minister, reflecting the government’s policy position.

Interviewer: Okay, so that’s a no, is it?

Mr Boxer: Can you repeat the question again to me?

Interviewer: In that email, were you directing the department to change its recommendations so that those recommendations would support the Minister intervening in that matter?

Mr Boxer: I was directing the department to respond to government policy.

Interviewer: In this case, would you consider that to respond to government policy, they would have to change the recommendations?

Mr Boxer: Possibly.

102.When the Minister was asked about requests made by his office for the department to revise briefings, the following exchange took place:

Interviewer: Does your office regularly request [that] departments revise briefings?

Minister for Planning: Well, not that I’m aware of.

Interviewer: Have you ever made such a request to the department?

Minister for Planning: I wouldn’t need to … I take the department’s brief as advice. I wouldn’t need them to adjust a recommendation. I would make that decision myself. They provide me with advice, as do the advisors in my office. But at the end of the day, I make the decision.

The template and use of the term ‘recommendations’

103.The Oxford dictionary defines ‘recommendation’ as:

a suggestion or proposal as to the best course of action, especially one put forward by an authoritative body.

104.When asked about the recommendation for intervention in the second briefing and its apparent inconsistency with the risks of intervention identified in the body of the briefing, a number of witnesses referred to issues with the ministerial briefing template being used by the department at the time and its use of the term ‘recommendation’.

105.The Assistant Director said:

Part of the issue I think is around that term ‘recommendation’. When really they’re just, they’re decisions…The heading makes it look like the department had no other view, I suppose, when in fact if you read the brief it clearly did have a different view.

appropriateness of the recommendations in the second briefing

 

23

 

 

 

 

 

www.ombudsman.vic.gov.au

106.The Senior Planner said he considered that in order to allow the Minister to proceed with the amendment the Minister needed to tick something to show that the amendment was approved and that this was one of the reasons the recommendations on the ‘Recommendations’ page were for intervention. He said, ‘[the Minister] is going to have to have that sheet, whether the department agrees with it or disagrees with it, to approve the amendment’.

107.The Director stated that at the time, the department did not have an option in the briefing template to say ’notwithstanding this, if you want to do this, this is what you have to sign’ and that this was why the approval for the amendment was framed in the form of a ‘recommendation’.

108.Mr Hodge said:

This is a victim of a standard format of documentation, because everything, everything there says ‘Recommendation’. Everything. You know, it could say that you have toast for breakfast. It’s a ‘recommendation’. That’s what it would say.

So, you know, it’s just an administrative protocol that this thing’s called a ‘recommendation’ from the department. You could say ‘resolution’. You could say ‘action’. It’s effectively an action item … I would read ‘recommendation’, for the purposes of this … that ‘recommendation’ actually says ‘action item’ or ‘action’ or something like that.

I’m going to have a bet with you that you will not find a briefing document in government that doesn’t have a heading

‘recommendations’ on it. So I think there is a bit of a hang up on the word ‘recommendation’.

109.The evidence provided by witnesses at interview also indicates that another factor influenced the department’s use of the term

‘recommendations’ in the second briefing. This influence was a belief on the part of department officers that it was not appropriate to provide open-ended options to the Minister in a briefing.

110.One officer said that he understood that the current Minister preferred to receive recommendations in briefings, whereas some previous Ministers preferred to receive options.

111.Mr Hodge gave evidence along similar lines, saying:

… it’s not proper service to a Minister to give them open-ended briefs without a recommendation. It does no-one any good.

So the department is obliged, not obliged, but the department, you know, has an opinion. Clearly ministers can’t make their mind up about everything. The department will make a recommendation.

Changes to the department’s briefing template

112.During my investigation, the department advised that its ministerial briefing template had been changed around December 2012/January 2013. It provided an example of a briefing in relation to a recently proposed planning scheme amendment, which it advised was reflective of its new briefing practice. In comparing the example provided to the second briefing, it said:

24 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

The briefs cover very similar ground and both are appropriately responsive to the Ministerial policy preferences. Both highlight the risks of adopting a particular course of action. The new format, however,

is arguably clearer in identifying and separating the department’s recommended and non-recommended courses of action.

113.The example provided indicates that in circumstances such as those surrounding Amendment C125, the department’s new briefing practice would be to frame recommendations in the following manner:

Recommendations That you:

a) Note the content of this brief including advice of the Department of Transport, Planning and Local Infrastructure (DTPLI) Legal and other options open to you.

[ ] Noted

[ ] Please discuss

If you form the view that you wish to prepare an amendment…this brief provides you with the documentation that enables you to:

[From this point on the recommendations are essentially the same as those contained in recommendations a) to f) of the second briefing, except that each recommendation has an additional tick-box option of

‘[ ] Please Discuss’]

114.At the conclusion of the briefing, in a section titled ‘Rationale’, the briefing outlines three ‘options’ open to the Minister to deal with the request for intervention and marks them as either ‘recommended’ or ‘not recommended’.

115.The other notable difference between the example briefing and the second briefing is that the opening section of the example briefing clearly explains that the department has previously briefed the Minister on the proposed amendment and that the brief was returned with instructions from the Minister’s office to ‘explore options for a Ministerial amendment using section 20(4) of the Planning and Environment Act 1987’.

116.The department has advised that the new practice is also to ensure that any revised briefs are created in MiBS with a new document number, so that the previous briefing is retained as a separate document.

Interpretation of the second briefing by the Minister’s office

117.While the second briefing makes no reference to the first briefing, officers drew attention to the language used in the ‘Purpose’ paragraph of the second briefing, suggesting it should have influenced how the second briefing’s ‘recommendations’ were understood by the Minister’s office. The first paragraph of the second briefing says:

appropriateness of the recommendations in the second briefing

 

25

 

 

 

 

 

www.ombudsman.vic.gov.au

PURPOSE

1. To provide you with the necessary information to consider preparing, adopting and approving Amendment C125 of the Bass Coast Planning Scheme, with exemptions from notice under section 20(4) of the Planning & Environment Act 1987 (the Act), as requested by your office [emphasis added].

118.Mr Hodge, the Director and the Assistant Director all gave evidence that the first paragraph of the second briefing was amended to make it clear that the recommendations were being provided based on what the Minister’s office had requested. For example, when asked why the paragraph was amended, the Director said:

Because I think it’s to suggest that this is being provided in response to a request from [the Minister’s] office. That this is about [providing] the necessary information to consider doing this, without necessarily recommending anything.

119.The evidence provided by the Minister and his staff at interview indicates that the language in the first paragraph of the second briefing did not have the desired effect. The Minister said that he read the second briefing in its entirety prior to approving Amendment C125 on 8 September 2011. He also indicated that as he was not aware of the existence of the first briefing (or that the department had provided any

advice in relation to Amendment C125 previously) at the time he received the second briefing, he was not aware that Mr Boxer’s email of 6 June 2011 might have influenced the advice in the second briefing at the time he approved the amendment.

120.At interview, Mr Boxer, Ms Bartel, Mr Parsons and the Minister were all asked whether they considered, based on the second briefing, that the department was supportive of intervention. While Ms Bartel said she thought the department was, ‘probably not’ supportive of intervention based on her reading of the document at interview, Mr Boxer and

Mr Parsons both said that when they initially received and read the second briefing, they believed that the department was supportive of intervention, based on the fact that it had recommended it.

121.In response to my draft report, Mr Hodge said that ‘Mr Boxer and Mr Parsons were completely aware of the Department’s views on this matter’ as a result of the ‘ongoing discussions both advisors had with the department’ and ‘the recommendations that were read by Mr Boxer in the first briefing’.

122.The Minister gave the following evidence in relation to his understanding of the recommendations:

Interviewer: When you reviewed the briefing and its recommendations, did you understand from that, that the department was supportive of ministerial intervention?

Minister for Planning: The recommendation was that I prepare the amendment and I believed preparing the amendment was correct.

Interviewer: So obviously there’s recommendations attached to that document and there’s some material behind that which contains some information and evidence in relation to the proposed amendment.

26 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

Minister for Planning: Yes.

Interviewer: So, having reviewed the recommendations, which appear on the face of [it] to say that you should intervene and use section 20(4) and also the content behind those recommendations, did you get the impression that the department thought you should intervene in this matter?

Minister for Planning: Ah, I didn’t make any assumptions, suffice to say that I believe that the, the C125 should be approved.

123.The Minister did however confirm that he would generally assume ‘Recommendations’ in a briefing from the department to be the department expressing a view about the best course of action.

124.When asked how much weight he gave to the recommendations in the second briefing in making his decision in relation to approving amendment C125, the Minister said:

Well obviously it’s departmental advice, but it’s not just the recommendations, obviously there’s material that’s contained within so, as I do, I read the briefs, then I make a decision at the end as to whether I think it’s right and I don’t take always, the department’s point of view.

Other evidence considered by the Minister’s office

125.In examining the impact any recommendations or advice given by the department in the second briefing may have had on the Minister’s decision-making ability in relation to Amendment C125, I gathered

evidence in relation to whether additional material had been provided to the Minister’s office by the department and the council which may have had an impact on the Minister’s understanding of the second briefing.

126.The relevant supplementary information obtained by the Minister’s office is described below.

127.As stated earlier in this report, a couple of days after receiving Mr Boxer’s email, the Senior Planner telephoned Mr Boxer to reiterate the council’s lack of support for the amendment. In addition to this, when Mr Hodge delivered the second briefing, he had a conversation with Ms Bartel in which he says he communicated the property’s ‘chequered history’ and the department’s lack of support for intervention.

128.On 3 August 2011, the department lawyer who prepared the legal advice on Amendment C125, forwarded a complete copy of this advice to Mr Boxer. Mr Boxer then forwarded it to Mr Parsons attached to an email saying, ‘daniel – please read this’. At interview, the Minister said that he was not provided with a copy of the legal advice.

129.On 5 September 2011, three days prior to the Minister signing the Amendment, Mr Boxer also sent an email to the Senior Planner titled ‘Land at Ventnor’, stating:

[The Senior Planner],

Cardogan [sic] land (24 hectares)

Can you confirm Bass Coast’s current views on this? Is it the same as recent C88?

Thanks, Marc

appropriateness of the recommendations in the second briefing

 

27

 

 

 

 

 

www.ombudsman.vic.gov.au

130.At interview, the Senior Planner said he believed he responded to this email by telephone and advised Mr Boxer that the council’s view was still the same and that they were not supportive.

131.On 8 September 2011, the day Amendment C125 was signed, Mr Parsons said that he telephoned the Chief Executive Officer of the council,

Mr Allan Bawden, to independently ascertain the council’s views on the matter, at the request of Ms Bartel. At interview, Mr Parsons gave evidence that during this conversation, Mr Bawden said with respect to the council’s views ‘essentially there was no view either way on this

matter’. Mr Parsons said he then relayed this information to Ms Bartel and the Minister.

132.My investigation obtained a document which appears to be a file note of Mr Parsons’ conversation with Mr Bawden. The note says:

Alan [sic] Bawden - Bass Coast Shire CEO

Council never had a view if it should be in or out. [Mr Parsons’ emphasis] Put it out on exhibition due to wanting to get comment.

Not a lot of support for amendment other than from proponent so council adopted the Panel report.

Want to ensure habitat issue is dealt with effectively. Nature based tourism very important for community. (proponent proposes banning cats & dogs in subdivision)

Only other point is Minister wanting councils to make decisions. Council has made 7 or 8 year investment in time and money on strategic planning. Extension of Cape Paterson, now this, don’t know what’s next...

may create uncertainty about ultimate town boundary.

Recommendation: sign it [Mr Parsons’ emphasis] Give Alan a call when Minister does sign off on it.

133.While Mr Bawden confirmed at interview that Mr Parsons had telephoned him on 8 September 2011, his evidence diverged from that of Mr Parsons in relation to what he told Mr Parsons about the council’s views on the proposed amendment. He said:

The first contact I or anyone at the council had was by way of a phone call from the Minister’s advisor to indicate that the Minister had received a request for a planning scheme amendment to rezone some land in Ventnor and that the advisor had just been asked to just get some background on the request.

So…in the space of that conversation I just indicated that … the land in question was well known to the council. It had been the subject of a fair bit of community discussion through the development of … the … Phillip Island Design Framework back in about 2002…and through

Amendment C88, which was a review of the…Ventnor Cowes Silverleaves town boundaries or structure plan including the town boundaries in 2009 I think … and during the process of that C88 Amendment the owner of that land had proposed for it to be rezoned. It had been clearly rejected by the community … rejected by the panel, ultimately rejected by the council in accepting the panel’s recommendations and then

that amendment was subsequently approved by the previous planning Minister, so there was really no support for … that re-zoning.

28 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

So I recall in my conversation with the advisor I suggested he read the panel report because it was very clear why it shouldn’t be rezoned … and that there wasn’t any support there for such a re-zoning. So I indicated then that if … the Minister did propose to entertain the request I’d … like them to contact us so we could at least provide a much better briefing.

I made it clear that we’d only recently reviewed the town boundary and it had been clearly rejected by the council then along with, you know, based on the advice of the panel … and I couldn’t see any reason why the council would be interested … in reviewing that in the short term.

134.In response to my draft report, Mr Bawden said:

1. I am unclear of the context of Mr Parson’s [sic] comment in the file note ... that Council had “no view either way on this matter” ... It may have related to comments I made during our telephone conversation when trying to provide a short history of the various strategic planning reviews which had involved this land over the preceding decade (Phillip Island and San Remo Design Framework, the Cowes, Ventnor, Silverleaves and Wimbledon Heights Structure Plan, Amendment C46 and finally Amendment C88). If this was the case, the suggestion that the council had no view ‘either way’ may have related to the attitude of Council prior to the exhibition of Amendment C88 in October 2008. As often occurs in Planning Scheme Amendments of this nature, Council will not unduly constrain the range of issues which can be raised during the exhibition period. However, once submissions were received (December 2008) and referred to an independent panel (May 2009), Council had formed a firm view to support Amendment C88, subject to minor changes, and not to support any expansion of the Ventnor town boundary to accommodate [the property].

In other words, if I had said what is attributed to me in Mr Parson’s [sic] file note it was in the context of Council’s position in late 2008 prior to the Panel hearing for Amendment C88. I would not have used those words in connection with a new proposal to rezone the land or extend the town boundary.

This is supported by the sentence immediately following [that paragragh] namely, “Put it out on exhibition due to wanting to get comment.” This tends to suggest that any reference to Council never having had a view as to whether “it should be in or out” was a reference to what had occurred back in 2008 when Amendment C88 was put out for exhibition.

2.During my conversation with Mr Parsons on 8 September I suggested that he read the Amendment C88 Panel Report.

3.At no time during the conversation did Mr Parsons indicate that a decision to rezone the land was imminent or had been made. All I was told was that the Minister had received a request from the owner and that the Minister was willing to consider it. Mr Parson’s [sic] task, as he described it, was to gather some background information to enable the Minister to be briefed.

Correspondence received by the council the following week indicated that Amendment C125 was approved on 8 September 2011.

4. At the conclusion of the discussion I requested Mr Parsons to call me back if the Minister was of a mind to seriously entertain the request given that Council would have grave concerns at such action.

appropriateness of the recommendations in the second briefing

 

29

 

 

 

 

 

www.ombudsman.vic.gov.au

5.At the time I took the call from Mr Parsons, I was attending a meeting with the Council’s Director of Planning and Environment and immediately briefed her on the call. As Mr Parsons had indicated he would call me back if the request was to be progressed, we decided to await his call.

6.When I hadn’t heard from Mr Parsons by the following Monday (12 September), I called him. He advised that the Minister had acceded to the request by approving Amendment C125.

7.It is normal procedure with Ministerial-initiated amendment to first contact Council planning staff to obtain an amendment reference number. When I asked Council staff for any information on Amendment C125 they had no knowledge of the Amendment and had not been asked for a reference number.

8.As soon as I was aware of the existence of Amendment C125, I briefed the Mayor and drafted a letter to the Minister requesting that Amendment C125 not proceed and that he meet with Council to discuss.

9.Mr Parson’s [sic] evidence in ... of the draft [r]eport is somewhat surprising, having regard to the sequence of events, Council policy and Council decisions. During our telephone conversation he acknowledged he had read the Amendment C88 Panel Report. This clearly documented Council’s submission to the Panel and the Panel’s

recommendations which supported the Council view not to include [the property] in the Ventnor town boundary. Given the rigour inherent in the development of Council-initiated Planning Scheme Amendments, an experienced planner would, in my view, understand that a council would always respect and defend its Planning Scheme.

Conflict of interest risk identified

135.An additional issue with respect to the department’s planning staff was identified during my investigation which warrants mention.

136.Throughout my investigation, it became clear that the planning industry in Victoria is such that planning professionals often transition from jobs in the private sector to jobs in the public sector and vice versa. Private planning consultants are likely to have a high level of contact with public sector bodies such as the department and local councils in the course of their business.

137.Public officers who transition to the private sector may be privy to confidential information obtained in their roles as public officers which could benefit themselves or their clients in the private sector. Conversely, public officers who have come from the private sector may be placed

in positions where they need to make decisions or provide advice on matters which affect individuals and businesses they have been involved with in the private sector.

138.The following situation, identified during my investigation, provided an example of this type of risk.

30 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

Advice provided by Officer X

139.At 6.10pm on 8 September 2011, the same day Amendment C125 was approved by the Minister, Ms Bartel sent an email to Officer X at the department, with ‘Ventnor’ in the subject line. The email asked ‘What are the Council’s views?’.

140.At that time, Officer X was acting in the role of Director, State Planning Services for approximately one week. Officer X responded to the email on 9 September with a summary of what he considered the council’s objections to the development of the property to be. Officer X’s email is dismissive of these objections. For example, he states:

If there were real concerns about the impact of dogs on [the bird colony] they could ban dogs on the beach via local laws. Council has not done this.

If the concern is too many people in Ventnor they could restrict redevelopment of blocks via min lot sizes or dwelling numbers. Council has not done this.

141.It appears that this email was received by Ms Bartel and Mr Boxer the day after the Amendment was signed by the Minister.

142.At interview Officer X said that prior to working for the department, he worked at the consultancy firm representing the property owner and developer in relation to Amendment C125. He said that he had in fact represented the property owner at the 2007 panel hearing for Amendment C46, where he had advocated for the property to be

included within the town boundary for Ventnor. He said that he knew the property owner ‘quite well as a client’.

143.Officer X said that he believed both the Director and Mr Hodge ‘would have been aware’ of his previous involvement with the property. He said he did not make any written declaration of a conflict of interest in relation to the matter as it was being dealt with at regional office level, but that he identified that he had previously been involved when it was discussed. He also said that he had specifically disclosed that he had a

previous history with the property to both Ms Bartel and the Minister in a meeting which took place at the Minister’s office on 8 September 2011.

144.In response to my draft report, Ms Bartel’s legal representative said that it was Ms Bartel’s recollection and belief that she did not meet with Officer X and the Minister at the Minister’s office on 8 September 2011.

145.Officer X said that he was not aware that the Minister had already approved Amendment C125 at the time he sent the email to Ms Bartel on 9 September 2011. He said that he did not feel conflicted in providing the advice to Ms Bartel as the advice was ‘purely factual’ and was made up of a ‘mish-mash of general knowledge’ he had acquired while working at the consultancy firm prior to coming to the department.

146.At interview, both the Minister and Ms Bartel said that Officer X had not declared any kind of conflict to them in relation to the matter and that they were unaware that he had previously acted on behalf of the property owner in relation to the property when he worked for the consultancy firm.

appropriateness of the recommendations in the second briefing

 

31

 

 

 

 

 

www.ombudsman.vic.gov.au

Conclusions

Inconsistency

147.I am satisfied that the second briefing provided by the department, dated 25 July 2011, recommended that the Minister intervene to approve Amendment C125 using section 20(4) of the Planning and Environment Act, contrary to:

Recommendations set out in an earlier briefing it had prepared for the Minister, being the first briefing, dated 16 May 2011, copied at Appendix 1.

Legal advice it had obtained from a department lawyer dated 7 July 2011, copied at Appendix 3. This advice indicated that intervention was likely to fail to meet the requirements of section 20(4) of the Planning and Environment Act.

The requirements of the Planning and Environment Act, based on the above legal advice and the government’s submission in the subsequent Supreme Court proceedings that the Minister’s decision had in fact been ‘invalid and of no lawful effect’ because it did not meet the requirements of section 20(4).

The views of the local community and local council, as expressed at the panel hearings for Amendments C46 and C88, during which opposition to the inclusion of the property in the Ventnor town boundary was expressed by the council and various community members and groups.

Recommendations made by two independent panels, being the recommendations made by the planning panels for Amendments C46 and C88 of the Bass Coast Planning Scheme, that the property not be included in the Ventnor town boundary.

148.I consider that the recommendations in the second briefing were inappropriate because they:

were made contrary to the above issues

were largely inconsistent with the content of the briefing, which outlined a number of the above issues

did not adequately reflect the department’s views about the best course of action with respect to Amendment C125

did not amount to the department providing frank and impartial advice to government.

149.Taken in isolation, the recommendations on page two of the second briefing could clearly be interpreted as the department advising that it considered the best course of action was for the Minister to exercise his ministerial intervention power in relation to Amendment C125. However, the content in the body of the briefing does not support intervention.

32 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

150.The evidence obtained by my investigation shows that the reasons for this inconsistency are twofold. The first is that the department made poor use of its ‘template’ for ministerial briefings and the second, more concerning reason, is that the department felt compelled to change its recommendation on the strength of an email from a ministerial advisor, Mr Boxer, dated 3 June 2011.

Lack of frankness and impartiality

151.It is clear from the evidence of the departmental officers involved in preparing, reviewing and approving the second briefing, that they did not believe ministerial intervention was the best course of action. They recommended that the Minister decline to intervene in the first briefing and I am satisfied that their views had not substantially altered at the time they prepared the second briefing. Despite this, the second briefing recommended intervention.

152.The Public Administration Act and the Code of conduct for Victorian Public Service employees require that public officers provide frank and impartial advice to government. While I am satisfied that the second briefing adequately conveyed relevant information and risks in relation to Amendment C125, I do not consider that it was sufficiently frank in communicating to the Minister the department’s lack of support for ministerial intervention. Nor did it mention the first briefing, which clearly opposed the amendment.

153.Indisputably, the Minister was the responsible decision-maker in this matter, irrespective of advice provided by the department or his staff. However, in order for a minister to be in the best possible position to make a decision, it is crucial that their department is frank and fearless in providing its opinions about what it considers to be an appropriate course of action.

154.Based on the evidence provided by witnesses at interview and the lack of a clear reference to the department’s recommendation against intervention in the first briefing, I am satisfied that the department was

reluctant to recommend against a course of action which it believed the Minister had said he wished to pursue. To this extent, I consider that the recommendations in the second briefing were not impartial as they had been influenced by the email from Mr Boxer dated 3 June 2011.

155.Mr Hodge was aware that the department should provide frank advice which was not unduly influenced by the Minister’s office, as

demonstrated in his email to the department officer who initially sought advice from Mr Boxer about how to proceed. Despite this, Mr Hodge ultimately signed off on a briefing which he knew had been revised in accordance with ‘instructions’ from a ministerial advisor.

156.While I acknowledge that the email from Mr Boxer says the Minister is supportive of Amendment C125 and asks the department to prepare the necessary paperwork, I do not accept that complying with this request prevented the department from recommending against intervention.

conclusions 33

 

www.ombudsman.vic.gov.au

Poor use of template and the term ‘recommendations’

157.The department’s poor use of its briefing template also contributed to the way the briefing was presented.

158.Some department officers said that it was the preference of the Minister, or ‘proper service’, for the department to provide an opinion in ministerial briefings recommendations, rather than open-ended options. Despite this, officers involved gave evidence that the recommendations in the second briefing did not convey the department’s opinion. Somewhat inconsistently, they argued that the recommendations were merely a necessary mechanism to allow the Minister to approve the amendment.

159.A recommendation should only be labelled as such where it expresses an opinion on the part of the person or body making it. If an option is merely an option, it should be clearly identifiable as such.

160.The risk of misinterpretation posed by imprecise use of the term ‘recommendations’ was demonstrated by some ministerial staff who received the briefing saying they interpreted the recommendations as indicating that the department supported ministerial intervention, when in fact this was not the case.

161.While the Minister said that he ‘didn’t make any assumptions’ about whether the department supported intervention in this case,

recommendations which are open to misinterpretation have the potential to adversely affect decision-making by a Minister. They can also create uncertainty around accountability for advice and decisions.

162.The changes that have been made to the department’s ministerial briefing template since this matter came to light address some of the issues I have identified in relation to the second briefing. However, the template is still confusing in that it does not use the ‘Recommendations’ section to express the department’s opinion about the best course of action.

Inappropriate reliance on the email as representing the views of the Minister

163.Ministerial advisors tend to function as a conduit for communication between ministers and their departments. My investigation has highlighted the risks of such communications and the need for departments to have strong policies and protocols in place to manage them.

164.Ministerial staff do not have any legal authority to direct public service employees. State Services Authority guidance materials state that, while at the discretion of the department secretary, ministerial staff may have direct working relationships with specific senior staff of the department to allow day-to-day operations to be carried out efficiently, all directions to departments and requests for information should come from the minister to the secretary20.

20State Services Authority, Serving Government: A Guide on the Victorian Public Service for Ministerial Officers, Melbourne, February 2011, page 17.

34 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

165.In response to my draft report, Mr Hodge said:

Your comment … that “All requests for information should come from the Minister to the Secretary” … does not reflect the practical operation of the business of government. This simply does not occur because it is impossible, impractical and naive to think this can be achieved. The Planning Minister’s office deals with many hundreds of briefs per week and it does not direct all requests, if any, for further information through the Secretary.

166.In this case, the department received an email from a ministerial advisor which was seen as an ‘instruction’ or ‘direction’, to revise a ministerial briefing. The evidence from some of the department staff involved in preparing the second briefing was that they expected it to be considered by the Minister in the context of the first briefing. However, they never sought confirmation that the Minister had actually received the first briefing. This was despite the briefing having spaces for the Minister to sign and tick to confirm receipt, irrespective of whether he accepted the recommendations. Nor did the second briefing reflect that a differing view had previously been expressed by the department.

167.Practices such as this create significant risk for departments and Ministers. Departments cannot be certain of the advice that has been provided to a minister and ministers cannot be certain that they are being fully briefed. The risk was realised in this case, as it appears the first briefing was never provided to the Minister by his staff.

168.Departments should have robust processes in place to mitigate risks posed by requests to revise briefings, particularly where those requests come from ministerial staff. In cases where formal written advice is provided to a minister, a department should seek a direct response from the minister before proceeding with action. To this extent, I consider that it was inappropriate for the department to rely on Mr Boxer’s email as being representative of the Minister’s views without seeking the Minister’s formal response.

169.In this instance, the situation could have to some extent been remedied by the second briefing clearly referring to the first. This did not occur. While a number of officers referred to the ‘Purpose’ paragraph as serving this function, it was clearly insufficient.

170.In response to my draft report, Mr Hodge, who no longer works for the department, said:

[I]t must be noted that the second briefing clearly says, “to provide you with the necessary information to consider preparing adopting and approving Amendment C125 as requested by your office”. The Department cannot communicate directly with a Minister on every administrative matter that is put to him for consideration. It is normal practice throughout government for the Minister’s office to “settle” a brief with the department before presenting it to the Minister. This can involve clarifying language, providing more data, or adding options that address how to deal with a matter.

conclusions 35

 

www.ombudsman.vic.gov.au

The Ventnor matter is no different in this regard. The Minister’s office was completely aware of the Department‘s views on the matter and in settling the matter for consideration by the Minister it sought to provide the Minister with an option to proceed. The Department has no choice in this. It is obliged to serve the Government and Minister of the day despite it not agreeing with a particular policy or instruction. It is also obliged to provide it in a timely manner and not withhold any relevant information. Your report seems to criticize the department, despite the fact that it received a direct request from the Minister’s office for a brief, I note too that all relevant history and information is provided in the brief. It also fails to mention that I went to the extraordinary length of hand writing a request on the brief to discuss the matter before finalizing.

[The Minister’s] office asked for a particular action and the department is obliged to respond by delivering the Minister’s desired action. The Minister’s office did receive advice from the department in the first briefing and via ongoing discussions with the department. It was abundantly clear that the department did not support the amendment. In all cases the advice was frank and impartial, however you have not acknowledged the fact that the department was instructed to prepare a document that delivered the necessary documentation to approve the amendment that the Minister had asked us to prepare.

As the Executive Director responsible for these matters I am obliged to ensure that a Minister’s instructions are acted on and delivered in a timely manner. The Minister was advised that his preferred course of action was not supported by legal advice, an independent panel, the Shire of Bass coast and the Department. I find it difficult to understand how a conclusion is drawn that this briefing process demonstrates a

lack of frankness and impartiality. The alternative of refusing to action or obstruct a Minister’s direct instructions is contrary to the Public Sector Management Act and contrary to my role and responsibility to act a Senior Public servant serving the Minister of the day.

171.Mr Hodge’s response fails to acknowledge that it was open to the department to recommend against intervention while still preparing the necessary paperwork. While Mr Boxer’s email does not overtly direct the department to change its recommendations, it is clear from the Mr Hodge’s response to my draft report that this continues to be his interpretation of it. Further, I find Mr Hodge’s evidence that it is ‘normal practice throughout government for the Minister’s office to “settle” a brief with the department before presenting it to the Minister’ concerning. Particularly as in this case, ‘settling’ the brief involved a complete reversal of the recommendations which the department originally supported.

172.The processes within the Minister’s office around the Minister not seeing the first briefing were not examined in detail by my investigation, due to limitations in jurisdiction. However, I am of the view that it is inappropriate for a ministerial advisor to intercept a formal piece of correspondence addressed to the Minister from a senior officer of the department, without giving the Minister the opportunity to view it. Further, the evidence provided by the Minister at interview indicated that he considers requests to revise briefings unnecessary and that the request in this case was made without his knowledge or authorisation.

36 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

173.In response to my draft report, Mr Boxer’s legal representative said:

Objection is taken [to] the view expressed by you that “it is inappropriate for a ministerial adviser to intercept a formal piece of correspondence addressed to the Minister from a senior officer of the department, without giving the Minister the opportunity to view it”.

The opinion expressed by you fails to take into account the following matters:

1.The Department prepares a briefing that is signed by a relevant department officer

2.The department liaison officer registers the fact that the briefing has been prepared and forwarded to the Minister’s office and has been given to a ministerial adviser.

3.The ministerial adviser reads the briefing and makes notes in relation thereto.

4.The briefing together with the notes are provided to the Minister followed by a discussion with the Minister.

5.The Minister makes the decision.

To suggest that there is an “interception” fails to recognise the established orderly process that occurs in relation to the numerous briefing papers received in the Minister’s office form the Department.

174.This process was clearly not followed by Mr Boxer in this instance, as he returned the briefing to the department for revision. I am still of the view that in this case the briefing was ‘intercepted’, as it was never given to the Minister.

Impact of the recommendations on the Minister’s ability to make an appropriate decision in relation to Amendment C125

175.Despite the issues I have identified in relation to the briefing dated 25 July 2011, I consider that the inappropriate recommendations and lack of

frankness in the advice had limited, if any, impact on the Minister’s ability to make an appropriate decision in relation to Amendment C125. The briefing adequately informs the Minister of the risks associated with the decision.

176.Further, while I note that Mr Bartel’s account of her conversation with Mr Hodge about the second briefing differs from Mr Hodge’s, I am satisfied that department officers sought to further emphasise the risks of intervention in conversations with ministerial staff on more than one occasion prior to the amendment being approved.

177.The Minister’s office also obtained and reviewed the department’s legal advice and independently sought the views of the council about the amendment. I note however, that that there is some discrepancy between the evidence provided by Mr Bawden and the evidence provided by Mr Parsons about what the council’s advice was to the Minister’s office.

178.Furthermore, the Minister’s evidence indicates that when he decided to approve Amendment C125 after reading the second briefing, he was not acting on the assumption that the department supported intervention.

conclusions 37

 

www.ombudsman.vic.gov.au

179.I consider that the issues identified in relation to Ministerial briefing processes in this report provide useful lessons for the broader public sector. The recommendations in this report aimed at improving the ministerial briefing processes should be considered and adopted by all departments.

180.In response to my draft report, the Minister said:

As in any area of government, it is important that the processes and systems supporting Ministerial decision-making in planning are

appropriate. Written advice provided by a Minister’s department needs to be sound, clear, concise, responsive to the Government’s stated policy objectives and fit for its purpose. If I may say respectfully, those sections of your draft report which deal with this issue, when finalised, will contribute to the improvement of those processes and systems.

Conflict of interest and bias risk identified

181.I consider that the advice provided by Officer X to Ms Bartel in the email dated 9 September 2011 could reasonably be perceived to be biased, based on his relationship with the property owners in his former role as a private planning consultant.

182.It is clear that the advice provided by Officer X was not ‘purely factual’, but rather, it expressed a view that was supportive of the property owners’ position, based on information Officer X obtained while working as a private consultant. In these circumstances, at a minimum, Officer

X should have made it clear in his email to Ms Bartel what his previous relationship with the matter was, so that she could assess his advice accordingly.

183.In this case the advice was received after the Minister had approved Amendment C125 and as such, it could not be argued to have influenced the Minister’s decision. It does, however, demonstrate the risk of conflict of interest situations arising for planning staff as it appears it is not uncommon for department staff to have a background in private sector planning.

38 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

Recommendations

I recommend that:

Recommendation 1

The department produce written guidance for staff on ministerial briefings which includes provisions reflecting the following:

a.‘Recommendations’ should always indicate the department’s opinion about the best course of action.

b.In briefings where no opinion about the best course of action is being identified, different terminology, such as ‘options’ or ‘approvals’, should be used.

c.Ministerial sign-off should be sought by the department on all formal written briefings addressed to the Minister prior to any advice from the Minister’s office in relation to the briefing being actioned.

d.Requests for revision of briefings should not be accepted from ministerial advisors.

e.Copies of all signed briefings provided to the Minister’s office should be retained by the department.

f.Any revised briefings should be created as a new document in MiBS, with a new briefing number. They should be considered to be ‘supplementary briefing’, rather than a revised briefing.

g.Any supplementary briefings should clearly reference the original briefing and the instructions provided by the Minister in relation to the supplementary briefing, or alternatively, provide copies thereof as attachments.

h.When producing a supplementary briefing, recommendations should only be altered where the department’s views about the best course of action have in fact changed.

Recommendation 2

The department remind planning staff of their obligations in relation to conflict of interest and the risks of perceived bias.

The department’s response to my recommendations:

The Secretary of the department said:

The Department notes and accepts the recommendations of your report. Prior to receiving your report, the Department had already started to make improvements to our processes including:

Implementing the better briefings project to improve the preparation and process of briefings. This has included training of over 400 staff in brief writing.

recommendations 39

 

www.ombudsman.vic.gov.au

Revisions of briefings no longer occur. If a request to amend a brief is received, the brief is closed and a new brief is created.

Any supplementary briefs provided, will make reference to the original briefing.

In late 2012, the Department held mandatory training for all staff in

‘Recognising your Professional Obligations’. The training included a focus on recognising and managing conflict of interest.

40 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

Appendix 1

appendix 1

 

41

 

 

 

 

 

www.ombudsman.vic.gov.au

42 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

appendix 1

 

43

 

 

 

 

 

www.ombudsman.vic.gov.au

44 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

Appendix 2

appendix 2

 

45

 

 

 

 

 

www.ombudsman.vic.gov.au

Appendix 3

46 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

appendix 3

 

47

 

 

 

 

 

www.ombudsman.vic.gov.au

Appendix 4

48 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

appendix 4

 

49

 

 

 

 

 

www.ombudsman.vic.gov.au

50 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

appendix 4

 

51

 

 

 

 

 

www.ombudsman.vic.gov.au

52 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

appendix 4

 

53

 

 

 

 

 

www.ombudsman.vic.gov.au

54 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

appendix 4

 

55

 

 

 

 

 

www.ombudsman.vic.gov.au

56 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

appendix 4

 

57

 

 

 

 

 

www.ombudsman.vic.gov.au

58 advice provided to the office of the minister in relation to land development at phillip island

 

www.ombudsman.vic.gov.au

59

 

Ombudsman’s Reports 2004-14

2014

Ombudsman Act 1973 Investigation into Latrobe City Council’s failure to reinstate Summerfield Track following a landslip in June 2012

March 2014

Ombudsman Act 1973 Investigation into deaths and harm in custody

March 2014

Ombudsman Act 1973 Conflict of interest in the Victorian public sector – ongoing concerns March 2014

Ombudsman Act 1973 Ombudsman’s recommendations – Third report on their implementation

February 2014

Ombudsman Act 1973 Investigation into a complaint about the conduct of Authorised Officers on V/Line

February 2014

2013

Ombudsman Act 1973 Investigation into children transferred from the youth justice system to the adult prison system December 2013

Ombudsman Act 1973 Review of the governance of public sector boards in Victoria December 2013

Ombudsman Act 1973 Report on issues in public sector employment

November 2013

Ombudsman Act 1973 A section 25(2) report concerning the constitutional validity of aspects of Victoria’s new integrity legislation October 2013

Ombudsman Act 1973 Own motion investigation into unenforced warrants August 2013

Whistleblowers Protection Act 2001

Investigation into allegations of improper conduct by a Magistrates’ Court registrar May 2013

2012

Own motion investigation into the governance and administration of the Victorian Building Commission

December 2012

A section 25(2) report to Parliament on the proposed integrity system and its impact on the functions of the Ombudsman December 2012

Whistleblowers Protection Act 2001

Investigation into allegations concerning rail safety in the Melbourne Underground Rail Loop October 2012

Whistleblowers Protection Act 2001

Investigation into allegations of improper conduct by CenITex officers

October 2012

Whistleblowers Protection Act 2001

Investigation into allegations of improper conduct involving Victoria Police October 2012

Whistleblowers Protection Act 2001

Investigation into allegations against Mr Geoff Shaw MP

October 2012

Investigation into the temporary closure of Alfred Health adult lung transplant program October 2012

Investigation into an alleged corrupt association

October 2012

Whistleblowers Protection Act 2001

Investigation into allegations of detrimental action involving Victoria Police

June 2012

Own motion investigation into Greyhound Racing Victoria

June 2012

The death of Mr Carl Williams at HM Barwon Prison – investigation into Corrections Victoria April 2012

Whistleblowers Protection Act 2001 Conflict of interest, poor governance and bullying at the City of Glen Eira Council

March 2012

Investigation into the storage and management of ward records by the Department of Human Services

March 2012

2011

Investigation into the Foodbowl Modernisation Project and related matters

November 2011

Investigation into ICT-enabled projects November 2011

Investigation into how universities deal with international students

October 2011

Investigation regarding the Department of Human Services Child Protection program (Loddon Mallee Region)

October 2011

 

Investigation into the Office of Police Integrity’s handling of a complaint

October 2011

SafeStreets Documents – Investigations into Victoria Police’s Handling of Freedom of Information request

September 2011

Investigation into prisoner access to health care

August 2011

Investigation into an allegation about Victoria Police crime statistics

June 2011

Corrupt conduct by public officers in procurement

June 2011

Investigation into record keeping failures by WorkSafe agents

May 2011

Whistleblowers Protection Act 2001

Investigation into the improper release of autopsy information by a Victorian Institute of Forensic Medicine employee

May 2011

Ombudsman investigation – Assault of a Disability Services client by Department of Human Services staff

March 2011

The Brotherhood – Risks associated with secretive organisations

March 2011

Ombudsman investigation into the probity of The Hotel Windsor redevelopment

February 2011

Whistleblowers Protection Act 2001

Investigation into the failure of agencies to manage registered sex offenders February 2011

Whistleblowers Protection Act 2001

Investigation into allegations of improper conduct by a councillor at the Hume City Council

February 2011

2010

Investigation into the issuing of infringement notices to public transport users and related matters

December 2010

Ombudsman’s recommendations second report on their implementation

October 2010

Whistleblowers Protection Act 2001

Investigation into conditions at the Melbourne Youth Justice Precinct

October 2010

Whistleblowers Protection Act 2001

Investigation into an allegation of improper conduct within RMIT’s School of Engineering (TAFE) – Aerospace

July 2010

Ombudsman investigation into the probity of the Kew Residential Services and St Kilda Triangle developments

June 2010

Own motion investigation into Child Protection

– out of home care May 2010

Report of an investigation into Local Government Victoria’s response to the Inspectors of Municipal Administration’s report on the City of Ballarat

April 2010

Whistleblowers Protection Act 2001

Investigation into the disclosure of information by a councillor of the City of Casey

March 2010

Ombudsman’s recommendations – Report on their implementation

February 2010

2009

Investigation into the handling of drug exhibits at the Victoria Police Forensic Services Centre December 2009

Own motion investigation into the Department of Human Services – Child Protection Program November 2009

Own motion investigation into the tendering and contracting of information and technology services within Victoria Police

November 2009

Brookland Greens Estate – Investigation into methane gas leaks

October 2009

A report of investigations into the City of Port Phillip

August 2009

An investigation into the Transport Accident Commission’s and the Victorian WorkCover Authority’s administrative processes for medical practitioner billing

July 2009

Whistleblowers Protection Act 2001 Conflict of interest and abuse of power by a building inspector at Brimbank City Council

June 2009

 

Whistleblowers Protection Act 2001

Investigation into the alleged improper conduct of councillors at Brimbank City Council

May 2009

Investigation into corporate governance at Moorabool Shire Council

April 2009

Crime statistics and police numbers March 2009

2008

Whistleblowers Protection Act 2001 Report of an investigation into issues at Bayside Health October 2008

Probity controls in public hospitals for the procurement of non-clinical goods and services

August 2008

Investigation into contraband entering a prison and related issues

June 2008

Conflict of interest in local government March 2008

Conflict of interest in the public sector March 2008

2007

Investigation into VicRoads’ driver licensing arrangements

December 2007

Investigation into the disclosure of electronic communications addressed to the Member for Evelyn and related matters

November 2007

Investigation into the use of excessive force at the Melbourne Custody Centre

November 2007

Investigation into the Office of Housing’s tender process for the cleaning and gardening maintenance contract – CNG 2007

October 2007

Investigation into a disclosure about WorkSafe’s and Victoria Police’s handling of a bullying and harassment complaint

April 2007

Own motion investigation into the policies and procedures of the planning department at the City of Greater Geelong

February 2007

2006

Conditions for persons in custody July 2006

Review of the Freedom of Information Act 1982

June 2006

Investigation into parking infringement notices issued by Melbourne City Council

April 2006

Improving responses to allegations involving sexual assault

March 2006

2005

Investigation into the handling, storage and transfer of prisoner property in Victorian prisons

December 2005

Whistleblowers Protection Act 2001

Ombudsman’s guidelines October 2005

Own motion investigation into VicRoads registration practices

June 2005

Complaint handling guide for the Victorian Public Sector 2005

May 2005

Review of the Freedom of Information Act 1982

Discussion paper May 2005

Review of complaint handling in Victorian universities

May 2005

Investigation into the conduct of council officers in the administration of the Shire of Melton

March 2005

Discussion paper on improving responses to sexual abuse allegations

February 2005

2004

Essendon Rental Housing Co-operative (ERHC) December 2004

Complaint about the Medical Practitioners Board of Victoria

December 2004

Ceja task force drug related corruption – second interim report of Ombudsman Victoria June 2004